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Property I
University of Dayton School of Law
Watson, Blake Andrew

Basic Property Concepts: Possession and Ownership. 2
A.    Discovery and Occupancy. 2
B. Capture. 3
C. Adverse Possession. 3
Common Law Estates. 5
A.    The Seven Estates. 5
1.     Fee Simple Absolute. 5
2.     Fee Simple Determinable. 6
3.     Fee Simple Subject on a Condition Subsequent6
4.     Fee Simple Subject to Executory Limitation. 6
5.     Fee Tail6
6.     Life Estate. 6
7.     Term For Years. 6
B.    Future Interests. 6
2.     Reversion. 6
3.     Contingent Remainder7
4.     Vested Remainder7
5.     Vested Remainder Subject to Open. 7
b.     Rule of Convenience. 7
6.     Vested Remainder Subject to Divestment7
C. Waste. 7
D. The Defeasible Fees. 7
a.     Fee Simple Determinable. 7
b.     Fee Simple Subject to a Condition Subsequent7
c.     Fee Simple subject to Executory Limitation. 7
E. Executory Interests. 8
a.     Springing executory interests. 8
b.     Shifting executory interest8
F. Rules Furthering Marketability. 8
1.     Destructibility of Contingent Remainders. 8
The Rule in Shelley’s Case. 8
Concurrent Ownership. 9
G. Joint Ownership. 9
Chapter 5 Real Estate Transactions. 10
Fraud. 10
Deeds: Basic elements in Real Estate Purchase. 10
Bona fide purchaser for value. 10
Elements of a Deed. 11
The Three Deed Types. 11
General Warranty Deed. 11
Limited Warranty Deed. 11
Quit-Claim Deed. 11
Marketable Title. 11
Contractual Obligation. 11
Title Problems. 11
Covenants. 11
I.    The Six Deed Covenants. 11
III.       Present Covenants. 12
IV. When are Covenants Breeched?. 12
V. Breech of Present Covenant12
Recording Acts. 13
I.      Three types of Recording Acts:13
Pure Race. 13
Pure Notice. 13
c.     Steps for Recording Act13
d.     Estoppel by Deed. 14
e.     Shelter Rule Exception. 14
The Law Neighbors: Servitudes and Nuisances. 14
>>>>>>>>>>>>>>>>>>>>>>. 16
Servitudes. 16
Three functions of Servitudes. 16
Three means of affirmative use:16
Easements. 17
Prescriptive Easement17
Appurtenant Easement17
Implied Easement17
Rights: Negative and Affirmative Obligations. 17
Real Covenants. 18
Basic Property Concepts: Possession and Ownership
A.    Discovery and Occupancy
a.       Johnson and Graham’s Lessee v. McIntosh (U.S. Sp. Ct., 1823) pg. 2-9
Johnson and Graham sought to eject McIntosh from an area of land to which they claimed ownership. Their claim of ownership was from title to the land which was bought by Johnson senior from the Piankeshaw Indians. McIntosh received the land from the US govt.
Discovery of land in America by a European power gives absolute title subject only to the Indian right of occupancy, thus the Piankeshaw Indians never had absolute title of the land to sell to Johnson.
Marshall stated that through the Doctrine of Discovery, which said that land discovered by Europeans gave absolute title to the country from which the discoverer came. Thus the US received absolute title from Great Britain after the revolutionary war, but Marshall also mentions title by conquest, which the courts of the conquer can’t deny.
Marshall also refers to Locke’s theory of labor which stated that we own ourselves and our labor, and if we work on the land we then own it. Since the Native Americans were hunters they moved around and thus didn’t p

Paying taxes
Physical control
·         Placing new items on land
·         Fence, no trespass sign
·         Things clamant did
Elements of color of title: 
The instrument relied on must be bona fide
Must purport on its face to convey title to the land
Description of the land claimed
True owner must have actual OR constructive (recorded at the courthouse) notice of the instrument and its contents.
Adverse Possessor must make the claim to be actual owner
Open & Notorious – Acting like the rightful owner would with the property. “Open” acts such as a real owner might do. (Puts the real owner on notice). Visible possession of the land and use of the land is “commonly known” or should have been known to the real owner. Not hiding activity on land.
What others perceive U to be doing on property
·         Land improvements
·         Mowing yard
·         Telling others of occupancy
·         Acting as if land is yours
Exclusive – The clamant must be sole user of land for own use and not for another and exert authority over the use of the land as would the legal owner.
Conduct towards others on the land
·      Nobody on land w/o your permission
·      Who is on the land?
·      Chase “trespassers” off land.
·      Have a party
·      Invite guests to visit/stay