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Property Outline Professor Wright, Spring 2010
I. Creation of Property Rights
I. Introduction I.I. A property right is a set or rights and remedies I.II.Property is made up of a bundle of rights which include; I.1. Ownership I.2. Right of possession I.3. Right to exclude I.4. Right to future possession I.5. Right to alienate I.III. If you buy something from someone and it is not theirs to sell, the true owner will get it back I.6. True owners rights trump most others I.7. May have to go back to the individual parts sold to the manufacturer to know who actually owns it. Once you find the first owner you can trace the subsequent owners I.IV. First question we should always ask ourselves is who got the first property rights? I.8. Land creates a problem for this but usually you have to go back to where the government sold it to an individual consumer I.9. United States property rights can be traced back to a patent with the government I.a. a patent is a deed to individuals from government of land direct grants from government I.V. Theories with land (created by John Marshal) I.10. Law of Discovery I.b. First to discover gets property rights (international law between sovereign governments) I.i. Sovereignty is the idea that the king, government, ect. has superior claim to their domain. The true owner in some sense of all land I.c. Once a new sovereign is established he could cancel any property rights of old owners and grant to new owners I.VI. Doctrine of Conquest (created by John Marshal) I.11. You either have to conquer or purchase to gain property rights I.VII. Conversion is a tort which is one someone converts another’s property for the benefit of his own I.12. Important is that you have to be acting like the owner. I.d. Ex. A valet isn’t guilty of conversion if he takes your car and parks it for you, but is guilty if he takes your car out for a joy ride. I.VIII. Three Elements of a transfer of property rights are: I.13. Delivery I.14. Acceptance, and I.15. Intent I.IX. Questions about intent are looked at objectively as what a reasonable person would do or think I.X.To occupy you must have: I.16. Intent plus one of the following; I.e. Mortal wounding, or I.f. Deprivation of liberty, or I.g. Continued pursuit with a realistic prospect of capture I.XI. Abandonment I.17. Person must have a property right and intent to relinquish to the first taker
II. Possession
I. Pierson v. Post – Wild Animals I.1. Facts Post was hunting a fox with several hounds, and while chasing the fox and in view of Pierson who knew the fox was being hunted, Pierson killed and carried the fox off I.2. Holding Mere pursuit did not give Post a legal right to the fox, but that the property of Pierson who intercepted and killed it. Only if Post had wounded or something similar would he have property rights. Law of capture I.3. Dissent: Thinks that property of wild animals may be acquired without bodily touch provided the pursuer be within reach or have a reasonable prospect of taking it. I.4. Class Notes: I.4.a. Law of Capture - with wild animals that the only way property is acquired is by occupancy I.4.a.i. pursuit is not enough I.4.b. Majority doesn’t want to make it easier to get a property right because it would be hard to say when possession happens and this would also increase law suits I.4.a.ii. Also if we attach property rights too soon it narrows the market and no one else can get into the market to compete II. Popov v. Hayashi – Baseball I.5. Facts: Popov caught the record breaking ball hit by Barry Bonds in the webbing of his glove, but as this happened he lost possession because he was mobbed by the people around him (unlawful assault and battery), the ball was later picked up by Hayashi who retained possession I.6. Holding: Because of the Gary Rule – the actor must retain control of the ball after incidental contact with people and things – was interrupted by collective assault of a band of wrongdoers Popov has pre-possessory interest in the Ball. Because Hayashi was not a wrongdoer both men have legal claims to the ball and are ordered to sell it and split the profit I.7. Class Notes: I.4.c. This is the same rule as with the foxes except now it adds an exception when someone is being wrongfully interfered with. Which created a pre-possessory interest III. Elliff v. Texon Drilling Co – Oil and Gas I.8. Facts: The petitioners owned one half of lands, with the Driscoll’s owning the other half, that had oil and gas under it and there was leases for the oil and while pumping from the Driscoll sevier No2. It blew out destroying the remaining oil and gas I.9. Rule: I.4.d. Old rule was that until you capture it there was no ownership rights I.4.e. Now recognized that when an oil field has been fairly tested oil and gas in place a common pool, and can equitable determine the amount of oil and gas recoverable by the owner of each tact of land it is a race to capture but must be fair and reasonable I.4.a.iii. Texas has absolute title of oil and gas beneath the land I.4.f. Once you start pumping the migratory character of oil and gas has given rise to the rule of capture and each land owner is afforded the opportunity to produce his fair share of the recoverable oil and gas I.10. Holding: the negligent waste and destruction of petitioner's gas and distillate was neither legitimate drainage of the minerals from beneath their lands nor a lawful or reasonable appropriation. So the petitioners did not lose their right title or interest in them under the law of capture I.11. Class Notes: I.4.g. Absolute title would be a problem the minute one party pumped out more than their fair share I.4.a.iv. Texas comes up with Absolute title subject to the law of capture
