Property

General Rule
Rights among people with respect to things
 Bundle of rights with respect to a “thing” held by one person in relationship
to another
 Property exists to the extent that the law recognizes it (legally recognized )
 Each interest has certain rights associated with it
• Rights can be to sell (transfer), exclude/include, possess and
use
• Rights are not absolute, they are subject to certain limitations
• Goal of property law is to resolve conflicts of people
with competing interests; to determine whose rights
are superior

Determination of ownership, rights, interest in Property

 Check the law!
 Property interest in things is your legally recognized interest
 Right only to the extent that law will protect that right
 Property rights are not absolute (they are limited)
• Rights exist only to the extent that they serve human
values
o (socially-acceptable justification)

Two-Pronged Test in defining Property

1). What are the rights among people with respect to the “thing”?
Land – Fee Simple, Tenancy, etc.
• Right to Exclude/Include
• Right to Transfer (sell)
• Right Possess and Use

2). What are the “things” attached to the rights?

 Real Property (Land)
o Right in land and what is attached to the land (airspace,
groundwater )
 Personal Property (Chattel)
o Jewelry, livestock, coins, books
 Exception: human organs (courts do not recognize
as personal property)
 Wild animals in their natural habitat (un-owned)
 Intangible Personal Property
o Stocks, bonds, patents, trademarks, copyrights
First Possession:
Acquisition by Discovery, Acquisition by Capture, Acquisition by Creation

First Occupancy (First Possession) Theory in General

 First person to take occupancy or possession of the thing, owns it
 Explains property rights in un-owned natural resources
 Still the basic rule for determining priority of competing title claims in
real property
 Offers quick, inexpensive method to resolve competing claims and
avoid conflict

Drawback
 Counterproductive because it wastes natural resources
 Long-term conservation is impossible
• Ex. A,B, C all own parcel of land with underlying oil
deposit
• A pumps out all underground oil so that no one else can
claim it, therefore no incentive to preserve for future use

John Locke’s Labor Theory (Lockean Labor Theory)

 Every person owns his own body
 Each person owns the labor that his body performs
 A person who labors to change something in nature for his benefit,
“mixes” his labor with the thing
 By mixing his labor with the thing he acquires rights in the thing

Acquisition by Discovery

Rule of Discovery
Discovery of land vests absolute title in the discoverer

Johnson v. M’Intosh
 Court issue is who has superior title to the land
 Did Indians have right to sell the land to Plaintiff?
• No, Indians only had right of occupancy
• Indians had no “legally recognized” right to sell the land
• Discoverer (European) had superior right to title of the
land
Property right defined by law: Rule of Discovery
 Acquisition by Capture

Law of Capture
Applies only to animals in their natural habitat for to apply (not
domesticated or tamed)

Pierson v. Post
Established the actual capture rule as American Standard for acquiring
title to wild animals

General Rule for Law of Capture – Majority rule

(Does not apply to domesticated animals)
 No one can own a wild animal
 Ownership is acquired only through physical possession of the
animal
• Physical possession (dominion and control) is:
o First to capture or kill acquires title to it
• Mortally wounding animal without giving up pursuit to
acquire title to it
 i.e. animal traps
• Trapping also w/o abandoning is sufficient to constitute
possession of the wild animal
o Must then take the added step of taking possession
of it
 Mere chasing or pursuit does not give one a right to possession
against another who captures it (has dominion over)
• If trap and escapes animal retains its wild animal status,
possession is lost
o Exception: animal released and returns to captor
(animus revertendii)
 Still property of captor
Wild Animal Rule
• Only applies to wild animals in natural habit
• If outside natural habit, gives notice that it belongs to
someone else
• Cannot acquire title to it

Public Policy Rationale

Reward successful hunters, ensured certainty in property rights,
minimized arguments

Probable Capture Standard – Minority Rule

 A pursuing hunter with a “reasonable” chance of capturing the animal
is sufficient to create possession

Exception to General Rule

Animus Revertendi
A captured (or tamed) animal that has the habit of occasionally
returning to its captor (captor is still considered the owner/possessor)
 Include exotic animals not in natural habitat (i.e. giraffe,
elephant)
 Exotic nature of animal puts others on notice

Public Policy Rationale

Motivates owners to tame wild animals for productive use
outweighs certainty

Actual Capture Standard and the Role of Custom

*Court says that when dealing with industry custom or practice
relating to capture, then it should prevail*

Ghen v. Rich
o Rich takes blubber and oil from the whale that was harpooned and
killed by Ghen
o Rich acts contrary to custom that whoever kills the whale owns the
whale
o Only applies when referencing trade or commercial industry, not
sport/recreation
o Custom was Judicially accepted
 Public policy rationale
• Critical to survival of local whaling industry

Public Policy Rationale for Capture Custom in Industry and Trade

Endeavors that require a particular skill with outlay of significant
capital

Rights of Landowners – Wild animals on the Land

 Rule is “ratione soli”
o The owner of land has possession (constructive) of wild animals on his
land
 Landowners are regarded as prior possessors of any animals on
their land until the animals escape
 Cannot trespass onto another’ land and kill/claim animal
Modern Law
Now replaced under Trespass laws
Once animal leaves property; owner loses constructive
possession
Title
2 can have title
A trespasses on B’s land and takes property
 B trespasses on A’s land and takes back property
As between A &B, B has superior title

Keeble v. Hickeringill
o Plaintiff set up a decoy pond to lure and kill ducks on his land
o Defendant essentially interfered with Keeble’s trade by scaring the
ducks away (malicious interference with trade)
o Court used doctrine of “ratione soli”

Public Policy Rationale for Capture Rule

Encourages killing/capture of wild animals for benefit of society

Acquisition by Creation

Property in One’s Ideas and Expressions

Rights in the News

General Rule
o Property rights cannot exist in an idea
o Common Law Rule: Any product can be imitated or copied
o No property right in news as relates to general public

Rule: Absent some special common law or statutory right, a man’s property
is limited to the chattels which embody his invention
o Law does not favor monopoly but competition

International News Service v. Associated Press

Associated Press brought suit against INS for pirating and selling news that
AP gathered
 No property right in the news itself; only property right is the creation
of an original story from the news (article)
• News creates itself; your interpretation is the property right
(copyright)
• As between competitors, court recognizes Quasi –Right in news
gathering process

Cheney Brothers v. Doris Silk Corp.(1930)

• Defendant copied plaintiff’s design
• Court says that you can imitate any product (common law rule)
o No copyright in the design (not protected)
o Modern Law: copyright in ability to create the design

Rights of Publicity
White v. Samsung Electronics America, Inc.

