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Property I
SUNY Buffalo Law School
Steinfeld, Robert J.

SUNY Buffalo – Steinfeld Property Outline Fall 2015
First Possession and Systems of Estates
I.                   First Possession/Discovery and property rights:
Johnson v. M’Intosh
            Johnson was given land by Native Americans, Macintosh by land grant through the gov’t.  Mac wins as (although John Marshal agreed this was somewhat unfortunate) that the gov’t can only legally honor grants given by the state itself.
1. The Rule of Capture
Pierson v. Post
            The “who gets the fox” case.  “Trespass on the case” = interfering with someone else’s property.  Held that only possession equaled ownership – Just because the fox was being chased, it was not yet owned as it could still escape.  Only killing maiming, or trapping (such that it could not escape) gave ownership. 
II.                SYSTEMS OF ESTATES: FSA – FT – LE – LH – (easements – for particular use)
·         When in current Possession of land, one may use, live on, and exclude.
·         When no one owns (such as no heirs and no will) property escheats.
·         Heirs may include children, collaterals, ancestors – is listed by statute (NY 4-1.1)
a.       An estate in fee simple absolute is the largest estate permitted by law. It invests the holder of the fee with full possessory rights, now and in the future. The holder can sell it, divide it, or devise it; and if she dies intestate, her heirs will inherit it. The common law rule requiring technical words of inheritance (“and his heirs”) has been abolished by statute. Typically, such statutes provide:  “A fee simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended
2.      THE FEE TAIL
a.       We don’t have these anymore, anywhere.  The fee tail, typically created by the words “to A and the heirs of his body,” limited inheritance to lineal descendants of the grantee. If no lineal descendants survived at the grantee’s death, the property either reverted to the grantor or her successors or passed to a designated remainderman.
a.       cannot last longer than the life or lives of one or more persons. It may arise by operation of law or may be created by an act or agreement of the parties.
b.      You can leave someone a LE and add additional powers such as a mortgage or sale if it also provides for the proceeds (so Life tenant doesn’t use them all up.)
White v. Brown – what kind of estate did Jesse Lide leave?
·         In cases of ambiguity, courts may use “rules of construction” to determine the type of estate in a will. 
·         “intention” can be a tie breaker.”  “change of circumstances” may as well.
·         “Cy Pres” – “as near as possible” to what the deceased wanted.
·         Unless otherwise stated, a will grants a fee simple.  Since Jesse Lide used language that forbade sale, the question arose as to whether she was willing a fee simple or a life estate.  WHEN IN DOUBT the state tends toward creating a fee simple.
·         If in the construction of a will there are two competing “rules of construction” the court will tends toward the one allowing for a creation in fee simple, unless clearly violating the intention of the testator.
            a. NY 6-1.1 – estates at will and by sufferance (#’s 5-8 in the statute are LHs).  Covered later in outline.
·         End @ an event
·         Often conveyed or willed.
·         Grantor keeps the possibility of reverter or entry.
·         Habendum clause: clause in deed or lease which defines the kind of interest/rights to be enjoyed by the grantee/lease.
a.       Fee Simple Determinable – Limitation
·         To create, use language of limitation: “you have property so long as you use it for X” or “You have this property until you no longer use it for X.”
·         Grantor keeps possibility of reverter, Reverter Happens automatically
b.      Fee Simple Subject to Condition Subsequent (FSSCS) – Conditional
·         To create, use “but if.” – “To the school, its successors and assigns, but if the premise no longer used for school than the grantor has the right to reenter.
·         Grantor keeps the right of re-entry (termination) IF the condition happens. Not automatic, must claim.
c.       Fee Simple S

Possibility of Reverter
3)      Right of entry
1)      Vested Remainder – see below
                                                              i.      Indefeasbly vested (no condition)
                                                            ii.      Subject to open (can partially divest)
                                                          iii.      Subject to complete defeasance
2)      Contingent Remainder – see below
3)      Executory Interest – (condition precedent is part of having a ex. Int.)
                                                              i.      Divesting interest – ends before the “natural ending”
c.       Future Interests that transfer to another party
1)      When a third party is involved, first steps is to ask “is it a remainder or an executory interest?
                                                              i.      How do you tell?
1.      One way is if there is a gap. – executory int.
2.      Next, “is the interest capable or “grabbing away” someone else’s interest? (such as a condition). – executory interest
Pg. 281 prob: b’s interest is not a remainder because there is a gap between when he is eligible to take the property and the death.  During the gap, O keeps a FSD.  B has a executory interest (since it “grabs away” the property once he is eligible). 
Remainders: Interest that doesn’t “grab”, but “waits patiently for other’s interest to end.
a.       Contingent
b.      Vested
Question 1. Can you ascertain the exact person yet?
            Ex: To A for life, than to A’s children.
                        No – If no children yet = contingent
                        Yes – if has children = vested
                        If A dies childless O keeps a reversion.