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179 Cards in this Set

  • Front
  • Back
Property: General Definition
A person holds a property interest if they have any right which the law will protect against infringement by others. Bundle of rights include: right to possess, right to use, right to exclude other from possessing or using, right to transfer (incl. right to make a gift or sell)
Tangible Property
Land, chattels
Intangible Property
Employment rights
Dominion & Control over the property
General Rule of Capture
First in time, first in right
Acquisition by Discovery
Johnson v. M'Intosh: acquisition by discovery only applies to Euros

Popov v. Hayashi: Where an actor undertakes significant, but incomplete steps to acheive possession of a piece of abandoned personal property, and the effort is intrerupted by unlawful acts of others, the actor has a legally cognizable pre-possesory interest in teh property
Acquisition by Capture
Capture of wild animals: must be captured to be owned & mere pursuit is usually sufficient. Must also look at custom.
Pierson v. Post
pursuit vests no property right to hunter. A hunter must either trap or mortally wound an animal in order to acquire title to it.
Ghen v. Rich
title to wild animal is acquired when a hunter apprehends the beast in accordance w/ the custom.
Keeble v. Hickeringill
a person may not maliciously prevent another from capturing wild animals in the pursuit of his trade. a competitor may interefere w/ another's activity & try to capture animals, but a person who does not want to capture the animal can't interfere!
Policy of capture of wild animals:
- every man should be able to enjoy the use of his land as he sees fit so long as the use is lawful

-capture of wildfowl in pursuit of trade is profitable b/c it creates wealth for tradesman, ee, and nation at large
acquisition by creation
recognition is for rewarding labor, however the fruits of your labor are not always yours to explout
Int'l News Service v. AP
where a co. has expanded resources in creating news and info., the creator can exlcude other from copying until its commercial value as news has paased away
Chency Bros v. Doris Silk
unless the CL or the patent or copyright statutes give protection from appropriation, a person's property interest is limited to the chattels which embody his cerations.
Smith v. Chanel
if a co. has a right to copy a competitior's product, it may tell consumers that its product is equivalent to ir's competitor's product. Imimitation promotes competition and competition increases social welfare
Nichols v. Universal
Ds movie was too dissimiliar to consitute an infringement
Jacque v. Steenberg Homes
punies may be imposed for intentinal trespass to property. A LO has a strong interest in protecting his land from trespass and has a right to exclude others from his land and to exclusively enjoy hiw own property for any purpose which does not invade the rights of another person.
St v. Shack
property rights may not be exercised so as to endanger the well-being of others.
White v. Samsung
Exception to copying and imitation. A person may not use a celebrity's name, likeness, voice or signature for profit w/o the celebrity consent the celebrity's labor in creating a persona of value is protected against another's using it for profit.
MGM v. Grokster
One who distributes a device w/ the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by 3d parties.
Moore v. Regents of CA
MD has a duty to disclose the extent of his research and economic interets in body parts. Human body parts are not property such that they may be converted. Property law should encourage the efficient research of medical technologies, but should not debase human dignity.
Acquisition by Find
An owner of property does not lose title by losing property. The owner's rights persists even though the article has been lost or mislaid. Generally, the finder has rights superior to everyone but the true owner
Acquisition by Find by Trespassers vs. Finders
Btw trespassers, the first trespasser has the better title.

Btw finders, the general rule of capture applies.
Armory v. Delamirie
finder of lost property has a title superior to all but the true owner.
Hannah v. Peel
if the owner of property has never occupied his land, the finder of the property of his land has a superior title against the LO.
McAvoy v. Medina
a finder has not title to property that is mislaid. Lost property goes to the finder. Mislaid property goes to the owner of the premises b/c only the true owner will remember where the property was place and then return to claim it.
Defintions: lost property, mislaind property, abandoned property
Lost: owner accidentally and casually lost property

Mislaid: intentionally places somewhere and then forgotten

Abandoned: property intentionally abandoned by the true owner no longer claims any right to it & it is awarded to the finder (i.e. grabage)
Acquisition by Find
An owner of property does not lose title by losing property.

Owner's rights persist even though the article has been lost or mislaid.