Actor, politician or famous person has a property right to exclusive use of

name and
likeness for financial gain
Image/Likeness (Vanna White Case)
• Property rights to extent that one uses to make a living

Property Rights in One’s Person

Moore v. Regents of The University of California

General Rule:
• Law generally acknowledges the authority of all persons to control the
destiny of their body parts(i.e. blood, bone marrow, hair)
• Supreme Court overturned Court of Appeals and says no conversion (no
property right)
• Majority held that there is no ownership interest in cells after removal
o No property rights in body parts/person
o Public Policy

Rationale:
Court will not create property rights because of the larger Public policy
at play pertaining to medical advancement research.
 Acquisition by Gift

Gift
A present transfer of an interest in property
Can be present interest or a future interest

Inter Vivos Gift

Gift given during one’s life time or gifts between living persons
o Living donor makes an immediately effective (present)
transfer of property ownership to a living donee

Elements of Inter Vivos Gift

 Irrevocable at the moment gift is given
 Only way to get gift back is to have donee return/re-deliver gift

Testamentary Gift
Gifts that take effect upon the donor’s death (gift made in a will)

Gift Causa Mortis

Gift given in response to impending death (“deathbed” gifts)

Elements of Gift Causa Mortis

 Revocable if donor does not die
 Must die from exact illness or threat of death that prompted the
gift
 Death must be imminent
• Is subjective (donee must believe his death is imminent)

Gift Requirement
1). Intention
 Donor must intend to make an immediate (present) gift to the
donee
• If a condition precedent there is no intent to make a gift
o Condition Precedent
 o Donee has to do something to receive the gift
Ex. Father promises to give daughter a car if she
gets an “A” in Property
 Standard has to be clear and convincing; must be intent to give
an immediate gift. Undisputed on the facts.
 Title must transfer interest not possession.
 Possession may not happen until sometime in the future (valid
intent)
• Ex: Gruen v. Gruen
o Gift was immediate because it was a transfer of
interest/rights in a painting given to son on his
birthday even though possession was not
immediate (happened upon father’s death)

Intent exists to confirm donor’s subjective intent (state

of mind) to give gift
Modern Law
• Delivery is subordinate to intent
• If neither of above delivery methods is performed, must
look at intent
• So long as requisite intent is there, court will recognize
the gift even if delivery is not fully performed

2). Delivery
Main feature of delivery is Dominion and Control

• Actual/Physical
o Donor must (physically) deliver the gift
o Main method of delivery for items of tangible
personal property
o If you have dominion or control of the thing then:
 Anything that can be delivered should
be delivered
o Courts favor actual delivery over all other delivery
methods
o Deters fraud

• Constructive
 When manual delivery is impractical or
impossible
 Only permissible when actual delivery is impossible
at time of gift
 Delivering a means of access of thing being gifted
• Ex. Keys to a car
o Donor physically transfers to donee means of
obtaining access to and control of property
(handing over a key or title)
• Symbolic
o Handing over something symbolic of the gift given
 o Written instrument declaring a gift of the subject
matter (title, letter, memo, note) that may be given
in conjunction with symbol
 Ex. Deed to Land
 Not the thing that gives you access to or
means to control the thing
• Agent Delivery (Delivery to a Third Party)
o To be effective, it depends on who it is delivered to
o Depends on relationship of parties that creates the
control
o Must look at who agent is to determine when
delivery is effective
o If an agent of donor, then delivery is not complete
o If an agent of donee, then gift is delivered and
complete when gift is delivered to agent

Public Policy Goals

• Donee possession demonstrates donor’s intent to make a
gift
• Delivery warns donor about legal significance of the act
(prevents impulsive decisions)
• Donee’s possession provides prima facie evidence that a
gift was made

Delivery exists to assure that there is an act to provide

objective manifestation of the donor’s subjective intent
(Evidentiary in nature)
Corroborates intent to make a present gift
3). Acceptance
Gift must be Accepted
 Intention may be shown by oral evidence
• Acceptance is assumed if gift is beneficial or
valuable to donee
o If acceptance is not assumed (a detriment to
donee), must be an added step of acceptance

 Express acceptance (?)

Acquisition of Property by Find – Finder’s Law

1. Important to identify Finder

a. First person to take control
2. Must be an act of control
a. What acts constitutes sufficient control
3. Must determine what type of property
4. Must identify competing claims
 5. Where is property found?
6. Identify category of property

Lost
• Owner involuntarily parted with the item and does not
know location
o Length of lost time is inconsequential
• Rights superior to finder
• Finder has superior rights to everyone in world except
true owner
 Original owner always maintains ownership
 First person to find; has title over anyone except true owner
 If found on someone else’s property (legally there), then it is
yours
Exception:
If you are there as a trespasser and find then it is not yours
• If attached to or affixed to the land, generally the owner has
superior title to yours
• If owner has not taken possession of the land /title may or may
not be superior to yours
• When found by an employee, claim is between employee and
employer
o Under agency law, employer has superior title
Mislaid
• Owner intentionally places item in a location and forgets the
location
• True owner has right superior to finder
• Finder is first person to take possession/control
• Finder has superior rights to everyone in world except true
owner
• Exception:
o If found on property of another (house, shop, store)
o Owner of property where mislaid property is found
is entitled to possession over finder
o Property owner has superior title to everyone
including the finder, but not to original owner
o Is person in the best position to return to original
owner
• Owner of property is now bailee to original owner
• Original owner always maintains ownership

Abandoned
o Intentionally relinquished property
o Must look at subjective intent of person who abandoned
 Express words or conduct
 Would reasonable person ascertain by conduct that property is
abandoned?
 Finder is 1st person to find and intent to claim property as their
own
  Has superior to title to everyone including the owner
 Where was it abandoned, what type of property is it

Treasure Trove
• Usually gold bullion, silver (hidden by unknown person)
• Hidden by unknown owner for an extended period of time or in
distant past
• Governed by other laws of Finder’s Law
Exception:
 If property is found embedded or otherwise affixed
to land of another, it belongs to property owner where
lost property is found
 If found on top of land, and not a trespasser, you
can be a finder of that lost property
• True owner always retains ownership unless they have
abandoned; then must look at subjective intent
• Not considered treasure trove unless identity of owner is
unknown
• May be distant past
• Must look at where it is found
• Follows general rule of Finder’s Law (lost, mislaid, abandoned)

Adverse Possession

• Mixture of Statutory and State Law

• Statute of Limitations requirement
o Owner of property must make a superior claim to property by someone
who is adverse possessing the owner’s property
o Ranges from 10-20 years
• To acquire title to your property
• Adverse Possession is an affirmative defense; must raise the defense; is not
automatic after the SOL
• Some jurisdictions require occupant to pay taxes against the land

Elements (based on the use by a reasonable owner)

Actual
 o Must physically occupy or use the particular parcel of land
o Must be used in the same manner that the true owner would use the
land
 Depends on circumstances; can be residence, cultivation,
improvement, grazing, pasturing, hunting, fishing or other useful
activities
o Must look at character, nature, and location of the land
o Acts are different due to character of land
 Act for possession of single family home will be different than a
1,000 acre tract of land
o General Rule
 Adverse Possessor only has title to land that he actually
occupies or uses
 Bears burden of proving the boundaries
 True Owner continues to own any UNOCCUPIED land

Constructive Ownership by Color of Title

General Rule
• Can only acquire title to the land AP actually occupies
• EX. If A cultivates 5 acres of a 500 acre farm and meets
other requirements of AP, then he only obtains title to the
5 cultivated acres

Exception: Constructive Possession by Color of Title

 Claim because of faulty instrument (deed/tax sale) that conveys
title
 No conveyance of legal title

Benefits
 Shortens statute of limitations!
 If claimant has actual possession of PART of land described (5 of
500 acres) in the deed (or other document) he is deemed to
have constructive possession to entire land described in the
deed

Exclusive
oPossession cannot be shared with true owner or general public
at large
o If TO shares possession with the parcel AP is using, then exclusivity is
cut off
 Statute of Limitations starts over
o Occasional visit by 3rd party does not necessarily interrupt exclusive
 Is only required to exclude those that a TO would exclude
 Occasional trespasser may not cut off exclusivity
Two Adverse Possessors
 If both occupy the land, then there is no exclusivity
  Court will normally rule that the 2 AP hold joint possession and
will acquire title as Tenants in Common

