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94 Cards in this Set

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Locke's Labor Theory
The idea that exerting labor makes something your possession.
Property in One's Person - Moore v. Regents of the University of California:

Did Moore own his cells?
NOT once they were excised, b/c of state statutes, etc.
First Possession - 4 types of property
1. Property from Capture
2. Property from Discovery
3. Property in One's Person
4. Property from Creation
Acquisition by Finding:

What are the two rules?
1. The finder of a lost article has good title against all the world save the true owner.

2. A possessor of land is entitled as against a finder to all chattels found on the land.
Mislaid Property - who owns it?
A finder of MISLAID property does NOT acquire rights!
What are the two justifications of adverse possession?
1. The Sleeping Theory
2. The Labor Theory
What are the elements of adverse possession?
1. Actual entry
2. Exclusivity
3. Open and Notorious
4. Adverse or Hostile to the true owner
5. Under a claim of right
6. Continuous for the statutory period
Adverse Possession - Actual Entry
The date of initial trespass which triggers the Statute of Limitations (typically 20 years).
Adverse Possession - Exclusivity
Only the AP can use the property. Others CAN use the property, but only with the AP's permission.
Adverse Possession - Open and Notorious
It must be reasonable for the true owner to know about the AP. However, knowledge is NOT required - it is only necessary that the true owner SHOULD have known.
Adverse Possession - Adverse or Hostile to the True Owner
If the true owner has given permission, there is NO adverse possession!
Adverse Possession - Under a Claim of Right:

1. What is it?

2. What are the 3 theories?
1. The state of mind of the AP.

A. Aggressive Trespasser (Minority Approach) - the AP must believe the land is someone else's. (The Maine Doctrine)

B. The Good-Faith Standard (Objective Approach) - the AP thinks they own the land but are mistaken.

C. Intent Not Important (Majority Approach) - intent is irrelevant b/c it is too hard to prove. (The Connecticut Doctrine)
Adverse Possession - Continuous
The possession must be continuous. Gaps are permitted, if that is how an average true owner would use the land.
Adverse Possession Under Color of Title:

1. What is the rule?

2. Is this the minority or the majority view?
1. If the AP meets all the requirements for adverse possession of land ACTUALLY possessed, then the AP receives ALL land possessed, BOTH actual AND constructive!!

2. The MINORITY view!
Adverse Possession Under Color of Title:

1. What is the majority exception?
If the AP meets all the requirements for adverse possession of land ACTUALLY possessed, then the AP receives all land ACTUALLY possessed, and a reasonable percentage of land constructively possessed.
Adverse Possession Under Color of Title:

1. What is the exception to the majority exception?
The true owner's actual or constructive possession TRUMPS the adverse possessor's constructive possession.

Note that the true owner must live on or very near the property.
Adverse Possession Under Color of Title:

1. What if the property is owned by separate true owners (for example, adjoining lots)? Does the AP get constructive possession?
The AP can only get CONSTRUCTIVE possession under color of title if the property is owned by the same owner he made actual entry against!
Adverse Possession and Disabilities

1. What is the rule?

2. What type of disabilities?

3. What is the exception to the rule?
1. States make allowances for disabilities such that the SofL does not begin running until the disability ends.

2. Insanity, incarceration, minority status.

3. The disability MUST be present at the time of actual entry!
Adverse Possession and the Government
Never against the Federal Government, and assume not allowed against the local government (unless stated otherwise).
Adverse Possession

1. What if there is a minor encroachment?

2. What is the remedy?
1. The general assumption is that the owner is NOT aware of the encroachment. Thus it is NOT open and notorious and does not meet AP requirements!!

2. (1) Property Rules - the trespasser is removed.

(2) Liability Rules - the trespasser pays for the land.
Adverse Possession and Tacking:

1. May the AP tack?

2. May the true owner tack?
1. APs can tack if they are in PRIVITY!

2. True owners CAN tack!
Fee Simple:

What are the words of purchase?
"to A"
Fee Simple:

What are the words of limitation?
"and his heirs"
What is the Sinead O'Connor Rule?
A living person has no heirs!
Defeasible Fees:

What are the three types?
1. A fee simple determinable

2. A fee simple subject to condition subsequent

3. A fee simple subject to executory limitation
A fee simple determinable:

1. What is it?

2. Who has the future interest and what is it called?

3. What are the typical phrases?

4. What happens to the person on the land when the event happens?
1. A fee simple that ends automatically (by operation of law) when a stated event happens.