Generally, finder has rights superior to all byt the true owner.
Btw. finders v. btw. trespassers
Finders: general rule of capture applies

Trespassers: 1st trespasser has the better title
Armory v. Delamire
finder of lost property has title superior to all but the true owner.
Hannah v. Peel
If the owner or property has never occupied his land, the finder of the property on his land has a superior title against the LO.
McAvoy v. medina
a finder has not title to the property that is mislaid. Mislaid property goes to the owner of the premises. Lost proeprty goes to the finder.
Lost property
owner accidentally & casually lost property
Mislaid property
intentionally place somewhere & then forgotten
Abandoned property
Property intentionally abandoned by the true owner no longer claims any right to it & is awarded to the finder (i.e. garbage)
Acquisition by Adverse possession
means of acquiring title to property by long, uninterrupted possession
Elements of Adverse Possession
1. Actual entry onto land: triggers cause of action that starts SOL running.
2. Open & notorious: acts must constitute reas. notice to the owner of claimind dominion
3. Adverse/claim of title
4. Continuous: degree of occupancy and use that the average owner would make of that type of property
General Rule of Adverse Possession
If, w/in the number of years specified in the SOL, the owner of the land doesn't take legal action to eject a possessor who claims adversely to the owner, the owner is thereafter barred from bringin an action in ejectment. Once the owner is barred from suing in ejectment, the adverse possessor has title to the land
Van Valkenburgh v. Lutz
In order to acquire title by adverse possession, possession must be actual, it must be under claim of title, and the land must either be enclosed or sufficiently improved. Must be actual occupation, cultivated & improved, and a substantial enclosure.
Mannillo v. Gorski
Possession need not be knowingly & intentionally hostile, but it must be notorious enough to give the true owner actual or constructive notice of the encroachment. (the 4 elements)
Howard v. Kunto
Mechanics of Adverse Possession:
Land that is used in a customary manner is deemed to be used continuously. Tacking btw successive adverse possessors is est. if there is a reas. conncection btw them
when a person adds the time that he has possessed property to the time that his predecessory has possessed.
Acquistion by Gift elements
1. intention to make the gift
2. delivery manifested by objective act
3. acceptance by recipient
Delivery Element - 4 types
1. physical/manual
2. constructive
3. symbolic
4. third person
Adverse possession of chattels - general rule
1. theft doesn't create a good title
2. usually occurs in a borrowing situation
3. adverse possession of ord. things in MT is 3 years SOL
O'Keefe v. Snyder
If the true owner dilligently seeks the recover of lost or stolen property, but can't find or discoer the ID of the possessior, the SOL will not begin to run.
gift of engagemen ring was complete upon the delivery & a completed gift is irrevocable
Gruen v. Gruen
Remainder Interest in Gift:
a party may give a future interest in chattels as a gift while reserving a life estate in himself. Symbolic delivery was a sufficient transfer of a remainder interest.
Concurrent Interests
1. Tenancy in common
2. Joint tenancy
3. Tenancy by the entirety
Tenancy in common
2 or more persons own property w/ no right of survivorship btw them. separate, but undivided interests/
Joint tenancy
2 or more persons own property w/ a right of survivorship. When 1 dies, the other is considered a single owner. Can't pass interest by will.
Riddle v. Harmon
JT can unilaterally sever a joint tenancy w/ the use of an intermediating 3d party by conveying their property intreest to oneself.
Harms v. Sprague
A mortgage doesn't sever a JT, and then the survivig joint tenant takes the interest of a deceased joint tenant w/o being encumbered by the mortgage.
Tenancy by the entirety
exists only btw husband & wife, with a right of survivorship that can't be severed w/o the consent of both spouses. Neither spouse has a right to partition.
Relations among concurrent owners
Parition: equitible proceeding in which the court either physically divides or sells the common property, adjusts all the claims of the parties and separates them
Partition in Kind
physical partition
Partition by sale
property sold and proceeds divided
Delfino v. Vealencis
Partition by sale should be ordered if the physical attributes o fthe land in question are such that a partition is impractivable or inequitable, and the interests of the owners would be promoted by a partition of sale
Sahring the Benefits and Burdens of co-ownership
agmt concerning the rights and duties w/ respect to use, maintenace, and improvement of the property
the wrongful exclusion of one co-tenant from jointly held property by another co-tenant
Spiller v. Mackereth
In the absence of an agreement to pay rent, a co-tenant in possession is not liable to his or her co-tenants for the value of his or her use and occupation of the property unless there is an ouster of a co-tenant
Swartzbaugh v. Sampson
A JT, during the existence of a joint estate, has the right to convey or mortage his or her interest in the property, even if the other JT objects.
Martial Interests History
Jure uxoris: hubby had the right of possession to all of wife's lands during marriage, including land acquired after marraige.