Open and Notorious

o Possession must so visible and obvious that TO who elects to inspect
his property is put on notice that someone is using his property
 Posting signs, residing on land, building fences/improvements
o If you clean up after yourself, then TO does not have notice
 Secret or hidden activities do not satisfy notice to owner
o Encroachment
 Would a reasonable person be able to tell that someone is using
the land with the naked eye
 Court says will not require one to get land surveys to establish
AP
Hostile
Without permission from true owner
Claim of Title/ Claim of Right –
Hostile – without owner’s consent
3 views
Majority (modern) Objective View (our view)
Subjective state of mind is irrelevant; AP must just use
without consent
Possessor’s conduct is deemed objectively hostile
Justification:
AP is a specialized SOL to recover possession of land
Ease of Administration; Provides a bright-line standard
Minority (Good Faith Test)(Claim of Right)
AP must believe that they own land being adversely
possessed
Innocently, but mistakenly believe
Justification:
Method of curing minor title defects and protects title of
intended owner
Intentional Trespass
Must know that land is not his and subjectively intends to
take title from true owner (does not care and is taking
anyway)

Continuous
• Must have been met for entire duration of Statutory Period
• Must only be as continuous as that of a reasonable owner (look at nature of
property use
o Ex: Summer time use
• Use in the same manner that reasonable owner uses
• If TO returns to property it interrupts the continuity requirement (as well as
exclusivity requirement)
o TO can interrupt continuous if he comes in uses land as you are
• Transfer to successive TO’s does not interrupt AP’s possession
o New Owner still has obligation to inspect and eject the AP
 *Intestate succession: succession by statute for someone who dies
without a will*

Exception: Tacking
o Successive Periods of AP by different persons combined together
o Satisfy the statutory duration requirement

Privity
• Tacking is permissible only if successive claimants are in privity
with each other
• Transfer of interest (can be deed, will; some legal means)
• No privity between successive trespassers

Ex.
If one AP owner uses for 10 years then transfers interest to another (privity)
AP who uses for 10 years and neither use for the statutory period then
owners may “tack” together both periods to meet SOL requirement

Statutory Period (Requisite amount of time)

Disability Statutes
o Tolls the SOL
o If owner is under 18,(infancy), mentally unfit, imprisoned
o Disability of owner must exist at time AP starts possessing
property
o After SOL is passed, Owner must bring action to eject AP within 10 years
after disability is removed
o Owner has entire SOL period + 10 years after disability is removed
o This only applies to Owner of the property
o If Disability arrives AFTER AP starts possession, it is irrelevant
o Disability has to be against the owner, not heirs, etc
Differences
• SOL does not start to run until disability is over
• Others provide that Statutory period begins running only AFTER disability
ends

Color of Title (Tolls statutory period)

• Claim founded on defective instrument
• Defective instrument describes parcel of land
• Statutory period is shortened but must still meet all elements of AP
• At end of Statutory period will own everything described in the deed

Present Interests
Present Estate (Possessory Estate )
Freehold Estate
 Must possess these 2 qualities
 Immobile /Immovable
• Land or some interest that derives from land
 Duration
• Indeterminate

3 type of Freehold Estates

Fee Simple (the entire estate – 100%)
o Not subject to any sort of termination
o Most common type of freehold estate
o Ex. O conveys to A and her heirs (Common Law)
o O conveys to A (Modern Law says sufficient)
Grants
Devises (willed)
Duration
• Indeterminate
• When O conveys a fee simple and there are no heirs, then
O does NOT retain a reversion because he conveyed the
entire estate (Fee simple).
o There is an escheatment to the state

*Escheatment*
When there is no grantor at reversion or no heirs at
remainder
Fee Tail
• Is a common law concept
• O conveys to A and the heirs of her body
• If heirs are in existence at time of grant they do have an
interest in the estate
• Conveyance must be within the bloodline

Duration
 As long as a bloodline exists (not through adoption)
 If A dies with no descendants or heirs from her body, the estate
ends
• O retains a reversion; When O conveys a fee tail, he
transfers less than a Fee Simple therefore he has a
reversion

Life Estate
 Endures for the life of a person
 Always creates a future interest (remainder or reversion in the
Grantor)
Ex. O conveys to A for Life
This estate reverts back to O the grantor
Ex. O conveys to A for life, then to A’s heirs
 This estate gives a fee simple remainder in A’s heirs

• O has given A, a Life Estate, then given a fee simple

remainder to A’s heirs
• At this point there is no remainder or reversion after the
heirs, it will fall into escheatment

Life Estate Pur Autre Vie (estate in the life of another)

Ex. O conveys to A for the life of B

Duration
Indeterminable because you do not know how long someone
will live

Escheatment
When there is no grantor at reversion or no heirs at remainder

Ambiguous language
 Must use Rules of Construction
 Must yield to testators intent (words on the paper)

Common Law
• Unless language is clear the legal presumption is that a
life estate is intended unless the intent to pass Fee Simple
is clearly expressed
Public Policy
 Law prefers as public policy the free alienability/transfer of land
 It promotes the alienability and utility of land
 Complete restraint on alienation is void as a matter of public
policy

Modern Law
 Where the language is ambiguous, modern law will construe as
a Fee Simple Transfer
 Fee simple will be favored as a matter of law
 Language must be clear on its face or the intent to pass a fee
simple will be favored

Waste
Is always an issue when there is a remainder
Affirmative/Voluntary
• Present interest (owner) does voluntary acts that significantly
decreases the value of the property
• Is liable to remainder man for voluntary waste

Permissive
 Present interest does not do anything to protect the value of the
property
  Allows property to deteriorate (inaction)
• Can be non- payment of property tax, mortgage, related
expenses necessary to preserve the estate for the future
interest holder
Absolute
Only limitation is the estate that defines it

Defeasible Estates
Can apply to Fee Simple and Life Estates
A condition prematurely ends this type of estate
Ex. O conveys to A and her heirs, so long as use is residential

Questions to Ask
o Who holds the future interest?
 Transferor of the interest in land OR a third party
Grantor/Transferor retains the future interest then it is only 2
types of estates

• Determinable estate
• Fee simple subject to a condition subsequent
• Future interest is a possibility of reverter in the
transferor/grantor

o What words are used to create the defeasible interest?

• Words of time or duration (Fee simple determinable)
o So long as, until, during, while

• Words of condition (Fee simple subject to a condition

subsequent)
o But if, provided that, however, on condition that

Fee Simple Determinable

 Expires automatically when a stated event happens or
condition ceases to be met
• Ex. O conveys to A, so long as A uses property for a
hospital
 Reverts back to O when land is no longer used as a hospital
(determining event)
 Always a future interest
o Automatically reverts back to grantor or successor
in interest if the condition is broken

Estate is created using Words of Time

• So long as, until, while, during

Subject to a Condition Subsequent

 Does NOT automatically terminate the interest
  Grantor has a reversion as a right of entry
 Must take additional legal steps to take the property back
 Ex. O conveys to A on condition that A use property for a
hospital

Estate is created using Words of Condition or Event

 But if, provided that, however, on condition
that

Types of Reversion
 Possibility of Reverter
• Determinable Estate
 Right of Entry
• Estate subject to a condition subsequent

Mahrenholz v. County Board of School Trustees (208)

• When unclear courts will favor a fee simple subject to a condition
subsequent
o There is no automatic forfeiture of property
o Does not preclude owner from taking legal action to retain
property

Fee Simple Subject to Executory Limitation

 Automatically expires when the condition is met
• Ex. O conveys to A, so long as A uses for a hospital; then
to B
 Third party (B) does not have to do anything to get the property;
is automatic
 Automatic like Fee Simple Determinable
 Right to Possession to a transferee, unlike Fee Simple
Determinable
Equitable Estate
o Created through a trust or given for the benefit of another
o Trustee has legal title
o Beneficiary has equitable title
 O conveys Blackacre to A in trust for life, then to T
 A has legal title
 T has an equitable estate
Legal Estate
Estate created through a deed or will

Restraint on Alienation
 Courts voids complete restraints on alienation
 Will strike the portion of the grant that is complete restriction
 Grantee will get whatever is left over
 Future Interests

Future Interests
2 types
Can only be created by a grant (in themselves or someone else) or
will

