This is an extract of our Property document, which we sell as part of our Property Outlines collection written by the top tier of University Of Virginia students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Property Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Property rights (divisible): use, transfer, exclude and destroy
I. ACQUISITION OF PROPERTY
-DOCTRINE OF DISCOVERY: Positive, not natural law.
-Discovery: property goes to first occupier (NAs[?] 'civilized')
-Conquest: alternate, property taken by force.
=> Aboriginal title: NAs only have right to possession (no transfer rights) s/t control/revocation by the Feds (Johnson)
-Improper conveyances (even if 100s of years ago) can give risk to a cause of action. Remedy only money damages, ejectment not practical. (Oneida)
*cannot adversely possess aboriginal title land.
-TRESPASS: voluntary wrongful entry onto another's land.
-Right to exclude critical, damages incalculable.
=> Punitive damages allowed for intentional trespass Needed for sufficient protection, and for legitimacy of legal system (avoiding self-help) (Jacque)
-BUT property law serves real values. (Shack)
-licensees have some rights (if fed interest at stake?)
-ADVERSE POSSESSION: (punishes, rewards, practicality) 1) Entry: Acquire estate existing at time of entry. 2) Open and notorious: (reasonably attentive owner)
*minor boundary disputes: if unclear, no presumption that true owner had knowledge (Manillo) 3) Continuous and uninterrupted for the SOL period.
-continuity depends on nature of the property
*Tacking: privity required, not successive trespassers 4) Adverse and Hostile: inconsistent w/ title holder's rights, no permission. (Under a claim of right)
*watch out for conflicting claims admitting permission
*Color of title, paying taxes: helps satisfy
*boundary disputes: (usually objective, see notes)
-interruption in part of land by true owner can cancel this element for the whole land.
*State of mind (3 SPLIT)
-Objective: acts of a true owner.
-Good faith that has title
-Bad faith (Maine) (actual hostile intent) (some) 5) occupant paid taxes assessed against the land.
*Before title: possessory rights, can eject trespassers and transfer property.
-Title passes by op. of law; relates to date of initial entry.
-Get land possessed UNLESS
*color of title=> whole land.
*boundary dispute: failed APer can get land if removal impractical, just has to pay.
-GIFTS: Inter vivos and causa mortis
*SOF for real property.
*0) causa mortis donor's anticipation of imminent death.
*other elements enforced more strictly. 1) Donative Intent to presently pass title: *IMPORTANT
-can be inferred from delivery + circumstances
-ability to revoke can suggest lack of intent 2) Delivery:
1. (some) manual delivery required if practicable
*others relax if clear evidence of intent
2. If manual delivery not practical
=> Constructive (means of obtaining possession) or symbolic (represents thing given, writing) delivery. 3) Donee Acceptance: (generally presumed from benefit)
=Irrevocable if inter vivos
=Revocable if causa mortis, unless intent contrary
II. ESTATES Most FULLY TRANSFERABLE (alienable, devisable, descendible)
*0) SOF required for land transfers (unless lease <1yr)
1. Classify the present estate:
*Presumption in favor of free simple, against restraints on alienation.
-Fee simple: "its successors and assigns"/"and his heirs" Absolute: no future interest. All others have a future interest Defeasible (limiting words should be in granting clause, if not, then they might just denote purpose of grant, so its still FSA bc of presumption)
-Determinable: auto revert (pos of reverter)
-s/t condition subsequent: 'right of re-entry'
-s/t executory limitation: (in third party)
-Fee tail: (min) iff "to X and the heirs of his/her body"
*can only go to issue: direct lineal descendants. so not devisable. (Can be special: male, by certain spouse etc)
-Life estate: "for life"/"until dies" etc. (no descend)
-pur autre vie: measured by life of another.
2. Look at who has the future interest: Presently existing, possessory in the future.
-Grantor: reversion, possibility of reverter, or a right of entry
-Other transferee: remainder or executory interest.
3. HOW the future interest will become possessory
-Reversion: usually follows natural termination of prior estate (like life tenant dying)
-Possibility of reverter: doesn't cut short preceding determinable estate but automatically succeeds it.
-Right of entry: divests preceding estate if grantor enters.
-Remainders: 0) cannot follow a vested fee simple (s/t cond, or determ) AND 1) doesn't divest the prior estate prematurely (waits patiently, "then if"); AND 2) capable (legal possibility) of becoming possessory immediately at expiration of prior estate
-Executory interest: 1) divests 'cuts short' the prior estate OR 2) incapable of immediately becoming possessory
-Shifting (follows transferee)
-Springing (follows transferor)
***=>so prior estate is 's/t executory limitation'
4. Identify the possessory estate in which the future interest will be held. What interest does this person have, and can it be transferred?
5. Determine whether the interest is vested or contingent
-Executory interests are only springing/shifting
-Contingent interest: EITHER 1) Given to an unascertainable (at time of conveyance you can't 'point' to them) person (heirs, widows/ers)
-OR 2) is subject to a condition precedent (basically if in same clause as the condition, if condition instead is after and separated by comma then maybe vested s/t executory limitation instead)
=> grantor likely holds a reversion. (always seisin)
*even for alternative contingent remainders Vested: Sure a particular person owns, bc have met all conditions of owning it.
