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Property I
University of Oklahoma College of Law
Guzman, Katheleen



Spring 2013

What is Property?

· Property is the legal relationship between and or among persons and or entities with respect to a thing.

o A legal relationship is a series of divisible, non-absolute and relative rights.

o The rights in that property can be referred to as the bundle of sticks, the bundle being property.

o Rights in property may include:

§ Possess

§ Exclude

§ Dispose/Transfer

§ Consume/Destroy

§ Use

§ Enjoy the fruit and profits of

· Property is divisible

o Physically,

o Proportionately,

o Temporally (time), and

o Conceptually (severance).

§ Non possessory interests

· Property is not absolute, rights are relative.

· Remember, think of property as “interests in” or “rights in” property.


· Alienable: Can sell your interest within your lifetime.

· Devisable: Can pass by will.

· Descendible: Can pass by intestate succession.

I. Present Possessory Estates

A. Introduction

1. Our estate system is a product of feudalism.

i. Hierarchical system, with crown, tenants in chief, tenants in demurrer and so on. Create a relationship that involved people and land. Transfer not of the land, but rather the rights in the land. These rights are limited, fragile and temporal.

2. Feudal notions have an ongoing role in our system. Legally, property is whatever the law says it is, even though it might hold some other definition outside of a particular legal system.

i. “Clearly the theory of the law in the United States, then, is that first and originally the state was the proprietor of all real property an last and ultimately will be its proprietor, and what is commonly termed ownership is in fact but tenancy, whose continuation is contingent upon legally recognized right of tenure, transfer, and of succession in use and occupancy. When this tenancy expires or is exhausted by reason of the failure of the state or the law to recognize any person or persons in whom such tenancy can be continued, then the real estate reverts to and falls back upon its original and ultimate proprietor, or, in other word, escheats to the state.”

3. There are two types of estates: freehold and non-freehold.

i. Freehold estates include fee simple, fee tail, and the life estate.

ii. Non-freehold estates includes tenancy in years, periodic tenancy, tenancy at will, and tenancy at sufferance.

4. An estate is a term in common law for a person’s property, and its corresponding entitlements and obligations.

5. Seisin is the legal possession of a feudal fiefdom (possession and title).

i. The owner in possession of a freehold estate was said to have seisin. The owner of a non-freehold estate might have possession, but he or she could not have seisin. “Livery of seisin” was the right to transfer.

ii. Strong idea of seisin as a thing – modern deed would not have sufficed. Ceremonial – only a fiefee can conduct the ceremony. Even if you couldn’t read or write a deed, could witness this ceremony, thus had more significance and inspired trust and knowledge of possession.

6. Heirs are those who take the property under the relevant statutes of descent, meaning those who take without a will.

i. Heirs does not mean those individuals who take under a will (although this may be included in the layman’s use of the term), they are devisees, if land is being transmitted, or legates, if personal property is involved.

7. Beneficiaries are those who take the property when there is a will.

B. Real Estate Transactions : Contract, Deed, and Will

1. Mostly dominated by state law – no national law governing the sale of land although various federal statutes do impinge on real estate transactions.

2. Also a strong basis in contract law – offer, acceptance, consideration are an important part of this aspect of property law.

3. The contract for the sale of land and the deed conveying the legal title to the land are two documents that represent two separate legal tran

to create a marketable title. Cole v. Steinlauf

5. Not marketable title if you do not own the property you purport to sell.

D. Fee Simple Absolute (packaged rights)

1. Definition: Absolute ownership. Best present possessory interest because it is freely divisible, descendible, and alienable.

i. It is freely divisible. (To be freely divisible means it is keepable of passing by will.)

ii. It is freely descendible. (To be freely descendible means it freely passes to one’s heirs if dies in testate, without a will.)

iii. It is freely alienable. (To be freely alienable means it is transferable inter vivos, meaning during one’s lifetime.)

2. How Created: “To A.” or “To A and his heirs.”

i. Construction of conveyance is to be determined by the intention expressed therein.

ii. Common law required words of inheritance for the creation of a fee simple deed. This meant not just “To A,” but rather “To A and his heirs.” The failure to include resulted in the conveyance of only a life estate. Cole v. Steinlauf

a. A conveyance that omits the word “heirs” does not express an intention to grant a fee simple estate with sufficient certainty to create a marketable title.

b. At common law, to convey title in fee simple, a grant must include words of inheritance – i.e., to the grantee “and his heirs.” The failure to include the heirs creates a life estate only.

c. Evidence to contrary intentions of the grantee may be permitted if it exists.

iii. Today, due to statute, fee simple absolute is presumed, it’s the default.

3. Accompanying Future Interest: Since it is absolute ownership there is no coordinating future interest.