LSE Key Concepts: PROPERTY

PROPERTY IN CONTEXT: BIG PICTURE • Tacking: Allows a possessor to “tack on” a predecessor’s
Property law = rights among people relating to things time to satisfy continuity for the statutory period
• Rights (e.g., to use, exclude, alienate, possess, destroy) o Requires privity (i.e., voluntary transactional relationship)
• Among people (relational and limited by rights of others) with predecessor
• Things (real and personal, tangible and intangible, etc.) • Tolling: Situations where running of the SOL pauses;
includes owner’s disability (infancy, imprisonment, mental
incapacity)
FIRST POSSESSION
Issue: How to establish ownership over something unowned
General rule: First in time, first in right GIFTS
• Possession ≠ Ownership A voluntary transfer of property without payment or
 Johnson v. M’Intosh (Doctrine of discovery; held that consideration
indigenous tribes in America only had rights of occupancy to • Gifts of real property must satisfy Statute of Frauds
land, and could not sell valid titles to the land) • Valid gifts = irrevocable.
• “Possession” can be situational and relative Gifts inter vivos require the following (in any order!):
 Pierson v. Post (Fox case; ownership can be established by • Present intent to make an irrevocable gift;
capture) • Delivery to donee (actual, constructive, or symbolic); and
• Acceptance (presumed if gift had value)
 Gruen v. Gruen (Father wanted to gift painting to son and
SUBSEQUENT POSSESSION delivered a note instead of the painting; note was effective
Coming into possession of something that is already owned by symbolic delivery)
someone else Wedding/Engagement Gifts: Courts are split between
Abandoned property: True owner has relinquished all rights to it treating them as (i) conditional gifts that must be returned if
= Finder becomes new owner marriage does not occur, or (ii) typical irrevocable gifts.
Lost property: True owner unintentionally parted with it
= Finder acquires best title against all except (i) the true owner
or (ii) prior possessor GIFTS CAUSA MORTIS
Mislaid property: True owner intentionally put it somewhere and A gift made in anticipation of donor’s death; considered a will
accidentally left it there = Finder acquires no rights substitute
• Same requirements as inter vivos gifts, PLUS:
o Given motivated by and in contemplation of imminent
ADVERSE POSSESSION (AP) death; and
A doctrine that can allow a wrongful possessor’s use of o Donor must actually die
property to blossom into rightful ownership • Courts split on whether gifts in contemplation of suicide are
• If owner does not eject the possessor before the SOL runs, enforceable gifts causa mortis.
adverse possessor receives title that relates back to the
beginning of the AP
• Possession must be: (i) actual, (ii) open and notorious, (iii) ESTATES IN LAND
hostile, and (iv) continuous for the statutory period Estates are interests in things; property law determines who
(consistent with nature of property). holds these interests.
 Marengo Cave v. Ross (Court ruled that underground use of a • Time: Estates in land are measured by how long they last
cave was not sufficiently visible to satisfy adverse possession’s • Possession may be simultaneous or consecutive
“open and notorious” requirement) • May be a present estate or future interest
A vested interest gives the holder an immediate right to title.