own economic benefit but here they didn't inform him. A great bulk of the value from the patent are attributable to the efforts of the researchers rather than the "raw materials" A.h. Mosk – Dissent: Other laws put limitation on the bundle of rights but they are still considered property and Moore at least has the decision to do with his tissue what he wants. It was named after him so his contribution had to be great and research tends to treat the human body as a commodity A.9. Class Notes: A.i. Rule – one does not have a property right in tissues extracted from one’s body in a medical procedure so that one may later sue for conversion. A.j. Moore’s privacy argument does not work – if privacy is a property right, once you get it back, you have been made whole. What is the remedy? The traditional property remedy is to get the object back first, then money if getting the object back is inadequate (this is opposite the K rule). A.k. Court also said there is no existing property right and they are not going to create a new one because it stifles invention/ research and court says this should go to the legislature and patients autonomy is controlled by the breach of fiduciary duty and lack of informed consent. A.III. Upton v. JWP Businessland - Work and Family A.10. Facts: Plaintiff was a single mother of a young son and was fired from her job when they wanted her to work longer hours and later into the night then she already was. A.11. Rule: Employees at will may be terminated at any time for any reason or for no reason at all except if terminated for reason against public policy A.12. Holding: No public policy purpose is served by the conduct for which the plaintiff asserts she was discharged, and plaintiff's situation would convert the general rule into a rule that requires just cause to terminate an at will employee. A.IV. Local 1330, US Steel Workers of America v. US Steel Corp. - Who owns the Corporation? A.13. Facts: US steel is closing two unprofitable plants in Youngstown, Ohio that have been there for about 80 years which will be about 3500 people out of a job A.14. Rule: There is no authority that would require US Steel to continue operations in Youngstown which it officers and Board of Directors had decided to close because of unprofitability A.15. Class Notes: A.l. Difference between this case and previous cases where the courts created a property right is that in this case they would have to take away the property of the Steel corp. to give it to the newly created property rights A.m. Court says that the legislature can create laws effecting property rights but the federal courts do not have the authority to deal with state property rights. B. Family A.V. Babbitt v. Youpee - Wills and Inheritance A.16. Facts: Congress initiated the Indian Land Program to give land to Indians, but because they passed allotted lands down to multiple people owned a portion of the land and § 207 took the land away if it was too small. Consolidation act requires small interests transfer to the tribe of the owner A.17. Rule: Abrogation of the right to pass on a certain type of property is unconstitutional (5th amendment without just compensation). Right to choose who you pass on land to A.18. Dissent: John Paul Stevens A.n. "I remain convinced that congress has ample power to require the owners of fractional interest in allotted lands to consolidate their holdings during their lifetimes or to face the risk that their interests will be deemed to be abandoned A.19. Class Notes: Supreme Court said you are not entitled to the highest and best use. Just because you think you can put a billion dollar hotel doesn’t mean the government would let you A.VI. In Re: Marriage of King - Marriage