Married Women's Property Acts: like single women, married wome control over all her property. Such property was immune and separate from husband's debts.
Swado v. Endo
an estate by the entirety is not subject to the claims of creditors of only one of the spoouse b/c neither spouse acting alone can transfer their interest.
Termination of Marriage by Divorce
At CL upon divorce, the hubby's property belonged to him & wife's to her.

Modern law: attempt to bring equality to hubby's and wives
Rule of Equitible Distribution
property is dicided by the court, in its discreion, on equitible principles.
5 Categories of compensable loss:
1.loss of a higher living standard
2. loss of earning capacity b/c one spouse undertakes disproportionate share of care of children
3. loss of earning capcity b/c 1 spouse is caring for a 3d party in fulfillment of a joint moral obligation
4. loss incurred
5. inable to recover pre-marital living standard
In re Marraige of Graham
An educational degree is not property, and this not subject to division upon divorce.
Marital Property
1. acquired by gift, bequest, devise or descent

2. in exchange for prop. acquired prior to marraige or in exchange for property acquired in #1

3. property acquired after legal separation

4. property exlcuded by valid agmt of parties
Elkus v. Elkus
an increas in the value of one spouse's career, when it is the result of the efforts of the other spouse, constitutes marital property and is thus subject to equitable distribition
Termination of Marraige by Death of 1 spouse
CL rule: surviving widow received 1/3 of hubby's property & surviving widower took all of wife's property
Community property
Husband & wife are a marital ptshp who both contrinbute to the material success of the marriage, and that both share equally in marital acquisitions. (AZ, CA, ID, LA, NV, NM, TX, WA) Includes earning of either spouse during marriage & property acquired thru earnings
Separate Property
Property owned by either spouse before marriage or acquired after marriage by gift, descent, devise.

Can be turned into separate property pursuant to an agmt.
Marriage of Lee
neither spouse acting alone can convey his or her share of community property, except to the other spouse.
Management of community property
either hubby or wife, acting alone, can manage community property. Either can sell, lease, invest property as long as acting in good faith.
Migrating Couples
property rights in earnings are determined by the state of domicile when the property is earned or acquired.
Common-Law Marriage
Must manifest their intent to be husband and wife

Hold themseleves out to public as husband and wife
Goodridge v. Dept of Health
Allows marriage to same-sex couples, based on MA's strong affirmative policy of preventing discrimination on the basis of sexual orientation
Prenuptual Agreements
1. Independent counsel for both parties
2. No coercion: not on the eve of the marriage
3. Full disclosure of both assets and liabilitites
4. Reasonability: what you're doing should be reasonable
Community Property Estate
Various interests each spouse has includes:
1. Presently exisitng interest
2. Equal interest
3. Undivided interest: significant b/c don't cut the property into 2, undicided interest in the whole
4. Vested at the time of acquisition - Constitutionally protected right
5. subject to joint mgmt
Community Property in MT
Property continues to be community property in MT if it came from a former state of residence that was community property. Community property retains its community character regardless of a removeal to a CL property jurisdiction
Community Property in MT
MT is a separate property sttae
Application of Community Property DOctrine in MT
Applies to property acquired from:
1. sale of proceeds of the orig. prop.
2. property acquired using rents, issues, and profits of the original community property
3. prop. acquired by an exchange of the orig. community property
Main Areas of Law affected by Community Property in MT
1. Estate planning
2. Probate Practice
3. Fed. tax law
4. Transfers of MT Property
MT Comm. Prop. re: Estate Planning
each spouse has the absolute right to dipose of their half of community property by will or trust, w/o any joinder of the other spouse
MT Comm. Prop. re: Probate Practice
upon the death of the first spouse, only their half interest is subject to probate
MT Comm. Prop. re: Estate Planning
upon the death of the 1st spouse, the whole property gets a new step=up in income tax basis, equal to teh date of death value
MT Comm. Prop. re: Estate Planning
If spouses move from a community property state to MT, the benefits of community property may be most clearly preserved by a COmmunity Property Agmt.
Recording System
recording acts give a purchaser of land a way to check whether there has been an earlier transaction in the property inconsistent w/ his own
FUnction of the recording system
1. establishes a system of public recordation of land titles
2. preserves in a secure place important docs, that, in private hands, may be easily lost or misplaced
3. protects purchasers for value an dlien creditors against prior unrecorded interests
Recording Acts - Generally
1. don't affect validity of a deed or other instrument
2. deed is valid & goop against the grantor upon delibery w/o recordation
3. a subsequent bona fide purchaser is protected against prior unrecorded interests
1. Tract index: enteries under block & lot #