Future Interest in Transferor

Reversion
 Transferor, Grantor, or testator conveys estate less than
estate/interest that he possessed
 No 3rd party to which estate will pass to
• This is by operation of law
 Ex. O transfers to A life estate
 O has a fee simple absolute, and has transferred a life estate
which is lesser than the fee simple. Therefore, by operation of
law, when A’s life estate ends, and since there is no 3rd party,
by operation of law, the property reverts back to O

Possibility of Reverter

 When present interest is a fee simple determinable

 Future interest is always a possibility of reverter in transferor
 Language used are words of time: so long as, until, during,
while
 Present interest is automatically terminated once condition is no
longer met
 Once interest is terminated and present interest continues to
occupy, then present interest is adversely possessing

Right of Entry

 When present interest is a fee simple subject to a condition

subsequent
 The future interest in the transferor is always a right of entry
  Language used to create are conditional: but if, provided
that, however, on conditional that
 Transferor retains a right to re-enter
 Does not automatically terminate the present estate
 Transferor must take additional action to re-claim the property
 If present interest is still possessing property, adverse
possession does not start until transferor takes additional steps
to repossess the property

Future Interests in Transferees

Future interest in someone other than Grantor

Remainder (4 types)
Created in 3rd party that is capable of becoming a possessory interest upon
natural termination of the present estate

Vested
 Created in a living, ascertainable person (must know who person
is)
 Cannot be subject to any condition precedent other than
natural termination of prior possessory estate (can be a
conditional subsequent)
• Condition Precedent – the future interest must MEET a
condition to GET the property
• Condition Subject – the future interest must MEET the
condition to KEEP the property

Indefeasible (must still meet criteria for vested )

• Hallmark is its Absolute Certainty
• Know that the future interest is certain to become
possessory upon termination of the prior estate (because
prior interest will certainly terminate)

Subject to Divestment (must still meet criteria for vested)

• Subject to a condition subsequent
• Must meet condition to KEEP the property
• Interest will become possessory , but If condition is
broken, his interest is terminated

Subject to Open
o Remainder created in a Class of persons
o Subject to open because class can expand or decrease
prior to present interest expiring
o If B is alive, B can always have more children
 o Becomes indefeasibly vested remainder (changes once
class closes)
o Once B dies (B can no longer have children)
o At least one person of the class must be
ascertainable
There must not be a condition precedent

Contingent
• Subject to a condition precedent
• Must meet the condition to GET the property
• Ex. O to A for life; then to B for life, then to C
• B must be alive to take the interest (B could die before A)
• This is a condition precedent
This example, as far as B’s interest is correct as a
vested
remainder subject to divestment; for C it is a
contingent remainder

Executory Interest (RAP does not apply)

• Any interest that is not a Remainder
• Is tied to a condition precedent
• When condition is met it will then cut off the prior estate
• Distinction between 2 type of interests hinges on ID of the person
who’s estate is being cut off or divested
• Cuts short the prior estate
Springing
Transferor’s estate is cut short
Shifting
Transferee’s estate is cut short

Shifting

Present Estate | Future Interest

O conveys A and heirs | but if C returns
from France then to C and C’s heirs

• A is the transferee (shifting interest) because C can cut short A’s estate
• C interest is a contingent remainder (has a condition precedent)
• Only way C can take is to cut off a prior interest

Springing

Present Estate | Future Interest

O conveys A and heirs | if C returns from
France

• Retains property UNTIL C returns from France

• When C fulfills the condition, he takes the property cutting short O’s interest
• C cuts short O’s estate

Contingent Executory Interest (RAP applies)

o Can executory interest holder’s actions cut off the prior estate
o Is either Shifting or Springing
o When executory interest can do nothing to cut estate short is another
person
o Ex. O to A as long as used for residential purposes, then to C
o C can do nothing but sit and wait
 Must then ascertain if it is shifting or springing

Restriction of Future Interests

• Must ascertain what type of future interest is

Destructibility of Contingent Remainders

o Applies only to legal Contingent Remainders
 Legal - Created by a deed or will
 Is a ” wait and see “approach
 If estate fails to vest, the contingent remainder is void
 O conveys to A for life, then to B if B reaches 21, B = 10
• B’s interest is struck if he is NOT 21 when A’s estate ends
• B = 22
o Can remove the contingency b/c it was met before
A’s death
o Does not apply to Vested Remainders or Executory Interests
o Not to an Equitable Contingent Remainders
 Created by trust document

• If contingent remainder fails to vest at the natural termination of the

prior estate, the contingent remainder is extinguished
o Ex. O conveys to A for life, then B if he reaches 21
o B is 6 years at A’s death; B’s contingent remainder fails to vest
at the natural termination of A’s estate; must strike through the
remainder
o Property reverts back to O (because he had a FSA and only gave
A a life estate)
Rule in Shelley’s Case
o One instrument
o Creates a life estate (or fee tail) in land in A
o And Creates a remainder in fee simple in A’s heirs or (heirs of A’s
body)
o Life Estate and remainder are both legal or both equitable
o Remainder becomes a fee simple (or fee tail)
 You must strike through the LE, and there is now a FS in A.
o Court says it is the same principle
o Ex. O conveys to A for Life, then to A’s heirs
 Strike through “to A for life, then to A’s
 Still the same as “O to A and her heirs”
o Only applies if there is NO intervening estate
 Ex. O conveys to A for life, then to B for life, then to A’s heirs
• B’s estate intervenes, so Shelley’s Case does not apply

Doctrine of Worthier Title

o When owner conveys to one party
o By the same instrument (same grant)
o Conveys Remainder or Executory Interest in the owner’s heirs
o Then Owner retains the reversion and not the heirs
 Ex. O conveys to A for life, then to O’s heirs
 Creates a reversion in O if O is alive at the natural termination of
the estate
 Do not know your heirs until your death; at your death goes to
heirs

Doctrine of Merger

O conveys to A for life, then to B

• The two estates merge and the lesser estate is extinguished
• Since B has contingent remainder in Fee Simple Absolute, A’s lesser life
estate is merged into B’s larger estate
• A conveys to B
• Can be a wait and see approach or may be determined at the grant
 Rule Against Perpetuities

Rule Against Perpetuities

• No interest is good
• Unless it must vest; if at all
• Not later than 21 years after some life in being
• At the creation of the interest

Rule applies to Legal or Equitable Documents (Will or Trust)

5 steps to evaluating RAP

1). Determine if rule applies to the future interest
 Rule only applies to 3 type of future interests:
• Contingent Remainders
o O conveys to A for life, then to B

• Vested Remainders Subject to Open

o Special Rule: “All or Nothing”
o O conveys to A for life, then to A’s children
 B, C, D (vested remainder subject to open)
 Every interest in class must comply to RAP
 If one interest does not comply then it
invalidates every interest
 Interest vests when the class closes
 Class closes when A dies (cannot have any
more children)
• Contingent Executory Interest
o Can still be shifting or springing
o O conveys to A and heirs, but if A cuts down a tree,
then to B
• Contingent executor remainder
because B cannot do anything to cut
off the estate, B just sits there
 O conveys to A and heirs, but if B returns
from France, to B
• B cuts off A’s estate (must do
something). This is a “normal”
executory estate
• Does not apply to future interests in a
transferor
• Does not apply to present interests
2). If rule applies, when does perpetuities begin (life in being + 21
years)
• Begins when instrument that creates the interest
becomes legally effective perpetuities period begins
• Will becomes effective at DEATH of
• A trust becomes effective only when DELIVERED to
grantee
o Becomes effective when it becomes irrevocable
(by express terms or death of person
delivering the trust)
 Cannot be changed at this point