A.20. Facts: Jack and Pamela King got divorced in 1981 and the court awarded each party the personal property in their possession and awarded the family residence to the wife. A.21. Holding: It is not error to grant the wife a proportionally larger share of the martial property to offset her increased obligation as long as there is an acceptable reason for thinking it. A.22. Class Notes: This is an important case that says ownership is always qualified by marital circumstances C. Finders A.VII. Charrier v. Bell A.23. Facts: π found and excavated approximately 150 burial sites on the Trudeau Plantations, where he found several artifacts in which he wished to sell but finds out he cannot because he cannot prove ownership A.24. Rule: Human remains and burial goods located in cemeteries or burial grounds are not "treasure" and thereby not subject to occupancy upon discovery A.25. Reasoning: would lead to and promote commercial speculation and despoilment of burial grounds. A.26. Holding: π was acting out of his own negligence and his own risk. He failed to show that any enrichment was unjustified, entitling him to recover from the enriched party A.27. Class Notes: A.o. Elements of unjust enrichment ; A.ii. Enrichment A.iii. Someone impoverished without fault A.iv. Link between enrichment and impoverishment A.v. Absence of justification A.vi. No other remedy available at law. D. Water A.VIII. There are 2 kinds of water A.28. Good water - which we want property rights too A.29. Bad water - which we don’t want property rights too A.IX. Ground Water A.30. Free use - everyone can take as much as they can legally access. Law of Capture. A.p. Once captured it's yours. You can take all the water and not liable to someone else. A.31. Prior Appropriation Rule ( Majority rule) A.q. Whoever is using it first is entitled to continue at normal usage. The second user is entitled to all the water they want as long as it doesn’t interfere with the first users usage A.32. Correlative rights A.r. Allows each owner to withdraw a specified portion of the groundwater, usually in proportion to what percentage of the aquifer underlies their property A.33. Reasonable use ( minority rule) A.s. Use water in a reasonable way and more reasonable will have priority over others. A.t. Residential usually has greater than commercial and you cannot waste it. A.u. When there is a problem we will pick the most reasonable use. Farming > a golf course A.34. Permit system ( minority rule) A.v. Buying and selling water usage. This is used mostly in the west A.X. Streams A.35. First come first serve A.36. Generally the same rules of ground water but vary from state to state. A.37. With streams you don’t want to own the water but you want to have access to the water A.XI. Surface Water
III. Present Estates and Future Interests – Estates and Trusts w A. Fee Simple A.I.Fee simple or fee simple absolute – property ownership without an associated future interest. A.1. Biggest bundle of sticks you can have, no condition on land and no one else has rights to the land. Because no one owns a future interest in the property, no other individual has any presently identifiable legal right to obtain ownership of the property in the future. Court will presume Fee Simple Absolute if failure to establish any other fee. A.a. Ex. O to A, O to A and his heirs, O to A in fee simple A.2. The language “& her heirs” is referred to as “words of limitation” because it describes the kinds of estate owned by A having full rights to pass it on. B. Defeasible Fees - all inheritable A.II. Defeasible fees – present interests that terminate at the happening of a specified event, other than the death of the current owner. There are 2 major categories: A.3. Whether future interest is in the grantor or 3 rd^ party A.4. Whether future interest becomes possessory automatically when stated event occurs or becomes possessory only if the future interest holder chooses to assert their right A.III. Automatic transfer: A.5. When automatically to the grantor on the happening of an event it’s called fee simple determinable and the future interest is called a possibility of reverter A.b. Ex. O to A so long as used for residential purposes, O to A while used for residential purposes, O to A during residential use, O to A unless used for nonresidential purposes A.IV. Transfer upon grantor’s assertion of property rights: A.6. The grantor may choose to retain for herself or her heirs the right to decide, at the time the condition is violated, whether to retake the property. If she does not retake possession, ownership stays with the current owner A.7. The current interest is called a fee simple subject to a condition subsequent and the future interest is called a right of entry A.c. Ex. O to A on condition that the property be used for residential purposes; in the event it is not so used, O shall have a right of entry. O to A but if used for nonresidential purposes, O shall have a right of entry A.8. Possibilities of reverter and rights of entry were traditionally not transferable, however the vast majority of states now hold that future interests are alienable as well as devisable A.9. Traditionally a major difference between possibilities of reverter and rights of entry involves the statute of limitations (SOL) for adverse possession. A.d. SOL starts running immediately, and if the holder of the possibility of reverter does nothing for the statutory period, title will shift back to current possessor A.10. Doctrine of laches – prevents recovery when an unreasonable delay in asserting legal rights unfairly prejudices another. A.V. Future Interest belongs to a 3 rd^ party: A.11. When the future interest in a Defeasible fee belongs to someone other than the grantor, the present interest is called a fee simple subject to executor limitation and the future interest is called an executor interest. C. Life Estates A.VI. Present ownership rights can be held during the life of a designated individual. A conveyance from O to A for life creates a life estate interest in A. A.12. This means A owns the property during his lifetime and after his lifetime the future interest could be owned by either the grantor or a 3 rd^ party