2. Grantor-grantee: chronological entries, listed alphabetically & includes name of grantor, grantee & prop. description
How to Search a Title - Generally
1. search either tract or grantee-grantor index
2. title searcher is liable for a neg. search
Mother Hubbard Clause
provision in deed that attempts to sweep within it other parcels not specifically described
Luthi v. Evans
A mother hubbard clause is upheld as between the parties to the instrument that contains if, but is insufficient to give contructive notice to subsequent purchasers w/o actual notice of it.
Orr v. Byers
requiring a title searcher to examine title records for other spellings of the grantor's name would be an undue burden on the transfer of property
Types of Recording Acts
1. Race statute
2. Notice Statute
3. Race-Notice statute
Race Statute
As btw successive purchasers, the person who wins the race to record prevails. It is irrelevant if a subsequent purchaser has actual knowledge of the prior purchaser's claim
Notice Statute
provides that an unrecorded instrument is invalid against any subsequent purcahser w/o notice, regardless of whether the subsequent purchaser records records prior to the 1st purchaser
Race-Notice Statute
protects the subsequent purchaser ONLY IF 2 requirements are met:
1. he records b/f the earlier purchaser records
2. he takes w/o notice the earlier conveynce
Proper Recordation
1. Most states required that in order for an instrument to enter the records, it must be acknowledged b/f a notary public or other official
2. Proper recordation gives the grantee protection of the recording systemt
Recordation does NOT:
1. validate an invalid deed
2. protect against interests arising by operation of law
Messersmith v. Smith
Effect of failure to record:
An instrument that is not properly acknowledged is not entitled to be recorded
Chain of Title
1. Includes & is co-extensive w/ docs which the purchaser has contructive notice
2. Refers to the recorded sequence of transactions by which title has passed from a sovereign to the present claimant
3. Period of time for which records must be searched & docs that must be examined during that time period
Board of Ed v. Hughes
When an intstrument is not recorded in such a way to give notice to subsequent purchasers:
A deed from a grantor outside the chain of title, even if recorded, is treated as though it were unrecorded and gives no constructive notice
Guillette v. Daly Dry Wall
When an instrument is not recorded in such a way as to give notice to subsequent purchasers:
A subsequent purchaser from a common grantor in a subdivision has constructive notice of the restrictions on the rest of the subdivision, and thus acquires title subject to those restrictions
Persons protected by the Recording System
Doesn't propercy donees and devisees, even in race jurisdiction!
SOmetimes it's nec. for a court to decide whether a person is a purchaser (protected) or a donee (not protected)
Daniels v. Anderson
Bona fide purchaser status attaches only when the full purchase price has been paid.
Lewis v. Superior Court
A seller need not be paid in full b/f the buyer can be considered a bona fide purchaser.
Alexander v. Andrews
Subsequent grantees must complete their transaction by paying valuable, reasonably adqueate consideration in order to benefit from a recording act statute
3 kinds of notice w/ respect to a prior claim:
1. Actual
2. Record
3. Inquiry
Actual Notice
arises where one is personally aware of a conflicting interest in real property, often due to another's possession of the property
Record Notice
notice one has based on properly recorded instruments
Inquiry Notice
based on the facts that would cause a reasonable person to make inquiry into the possible existence of an interest in real property
Harper v. Paradise
Subsequent grantees are held to inquiry notice of the contents of prior recorded deeds in the chain of title for purposes of a race-notifying act.
Waldorf v. Eglin
Actual possession gives constructive notice to the world of any right which the person in possession is able to establish
Registration of Title ("Torrens System")
OPtion to register title to land, instead of recording evidence of a title (like in recording system)
Process of Registering Title
1. APplication by person claiming ownership of a parcel to have it registered
2. Notice given
3. Court hears a claim & issues title
Title Insurance
1. Means by which a buyer of property can assure himslef of a good title