3). What must happen (what contingency must be met) for the
interest to vest or not vest?
• What conditions must be met to vest?
• When does it change from a contingent remainder to a
vested remainder (right to possession, not necessarily
immediate)
• When is the contingent remainder met
• What must happen for it to forever fail or does it fail to be
met?
 Ex. O conveys to A for Life, then to A’s first child to reach 30
• 2 conditions precedent: A must have children and the
child must reach 30
• Interest vests when first child reaches 30 (what must
happen to vest)
• Interest fails and never vest when A dies without children
(what must happen to not vest)
 • Cannot apply Doctrine of Destructibility (have to wait and
see if A has children)
o On exam just explain the rule that applies
O conveys to A and heirs, but if A cuts down a tree
then to B and heirs
1) If A cuts down trees, B interests vests
2). If A does NOT cut down any trees before his death,
then B’s interest NEVER vests
Must figure out if either of those things will
happen

4). Determine each relevant life that may invalidate the interest
 Must test each life
 If one life invalidates the interest, then the entire interest is
invalidated
 Technically can use any life, practically should use only lives
that affect vesting of the interest

Concurrent Ownership

Tenancy in Common
[Characteristics]
o Simplest most common form of concurrent ownership
o Undivided fractional share in the present interest (parcel of land)
 Separate BUT undivided interest in the WHOLE
• Entitled to 100% possession of the property regardless of
their fractional share of the interest
 o Each entitled to simultaneous possession and enjoyment of WHOLE
parcel
 Unity of Possession is the Hallmark of TIC
o Can acquire interest at different times in different instruments
 May be conveyed by deed or will
o No right of survivorship
 A & B are TIC; A dies; A’s TIC interest will pass to his devisees or
heirs, NOT to B

[Creation ]
o Any conveyance that devises to two (2) or more unmarried persons
Modern (Majority) Law
• Any transfer created in 2 or more unmarried persons is
presumed that a tenancy in common is created unless
language is clear that a joint tenancy was meant to be
created

Common (Minority) Law

• Under common law a joint tenancy is presumed unless
language is clear that tenancy in common is being
created
• Must use the words “Joint Tenancy with Right of
Survivorship”

Ex. To A and B, jointly

This is a tenancy in Common; language is not express
enough to be JT
Intestate Succession
• Arises (be created) involuntarily
Ex.
o D has FSA; dies intestate and leaves 3 children
(E,F,G) as surviving relatives
o Each child has 1/3 interest as TIC with each other
Other Situations
o TIC is created when a joint tenancy is severed
o TIC is created when a divorce ends a Tenancy by
the Entirety

[Transferability]
• Either party has right to sell, mortgage, lease or transfer interest
without consent of the other co-tenants
• Transfer of interest DOES NOT terminate the tenancy in common
• A Co-tenant in common may devise or allow his interest to
descend by intestate succession

Joint Tenancy With Right of Survivorship

[Characteristics]
Each tenant has an undivided share in the entire parcel
 Right to 100% simultaneous possession of the entire parcel
  Each party is free to transfer the interest

Right of Survivorship (Unique to Joint Survivorship) – Hallmark

of JT
• When one co-tenant dies, his interest is transferred (merges) to
the living party by operation of law
Exceptions
• If both owners die simultaneously
o Estates is severed and becomes a Tenancy in Common
(with NO right of survivorship)
o C & D have ½ interest that passes to heirs or devisees

Exceptions - Public Policy

• If one co-owner causes the death of the other, the Joint Tenancy
is severed.
Ex.
C murders D (Estate now becomes a TIC)
 C gets ½ interest as TIC, D’s interest passes to his
heirs or devisees

[Creation of Joint Tenancy]

Common Law
Four Unities - Creation of a Right of Survivorship
Default setting at common law if all four unities are present
Must meet all four conditions OR a Tenancy in Common is
created (by law)

Unity of Time
Interest must be acquired at the exact same time
Unity of Title
Interest must be acquired by the same instrument (will, deed,
or joint AP,etc)
Unity of Interest
• Each interest must be identical fractional share
o No different fractional shares
Unity of Possession
• Each interest must have the same right of possession
• Cannot be a restriction on use

Language used to Create (sufficient to create)

 To E and F as Joint Tenants
 To E and F as Joint Tenants with Right of Survivorship

Ex. To A and B, jointly

• This is a Tenancy in Common; language is not express
enough to be JT

[Transferability]
o Inalienable
 o Right of survivorship ends a joint tenant’s interest
 Interest cannot be devised or descend by intestate
succession

Severance of Joint Tenancy [Generally]

 Can sever without consent (sometime knowledge) of other co-
tenant
• Joint tenant conveys interest to a 3rd person
 Must sever one of the unities
• Transfer/conveyance severs unities of time and title
• Becomes a tenancy in common with the other owners at
this point
 Can only be severed during lifetime
• Cannot will the interest
 No longer a Right of Survivorship
 Can transfer title to yourself using a “strawman”
• “Strawman” is a disinterested 3rd party who re-conveyed
the land back to the grantee
• This severs unity of time and of title
• Converts to a tenancy in common
Modern (Majority) Law
o Can sever the JT Ten by transferring to yourself
 Do not need a straw person now
o Basically severs unity of time and title
o Have now acquired your interest at a different time and by a
different instrument

Problem
o A,B,C (joint tenants)
o C conveys interest to D (D is now a TIC with A & B)
o A & B are still JT Tenants
o If A dies, her share is merged to B (survivorship), but B is
a TIC with D

Tenancy by the Entirety

[Characteristics]
Common law
 Abolished in most states
 Under this law, H &W could not hold title as TIC or JT; wife
had no legal existence as a person
 Any conveyance to a husband and wife was deemed to be a
Tenancy by the Entirety
 Title vested To the husband/wife as a collective unit
• No respective/separate shares
 Still need the four unities + MARRIAGE
• Unity of Time, Title, Possession, and Interest
Right of Survivorship
Can be terminated
 [Creation]
 Recognized in about half of the states
• Still follow common law presumption that marriage
creates a TBE
 In other jurisdictions, intent to create must be clearly expressed
 Most still require 5 unities: time, title, possession, interest and
marriage
Exception:
One spouse can create a tenancy by entirety by direct
conveyance to both spouses even if unities of time and
title are absent
Ex. W has FSA; can convey as :”To H&W as tenants by
entirety
[Transferability]
 Couple as a unit owns entire estate
 Traditionally, consent of both spouses required to convey estate
 Historically, husband can transfer his right of survivorship, right
to lifetime possession, subject to wife’s right of survivorship

Married Women’s Property Acts

o Adopted in all common law marital property states
o Eliminated husband’s exclusive right of control
o Either spouse has power to manage and control marital
property

Termination/Severance of Tenancy by the Entirety & Right of

Survivorship
• Death of a Spouse
• Divorce (Remarriage does not AUTOMATICALLY
restore a TBE; must be a re-conveyance)
• Mutual agreement to sever - Transferred by spouses
together
o One party cannot break the unities or transfer
o If one spouse murders the other, TBE is severed
 Murderer cannot enforce right of survivorship

Must look at where severances occur

2). T devises “to A and B as joint tenants for their joint lives, remainder to the
survivor”

o Life Estate Per Autrie Vie (present estate)

o This is a Tenancy in Common, they both have each have life estates in
the other
o No survivorship mechanism in a Life Estate
o Only thing that gives a survivorship is the future estate conveyed
o Future interest is the remainder in the survivor
• Can only use present interest to determine the interest
Riddle v. Harmon
• Wife wanted to sever JT Ten so that husband did not get her interest in the
property at her death
• She created a grant conveying the property interest to herself
o She severed the unities of time and title
• At common law, court said that she needed to make a straw conveyance
o “Strawman” was a disinterested 3rd party who re-conveyed the land
back to the grantee