A.VII. If the property reverts to the grantor when A dies, the future interest is called a reversion ; if the grantor designated a 3 rd^ party to obtain ownership when A dies, the future interest in the 3 rd^ party is called a remainder A.VIII. Life estate owner has no right to determine who owns the property on her death since ownership automatically shifts to the reversioner or remainder holder A.IX. If A sells her property to a buyer B, the buyer gets exactly what the seller had: an estate for the life of A. When A dies the property will shift to the reversioner or remainder holders. B’s interest is called a life estate for the life of another or a life estate per autre vie A.13. Ex. O to A for life, O to A for life, then to B A.X. Future interests following life estates also may vest either in the grantor (reversion) or in a 3 rd^ party (Remainder). Remainders are further divided into two kinds A.XI. Contingent remainders A.14. Remainders are contingent if one or both of 2 conditions are met; A.e. If the remainder will take effect only upon the happening of an event that is not certain to happen, or A.f. If the remainder will go to a person who cannot be ascertained at the time of the initial conveyance C.i. Ex: O to A for life, then to B if B has graduated from law school
- Contingent remainder because at the time of the original conveyance from O to A it is not certain that B will graduate A.XII. Vested remainders A.15. Vested remainders include any remainders that are not contingent remainders. A.g. They are remainders who are identifiable at the time of the initial conveyance and for whom there is no conditions precedent other than the natural termination of the prior life estate when the life estate owner dies. A.h. Vested remainders are of 3 kinds C.ii. Absolutely vested remainders – remainders that are not subject to change C.iii. Vested remainders subject to open – remainder may be divided among persons who will be born in the future
- Ex: a conveyance from “O to A for life, then to the children of B,” is vested remainder if B has any living children at the time of the conveyance from O to A; it is subject to open because any children of B share property rights
- Under the rule of convenience, the courts will close the class when A dies C.iv. Vested remainders subject to divestment – remainder that may be destroyed by an event that occurs after the original conveyance
- Ex: A conveyance from “O to A for life, then to B, but if B has flunked out of law school, the property shall then revert to O” creates a vested remainder in B that is subject to divestment because the condition can be met at any time and B will lose his rights to obtain the property A.16. Ex: O to A for life, then to B if she survives A, otherwise to C A.XIII. Destructibility of Contingent remainders A.17. Contingent remainders are destroyed in 2 circumstances A.i. If they did not vest before the preceding estate ended C.v. Ex: in the conveyance “O to A for life, then to B if she has been elected president of the US,” the contingent remainder in B would be destroyed if B had not been elected president before the death of A A.j. Contingent reminders were destroyed by “merger”
Present Estate Absolute Determinable For life # of years
Future Estate None Possibility of Reverter
PR
(Not subject to the rule against perpetuities)
Right of Reentry
RRE
(Not subject to the rule against perpetuities)
Springing Executory Interest
SPEI
Absolutely Vested Remainder
AVR
Vested Remainder Subject to Divestment
VRSD
Shifting Executory Interest
SHEI
Vested Remainder Subject to Open
VRSO
Contingent Remainder on Unascertained Person
CRUP
Contingent Remainder on Conditional Event
CRCE
Reversion
R
Reversion
R
K. Fee Simple versus Life Estate A.XXVI. Edwards v. Bradley A.34. Facts: Viva Parker Lilliston died and gave all property to her daughter on the condition she always kept it for herself and if not they are given to her children and when the daughter died she ordered it to be sold and given to her children but only leaving Bradley $1. A.35. Rule: A condition totally prohibiting the alienation of a vested fee simple estate or requiring a forfeiture upon alienation is void. Exception to this is conditions prohibiting alienation of land granted to corporate entities for their special purposes are valid conditional limitations of a life estate are also valid (charitable entities exception as well) A.36. Holding: Although the will did not expressly designate the children as remaindermen the conditional