2. Guarantees the insur. co. has searched public records and insures against any defects in the public records, unless such defects are specifically exempted from coverage

3. COvers matters not shown in the title search

4. Covers litigation costs in defending title
Walker v. Chelsea Title
If a title company fails to conduct a reasonable title examination, or having conducted such an examination, fails to disclose the results of the insured, then it rusn the risk of liability under the terms of the insurance policy & not under tort for neg.
Lick Mill Apt. v. Chicago Title
the insurance policies are not intended to protect the condition of an owner's bad title to land, and don't provide coverage for the physical condition of the land itself.
Water Rights
1. Prior Appropriation
2. Riparian
3. Hybrid
Prior Appropriation
"First in time, first in right"

Owner must apply for a permit to use water.

Water measuer by a weir: rate of flow

APplies in most western states (17)
right dependent on the land physically touching the edge of a lake or stream

Used back east

Problem: if land is subdivided, the riparian share of each parcel of land gets smaller and smaller, and virtually never increases
Combo of riaprian and prior appropriation
Presumed Abandonment
If not used w/in 10 years, AND if the water was available for use during that time, your water right is considered abandoned.
Wells in MT
1. No permit required for drilling a well for a single-family residence.

2. No minumum gallonage for well, but water right is required when the usage of the well begins.
Septic System Requirements
100 ft separation btw septic system & wells, surface wate, or a flood plain
Water, Oil, & Gas
1. Fugitive respurces: fugacious (fleeing) mineral, or a resource that can migrate

2. Oil & gas migrate in response to pressure changes
MT Water Court (1973)
Anything ligatious that pre-existed in the water court did not adjudicate all the rights of the stream
prior to the date the DNRC was made a central agency, there is no way to find out about water rights
Process for Finding Water Rights
1. Check w/ DNRC

2. Look at courthouse to see if there's adjudication by or against LO (must know all LO's/prior owners)
3 systems of irrigation (methods of physically applying the water to the land)
1. Flood irrigation: least effective/efficient

2. Sprinkler

3. Drip irrigation: used in orchards & landscaping
Water Pollution
1. Fertilizer
2. Pesticides
3. Livestock Feeding
Water Interest v. Water right
Called a right, but it's really an interest b/c you can never absolutely own water
Water rights under title insurance
does not ensure water rights of any kind or mineral interests
Ancillary Rights
includes easments and ditches
Doctrine of Beneficial Use
Can use the water only to the point which it benefits you
Restrictions of Doctrine of Beneficial Use
Can use it on the land for which it was appropriated (can't sell it) & can only use the appropriated water within the watershed for which it was derived (can't pump it into the next drainage)
Prior to 1978, to have a valid copyright, you had to include: (or no copyright)
1. Name
2. Copyright symbol
3. Year
Berne Convention
After 03/01/81, a copyright attaches immediately after product is created in a tangible form
Registration of Copyright w/ the Copyright office
1. OPtional
2. GIves notice to the world that you claim the copyright
3. Makes proof much easier
4. Can't get atty's fees or statutory damages for infringement of copyright if not registered
Change in the terms of Copyright
1. Prior to 1978, copyright lasted for 18 years
2. After the Burn convention:
ordinary copyrgith - 70 years & work for hire - 95 years from the first publication
Ownership of Copyright
1. Belongs to ER if done by EE acting w/in sope of employment

2. If done by ind. contractor, passes to a hiring party only if:
writing bte parties specifically agrees it's a work for hire OR w/in a cat. enumerated w/in the act as one that can be deemed for hire
What is copyrightable?
1. Facts are not
2. Expression of fact are UNLESS the facts are smthg that can only be described in a lmt. # of ways (i.e. apple pie recipe)
3. Sequence or collection (cases for textbook)
Fair Use Doctrine
1. If one were to make an oral reference, then it's ok