2. The transferor or his heirs - the possibility of reverter.

3. "so long as", "until", "during"

4. The person automatically becomes a trespasser and can become an AP.
A fee simple subject to a condition subsequent:

1. What is it?

2. Who has the future interest and what is it called?

3. What are the typical phrases?
1. A fee simple that does NOT automatically terminate but may be cut short or divested at the transferor's discretion when an specified event occurs.

2. The transferor OR a third party - the right of entry

3. "upon condition that", "provided that", "if"
A fee simple subject to executory limitation:

1. What is it?

2. Who has the future interest and what is it called?

3. What are the typical phrases?
1. A fee simple that provides for the estate to go to a third person upon the occurrence of the stated event.

2. The TRANSFEREE has the future interest, called the EXECUTORY INTEREST.

3. "then to", "but if..., then to"
Restraints on Alienation:

1. What is it?

2. What are the two tests?
1. A clause in a conveyance that attempts to prohibit the grantee from selling his interest in the property.

A. The Nebraska Test - any condition is an unenforceable restraint against alienation if it adversely affects marketability.

B. The California Test - a use restriction is NOT a restraint on alienation.
Life Estates:

1. Can you measure a life estate by another person's life?

2. Is a life estate grant heritable?

3. Is a life estate transferable?
1. YES!

2. YES!

3. YES, but the new ownership ends when the ORIGINAL life tenant dies!
Life Estates - The Law of Waste:

1. What is it?

2. What are the two types?
1. The Law of Waste prevents the use or misuse of property that fails to maximize the property's value.

2. Affirmative waste - voluntary acts that lower value

Permissive waste - a failure to act that lowers value.
Life Estates - the Open Mines Doctrine
A life tenant may mine and remove minerals IF the grantor had opened the mine BEFORE he granted the life estate.

But some courts DO allow the cutting of timber.
Life Estates - Economic Waste
If the income from the property is insufficient to pay the life tenant's expenses, then the life tenant can bring an action to sell the property.
Life Estates:

1. Can a life estate be sold as a fee simple?

2. Can a life estate be used as security?
1. ONLY if the life tenant AND the remaindermen consent!

2. NO!
The GRANTOR's Future Interest:

1. Fee simple absolute

2. Fee simple determinable

3. Fee simple subject to a condition subseqent

4. Life estate
1. NONE

2. Possibility of Reverter

3. Right of Entry

4. Reversion
The TRANSFEREE's Future Interest:

1. What are the two types?
1. Remainder

2. Executory Interest
The TRANSFEREE's Future Interest - Type 1: Remainder

1. What are the two main categories?

2. What is the difference?
1. Vested Remainders and Contingent Remainders

2. A vested remainder is given to an ASCERTAINED person, and it is NOT subject to a condition subsequent.

A contingent remainder is given to an UNascertained person, OR is contingent upon some future event.
The TRANSFEREE's Future Interest - Type 1: Remainder

1. What are the 3 types of vested remainders and how are they defined?
A. Absolutely Vested Remainder - the remainder is certain of becoming possessory and cannot be divested!

B. Vested Remainder Subject to Open - the class of persons with the remainder can still expand.

C. Vested Remainder Subject to Divestment - the remainder will best in the beneficiary unless that person violates a condition in the grant.
The TRANSFEREE's Future Interest - Type 2: Executory Interest

1. What are the two types and how are they defined?
A. Springing executory interest - a future interest that occurs after a gap in time. This divests the GRANTEE!

B. Shifting Executory Interest - a future interest following the fee simple subject to an executory limitation. This divests the TRANSFEREE!
A remainder to the "children of A":

Is this a contingent remainder or a vested remainder subject to open?
If A has no children, then it is a contingent remainder!

If A then has a child, it is a vested remainder subject to open!
How are heirs defined?
By statute.
Future Interests:

Who gets a life estate if it ends early (through a tortious act or waste)?
It goes to reversion, NOT to remainder!
Future Interests:

Are HEIRS a vested class?
NO! A living person has no heirs!
Co-Ownership

1. What are the three types?
1. Tenants in Common

2. Joint Tenancy

3. Tenancy by the Entirety
Co-Ownership: Tenants in Common

1. What interest does each tenant have?

2. Is the interest descendible?

3. What if A sells her interest - what does the grantee get?
1. Each tenant has a separate but undivided interest in the WHOLE property!