ADVERSE POSSESSION – SPECIAL ISSUES

• Color of Title: AP based on a faulty writing (e.g., bad deed THE FEE SIMPLE ABSOLUTE & LIFE ESTATE
or fraudulent contract) • Fee Simple Absolute: Unlimited estate including all rights;
o Some states require color of title or shorten the SOL for can be devised or alienated; can last indefinitely
color of title • Life Estate: Lasts for duration of measuring lifetime; leaves
o Constructive Adverse Possession applies: Allows a future interest; can be measured by holder’s life or the life
possessor to acquire whole property described in faulty of another (i.e., pur autre vie)
writing, even if only actually possessed part of it
THE FEE SIMPLE DETERMINABLE SPECIAL ISSUES IN ESTATES
A present fee interest that is capable of being indefinite, but Waste: When multiple parties have interests in the same
may be cut short because it is limited by specific durational property (concurrently or consecutively), one party’s actions (or
language inactions) must not injure the other party’s interests
• Magic words: “So long as,” “While,” or “During which time”  McIntyre v. Scarbrough (Life-estate holder failed to maintain
• Followed by Possibility of Reverter held by grantor; vests property; holder of vested remainder successfully moved to
automatically dissolve present estate to prevent further waste)
• Permissive: Inaction leading to waste
THE FEE SUBJECT TO A CONDITION SUBSEQUENT • Voluntary: Affirmative action leading to waste
• Ameliorative: Improvements against the wishes of other
A present fee interest that is capable of being indefinite, but
interest holders
may be cut short because it is limited by specific conditional
Cy Pres: Equitable power to fix a conveyance when it cannot
language
be satisfied by its terms
• Magic words: “But if,” “On the condition that,” or “Provided
• Often applies for gifts with charitable purpose
that”
• Can be prevented with a clause in the conveyance
• Followed by Right of Entry held by grantor; does not vest
automatically
o If future interest is held by third-party, present interest THE RULE AGAINST PERPETUITIES (RAP)
becomes fee simple subject to executory limitation. Purpose: Prevents an owner from tying up future interests for
more than two generations (life +21 years) by striking future
THE FEE SIMPLE SUBJECT TO EXECUTORY interests unless they will vest or fail within that time
• Validating life: Look for person who determines if future
LIMITATION interests will vest or fail (i) in their lifetime, (ii) at their death,
A present fee interest that is capable of being indefinite, but or (iii) within 21 years of their death
may be cut short by a future interest held by a third party Three steps:
• Operates like Fee Simple Subject to Condition Subsequent, • Does RAP apply? Only to contingent future interests (i.e.,
except (1) third-party holds the future interest, and (2) contingent remainders, vested remainder subject to open,
divests automatically and executory interests)
• Executory Interests: Future interest held by a third party • Is there a validating life? Determine the last moment in
and divesting a Fee Simple Subject to Executory Limitation time the interest could possibly vest or fail, and ask if that
o Shifting: Grantee divests another grantee moment could be after everyone alive at the time of
o Springing: Grantee divests the grantor conveyance (i.e., lives in being) has been dead 21 years.
• Assess. If interest could vest or fail 21 years after all lives in
REVERSIONS & REMAINDERS being are dead, there is no validating life; strike that interest.
• Reversions: Future interest held by the grantor; always
vested; follows natural expiration of a lesser estate PESKY RAP PROBLEMS
• Remainders: Three types, but always held by a grantee • RAP Assumptions: Everyone can have kids (regardless of
after natural expiration of prior estate age and/or fertility); and everyone dies.
o Vested: Taker is ascertained and no conditions precedent • Unborn Widow: Contingent future interests after gifts to
apply unnamed “widows” fail for lack of a validating life in being
o Contingent: Remainder in unascertained party or subject o O to A for life, then to A’s widow (W), then to A’s issue
to condition precedent then living (Won’t know who W is until A dies; W might not
o Vested Subject to Open: Class gift where at least one be alive at conveyance; if W outlives A by 21 years, A’s
member is vested living issue’s interest will neither vest nor fail within 21
years of A’s death; future interest for A’s issue FAILS RAP
Present Estate Future Interest
for lack of validating life)
Fee Simple
Grantor: Possibility of Reverter
Determinable • Fertile Octogenarian: Try testing RAP problems by
Fee Simple Subject assuming everyone reproduces then dies
to Condition Grantor: Right of Entry o O to A for life, then to A’s first child who reaches 25
Subsequent (Because we assume A can reproduce until their death, it is
Life Estate; Term possible for A to have a living child who has not died or
Grantor: Reversion
Estate (e.g., reached 25 within 21 years of A’s death)
3rd Party: Remainder
leaseholds)
Fee Simple Subject • Magic Gravel Pit: Ill-defined deadlines (e.g., events that
to Executory 3rd Party: Executory Interest could take a year or 100 years) can extend indefinitely
Limitation o O to A for life, but when O’s gravel pit is fully exhausted, to
B (Assume gravel pit is bottomless; strike B’s interest)