limitation to them indicated that they were intended to take the farm when their mothers interest terminated. Court concludes that Jones acquired a life estate in the property and at her death in fee simple to her 6 children A.37. Class Notes: Rule - Restraints on alienation of fee simple interests are void L. Regulatory Rules A.XXVII. Rules on future interests: A.38. No creation of New estates A.39. No unreasonable restraints on alienation A.t. Reasonable is ok total restraint is never reasonable A.40. Rule against perpetuities A.41. Rule against waste A.42. Rule against racial restrictions A.43. Rule against unreasonable restraint on marriage A.44. Rule against unreasonable restraint of competition A.XXVIII. Rule Against Creation of New Estates A.45. Johnson v. Whiton A.u. Facts: A deed tendered to the plaintiff was refused because according to the deed Sarah Whiton could only pass it to her heirs on her father's side A.v. Rule: a man cannot create a new kind of inheritance A.w. Holding: it would be plainly contrary to public policy of the law of MA to deny the power of Sarah to convey an unqualified fee A.x. Class Notes: Because the language would make it a fee tail, we reject it and make it a FSA A.XXIX. Cy Pres Doctrine – applied by courts when the purpose of a charitable trust cannot be achieved because of impracticability or impossibility. The courts try to comport as closely as possible with the settlor’s intent when reforming the trust. A.46. When a trust involves state actors, the Cy Pres doctrine may be used to remove discriminatory restrictions A.47. When a trust is private, it may discriminate A.XXX. Vesting Rules: A.48. A property interest is vested when no condition precedent must occur A.y. “O to A for life, then to B” T1: initial conveyance, T2: A’s death. B’s interest vest immediately in interest at time T1, then becomes vested in possession at T A.z. “O to A for life, then to B when B graduates.” B’s interest is not vested. B has a CRCE. If B graduates before A dies, his interest will vest and it will become AVR. If A dies before B graduates, the property reverts to O. If B then graduates, the interest will then vest simultaneously in both interest and possession A.aa. Generally, the commas will denote a new time period
A.XXXI. Rule Against Perpetuities A.49. Traditional Rule Against Perpetuities A.bb. Future interests are invalid unless they are certain to best or fail to vest within the lifetime of someone who is alive at the creation of the interest or no later than 21 years (and nine months) after her death. C.xv. Designed to limit dead hand control C.xvi. Promotes alienability through a compromise between allowing owners to determine the future use of their property and freeing current owners from control by previous owners C.xvii. T1------ ------T2 (last of all lives in being to die) -------< 21 yrs/9 mos> --------T C.xviii. We have to know that all interests will vest between T2 and T C.xix. Charitable exception – executor interest are subject to the rule unless both the present estate owner and the future interest owners are charities. A.50. Three step process in applying the rule A.cc. Determine what future interest have been created C.xx. Only applies to non-vested interests: EI, CR, VRSO (VRSO is only semi-vested because the class is not closed) C.xxi. All future interests in the grantor are exempt from the traditional rule (R, PR, RRE) C.xxii. Options are subject to the rule, but preemptive rights may or may not be depending on the court/state. C.xxiii. Names remain fixed! If a RRE is transferred, it remains an RRE and does not become an EI even though it is not retained by a third party. A.dd. If rule applies, determine whether the future interest is valid under the rule. C.xxiv. Lives in being – If there is ANY chance that a future interest will not vest during the perpetuities period, it is invalid. Look for validating lives. C.xxv. Perpetuities period – the time between the creation of the interest and 21 years/9mos after the death of the last person alive at the creation of the interest. C.xxvi. Validating life = measuring life– look for this! – this is the life we are concerned with when measuring the period. The validating life may be any member of a closed class. The VL may not be an entity such as a corporation. If there is no validating life, the FI is invalid. C.xxvii. Creation of interest – created by conveyance at the moment of sale, created by will the moment testator dies, created in a trust the moment the document is signed if trust is irrevocable, and if revocable, at the moment it become irrevocable. C.xxviii. Vest – vesting (in both interest and possession) for an EI occurs the moment the contingency occurs. C.xxix. Contingent remainders – vesting occurs at the moment that the event occurs making the “contingent” disappear (may be in interest, or possession). A.ee. For any interest(s) that is/are invalid, strike it/them out, and see whatever is left. The re-test against the rule C.xxx. Ex. O to A for residential purposes, then to B.