*s/t open (class gift): 1+ living mem of grp that could +
*subject to divestment:
6. Rules furthering marketability: SEE BELOW
-Rule in Shelley's Case; Doctrine of Worthier Title; Destructibility of contingent remainders; RAP
7. AND: must end in FS (often reversion in grantor)
RULES FURTHERING MARKETABILITY
-Goal=alienability. Prevent tying up prop, find all future possessors
-Rule in Shelley's Case: 1) One instrument. 2) Creates a freehold estate in a transferee (life estate or fee tail). 3) Creates a remainder in that transferee's "heirs"/"heirs of his body". (the two don't have to be consecutive) 4) The freehold estate and remainder interests are both equitable or both legal (trusts)
=Contingent remainder in grantee's heirs becomes a vested remainder in the grantee himself.
*MERGER: when successive vested estates are owned by the same person=> two estates merge into one larger estate.
-Doctrine of Worthier Title:
*only a default rule of construction 1) inter vivos conveyance; 2) creates a remainder or executory interest 3) in the grantor's "heirs" (Bc grantor heirs are unascertainable while grantor lives)
=Future interest in the grantor rather than one in the heirs (can be remainder, right of entry etc.)
-Destructibility of Contingent Remainders:
*if abolished: contingent remainder that doesn't vest=> exec.inter. If, at expiration of the preceding estate they don't vest...
-a condition precedent is not fulfilled; OR
-the holder of the remainder is still unascertained
=>The contingent remainder is destroyed
-RULE AGAINST PERPETUITIES (cntrl 4 1 generation +21 yrs) Interest void unless it must vest or forever fail to vest no later than 21 years after some life in being at the creation of the interest.
*can be avoided (1) pos. of reverter in self; 2) convey that reverter
*Applies to contingent remainders; executory interests; and vested remainders subject to open. 1) List the lives (persons) in being at time of conveyance
-Assignment: time of sale
-Devise/Descent: time of death 2) Give birth to any potential after-borns that might affect vesting: children, issue, heirs, or widows mentioned in the conveyance?
(Kids after the conveyance are not lives in being for RAP). 3) Kill off all the lives in being (at creation) at some future point and add 21 years from this date. (RAP Line)
*so the land goes to the hypothetical after-borns
=Any possibility that the interest will vest beyond the line?
*For class gifts, if a gift to a single member may vest too remotely, the entire class gift is void. YES: the interest is void ab initio.
=Blue pencil rule, strike it.
*Executory interests following defeasible fees (see notes to tell how much gets struck). NO: if the interest must vest, if at all, no later than 21 years after some life in being (born/conceived) at the time of conveyance (RAP Line).
=It is valid.
-contingency applied to a life in being; unborn widow; slothful executor; fertile octogenarian
-Reforms of The RAP
-Wait-and-see: Validity of interest judged at time the interest vests or fails to vest. If actually vests within
-CL perpetuities period (end of lives in being +21 years) OK OR
-(USRAP) (rewrite to allow also) 90 years of creation, OK.
-Cy Pres: where possible, a court will rewrite the conveyance to conform to the RAP "as near as possible" to the grantor's intent.
-WASTE When current holder does not maintain property for future int. holder
*usually not applied to defeasible fees, (too remote). 1) WASTE
-Affirmative waste: life tenant actively causes permanent injury. If acts are 'injurious' (substantially reduce value of property)=> liability.
-Permissive waste: life tenant fails to take reasonable care of the property, allowing it to fall into disrepair=>liability 2)*CL: anything that altered identity of premises was a waste
-(modern) Ameliorating waste: if the change increases the value of the land, no cause of action. BUT might still get compensation based on equity Woodrick
=Remedy: forefeit part of property where waste was; damages.
-TRUSTS: divide legal and equitable title
-Settlor creates trust; trustee holds legal title, has fiduciary duties Beneficiary holds equitable title and rights (which can be divided)
*(maj) Spendthrift trusts: settlor can impose restraint on alienation, preventing beneficiary from transferring his interest. (Broadway Nat'l Bank)(anti-creditor + pro stratify)
*generally strong presumption in favor of TIC
*conveyance to husband + wife usually presumed to be TBE trend is to focus more on intent, relax unity requirements Germaine: said "TIC" but survivorship rights=> JT.
-Tenancy in Common: default.
*shares presumed equal, but evidence can show unequal shares.
-Joint Tenancy: created with Four Unities: (without which, TIC created). 1) Time: all JT interests must be acquired at same time. 2) Title: all JTs must acquire title by same instrument (or AP)
*strawperson: (maj) not needed now. Owner can convey to self and another to create a JT. Satisfies time + title. 3) Interest: all JTs must take identical interests. Equal duration + size (share) 4) Possession: equal possessory rights. (use/enjoy the whole)
*BUT can agree later to give one exclusive possession.
-Tenancy by Entirety (some allow): created with 4 Unities +5) (Marriage)
*SEE marital property division section, might be issues.
-Effects: ALL: each co-tenant, regardless of ownership share, has separate undivided interest in the whole. (Use/possess).
-Tenancy in Common:
-survivorship: NO - Interest passes to heirs/devisees.
-Fully alienable, devisable and descendible
-survivorship: YES - Interest auto absorbed by others JTs. Rule of law, not construction. CL says one entity.
-Tenancy by Entirety:
-survivorship that can't be unilaterally severed.
-Alienability? (Split) based on effect of MWPA
-Neither spouse can convey separately. Individual creditors cannot reach the property owned in TBE. (Endo)
-Either spouse can convey separately.
*but survivorship still cannot be destroyed.
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