2. YES, it can be conveyed by deed or by will.

3. Only an interest in the land, NOT the property!
Co-Ownership: Joint Tenants

1. What is the right special right?

2. Is the interest descendible?

3. What are the four UNITIES?

4. How is a joint tenancy destroyed, and what does it become?

5. Can a joint tenancy be broken without the consent of a tenant?
1. The right of survivorship

2. NO!

3. T-TIP:
A. Time
B. Title
C. Interest
D. Possession

4. A joint tenancy becomes a tenancy in common if any one of the four unities are broken.

5. Yes!
Co-Ownership: Joint Tenancy

If a joint tenant destroys a joint tenancy, what are the remaining tenants?
The remaining tenants are still JOINT TENANTS!!
Co-Ownership: Tenancy by the Entirety

1. Who can be this type of tenant?

2. What is the fifth unity?

3. Does it have the right of survivorship?

4. Can a tenancy by the entirety be destroyed w/o the consent of one of the tenants?
1. ONLY husband and wife!

2. Marriage!

3. YES!

4. NO! Only a JOINT conveyance can defeat the right of survivorship.
1. Does a mortgage sever a joint tenancy?

2. Does the mortgage survive the death of a joint tenant?
1. In MOST jurisdictions, a mortgage does NOT sever a joint tenancy!

2. 50/50 split!
Cotenancy

What is partition and what are the two types?

What is the majority approach?
Partition is the division of property. Partition in kind and partition by sale.

The majority approach is partition by sale!
Can partition in kind be temporal rather than physical?
YES!
Is a cotenant in possession of property liable to his cotenants for rent?
NO, not unless there is a prior agreement or there is OUSTER!
What is ouster?
Ouster is the assertion of dominion by a cotenant - the non-possession party must demand entry and then be denied!
Ouster and Adverse Possession

What happens when one cotenant ousts the other?
The adverse possession statute of limitations begins to run.
Does a lease sever a joint tenancy?
NO!
If a husband and wife own property, is it a tenancy by the entirety?
NO, not necessarily!
Sawada v. Endo - Is a spouse's interest in a tenancy by the entirety subject to levy by the other spouse's creditors?

What are Group I, II, III, and IV states?
I. Yes, his right of survivorship can be reached.

II. Yes, but it is subject to the other spouse's right of survivorship.

III. NO!

IV. YES - the right of survivorship is conveyable.
What happens when a spouse dies (and it is NOT a tenancy by the entirety)?
Common Law: The wife gets a life estate in 1/3 of each parcel of land; the husband gets a life estate in all the land.

Modern Elective Share: The surviving spouse can accept the will, or can renounce the will and take a statutory share.

Community Property: all property purchased during marriage is considered community property.
Community Property

1. What is it?

2. What does the surviving spouse receive?

3. Are gifts considered community property?

4. Is community property and tenancy by the entirety compatible?
1. All property purchased during marriage is considered community property.

2. The property is devisable - there is NO right of survivorship!

3. NO!

4. NO! Community Property states such as California do NOT recognize tenancy by the entirety!
What are the types of servitudes?
1. Covenants

2. Easements
What is an easement?
An agreement allowing someone who does not own the property to enter upon and use the property.
What are the four types of IMPLIED easements?
1. Created by estoppel

2. Created by prior use

3. Created by necessity

4. Created by prescription
How can an easement be timed?
In fee simple, for life, or for a term of years.
Implied Easements - Created by Estoppel:

1. What is it?

2. When does it end?
1. An easement that is created when the conduct of the owner of land leads another to reasonably believe that he or she has an interest in the land so that he or she acts or does not act in reliance on that belief.

2. Once it is granted, it does NOT disappear.
Implied Easements - Created by Prior Use:

1. What is another name?

2. What does the court examine?

3. When does it end?
1. Quasi-Easement

2. The INTENT of the parties when the land was conveyed.

3. It lasts indefinitely.
Implied Easements - Created by Necessity:

1. What do most courts require?

2. When does it end?
1. STRICT necessity, a single owner originally, and the necessity had to exist when the land was severed.

2. ONLY as long as it is necessary.
Implied Easements - Created by Prescription:

1. What is the rule?

2. What is the theory?
1. Prescriptive easements have the same criteria as adverse possession, but you only win USE, not ownership!

2. The Fiction of the Lost Grant - if a use lasted 20 years, it was assumed that the user has lost the grant. MOST jurisdictions do not have the fiction.
What is a covenant?
A promise respecting the use of land that runs with the land at law.
What are the four requirements for PRIVITY?
1. Must comply with the Statute of Frauds

2. Must be evidence of intent to run with the land

3. Privity of estate

4. Must touch and concern the land
Covenants - Privity:
What is evidence of intent to run with the land?
The deed or contract says "the covenant should apply to the covenant makers, successors, and assignees."
Covenants - Privity:
Privity of Estate:

1. What is horizontal privity?

2. When is horizontal privity necessary?

3. How do we show that horizontal privity exists?
1. The relationship between the ORIGINAL covenanting parties!

2. For the to run, NOT for the benefit to run!!

3. Parties must have a successive relationship, such as grantor/grantee.
Covenants - Privity:
Privity of Estate:

1. What is vertical privity?

2. When is vertical privity necessary?

3. How do we show that vertical privity exists?
1. Relationship between one of the original covenanting parties and their successors.