- This violates the rule because B’s interest is not sure to vest within 21 years following the deaths of O, A, or B. We strike out B’s interest leaving, “ O to A for residential purposes.” Instead of A having an FSEL and B having a SHEI in FSA, A now has an FSD, with a PR in O.
A.oo. Central Delaware County Authority v. Greyhound Corp- Option to purchase RAP usually applies C.xxxii. Facts: Baldwin locomotive conveyed two pieces of property to central Delaware County Authority fee simple interest subject to a restrictive covenant, which is they can only use it for public use otherwise Baldwin has the right to repurchase that they can exercise over a 6th month span C.xxxiii. Rule: Fee simple subject to a condition subsequent is not subject to the rule against perpetuities but a repurchase option is because the option is not a vested estate. Repurchase option is subject to the rule against perpetuities C.xxxiv. Holding: There was a repurchase option and that is subject to the rule against perpetuities C.xxxv. Class Notes: When doubt if there is an option or a right to re-entry, courts call it a purchase option because then they have discretion on whether to enforce the rule against perpetuities. Any option to repurchase at a set amount is also a restraint on alienation. A.pp. Texaco Refining and Marketing Inc. v. Samowitz – Options to purchase C.xxxvi. Facts: Texaco had a 15 year lease subject with 3 additional renewal periods by the lessee for 5 years and an option at any time after the 14th year Texaco can buy the land which they wanted to do but the defendant refused to sell. C.xxxvii. Rule: Rule is founded on the public policy in favor of free alienability of property and against restricting it's marketability over long periods of time by restraint on its alienation C.xxxviii. Holding: An option to purchase contained in a commercial lease, at least if the option must be exercised within the leasehold term is valid without regard to the rule against perpetuities C.xxxix. Class Notes:
- Option to purchase would be void as applied to rule against perpetuities
- Option to renew lease - not void
- Option to purchase in lease - not void under rule against perpetuities A.qq. Cambridge Co. v. East Slope Investment Corp- RAP may apply depending on jurisdiction C.xl. Facts: current condo owners have the right of first refusal if current owner tries to sell, but has to be at the same terms and conditions as 3rd party sale C.xli. Holding: Because the pre-emptive right poses no threat to the free alienability they perceive no reason to invalidate the right under the rule against perpetuities C.xlii. Class Notes: Options in leases are ok, options in fixed price are not ok,
- options not tied to land are not ok L.1.When they are tied to the land it means the condo owners who are easily identifiable. So if option like here is tied to the land then it's ok A.XXXII. Rule Against Waste A.54. Moore v. Phillips A.rr. Facts: π was left a life estate of farmland with remainder interests to Moore and Reinhardt. The π inspected the premises from time to time through the years, but for a while no one actually lived in the farm house and she brought suit when the life tenant died. Plaintiff knew the place was going downhill, but waited 11 years to bring a suit to recover for waste. The estate of the mother defended on the grounds of estoppel, laches, statute of limitations, and abandonment
A.ss. Waste: implies neglect or misconduct resulting in material damages to or loss of property, but does not include ordinary depreciation due to age and normal use over a comparatively short period of time. C.xliii. Voluntary waste: “commissive waste” a deliberate or voluntarily destructive act. C.xliv. Permissive waste: failure of the tenant to exercise ordinary care for the preservation of the estate. A.tt. Rule: a life tenant is a trustee or quasi-trustee and occupies a fiduciary relation to the remaindermen (cannot injure or dispose of property, but may use property for his/her own benefit. A.uu. Rule: it is the duty of a life tenant to keep the property subject to the life estate in repair so as to preserve the property and prevent decay or waste. A.vv. Laches: More than just delay: Delay by rights holder in asserting right, inducing reliance, causing harm. (In this case, because permissive waste occurred primarily in the last two or three years, laches would not apply – also, if mom was still alive, she could not have disputed that the waste occurred; thus there is no detriment caused by delaying the action. ). A.ww. Estoppel: affirmative act by the rightsholder, inducing reliance, causing harm. (In this case, P did no affirmative act, thus estoppel does not apply). A.xx. Statute of limitations: begins running at the time of the deliberate act (voluntary waste). Does not apply to permissive waste (thus does not apply here). A.yy. Ameliorating waste – a life tenant’s actions