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RAP TRENDS TENANCIES (LANDLORD/TENANT)
Savings clauses: may prevent RAP violations (e.g., “Any interest Landlord/Tenant law is governed by contract law (re: lease
deemed to violate RAP shall terminate 21 years after the last life agreement) and property law (re: estates and future interests).
in being has died.”) • Term of Years: Lease for fixed amount of time; terminated
“Wait and See” approach (Modern trend): Let events play out automatically at end of term
and only strike interests that do not vest/fail within the period • Periodic tenancy: Continues for successive periods until a
(90 years for USRAP) party terminates (usually not in middle of a period)
• Applies to Options and Rights of First Refusal • Tenancy at Will: Lease based on affirmative agreement that
 Symphony Space v. Pergola Properties (RAP applies to all can be terminated by either party at any time
option agreements, including rights of first refusal) • Tenancy of Sufferance: Leasehold in name only, resulting
when tenant “holds over” after a lease ends; landlord must
TENANCY IN COMMON (CONCURRENT OWNERSHIP) decide to (1) re-rent to tenant, or (2) evict
Concurrent ownership interests = simultaneous; law assumes
concurrent owners occupy the same space at the same time. TRANSFERS (LANDLORD/TENANT)
• Tenancy in Common (Default): Separate but undivided Assignment: Tenant transfers her entire interest
interests; no right of survivorship; shares need not be equal Sublease: Tenant transfers less than entire interest
• Partition: Equitable action to transform concurrent  Ernest v. Conditt (Parties called their agreement a “sublease,”
ownership interests into separate ownership interests but court held that it was an “assignment” because it
o In Kind (default): Physically divide the land transferred the entire leasehold interest)
o In Sale: Land is sold and profits distributed Assignment: Landlord can collect rent from tenant (privity of
contract) or transferee (privity of estate)
JOINT TENANCY (CONCURRENT OWNERSHIP) Sublease: Landlord can only collect rent from tenant
• If lease silent, can transfer without permission; if lease
Concurrent estate where joint tenancy have equal and
requires permission, landlord can only refuse for commercially
undivided interests with rights of survivorship
reasonable reason (under majority rule; minority allows
Right of Survivorship: Upon death, a joint tenancy
refusal in landlord’s discretion)
automatically goes to the surviving joint tenants; tenancy
cannot be devised
Creation language: “As joint tenants with a right of CONDITIONS OF LEASEHOLD (LANDLORD/TENANT)
survivorship” (although some courts require less) Covenant of Quiet Enjoyment: Every lease includes a
Four Unities for Joint Tenancies (TTIP) covenant that landlord will not disrupt tenant’s possession; may
1. Time: Must be created at same time take form of actual or constructive eviction
2. Title: Must be created by same instrument o Actual: Wrongful eviction
3. Interest: Must be same interest (estate, amount) o Constructive: Conditions are so bad that they are akin to
4. Possession: Tenants must have right to possess the whole eviction
Losing a unity severs joint tenancy as to that interest (becomes o Breached if conditions substantially interfere with tenant’s
tenancy in common) ability to make proper use of the premises

Constructive Eviction as Remedy: Upon breach, tenant can:

SPECIAL TOPICS IN CONCURRENT OWNERSHIP (1) give notice, (2) give landlord reasonable opportunity to fix
Tenancy by the Entirety (minority rule): it, (3) stop paying rent, and (4) vacate the leasehold
• Special joint tenancy for spouses; requires TTIP unities plus Warranty of Habitability: (Residential only) Landlord must
marriage; right of survivorship applies provide healthy and safe living conditions; similar to
• Encumbrances: Not subject to debts and liens of one spouse constructive eviction, but need not leave to recover
Other Issues in Concurrent Ownership
• Possession: Generally, each concurrent owner has right to
possess the whole LAND TRANSACTIONS
• Ouster: Tenant in possession denies possession to another Two stages to land transactions:
co-tenant 1. Contract Stage: Parties negotiate terms; liability based on
• Rent received and necessary operating expenses are contract
divided according to ownership interests. 2. Deed Stage: Seller transfers property; liability based on deed
• No right to reimbursement for improvements or necessary Statute of Frauds: Essential terms of transfer must be in a
repairs; only credit upon partition writing signed by the party against whom the agreement will be
• Co-tenants generally not fiduciaries enforced, unless an exception applies:
Part Performance is evidence that the contract existed (e.g.,
payment of all/part of purchase price, buyer taking possession,
or improvements by buyer)
Detrimental Reliance: Party reasonably relied on contract
and will suffer hardship if not enforced