Modern (Majority) Law

o Can sever the JT Ten by transferring to yourself
 Do not need a straw person now
o Basically severs unity of time and title
o You have now acquired your interest at a different time
o You have also now acquired your interest by a different
instrument

• Liens do not sever the unities

Once there is a death, the lien is extinguished in that person’s fractional share of
the property

Relationship Between Concurrent Owners/Cotenants

Relations among Concurrent Owners

General Rule
 No fiduciary duty between Co-Tenants
 One cotenant cannot contract on behalf of another
 Has little to no duty to affirmatively safeguard right of other
cotenants

Exceptions to Fiduciary Duty

o If co-tenant has acquired interest from common source (single
deed/will) they owe a fiduciary duty to each other
o Broad fiduciary relationship if cotenant has acquired sole title to co-
tenancy property through a foreclosure sale, tax sale or involuntary
sale
 Acquiring cotenant holds title as de factor trustee for benefit of
other cotenants
 As long as they pay proportionate share of acquisition price
o Benefits and burdens of co-ownership are evenly distributed
o Joint tenants or Tenant in Common may not do any act to the prejudice
of the cotenants in the estate
Majority Rule
 Cotenant is normally entitled to exclusive use of co-tenancy
property w/o duty to compensate other cotenants
• One cotenant does not owe rent to another cotenant
 Each tenant has exclusive right to the property
• One cotenant cannot maintain an AP claim against the
other cotenant
Exception (to payment of rent to cotenants)
Principle of Ouster
• Occurs when a cotenant in possession refuses the request of
another cotenant to share possession of the land
• Occupying cotenant is liable to other cotenants for rent

Characteristics of Ouster
o Must make attempt to gain access and be refused
 Denied access includes changing locks, using
property so that no use can be made of any other
part of property
o Must show intent to exclude other cotenants
o If one tenant simply demands that cotenant in possession
pay rent, ouster has not occurred (must be demanding
possession not rent)

Adverse Possession
• If Ouster occurs, cotenant in possession may begin start an AP
claim against the cotenant not in possession (combined must
show acts inconsistent with concurrent ownership)
• Statute of Limitations begins to run for AP

Contribution
 One cotenant seeks reimbursement from other cotenants for pro
rata share of expenses that complaining cotenant has paid (if he
has paid more than his pro rata share)
• Taxes, mortgage payments, repairs/improvements
 Can demand contribution after cotenants refuse to pay their pro
rata share

Accounting
 Co-tenant can solely possess and keep profits generated from
SOLE possession
• Once leased/rented to 3rd party he must account for
profits and share with co-tenants

Rents Received and Profits for use of Property

• Each cotenant is entitled to his/her prorata share of rents
received from a 3rd party for use of the land
• Co –tenant collecting rent payments may offset costs
associated with generating/collecting rent
  Include amount expended on taxes, interest,
mortgage principle, insurance

Taxes, Mortgage payments

General Rule
• All cotenants are obligated to pay their proportionate
share of mortgage, tax and other payments that could give rise
to a lien if unpaid
• If one cotenant pay more than pro rata share, he may
recover through a contribution action

Special Rule
Cotenant in Sole Possession
Cannot recover for payments unless exceed reasonable
rental value of the property

Repairs, Improvements, Maintenance

Majority Rule
Cotenant who pays for repairs/improvements is not entitled to
contribution from other cotenants absent a prior agreement
Rationale
Cotenants may disagree over necessity, character, extent and
cost of repairs
Exception to General Rule
Waste
Co tenant cannot do anything on the property that constitutes
waste

Partition
Settles disagreements between cotenants
Can sell interest or institute partition action

Partition in Kind
 Actual physical partition of the property
 Distributed according to interest
 Favored over Partition by Sale

Partition by Sale
 Easier and simpler than Partition in Kind
 Done when partition in kind is impracticable

Owelty
o Payment by other cotenants to the other cotenant equalize value of
what is being partitioned
 Marital Property Interests

Common Law
o Husband and Wife considered a unit
o Not divisible at common law
o Existence of Wife was suspended during marriage
o Lost legal identity
 Did not have legal right as a person to control her own property
 Once married became property of husband
 Viewed as inferior – morally, mentally
• Needed husband to provide her with maintenance

Rights During Marriage

 Husband obtained Life Estate if wife came into marriage with
property
 Property acquired during marriage became the husband’s
 Wife only entitled to keep personal property (clothing, jewelry)
 Husband had sole possession of property without wife’s consent
• Had sole right to profits received from property during marriage
or lifetime of both spouses
• Wife could regain control over land only upon divorce or
spouse’s death

Rights Upon Divorce

 When divorce occurred was divided according to who held title
to property
 Wife only had title to any property that was not sold before
marriage
  Wife only entitled to alimony or support only if not cause of the
divorce
 “Blameless” wife was entitled to alimony

Rights Upon Death

• When husband died only children could inherit; wife could
not
• Wife entitled to Dower
 Entitled to 1/3 husband’s qualifying real
property
 Kept wife from being disinherited
 Only entitled if she had children from the
marriage
• Without Wife’s consent, Husband could not transfer all of
his interest nor could creditors seize to satisfy his debts
o Any transfer was subject to 1/3 interest of wife
(dower)
• Wife could only use and enjoy the 1/3 during her lifetime
o Could not dispose of it through will
“Curtesy”
• If Wife died, then property passed to her estate
o Husband had LE; entitled to receive curtesy
 Gave him life estate ½ interest in wife’s
property
 Would be disposed of at his death through
wife’s estate
 Only if marriage produced issue capable of
inheriting wife’s lands

Traditional View
o Property was retained by spouse who acquired it
o Husband still got everything in the Divorce

Modern Views
Equitable Distribution
 Followed by majority of states
 Property acquired during marriage is equitably (fairly)
distributed when divorce
 Other than property acquired by gift
 Property acquired prior to marriage remained separate
properties
Community Property Approach
 Minority view – 8 states (California)
 All property acquired during marriage is community property
 Will be divided equally
 To avail oneself of this principle; must have a ceremonial
marriage
• No common law marriage, cohabitation
Sawado v. Endo
Issue: Whether a TBE was subject to levy when one tenant died
Deed is effective when delivered NOT when recorded
o Married Women’s Property Acts abrogated husband’s dominance over
marital estate
Hawaii followed MWPA – majority position
Interest of the husband or wife in the estate by the entirety is not
subject to claims of his/her individual creditors during joint live s of the
spouses
Cannot lien up the property

In re Marriage of Graham
o Issue: What is marital property? Is education subject to division?
o Wife supported husband through 2 degrees
o Husband got well-paying job and left he wife
o Wife asked for half of his degrees
o Trial Court found that education obtained by one spouse during
marriage was jointly-owned property
o Court of Appeals reversed
 Education itself is not “property”
 Said does not have attributes of property
 Not divisible, devisable, inheritable, saleable, transferable, etc.
o Wife not asking for alimony or value received from the degree, but the
degree itself

Elkus v. Elkus
Issue is whether her increased earning potential is subject to marital
distribution

Landlord/Tenant

Leasehold Estates/Interests
Tenant’s Rights
 Right to immediate possession & occupy that which he is leasing
 For fixed period of time
 Right to use and enjoyment
 Right to enjoy profits from the land (such as a Life Tenant)
• Cannot commit waste
 Right to Exclude others
• Includes the Landlord
Licenses
  Do not enjoy all the rights of leasehold
 Right to use
• All licenses are revocable unless stated otherwise
 Can be evicted
Ex:
o A buys a ticket to see a play
o Renting a hotel room
o Renting room in an extended stay hotel

Leases
o First point of Attack for resolving a conflict
o Leases are governed by Contract Law vs. Property Law (at Common
Law)
o If silent on a particular matter must look at statutes
o If statutes are silent then must go to case law

