Chapter 6
describe a tenancy in common.
The default concurrent title for real estate
Each tenant has an undivided, fractional interest in the property.
Each may trasnfer their interst to another person - it is freely alienable, devisable, and descendible.
Each has right to use and possess the whole land.
What are the six elements for adverse possession?
actual possession
exclusive possesion
open and norotious possession
adverse and hostile possession
continuous possesion
for the statutory period
describe Gray's Rule.
A person who catches a baseball that enters the stands is its owner.
A ball is caught if the person has achieved complete control of the ball at the point in time that the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases.
A baseball which is dislodged by incidental contact with an inanimate object or another person before momentum has ceased, is not possessed.
Incidental contact with another person is contact that is not intended by that other person.
The first person to pick up a loose ball and secure it becomes its possessor.
what is the default estate?
fee simple absoltue - 100%, no conditions
which leasehold is this: the start date is clear, but no end date is explicitly stated in the lease. the tenancy automatically renews unless notice is given by either the T or L to terminate the lease.
a) term of years tenancy
b) periodic tenancy
c) tenancy at will
d) tenancy at sufferance
b) periodic tenancy
what is the "four corners" rule for deeds?
Look at the deeds plain language and consider the oridnary meaning of the docuent with the view that the party's intent should be within the langugae used.
Must expressly show intention in deed - no outside materials.
what are the four other rights included in title to the land?
surface
airspace
subsurface
groundwater
what is the equitable pre-possessory interest doctrine?
1. Where an actor takes significant but incomplete steps to achieve possession of a
2. Piece of abandoned personal property
3. And the effort is interrupted by the unlawful acts of others
4. Then the actor has a legally cognizable pre-
possessory interest in the property.
5. That pre-possessory interest is a qualified right to possession that can support a conversion
claim.
O conveys "to G for 75 years."
what is G's interest? what is O's interest?
G: term of years because it has a fixed duration
O: retains a reversion that will become possessory in 75 years - carved out a smaller vested estate from his larger fee simple absolute
when delivering possession of a lease what is the American rule vs the English rule?
American Rule - L promises to deliver the legal right of possession but the T has to sue the holdover tenant because even though the landlord promises the tenant that their possession will not be withheld, the L is not liable for a holdover T. No claim against the landlord.
English Rule - L promises to deliver actual possession to T. L must deliver actual possession and constructive possession. T can terminate the lease and sue the L for damages or pay no rent until the premises are vacated and then collect damages.
what are the four ways to severe a joint tenancy with the right of survivorship?
1. by contract
2. by conveyance
3. by partition in kind - lawsuit
4. by apportionment - court monitored sale
do the facts establish acquiring title by AP?
- Large remote tract of forest (100 acres)
- Stop for an hour on the perimeter
- Plants a few tulips in the land 4 times, over 9 years
- SOL is 8 years
probably not
Actual?
Exclusive?
O&N? known / knowable use?
A&H?
Continuous?
SL?
what is an inter vivos gift? describe the three elements.
inter vivos gift - an unconditional transfer of personal property made by a living donor
elements:
1. donative intent - donor must intend to make an immediate transfer of property
2. delivery - property must be delivered to the donee, so that the donor parts with dominion and control
3. acceptance - the donee must accept the property - acceptance of valuable item is presumed
O conveys "to G and her heirs, but if alcohol is ever sold on the land, then O shall have the right to re-enter and retake the estate."
what is G's interest? what is O's future interest?
G: "But if" - indicates that G's fee simple estate is subject to a condition subsequent (alcohol being sold on the land) --> G has a fee simple subject to a condition precedent
O: future interest is right of entry - does not become possessory until and unless O takes an affirmative step to regain possession
Describe the two ways a tenant can transfer their rights.
Assignment - the tenant transfers her entire interest in the leased premises to a third party. the landlord tenant and assignee now all have a relationship:
1. The landlord and tenant have privity of contract
2. Tenant and assignee have privity of contract.
3. The landlord and assignee have a privity of estate.
Sublease - the tenant transfers part of her interest in the leased premises to the sublessee. the tenant retains a right to possession.
1. L and T have privity of contract and estate
2. T and sublessee have a privity of contract and estate relationship.
3. L and sublessee have no legal relationship.
how is a joint tenancy with the right of survivorship created?
two elements
1. meet the 4 unitites: a) grantee's interests created at the same time, b) by same title, c) in same proportional shares, and d) with equal rights to possess the whole
2. use the correct language to indicate survivorship - "with right of survivorship"
describe privity and tacking.
privity - judge recognizes the user’s claim of right is “above that of a wrongdoer or trespasser.”
tacking - Judge uses equitable power to add
predecessor(s) time(s) to claimant’s time to meet SL
Identify and describe the four categories of found chattels.
lost property - the owner unintentionally and involuntarily parts with it
mislaid property - the owner voluntarily and knowingly places it somewhere but then unintentionally forgets it
abandoned property - the owner knowingly relinquishes all rights, title, and interest to it
treasure trover - the owner concealed it in a hidden location long ago. usually limited to silver, gold, coins, or currency
O conveys "to G and her heirs until California secedes from the U.S."
what is G's interest? what is O's interest?
G: until (duration) - fee simple determinable where the future interest is held by O, the transferor --> the estate will automatically end when California secedes from the U.S.
O: the possibility of reverter --> automatically becomes a fee simple absolute when California secedes
What is the main take away from the case Sommer v Kridel?
If L decides to keep a lease in effect, then L must mitigate damages --> a L who keeps the lease in effect after T surrenders is required to mitigate his own (L’s) damages.
Rationale: “modern notions of fairness and equity.”
what is the overall takeaway from the case Esteves v. Esteves?
if a cotenant goes to court to demand equity, then that cotenant must be prepared to do equity.
genrally, a contract will goven the sale of proceeds, BUT if there is no contract then equitable proceeding:
1. Was a cotenant in sole possession of the property? (yes)
2. Did that cotenant sue for an equitable accounting? (yes)
3. If yes to 1) and 2) above, then fairness dictates a credit for a credit
do the facts establish acquirng title by AP?
- Rural plot of land next to road
- Puts in a fence and mows lawn weekly over 5 years
- For the last 2 years brought their kids to play in the plot
- SOL 7 years
no - they do not meet the SOL
describe the replevin and discovery rule approach.
1. SL starts at time of loss or wrongful taking or wrongful possession.
2. Owner is entitled to stop SL with proof of O’s own diligent search.
3. SL starts up again when true owner knew or should have known through due diligence where the property was located, who possessed it, and who to name as Defendant in a replevin law suit.
O conveys "to G and her heirs so long as California does not secede from the US, then to M and her heirs."
what is G's interest? what is O's interest? what is M's interest?
G: "so long as" - words of divestment that are followed by a future interst in a 3rd party so G has a fee simple subject to an executory limitation
M: is a transferee and her future interst follows an executory interest so if California secedes M has a fee simple absolute
O: nothing - all interest was transfered.
In 2023, T “assigns, subleases, and transfers all my interest in the lease to A.” Who owes L rent? Explain.
T is liable to L for rent on privity of contract grounds, because “no novation” occurred.
A is liable to L for rent on privity of estate grounds because A has possession of the property.