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SELLER’S DUTIES AT CONTRACT STAGE RACE STATUTES
Implied covenant of marketable title (title free from First to record wins; look for language like “first recorded” or
unreasonable risk of litigation) included in all land sale contracts “first to record”
• Standard: According to a reasonable buyer • “No conveyance or mortgage of real property shall be good
• Remedy: Buyer rescinds contract against subsequent purchasers for value unless the same be
Seller of a residence has duty to disclose all material defects first recorded according to law.”
(substantially affect the value of the home, health and safety of
occupant, or desirability) NOTICE STATUTES
 Reed v. King (Failure to disclose that a murder had occurred
Subsequent purchaser wins if she takes without notice of a
in the residence breached the duty to disclose)
prior unrecorded conveyance; look for language like “in good
 Johnson v. Davis (Seller misrepresented water damage as
faith” or “without notice”
wallpaper glue, breaching duty to disclose)
• “No conveyance or mortgage of real property shall be good
The three basic types of remedies to “contract-stage” breaches:
against subsequent purchasers for value and w ithout notice
• Damages
unless the same be recorded according to law.”
• Rescission
Three types of notice:
• Specific Performance
• Actual: Real, personal knowledge of prior transfer
• Constructive: Prior interest is property recorded (i.e. record
DEEDS notice)
Legal instrument used to transfer property • Inquiry: Should have been on notice had they look at the
• Deed must contain (i) identity of parties, (ii) reasonable land or documentation (e.g., someone occupying the land or
description of property, (iii) granting clause showing intent to deed mentions another interest)
make a transfer, and (iv) signature of grantor
Three types of deeds: RACE NOTICE STATUTES
• Quitclaim: Seller makes no warranties about title
Subsequent purchaser wins if she takes without notice of a
• Special Warranty: Seller warrants that seller has not
prior unrecorded conveyance, and records first; combines
caused defects to title
requirements of other statutes
• General Warranty: Seller warranties against all defects
• “No conveyance or mortgage of real property shall be good
against subsequent purchasers for value and w ithout notice
LAND TRANSACTIONS IV unless the same be first recorded according to law.”
Present Covenants (regarding condition of land/title at time
of conveyance) EASEMENTS
• Seisin: Deed describes land in question
Non-possessory right to use land
• Right to Convey: Seller has power to transfer the land
• Affirmative (right to do something on another’s land)
• Against Encumbrances: No undisclosed strains on title
• Negative (right to prevent someone else from doing
Future Covenants (regarding future conditions or conduct)
something on their own land)
• Quiet Enjoyment: Buyer’s possession will not be disturbed
• Dominant Estate: Land benefited by easement
• Warranty: Seller will defend buyer against future claims of a
• Servient Estate: Land burdened by easement
third party
• Two classifications of easements:
• Further Assurances: Grantor will fix future problems that arise
o Appurtenant: Easement benefits holder in use of a
Deed must be (i) delivered, and (ii) accepted.
particular piece of property
• Delivery: Requires grantor’s intent to convey the land; does
o In Gross: Easement benefits the holder personally,
not require physical delivery; cannot be speculative; can be
regardless of where they live
made to agent
• Acceptance: Presumed if transfer has value Express Easement: Created by express grant; must satisfy
SOF because it creates an interest in land
COMMON LAW RECORDING Easement by Estoppel: License (i.e., use permission) that
Recording (puts others on notice of an ownership claim to become irrevocable because of detrimental reliance
property)  Holbrook v. Taylor (Detrimental reliance on license to use a
• Can help assure title, but is not required by law road made it irrevocable and created an easement by estoppel)
• Can record deeds, property interests, judgments, etc. Easement by Prescription: Effectively created by adverse
• Recording does not affect validity of a deed, only its possession for statutory period; does not require exclusive use
enforceability against subsequent purchasers like averse possession
• Common Law: First in time, first in right Easement by Necessity: Arise after a larger parcel is
• Recording Statutes: Protect certain subsequent purchasers subdivided to grant a landlocked parcel necessary access to
from losing their interests under the common-law rule public roads
o When no party can claim the protection of the recording
statute, common law still controls
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• Implied Easement (Prior Use): Landowner uses one side ZONING AND TAKINGS
of property to benefit another, severs and sells the burdened Zoning (Local govt. power to regulate property use in its
portion, and continues the prior use jurisdiction to segregate incompatible land uses)
• Power comes from state police powers and municipality
SCOPE OF EASEMENTS enabling statutes
 Henley v. Continental Cablevision (Landowner gives easement  Village of Euclid v. Amber Reality (Upheld practice of zoning)
to utility company, who gives a license to a cable company; • Variance: Administrative approval of a new use in violation
license for additional cables was permitted because they did not of current zoning rules
increase burden on servient estate) • Nonconforming Uses: Use that was proper before a change
 Davis v. Bruk (Burdened landowner not permitted to to zoning rules; owner may seek approval to continue as long
unilaterally move a right-of-way easement) as they can show a vested right
Termination of Easements o Vested Right: Owner must have proper building permit
• Release: Holder executes a formal written release and have made substantial progress toward achieving the
• Expiration: Terminates naturally under the terms of the nonconforming use when the zoning law goes into effect
easement (e.g., end of stated term)
Takings (5th Amendment; private property cannot be taken for
• Merger: Ends if the dominant and servient estates come
public use without just compensation)
under the same owner
• Eminent Domain: Government (1) takes private property
• Abandonment: Holder affirmatively relinquishes the
for its own public use or to give to another for public use, or
easement, and servient owner relies on it
(2) physically occupies private property
• Prescription: Terminated by adverse possession
 Kelo v. New London (City took private property for economic
development; interpreted as public use)
REAL COVENANTS  US v. Causby (Military flights regularly flying low over
Real Covenant (Promise re: use of land that is enforced landowner’s property was a taking)
against successors in interest at law by an award of damages) • Regulatory Taking: Private property is regulated to the
• Promise needs to be in writing (i.e. satisfy SOF) point that its value decreases
• Original parties must intend for the promise to bind  Lucas v. South Carolina Coastal Council (Zoning ordinance
successors in interest (i.e., to run with land) prohibiting any development on owner’s beachfront property
• Promise must touch and concern the land was a regulatory taking)
• Successors must have notice
• Real covenants require privity (i.e. transactional agreement)
o Horizontal: Between the original parties making the
promise (only required for burden to run with land)
o Vertical: Between the previous holder and the successor
in interest (required for benefits and burdens)

EQUITABLE SERVITUDES
Equitable Servitude (Promise re: use of land that is enforced
against successors in interest at equity by injunctions)
• Requirements: (i) Writing; (ii) Intent to run with the land;
(iii) Touch and concern the land; and (iv) Notice
Reciprocal Negative Easement (Negative covenant implied
when a seller intends to create a servitude on all plots in
accordance with a common scheme; party against whom
enforcement is sought must have notice)
 Sanborn v. McLean (Landowner sells multiple residential lots
as part of a planned subdivision; lots sold later as part of the
same planned subdivision are also residential, even if sold
without reference to the restriction)

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