in changing the property in a manner that increases rather than decreases value. Generally, the reversioner or remainderman is entitled to receive the property in substantially the same condition in which it was received by the life tenant; however, fundamental changes may be made if “a complete and permanent change of surrounding conditions...has deprived the property of its value and usefulness as previously used.” A.zz. Trespass: NOTE: in Moore , P could not have simply gone onto the land and fixed up the farmhouse because she would be trespassing. Although she had a vested future interest in ownership, the life tenant has the right to possession and the right to exclude. A.XXXIII. Racially Restrictive covenants and Conditions A.55. Supreme court held that public schools and parks cannot be segregated A.aaa. To the extent they are public, they cannot operate in a segregated manner A.56. If there is judicial enforcement of a race based restriction = state action and unconstitutional A.57. If it is private without enforcement by the courts (like an automatic reverter) to sell based on race, then it's not viewed as unconstitutional A.58. If it's fee simple determinable and the reversion is right away once you desegregate, it's not judicial enforcement and is constitutional A.bbb. Means we can discriminate all we want in fee simple determinable but FSD is least favored and hardest for courts to come to a FSD conclusion A.ccc. Southern courts kept it even though they shouldn’t have A.59. Not entirely true that can't have discrimination because you can create a fee simple determinable A.XXXIV. Rule Against Unreasonable Restraints on Marriage A.60. Lewis v. Searles A.ddd. Facts: plaintiff who is 95 has never been married because in a will she was left all the real and personal property, "so long as she remains single and unmarried." If she marries she only gets to keep 1/3rd A.eee. Rule: Provisions in general restraint of marriage was void as against public policy. Exception is the right of a husband to terminate or decrease the extend of a devise to his wife upon her new marriage A.fff. Holding:
A.XII. Constructive trust C. Creation by Implication A.XIII. Easements by Estoppel (Irrevocable Licenses) A.10. Estoppel: A.g. Affirmative act A.h. Inducing reliance A.i. Causing harm A.11. Holbrook v. Taylor A.j. Facts: Appellants gave permission for a haul road to be cut for the purposes of moving coal and when the mine closed to build a house that cost $25,000 and they widened and repaired the road at a cost of $100. A.k. Rule: A lisensee is conclusively presumed as a matter of law to know that a license is revocable at the pleasure of the licensor, and if he expends money in connection with his entry upon the land, he does so at his peril. Where a license is not a bare naked right of entry but includes the right to erect structures and acquire an interest in the land in the nature of an easement by construction of improvements, the licensor may not revoke the license A.l. Holding: The use of the roadway by appellees to get to their home from the public highway, the use of the roadway to take heavy equipment, the general improvements of the premises, the maintenance or the roadway, etc it clearly demonstrates the rule that the license to use the subject roadway may not be revoked A.m. Class Notes: Wright thinks the court is awarding stupidity and the appellees should have gotten it in writing. A.XIV. Constructive Trusts A.12. A trust is a property arrangement in which an owner, called the settlor , transfers property to another person, called the trustee , which instructions to manage the property for the benefit of a third party, called the beneficiary. A.13. The trustee is said to have legal title to the property, while the beneficiary has equitable or beneficial title. A.14. A constructive trust is one which is found to exist by operation of law or by construction of the court, regardless of any express agreement. When one party has been wrongfully deprived either by mistake, fraud, or some other breach of faith or confidence, of some right, benefit, or title to the property, a court may impose upon the present holder of legal title a constructive trust for the benefit of that party. A.n. This is to prevent unjust enrichment of the legal holder. A.15. Rase v. Castle Mountain Ranch, Inc. A.o. Facts: Plaintiff had a license from land owner to build cabins on his land and he issued them a license and when the defendant bought the land he sent letters of termination of the license. A.p. Rule: A licensee is presumed to know as a matter of law that the license is revocable at the pleasure of the licensor and he invests money in extension to the licenses does so at his own peril A.q. Class Notes: C.i. Ward claims statute of frauds defense, parol evidence, and disregards waiver by cabin owners in signing the license C.ii. Estoppel is all about reasonableness.