Statute of Frauds
o Provides that any contract (including lease) for more than term of one
year must be in writing
o If more than one year without a written document, is not valid
o Oral agreements under a year do not have to be in writing
o A month to month that continues for more than one year does not
have to be in writing
o Unless agreement at start that month-to-month it will be more
than one year

Compliance with Statute

• Must be In writing
• Must have description of property subject to the lease
• Must know the term of lease
• Must be signed
o Some states require signing by both parties (practically)
o Some require signing by party against whom you seek to
enforce the lease
o If landlord is seeking enforcement against tenant, tenant
must have signed
o If tenant is seeking to enforce against landlord, landlord
must have signed
o Does not make contract void, just means that you have
agreed to terms (basically a one-way contract)

Court Determinations of a leasehold or license

• Looks at how much control person has over the area
• Looks at Occupation of the area
• Looks at language in the contract that defines the relationship

Non-Freehold Estates
Term of Years
 Key Characteristic
• Will continue for a designated period of time
 Must be fixed in advance (At start of tenancy)
 Must able to compute duration from language (if no dates
specified)
• Must know definitely when it will end
• Must have specific start and end date
• Can be for months not necessarily years
Termination
• Automatically expires on its end date (no notice required)
o Not renewed unless language in
contract/agreement states
o If tenant remains is now a holdover tenant
 Issues to consider: Trespass, Adverse
Possession
 Clock for AP begins to tick
 Landlord must take steps to evict holdover
tenant
 Landlord has 2 options:
• Treat as Trespasser
• Hold as new tenant to new lease
Ex.
Commercial Leases
Some Residential Leases

Periodic Tenancy
 Initial fixed period of time
• May be month-to-month (residential), year-to-year
 Terminates at end of each period with automatic renewal
• Continues for equal periods of time
May arise by implication
• Based on conduct, absent an express agreement
o Taking possession; paying rent
Termination
 Notice is necessary (by landlord OR tenant)
• Governed by Statute today
o 30 or 60 day notice must be given by either party
to terminate a periodic tenancy (oral or written)
o If not in lease, must look to statute
• Continues until tenant or landlord terminates through
notice

Tenancy- At- Will

o Generally has no fixed duration
o Endures as long as tenant or landlord desires (at-will) (Common
Law)
o May not be a lease to look at, must look at language that
created agreement
 o Can be created by Accident
 Never entered into a lease; may not pay rent
 Boyfriend that will not leave
• If refuses to leave then becomes a Tenant at
Sufferance
 Must then give notice; may evict
• Cannot exercise self-help measures
 Rent is not indicative of a contract

Termination
• Terminated when one of parties gives notice of desire to
terminate
• Any form of notice; even conduct that demonstrates
intent
• Focus on at whose will does lease terminate
• If at Landlord’s will, law will imply a reciprocal right at
tenant’s will
• If at sole will of tenant, will not imply a reciprocal right to
landlord
• Will have a tenant life estate or period shorter than life if
he so desires
• Abandonment of Property
o Determination of Abandonment of Property
 Look at objective intent

Tenancy atSufferance
o Not really a tenancy at all
o Does not create a landlord/tenant relationship
o No notice required to terminate because is not a tenancy
o May evict at any time
 May recover for fair rental value of damages for period
that you remained over
o Tenant remains beyond his expiration of the tenancy or after
notice is given
Holdover Tenant
o Is now a “holdover” tenant (tenancy has been
terminated)
 One step up from a trespasser
 Landlord has 2 options to exercise at his discretion
• Once landlord chooses an option he is held to that
option
o Can treat as trespasser (and evict)
 May recover rent
o Treat as a tenant and hold to brand new
term of the lease (same terms as old lease)
 If tenant leaves, landlord may sue you
 Can sue you for rent on new lease for
up to a year
  Once tenant makes decision as
trespasser he is stuck with the option
 If landlord decides to hold as a new
tenant he cannot later evict before the
term is expired

Garner v. Gerrish (Tenancy -at -Will )

o Gerrish felt he had a Life Estate (freehold estate)
o Gerrish rented a house from Donovan and Donovan dies
o Executor evicted Gerrish
 No end date (Not Term of Years)
 No indication of renewal (No periodic tenancy)
 By Default is a Tenancy at Will
 Issue: Whether should be construed that only tenant can
terminate or is there a reciprocal right for landlord to terminate
• If Landlord has sole right to terminate a tenancy at will, by
law then tenant also has reciprocal right to terminate
(even though not explicitly stated)
• Court said there was no symbolic delivery of land (livery
of seisin)
o Delivery of dirt, twig something from the land
o No longer necessary to do this to create a freehold
estate
o Court said was a determinable estate (“for so long
as”)
o Contract gave him right to live there so long as he
chose and paid rent

Crechale & Polles, Inc. v. Smith (Tenancy at Sufferance)

o Accepted rent payment after trespasser/eviction/expiration of
lease
o Showed intent that he was creating a new lease
o Court said actions contradicted eviction language (“get out”)
o Once choosing one of the options as to how to treat holdover
tenant, he is held to that option

Selection of Tenants at Common Law

o Landlord can select anyone for any reason
o Could also refuse to rent to anyone for any reason

Fair Housing Act

o Landlords cannot now discriminate on basis of sex, religion, race,
handicap, natural origin, familial status
o Cannot discriminate against a protected class (children are not a
protected class!)
o Generally only apply to single family homes sold without assistance of
a real estate broker or agent (can discriminate)
 o Owner occupied with four or less units you cannot discriminate

Delivery of Possession (Landlord must deliver to Tenant)

Majority View (English)

o Must deliver legal possession and actual possession
 If someone else is legally in possession of space or has legal
right to possession, then landlord has not delivered to you legal
possession

Common Law
Minority View (American View)
 Under minority view, only have to deliver legal possession
 Not required to deliver actual possession
• If a holdover tenant is there, then YOU, not landlord has to
evict the holdover tenant

*Tenant is still obligated to pay rent and perform his obligations under the lease
*

Landlord/Tenant Transfer of Interests

Assignment
Definition
Transfer of tenant’s existing lease to a 3rd party
Transfers his entire interest and leaves nothing for himself
Two Privities Created
Privity of Contract
Privity of Estate

Subleasing
Definition
 Wholly new lease between a tenant and a 3rd party
 Reserves a portion of interest for himself with a right of re-
entry/reversion
• Ex. Transfers a term of years of 9 years and 364 days and
reserves 1 day (less than the 10 years of his original
lease)
Majority Rule - “All or Nothing Test”
o If a right of re-entry or reversion exists then is a sublease
o If transfers entire interest than is an assignment

Privity of Contract
o Contract Law concept
o Assignment creates Privity of Contract
 o Once gives entire interest in estate, the assignment breaks
privity of Estate
o B assigns to C (privity of K)
o If C fails to pay rent, B has options
 B can sue; still in privity of contract
• Unless B has an express release from A; he is still
obligated to A
o Even if A consents to assignment, then B is still
obligated to A

Privity of Estate
A leases to B (leases portion of interest; not giving entire interest)
A can sue C for any provision under the contract that “touch and concern”
the land (rent)

Express Release (novation)

Assignment Assumption
o Expressly assumed all the obligations
o B is still obligated to A unless A expressly releases

Multiple Assignments
o C assigns to D (gives entire interest); D fails to pay rent
o Any Privity of Estate C had with A and B moves to D
o A can sue B under Privity of K
o A can sue D under Privity of Estate
o A cannot sue C (no relationship left since C assigned his interest to D)
 No relationship between B and D
 B can sue D
o C can sue D