2. If one references a work/publication there may be an infrinegement problem
ELements of Infringement of Copyright
1. Ownership (creator of work, made for hire, assignee)
2. Claimed mis-appropriation or infringement (Infringer had access to copyrighted work)
3. Substantial similarity
Patents: Elements
Products that apply and idea that are:
1. Novel
2. Useful
3. Non-obvious
Patent term
20 years from the original application
Governs devices that ID the origin of goods & services:
1. Derive their procteability from having their use in commercial applications
2. Symbol that represtns the service and sometimes the economic value is enormous
3. Protection can either be state or federal
1. Right to use another's property
Negative Easement
1. restriction on your own property
General Rule: Right of View
Not specifically reserved
1. Witnessed will
2. Holographic will
3. Non-cupative will
4. Int'l Will
Witnessed Will
1. Most typical
2. In every juris. need at least 2 wits (need 3 in some)
3. Valid if it's valid at the time it was signed in the state signed
Witnessed Will in MT
Will can be self-proved w/o testimony of witness on probate if you have 2 wit's and a material acknowledgement
Holographic Wills
1. Handwritten
2. dated
3. Signed in the handwriting of the testator/testatrix
Non-Cupative Wills
1. Signed in expectation of speedy death
2. Automatically revoked if the anticipated death doesn't occur
3. Can be oral
2. i.e. soldier at war
Int'l Will
1. Statutory format rules
2. Will be recognized so long as complied w/ the int'l will statute in the jurisdiction at the time it was signed
Will in divorce or spousal homicide
1. DOn't get to inherit
2. Will is revoked
Effect of Intestacy (decedent left no will)
Shares of decedent's heirs set by statute, but typically includes:
1. Surviving spouse
2. Children
3. Parents if none of the above
Right to Die
Problem of a person who is left in a "perisistent vegatative state" by injury or illness
Potential Solutions to Right to Die Problem
1. "Living Will"
2. Durable Heatlh care power of atty
3. (Some states) Conservator or guardian
Cruzan v. Dept. of Health
1. No requirement for an incompetent's wishes to be proved by clear & convincing evidence`
Trade Secret Law
Protects info. that a biz doesn't want to be disclosed
Copyright Law - Generally
Protects law governing certain intangilbe personal property, generally literary, artistic, and musical expressions, largely dictating who has the right to copy those expressions
Copyright Law - Unpublished Works
Prior to 1978, copyright law didn't apply to unpulibshed works, but were subject to CL copyright.

Under new law, fed. copyright protection attaches to unpublished works.

For works b/f 1978, the term is life + 70 years.
What rights does the copyright owner have?
Exclusive rights:
1. reproduce
2. prepare derivative works
3. distribute copies
4. perform work publicly
5. display work publicly, incl. digital audio transmission
Exceptions to exclusive rights
1. Fair Use: the fact that the work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors
2. Ed., religious, non-profit performance
Defenses to Infringement Claim
1. Ownership
2. Access
3. Substantial similarity
4. Damages
5. Fair Use
Steps for enviro due dilligence [7]
1. learn about biz's op's
2. evaluate institution or learn about prior uses
3. obtain disclosure stmt
4. review docs
5. review enviro. disclosures in SEC reports
6. review existing permits
7. Phase I Enviro Assessment, & if probs, move to phase II
Potential Areas of ENviro Liability
1. Lead
2. Radon
3. Asbestos
4. PCB's
5. UST's
6. Meth
Connell v. Francisco
Majority of property was purchased during the relationship. This real property is presumed to be owned by both parties, notwithstanding the fact that the real property is not held in both names. D may overcome presumption w/ evi showin real property was acquired w/ funds that were separate property had the paries been married.
Mustang Holdings v. Zaveta
Neighbor couldn't obtain an injunction b/c ditch was already destroyed
LB Research v. UCLA
Conditional gift, not a charitable trust. This P had standing.
History of Possessory Estates
1. Estate: collection of rights that completely characterize property
2. Feudal Incidents: feudal tenant oopwed other duties & was subject to several liabilities (incidents)
2 Classes of Estates
1. Freehold estates
2. Future Interests
Freehold Estates
owner of the estate has, among other rights in the bundle, the right to possess land TODAY
4 types of Freehold Estates
1. Fee Simple Absolute
2. Fee Tail
3. Life Estate
4. Leasehold estate