- Cabin owners should have argued estoppel but still wouldn’t have won because it is not reasonable C.iii. Constructive trust can be drafted to fit the needs of all the parties
- Court says they can live there for 13 years or ward can buy them out A.XV. Easements Implied From Prior Use
A.16. Elements for implied from prior use: A.r. Unity of title A.s. Severance (separation of ownership) A.t. Prior, open, apparent and continuous use A.u. Reasonable necessity A.17. INTENT – easements by implication arise as an inference of the intention of the parties to a conveyance of land. These easements step in to fill gaps left by incomplete or missing writings in the deed. For easements by prior use , proof of the prior use is evidence that the parties probably intended an easement. A.18. Granite Properties Limited Partnership v. Manns A.v. Facts: Plaintiff seeks to enjoin defendant from interfering with the use of 2 claimed easements over driveways located on defendant’s property. A.w. Rule: C.iv. Easement by necessity usually arises when an owner conveys to another an inner portion thereof, which is entirely surrounded by lands owned either by the grantor or the grantor plus strangers. Grantee is found to have right of way access of the retained land of the grantor for ingress and egress. C.v. Easements implied by pre-existing use “quasi easement” is when a grantor sells some of the land but fails to mention it being made for the incidental uses C.vi. Degree of necessity is greater to reserve an easement in favor of the conveyor than in the case of conveyee. This will be aided by previous use made apparent by physical adaptation of the land. A.x. Holding: Given the strong evidence of the plaintiffs prior use and defendants knowledge was sufficient to fulfill necessity requirement. It would be unreasonable to assume that plaintiff intended to relinquish the use of the easement on the defendants property A.XVI. Easement by Necessity A.19. Easement by necessity – usually where an owner of land conveys to another an inner portion of said land, entirely surrounded by lands owned either by the grantor or strangers. Unless a contrary intent is manifested, the grantee is found to have a right-of-way across the retained land of the grantor. Likewise, an easement is implied by necessity if the owner retains the inner portion of land, and conveys the balance. A.20. Necessary – a use is necessary if, without it, no effective use could be made of the land to be benefited by it. A.21. Creation – requires three elements: A.y. unity of title ; A.z. severance; and A.aa. necessity (unlike easements by implication, which requires reasonable necessity, here we require absolute necessity). A.22. Finn v. Williams A.bb. Facts : Williams conveyed 40 acres that Finn inherited and the only access to Finns land, once other roads of access closed is over a right of way that crosses William’s property but Williams refuses to let Finn use it. A.cc. Rule: where an owner of land conveys a parcel there of which has no outlet to a highway except over the remaining lands of the grantor or over the lands of strangers, a way by necessity exists over the remaining lands of the grantor. A.dd. Holding: A right of way easement of necessity was necessarily implied in the original conveyance and passed down to the plaintiffs. The fact that the original grantee and his successors in interest have been permitted to enter and exit over the land owned by strangers is immaterial. Dormant easements implied in the deed.
