Property I Outline

Professor Wood – Property – Spring 2015

Exam Strategy:

· Focus on time alottment

· Say what the issue is

· Say what the rule is

· Apply the rule

o #1 mistake is NOT applying the rules

o students have been giving policy arguments w/o applying the rules

· No jokes on the exam

o What count as a joke? Don’t say anything a reasonable person wouldn’t say in Court.

o Don’t cuss.

Vocabulary

1) General Property Vocabulary

a. Deed requires:

i. Name of grantor

ii. Name of grantee

iii. Description of property

iv. Manifests intent to convey

v. Signature of grantor

b. Vested

i. secured in the possession of or assigned to a person.

2) Adverse Possession Vocabulary

a. Color of Title

i. sometimes used – means that the possessor was acting under a deed that was erroneous/If the possessor acted under color of title, she gains rights to all the property even if she possessed only part of it.

b. Constructive possession:

i. Where a person in adverse possession actually possesses only a PORTION of the property under COLOR OF TITLE, she is deemed to “constructively possess” the whole parcel unless:

1. the parcel is divided into two distinctive lots; or

2. a third person is in possession of part of the premises

c. Quiet Title Action

i. When you bring a quiet title action – it’s a claim for adverse possession

d. Tacking

i. When an owner uses evidence of a prior owner/occupant’s use of land in order to establish a claim for adverse possession

e. Title Insurance

i. Insures that you have clean title

f. Tolling Doctrine

i. For the statutory period (varies between states)

ii. tolling doctrine for: disability, incompetency, infancy (and sometimes prison and absentee status)

3) Co-Tenancy

a. Common Ownership

i. These are ownerships shared in the present time. They can fit into any of the future interests or estates we talked about

ii. Types:

1. tenancy in common

2. joint tenancy

3. tenancy in entirety

4. community property

5. condominiums

6. cooperatives

b.

4) Easement Vocabulary

a. Implied v. Express easements

i. Implied easement = “constructive easement”

ii. Express easement = written down, agreed to

b. Negative v. affirmative

i. Affirmative – Right to do something on another’s land

ii. Negative – Prevents a property owner from doing something on their land

c. Dominant and Servient Estate

i. Servient estate – The party burdened by the easement = the land owner.

ii. Dominant estate – The party benefiting from the easement = the non-owner

d. Reserved v. Conveyed

i. Reserved – The grantor expressly reserves a right to retain access to the property for a specified

ii. Conveyed – The grantor grants full access to a non-owner

e. In Gross and Appurtenant

i. Test

a. To distinguish appurtenant from in gross easements, courts ask: would the easement be useful apart from ownership of the adjoining land? If so, likely in gross.

ii. Appurtenant:

a. think that it benefits the land and attaches to it (i.e. easement to cut across X prop from your property)

b. è Presumption in some states favoring appurtenant easements.

iii. In gross:

a. Think that the easement is independent of your ownership of X land, i.e. the benefit of that easement would be useful to you independent of your ownership of X land, (i.e. you want to have access to someone’s private riverfront backyard for easement for boat access – and your property is far away. This easement isn’t physically connected to your property. It’s independent of your ownership of X prop, doesn’t attach to your prop)

b. è Can’t sever the easement from the land (owner can’t take the easement with her when she sells).

c. è Can’t “unreasonably burden” servient estate.

5) Future Interest Vocabulary

a. Dead Hand Control

i. Creates certainty in land use long after O dies by making restriction part of the estate (not servitude or covenant)

ii. Affects marketability

b. Defeasable Fees (category of estate) = someone is present holder but property will be snatched upon happening of condition NOT death

i. FSD/FSSCS è upon happening of condition, possessory interest goes back to O

1. Fee Simple Determinable = property automatically goes back to O. (Hint: think that this one is PRE-DETERMINED and that no matter what you do, destiny has been fated and prop automatically goes back to O)

2. Fee Simple Subject to Condition Subsequent = reel in. O has to assert property right to get it. Until then, current owner keeps prop. (Hint: think O ONLY has the property on the CONDITION that he asserts his property rights. Otherwise, he is SOL.)

ii. FSSEL è upon happening of condition, possessory interest goes to 3RD party automatically

c. Devisee

i. People who take property when someone dies WITH a will

ii. A devisee can be anything not against public property (could be a library). Trusts as an entity = devisee

d. Estate

i. Description of title itself

e. Fee Tail

i. Rule abolished almost everywhere

ii. But if comes up, states either interpret as FSA or as LE with remainder in children or descendants (limits the tail to a few generations)

iii. Language: “O to A and the heirs of her body”

iv. Traditional rule – conveyed property down line of blood descendants

f. Future Interest

i. Future interest exists the moment it’s created even though the person holding the future interest does not have possession. If you have a future interest, you have a property right, but not possession

ii. FI can be sold

iii. Family LLC creates no FI

iv. Five Types

1. Possibility of Reverter =

a. When the owner of a fee simple absolute transfers a fee simple determinable, the grantor automatically retains a possibility of reverter, meaning that the grantor or grantor’s devisees/heirs get the land back if the condition is breached. O’s future interest is called “possibility of reverter”. All states allow this possibility of reverter to be inherited, or to be devised by will; most but not all states also allow it to be conveyed inter vivos)

2. Right of Entry

a. If the holder of an interest in land conveys his interest but attaches a condition subsequent, the transferor has a “right of entry”, meaning that upon the happening of X condition O gets the property back. O’s future interest is called “right of entry”. Most commonly, O who holds FSA and then conveys FSSCS has right of entry.

3. Reversion

a. Reversion is a future interest that is retained by the grantor after the conveyance of an estate of a lesser quantum than he has (such as the owner of a fee simple granting a life estate or a leaseh