Relationship Between Possession and Ownership
What are the 3 categories of found property and what are their definitions (bonus points for who gets the property)?
Abandoned property: property is abandoned when the owner no longer wants to possess it; abandonment is shown by proof that the owner intends to abandon the property and has voluntarily relinquished all right, title and interest in the property; belongs to the finder of the property against all others, including the former owner
Lost property: property is lost when the owner unintentionally and involuntarily parts with its possession and does not know where it is; stolen property found by someone who did not participate in the theft is lost property; under state statutes, lost property becomes the property of the finder once the statutory procedures are followed and the owner makes no claim within a certain period of time (finders statutes only apply to lost property)
Mislaid property: is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is; the finder of mislaid property acquires no rights to the property; the right of possession of mislaid property belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner
At what point do revocation clauses in wills apply?
Immediately (In re Will of McCauley)
What are the 4 types of tenancies (list the duration, creation, and termination)?
Term of years
To A for six months starting on Jan 1, 2027
To A for one year
Fixed period of time
In writing if more than one (or maybe two or three) years
Automatic upon expiration of term
Death of either party has no effect
Periodic tenancy
Renews automatically until terminated
If lease contract provides for periodic payments without ending date
Termination after notice depending on length of time:
For year to year, end of year if at least six months notice
For month to month, end of month if at least one month notice
Tenancy at will
A, you can stay here for a while, but you have to pay rent
Indefinite duration
Taking possession with owner’s consent without agreement on either fixed term or periodic payments
At common law termination immediately on notice but with reasonable time to vacate or upon death of either landlord or tenant
Statutes often modify the common law rule
Tenancy at sufferance (holdover tenant)
Tenant = “I don’t want to move out yet” Landlord = “Well, what do I want to do about that…”
Until landlord chooses to renew lease or evict tenant
Tenant wrongfully remains in possession after lease ends
Termination after landlord decides what to do, it converts to either:
A new tenancy for an additional period of time
Trespass/eviction
What are the 4 types of present possessory estates (and give an example of the language used to in wills)?
Fee Simple Absolute
To A and his heirs.
To A (under modern statutes)
Fee Simple Defeasible
Fee Simple Determinable (FSD)
To A so long as . . . .
To A until . . . .
Fee Simple Subject to Condition Subsequent (FSSCS)
To A on the condition that . . . .
To A, but the grantor may reenter if . . .
Fee Simple Subject to Executory Limitation (FSSEL)
To A so long as . . . , and then to B.
To A until . . . , and then to B.
O conveys Blackacre to A until the Seattle Mariners win the World Series. What estate does A have?
Fee simple determinable
What is a conversion and what factors should be considered (6)?
Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel
In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
How can a will be revoked?
A written will, or any part thereof, may be revoked only
(1) By a subsequent written will or codicil or other revocatory writing executed in the manner provided herein for the execution of written wills,
OR
(2) By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator himself or by another person in his presence and by his direction
Does a landlord have a duty to mitigate damages after a tenant defaults (minority and majority rule)?
Old common law (and current minority) rule: No
New common law (and current majority) rule: Yes -- landlord must use “objectively reasonable efforts”
What are the requirements for a remainder?
It must wait until the life estate naturally expires; it can’t cut it short
It has to take immediately- there can’t be a built-in gap between the end of the life estate and the time the remainder takes possession
It has to be created at the same time, in same document, as the life estate
O conveys Blackacre to A for life, then to B if B has graduated from law school. What estate does B have? What happens if A dies before B graduates from law school?
B = contingent remainder; estate reverts to O
O has a reversion and B’s interest fails
What is the difference between the objective and subjective standard (mention Maine & Connecticut doctrines) for considering the hostility element of adverse possession?
Objective standard (majority): the adverse possessor merely must actually possess the property as an owner would and occupy it without the permission or consent of the owner
Subjective standard (minority): assesses the possessor’s state of mind in addition to objective requirements
Maine Doctrine- possible states of mind:
You know the property isn’t yours but you want it anyway (dishonest trespasser)
You think the property is your but you’re mistaken but if you had known the truth:
You would have wanted the property anyway
You would not have occupied the property
How are degrees of kinship measured?
By counting up from the decedent to the nearest common ancestor and then down to the relative
Example: parents were first degree, brothers and sisters and grandparents were second degree, aunts and uncles and nieces and nephews were third degree
What’s the difference between an assignment and a sublease?
If by the transaction the tenant conveys the entire term and thereby parts with all reversionary interest in the property, the transaction is construed to be an assignment, whereas if there remains a reversionary interest in the estate, it is a sublease.
What is the 4 unity requirement for joint tenancy?
Unity of time means the interests of the joint tenants must arise at the same time.
Unity of title is present only if the interests are created by the same instrument.
Unity of interest means that the joint tenants acquired identical interests, e.g., they all acquired a fee simple absolute or a life estate interest.