Subleases Scenario
Privity of E Privity of E
Privity of K Privity of K
(Lease) (Sublease)
A--------------------------------------B----------------------------------C

o A leases to B (Privity of Estate & Privity of Contract)

o B subleases to C (whole new lease between B & C; B is C’s landlord;
new landlord/tenant rel)
 Both Privity of Estate & Privity of Contract (because new
relationship was created)
o If C does not pay rent:
 B still on hook to A for rent
 A cannot sue C directly for failure to pay rent
o If C pays B and B is not paying A; C is not in contract in A
 A cannot evict C; A must evict B
 When main lease terminated so is sublease
  Any tenant under B is evicted

C Assigns to D:

• Privity of Estate is now between B and D (severed between C & B)

• Only privity of contract between C & D
• B now in Privity of Estate and Privity of Contract with D; then D=no rent

Assignment Provisions – Right to Assign or Sublease

o Tenant is free to assign, sublease or transfer absent an agreement to

the contrary
Sole Discretion Clause
o Can be at Landlord’s sole discretion
 Landlord can refuse assign/sublease for any reason or no reason
at all
• Cannot refuse on basis of race, gender or other protected
class

o Silent Consent Clause - Lease is silent

 May assign without Landlord’s consent
 In terms of transferring interest
o Lease cannot be assigned or sublet (express)
 Construed very narrowly and literally
 Against alienation concept
 Court allows to certain extent (will strictly construe express
provisions)
• Does not prevent from subleasing, mortgaging, assigning
unless EXPRESS in the lease
o Tenant can assign; Landlord’s assignment cannot be
unreasonably withheld
 Must be a reasonable explanation for withholding consent
 Must be a commercially reasonable explanation (question of
fact)
• Creditworthiness
• Not using premises properly, appropriately
Leasing without consent
• No standard tied to it
• When this is so courts impose a commercially reasonable
standard

Commercial Lease
Will imply a reasonable standard
Residential Lease
Court is split as to sole discretion standard or reasonable
standard
More reason to deny under residential
 Rights of Tenant and Obligations of Landlord

Common Law Foundation

• Is there a lease
o Must always look to lease for any Landlord/Tenant relationship
• Must ascertain whether commercial or residential lease
• What common law principles apply regarding L/T issues
• What modern law principles apply regarding L/T issues

Duty of Repair – No Lease

o If no lease (lease is silent)
Common Law principle
• Duty to repair is on Tenant – Landlord had not duty
o Caveat Emptor (Lessee beware)
o Tenant has affirmative duty to fix/cannot refuse to fix (principle
of waste – commercial lease)
• Minor repairs
Modern Law
Distinction between commercial and residential lease
Commercial Lease
 Tenant has duty to repair
 May include duty to rebuild
 Looks factors
Residential Lease
Implied Warranty of Habitability&Implied Covenant of Quiet Enjoyment
Protected by these 2 principles
o Only minor repairs
o Only duty to tenant is duty to make minor repairs because
of Implied Warranty and Covenant

Lease assigns obligation/duty to tenant

Common Law
o Tenant must repair – Lease expressly provides
o No difference between commercial lease and residential lease
o If premises totally destroyed tenant had obligation to rebuild
 Does not matter who is at fault
Commercial Lease
 Tenant continues to have obligation to repair which includes
obligation to rebuild
 Courts look at these factors whether to apply that obligation:
• Cost of repair in relation to rent being paid
o If exceeds rental value, court may not order tenant not to
rebuild
o Length of lease
o Look at parties intent
Residential Lease
 o Duty to repair
o Only duty to make minor repairs; not duty to rebuild

Lease assigns obligation/duty to landlord

Common Law
o No distinction between commercial lease or residential lease
o Landlord had obligation to repair
 Of no consequence to tenant; if Landlord refused to repair
 Each provision was independent of each other
 Only right is to sue landlord and seek damages; could not
stop paying rent or terminate lease even if premises totally
destroyed
Modern Law
o If landlord refuses to meet obligations under lease
 No distinction between commercial or residential lease
 All lease provisions considered dependent on each other
• If landlord refuses one provision, tenant can refuse
another (L does not repair; T can refuse rent)
Tenant has 2 options:
Constructive Eviction and Implied Warranty of
Habitability

Constructive Eviction (most widely used in commercial leases)

(Applicable to Covenant of Quiet Enjoyment, not Warranty of Habitability)
Must meet these 2 elements
• Only situation where tenant can exercise these option when landlord
refuses to meet obligations under lease (express or implied)
• Substantially interferes with use and quiet enjoyment

Tenant’s Options
Can terminate and move
Stop paying rent
Stay and seek damages
• Measured by fair rental value when expenses exceed rent and
other expense
• Must take 3 steps
o Must give landlord notice
o Must allow landlord reasonable time to cure the defect
(depends on defect)
o If not cured after 1 & 2, must move out (within reasonable
time to sue for damages)
 Include moving expenses, cost to rent new
premises (including commissions that need to be paid)
Offset damages
• Occurs when landlord wrongful conduct substantially interferes
with tenants use and enjoyment of property
• There must be some duty or obligation on landlord
• If there is none, then no constructive eviction
 Standards for Constructive Eviction
o What is the wrongful conduct of Landlord?
 Can be affirmative act that interferes
• Ex. Changed locks and tenant not given keys
 Landlord may fail to do something legally obligated to do
o Is Landlord responsible for acts of 3rd parties?
 Generally not responsible acts of 3rd parties that
interferes substantially with tenants use and
enjoyment
Exception
• Landlord must have the legal right to control 3rd parties
conduct

Substantial interference
Must be of a substantial interference that a reasonable person would
conclude makes property uninhabitable
o Interference does not have to be permanent; can be temporary;
does not have to be complete
 No heat in Winter; toilet does not work but rest of
premises is usable
 May not be an affirmative obligation on landlord but
Warranty of Habitability gives him that obligation (whether
expressly stated or not)
 If Tenant is aware of some conditions that ordinarily is a
SI, may have waived his right to constructive eviction
• Must exercise right to say “repair before I move in”

Implied Warranty of Habitability (all residential leases contain)

• Landlord must deliver the premises in habitable condition and must be
maintained throughout the lease
• If landlord violates this warranty (implied in every lease)
• Even if affirmative on tenant for minor repairs
o Warranty of Habitability cannot be waived
• When landlord breaches the duty, tenant can:
o Make repairs (while still in premises) & Offset rent
o Terminate and sue for damages
o Stay in possession and sue for damages
o Remain and withhold rent
Factors that constitute a breach
• Broken windows, leaky roofs, defective locks, lead-based paint,
broken toilets, pipes, plumbing, defective wiring, lack of hot water,
mold

Must give landlord notice

o Notice must be specific enough to inform landlord of defect
o Landlord must be given reasonable time to cure defect
o If tenant does not give notice or give reasonable opportunity to
cure:
Landlord Responsibilities for Tenant Injuries
Modern Law
Liable under general principles of Tort Law (negligence theory)

Self- Help

Self-Help
Common Law – Commercial Lease
Landlord may exercise self-help
• Landlord must be legally entitled to possession
o Tenant breaches lease and it contains a re-entry
clause
• Landlord’s self-help method must be peaceful
• If a potential breach of peace, law will not accept self-help

Tenant
• If he has not relinquished his possession (abandonment),
no self-help method is peaceful
o Must look at the intent
• Law usually frowns on self-help methods

Mitigation (Sommer v. Kreidel)

Common Law (decided under principles of property law)
 Mitigation is not required
 Landlord can sit for entire lease and sue tenant for entire lease
Modern Law (decided under principles of contract law)
 Landlord cannot sit by idly and not lease the premises (build up
damages)
 Must mitigate damages
Constructive Eviction
o Substantially interferes with use and enjoyment
o Use constitutes what tenant would use the property for