2. It is ALWAYS necessary!

3. For the BURDEN, the estate must be of the same nature and duration. For the BENEFIT, any privity is okay.
Covenants - Privity:
Touch and Concern the Land:

1. The agreement can be affirmative or negative - how does it affect this element?

2. What must the covenant burden or benefit?
1. U.S. courts are skeptical of affirmative covenants are are more likely to find that they do NOT touch and concern the land.

2. The LAND, NOT the landowners!
Is NOTICE required for privity (in relation to covenants)?
NO!!!!!!
What are the two types of nuisance?
1. Public nuisance

2. Private nuisance
Private Nuisance:

1. To be considered a private nuisance, the nuisance must be
1. Substantial, and;

2. Either unreasonable and intentional, OR unintentional but negligent, reckless, or dangerous.
Private Nuisance - Measuring Reasonableness:

What are the two tests?
1. The Restatement Balancing Test

2. The Threshold Test
Private Nuisance - Measuring Reasonableness:

1. What are the elements of the Restatement Balancing Test?
A. Gravity of the Harm
- Social value of the harm
- Character and extent of the harm
- Suitability of the location
- Burden on the plaintiff

B. Utility of the Conduct
- Social value of the conduct
- Suitability of the location
- Impracticability of the D preventing the harm
Reciprocal Negative Easements:

1. What is the most important requirement?
1. The land MUST start with a common owner!
Equitable Servitudes:

1. What is it?

2. What is the difference between equitable servitudes and real covenants?
1. A covenant respecting the use of land that is enforceable regardless of its enforceability at law!

2. Only the REMEDY!!! Equitable servitudes seek an injunction, while real covenants seek monetary damages.
What are the requirements for an equitable servitude?
1. SOF

2. Must show intent to run with the land.

3. Must show VERTICAL privity!

4. Agreement must touch and concern the land.

5. There must be NOTICE (either actual or constructive).
What is the Spite Fence Doctrine?
Courts CAN strike down the lawful use of property if it is done solely to spite another landowner.
Nuisance Doctrine:

1. When a nuisance has been found, can one party be forced to indemnify another party who must move or cease business?
1. YES!
Nuisance Doctrine:

What are some of the factors to be considered in determining "coming to the nuisance"?
1. The economic consequences of the decision on both sides

2. The equities of both parties
Takings - Eminent Domain:

1. Which amendment?

2. What are the two requirements?
1. The Fifth Amendment

2. Must be for public use, and there must be just compensation.
Takings - Eminent Domain:

1. Can property be transfered from one private owner to another?
1. YES, if there is PUBLIC benefit!
Takings - Regulatory Takings:

1. What is categorical rule #1?

2. What is the case?

3. What is the reasoning?
1. A permanent physical occupation by a stranger authorized by the government is a taking!!

2. Loretto

3. This occupation destroys property rights (especially the right to exclude!).
Takings - Regulatory Takings:

1. What is OLD categorical rule #2?

2. What cases?

3. What happened to categorical rule #2?
1. If the regulation is designed to PREVENT harm, then it is NOT a taking!!

2. Mahon, then Keystone.

3. Lucas eliminated the rule, and it is now part of the balancing test.
What is reciprocity of advantage?
The landowner also receives advantages from the legislation!
Takings - Regulatory Takings:

1. What is the balancing test?

2. What case?
1. A comparison of the governmental action against the impact on the owner and the owner's reasonable investment-backed expectations.

2. Penn Central
Takings - Regulatory Takings:

1. What is conceptual severance?

2. Is it valid?
1. The idea that the loss of value should be compared to the property affected, NOT the entire property!

2. Probably not.
Takings - Regulatory Takings:

1. What is the NEW categorical rule #2?

2. What case?

3. What is the exception?
1. Regulations that deprive land of ALL economically beneficial use are a taking.

2. Lucas

3. There is NO taking if the proscribed use was not part of the title to begin with (for example, if it is a nuisance!).
Takings - Regulatory Takings:

1. Can a landowner challenge a land-use restriction if the restriction was enacted BEFORE he purchased the property?

2. What case?
1. YES! There is no SofL on the Fifth Amendment!

2. Palazzolo
Takings - Regulatory Takings:

1. Are Temporary Takings valid?

2. What is the exception?

3. When does the temporary taking start?
1. YES!

2. Normal delays do not count as temporary takings.

3. When the statute is passed.