Unity of possession means a common right of possession and enjoyment.
O conveys Blackacre to A for life, then to B, but if B uses Blackacre for commercial purposes during his lifetime, then to C. List the present and future estates. What happens to the property if B dies without having used Blackacre for commercial purposes?
A = life estate; B = vested remainder subject to total divestment in fee simple subject to executory limitation; C = executory interest
Estate goes to B’s heirs
What is the purpose of arguing that there is a bailment relationship (consider BOP)?
Establishes a prima facie case for negligence/strict liability which shifts the burden of proof to the bailee
Conversion if the bailee failed to return the goods after demand
Negligence if the bailee returned the goods but they were damaged
If the bailee rebuts conversion by showing that the goods were lost, or were stolen by someone else, then that doesn’t get the bailee completely off the hook it just shifts the standard to negligence
What is the right of representation (sometimes referred to as per stirpes)?
The issue of a predeceased child took the share of the intestate estate that the predeceased child would have taken had he or she survived the decedent (that heir’s descendants step into their place and inherit the share that the deceased heir would have received)
What are the elements of claim for breach of the Covenant of Quiet Enjoyment (4)?
Landlord did something wrongful
Under the old common law the landlord has only limited duties to the tenant:
Don’t make fraudulent misrepresentations
Disclose any latent physical defects
Maintain common areas
Additionally the landlord probably also has duties arising from the lease contract and violating those may also be wrongful conduct for the purposes of as long as the other elements of the CQE are also met
Landlord’s wrongful conduct caused a substantial interference with tenant’s use and enjoyment of the property
Tenant gave notice to landlord and allowed reasonable time for landlord to fix problem (cure defect)
Tenant vacated property after landlord failed to cure within reasonable time
What are the 4 steps to apply the Rule Against Perpetuities?
Does the grant try to create any estates subject to the Rule?
The only estates subject to the Rule are:
Contingent remainders
Vested remainders subject to open
Executory interests
What condition determines whether the estate vests?
A contingent remainder must turn into an indefeasibly vested remainder;
A vested remainder subject to open (a class gift) must “close” (and thereby turn into either an indefeasibly vested remainder or a vested remainder subject to total divestment; and
A springing or shifting executory interest must actually come into present possession to be considered “vested” under the Rule
Will the condition be resolved within a life in being at the time of the creation of the estate, plus 21 years?
If the interest is certain to vest or fail within that period then the interest is valid
If the interest is not certain to vest or fail within that period then the interest is void (as soon as it is written)
Strike the language creating the void interest
Save as much of the condition as possible
Identify the estate(s) the conveyance purports to grant (including who owns each estate); identify which of those estates, if any, is voided by the Rule Against Perpetuities; and identify the estates that remain after application of the Rule.
O conveys Blackacre to A as of A’s 25th birthday. A is currently two years old.
A = executory interest
O = fee simple subject to executory limitation
Interest is valid (certain to vest or fail within A’s lifetime)
What are the alternative rules (2) for adverse possession of chattels?
Discovery rule: the cause of action accrues when individual first knew or reasonably should have known through the exercise of due diligence, of the cause of action, including the identity of the possessor (O'Keeffe case)
Demand and refusal rule: a cause of action for replevin against the good-faith purchaser of a stolen chattel accrues when the true owner makes demand for return of the chattel and the person in possession of the chattel refuses to return it
What are the will substitutes?
Life insurance, pension accounts, joint accounts, and revocable trusts (joint tenancy and tenancy by the entirety also applies)
When can the tenant withhold rent because of a breach of the Implied Warranty of Habitability (2 elements)?
The tenant must show that:
(1) the landlord had notice of the previously unknown defect and failed, within a reasonable time, to repair it; and
(2) the defect, affecting habitability, existed during the time for which rent was withheld.
Whether a portion, all or none of the rent will be awarded to the landlord will depend on the findings relative to the extent and duration of the breach.
Once the landlord corrects the breach, the tenant’s obligation to pay rent becomes due again
What remedies are available for waste (different for vested vs contingent future interest)?
If the future interest is vested, the owner of the future estate is entitled at a minimum to damages for the injuries sustained and may also be entitled to a prohibitory injunction- maybe even forfeiture of the life estate in really extreme circumstances (wanton waste, failure to pay damages)
Where the future estate is contingent the holder of the future estate should be able to enjoin threatened waste unless the probability of the future estate ever vesting in possession is extremely remote. It is doubtful that a court would award damages before it is clear the future estate will in fact come into present possession.
Who owns what estate after each of the following conveyances of Blackacre, in this order?
O conveys Blackacre to A, B, C in FSA as joint tenants.
A conveys A's interest to X.
B dies.
A,B,C are joint tenants
X tenants in common with B and C who are still joint tenants with one another
X (⅓ share) and C (⅔ share) are tenants in common