Modern Freehold Estates
What are the 3 types of concurrent estates?
- tenancy in common (TIC)
- Joint tenancy w/ right of survivorship (JTWROS)
- Tenancy by Entirety (TBE)
elements of adverse possession
1. actual possession (must use land like an owner would)
2. exclusive (claimants possession not shared w/ owner or GP)
3. open and notorious (possession must be visible and obvious, so if owner looked at the land they would see it)
4. adverse and hostile
5. continuous ( must be continuous as a reasonable owners would given the character, location and nature of the land)
6. statutory period (must satisfy the # of years as said in statute)
Rule of capture
if a person acquires occupancy of a wild animal, then such person shall have title to it, occupancy exists when:
1. appropriates animal for their INDIVIDUAL USE
2. DEPRIVED ANIMAL of its NATURAL LIBERTIES
3. brought the animal within their CERTAIN CONTROL
What are the 2 types of gifts?
Inter Vivos (lifetime gift) and Gift Causa Mortis (deathbed gift)
What is a fee simple determinable and how do you identify it?
- auto ends when condition stated occurs
-"so long as" "while" "during" "until"
future interest: possibility of reverter in grantor (auto vesting)
-alienable, devisable, descendable
What is a tenancy in common?
- default in modern law.
- majority: default form of co-ownership (To A and B)
- minority: must be expressly created
- modern trend: courts look to the 4 corners of the doc
- each tenant owns an undivided, fractional interest
- right to possess the whole regardless of fractional size
- freely Alienable, devisable and descendable (any tic can go to heirs)
the 3 types of tests (and if its majority, minority or other) for adverse and hostile
2. good faith test: some states require AP to believe they owned the land
3. bad faith test (rare minority) "knew it wasn't mine but I intended to take it"
rule of certain control
1. individual has CONFINED far natural in his PRIVATE ENCLOSURE
2. may subject them to his PRIVATE PLEASURE
3. maintains REASONABLE PRECAUTIONS TO PREVENT ESACPE
What are the elements of ANY gift?
1. donative intent
2. delivery
3. acceptance
What is a fee simple subject to condition subsequent and how do you identify it?
- does NOT end auto, grantor MUST take affirmative action (right of entry) to reclaim
"but if" "on condition that" "provided that" "right to re-enter"
future interest: right of entry in the grantor, NOT automatic
- if they know the condition was met and take longer than a reasonable person would to re-enter, they waive their rights and it becomes fee simple absolute.
what is a joint tenancy with right of survivorship and how do you identify it?
- default under common law
- majority rule: must expressly say "as joint tenants with right of suvivorship"
- right of suvivorship: when one JT dies, their interest auto goes to the surviving JT's
-not devisable, descendable due to suvivorship
-freely alienable (creates a TIC with the JTWROS)
Color of title and the 3 effects
- a deed or written doc that appears valid but is legally invalid
1. constructive possession: AP may gain poss. of all land described in document even if only parts are actually possessed
2. statutory advantage (some states): shorter stat. period
3. good faith presumption: supports good faith hostility in some jurisdictions. ex. erin improves land believing it belongs to her but has void title -> acted in good faith -> gets land
Private nuisance rule
1. intentional
2. nontresspassory
3. unreasonable
4. substantially interferes with.. (noise, smell, smoke, pollution)
5. the use and enjoyment of the plaintiffs land
ex. neighbor playing loud music every night till 2am -> nuisance
What are the types of delivery?
1. Actual (handing it over)
2. Constructive (key, password)
3. Symbolic (letter)
What is a fee simple subject to executory limitation and how do you identify it?
- future interest goes to a 3rd party, not grantor
- ends auto but title shifts to 3rd party
- same durational lang as other 2 but followed by "then to B"
Future interest: executory interest in 3rd party
ex. "Olivia to Riley, but if Riley smokes in the house, then to Georgia"
Add't note for a bonus! Shifting exec interest, grantee to grantee! :) collect them points hoe
what are the 4 unities required to created a JTWROS?
1. time- same moment
2. title- same title
3. interest- equal in size and duration
4. possession- equal rights to possess the whole
- if any 1 are missing, it is a TIC
What is a disability in AP, and what is 1 example
- disability must exist before before the AP begins, disabilities cannot be tackled, death ends disabilities.
ex:
1. Minor: 12 yr old owns land, someone lives on it, AP clock doesnt start till owner turns 18.
2. Mentally incapacitated: Olivia is deemed legally insane when Kir occupies her land, Kir's AP clock doesnt start till Olivia is deemed sane (..300 yrs later..)
3. Imprisoned owner: Chris is in prison, Erins AP clock doesnt start till he is released
trespass rule
if one intentionally enters land in the possession of another or causes a thing or 3rd party to do so, then one is subject to liability for trespass irrespective of whether any actual harm results
What are the elements of a gift causa mortis? (hint there's 5)
1. donor in imminent peril of death
2. donative intent (to transfer now, conditioned on death)
3. delivery (strictly required- usually actual)
4. acceptance
5. donor must die from that specific peril
What is Fee simple absolute and a life estate and how do you indentify and who has future interest?
Fee simple absolute:
- last potential forever, no future interest (no reversion) common law: needs "and her heirs", modern law: default
Life estate:
-lasts for life of that person
-measured for life of grantee ("for life")
-OR by the life of another person (life estate per auto vie)
-auto ends upon death
- future interest: in grantor-> reversion. In 3rd party -> remainder (can be vested or contingent)
ex. "O to A for life" A-LE, O-reversion
"O to A for life, then to B" A- LE, B- vested remainder, O-nothing
"O to A for the life of B" A- has LE put autre vie (NOTE: IF A DIES BEFORE B AND A HAS A WILL, THE PROPERTY THEN GOES TO A'S HEIRS FOR THE LIFE OF B")
What is a tenancy by the Entirety and how do you identify it?
- only to married couples
Traditional rule: auto applies to married couples
modern rule: must have express language "to A and B as TBE"
-requires same 4 unities are JTWROS plus marriage
- right of suvivorship
- neither spouse can unilaterally sever or convey (A signs mortage alone -> invalid -> A cannot convey w/out B)
Termination only by:
Death(other owns 100%), divorce (becomes TIC), mutual agreement(TIC or JTWROS dependent on wording)
Creditor protection:
Majority rule: a creditor of one spouse cannot reach TBE property
what is tacking and what is essential to it
- adding together periods of possession if there is privity.
Privity: a reasonable, legally recognized connection between successive occupants (deed, will)
spite fence rule
1. any structure or fence in the nature of a fence
2. unnecessarily exceeding 6ft in height
3. maliciously kept and maintained for the purpose of annoying the owners or occupants of the adjoining property
- plaintiff does not need to prove actual malice, only need to prove the sole purpose of the fence was to annoy
how is a gift causa mortis revoked?
- donor survives that peril
- donor revokes
- donee dies before donor