Property:

1. The concept of property:

a. The right to exclude:
i. A person has a right to exclusive enjoyment of his own land for any purpose which does not invade the rights of
another person. (Steenberg homes).
ii. The right to exclude always abates in the face of public necessity (State v. Shack).
iii. Public purpose satisfies public use requirement under the 5th amendment which does not infringe on a petitioners right
of eminent domain.
iv. An employer has the right to exclude workers from their job because the employers right outweighs the employees
entitlement to their jobs as enforceable by the law.
v. Raw biological material is not property, cannot be converted, can only become property when transformed into original
and noon obvious items.
2. First in time:
a. Discovery and capture:
i. One must exercise dominion and control over a ferae natural (wild beast), where complete and constructive
possession, mortal wounding and continued pursuit gains ownership. (Pierson v. Post)
ii. The person who take significant but incomplete steps to a acquire dominion and control but was wrongfully interfered
with, has legally recognized pre-possessory rights. Complete control is not necessary when significant steps were
taken to ensure probable possession over an object.
iii. (Popov v. Hayashi)
iv. Europeans believe that ownership through conquest of purchase of land has the right to deny inhabitants of actual
possession through force. (Johnson v. Mintosh)
v. The owner of the reality is entitled to the free and liberal control of his own land above, upon, and beneath the surface.
(Edward v. Sims)
b. Intangible properties:
i. Law will protect intangible property (intellectual) when it is manifested in certain forms: trademark, patent, or copyright.
(Joyce v. General Motors Cooperation)
ii. Trademark protection promotes consumer efficiency, protects the companys goodwill and promotes consumer
efficiency, protects the companys goodwill and reputation, as well as protecting the consumer. (Daimlerchrysler v. The
Net Inc)
iii. When an artist is faced with a right of publicity challenge to his or her work, he or she may raise an affirmative defense
that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that
the value of the work does not derive primarily from the celebritys fame. (Comedy III Productions Inc. Gary Saderup,
Inc)
1. Definition: Transformative: something new, an expression, supersedes likeness.
c. Finding:
i. Armory v. Delamaire:
1. Finder has possessory rights over everyone but the true owner.
2. Finder defer trover claim when the property is no longer available.
ii. Benjamin v. Lindner Aviation, Inc
1. 4 types of found property
1. Abandoned Property
2. Abandonment is shown by proof that the owner intends to abandon the property and has
voluntarily relinquished all right, title, and interest in the property
3. Abandon property belongs to the finder of the property against all others, including the former
owner

2. Lost property
1. Property is lost when the owner unintentionally and involuntarily parts with its possession and does
not know where it is
2. Stolen property found by someone who did not participate in the theft is lost property
3. Lost property becomes the property of the finder once the statutory procedure are followed and the
owner makes no claim within twelve months
3. Mislaid property
1. Voluntarily put in a certain place by the owner who then overlooks or forgets where the property is
2. Different than lost property because the owner voluntarily and intentionally places the property in
the location where it is eventually found by another
3. The finder of the mislaid property acquires no rights to the property
 4. The right of possession of mislaid property belongs to the owner of the premises upon which the
property is found , as against all persons other than the true owner
4. Treasure Trove:
1. Property must have been hidden or concealed for such a length of time that the owner is probably
dead or undiscoverable
2. Belongs to the finder as against all but the true owner
3. Note: there are exceptions as some jurisdictions do not recognize treasure trove.
iii. Status of finder:
1. Court tends to award money found in private land to the owner of the property but those found in public land
to the finder
2. When trespasser found property on land, tend to award it to owner, but have awarded found property to
persons who could have been considered trespassers.
3. When an employee finds an object in the course of her employment, courts have oftenbut not always
awarded it to the locus owner or the employer.
1. Awarding money found by maid in hotel room dresser to the hotel)
3. Bailments: a rightful possession of an object by one who is not the true owner of the item.
a. Because a finder has rightful possession but does not have absolute ownership, a finder is an also a bailee.
b. If the bailment is solely for the benefit of the bailor (e.g. my neighbor watching my dog while Im on vacation), the bailee has a
duty of great care and will be liable for damage caused by even slight negligence.
c. If the bailment is for the mutual benefit of bailor & bailee, then the bailee has a duty of ordinary care & will be liable for damages
caused by ordinary negligence.
d. The bailee has an absolute duty to redeliver the object of the bailment to the bailor. If the bailee wrongfully fails to return the
object of the bailment, or if the bailee wrongfully delivers the object to a third party, the bailee is strictly liable for conversion of the
object.
e. For bailment to arise, the bailee must have possession of the object of the bailment.
4. Bona Fide Purchase
a. Personal Property: most items for personal property do not have public title. Most items of personal property are claimed of
persons ownership of an object is through the persons possession of the object.
i. Ostensible Ownership: ie. Third parties may believe that the possessor is the true owner of the object based upon
possession, when another unknown person is the real true owner of the object.
ii. Derivative Title: one cannot transfer greater right than one possesses.
iii. If thief steals baseball card he is the wrongful possessor and is insubordinate to Owners right as a true owner.
iv. Courts apply equitable estoppels only in those cases in which the true owner was viewed as sufficiently blameworthy
for creating the ostensible ownership problem that misled a good faith borrower.
1. Ex. Owner of tractor takes tractor that is going to be repossessed to store for owner to hold, then store
owner then sells tractor. Original owner can no longer claim right to owning tractor.
b. Voidable Title: A purchaser of goods acquire all title that the purchasers transferor had or had power to transferA person with
voidable title has power to transfer a good title to a good faith purchaser for value. If goods have been delivered under a
transaction of purchase, the purchaser has such power even if:
i. The transferor was deceived as to the identity of the purchaser
ii. The delivery was in exchange for a check that is later dishonored
iii. It was agreed that the transaction was to be a cash sale
iv. The delivery was procured through criminal fraud
c. **NOTE: there is NEVER a voidable title or entrustment issue regarding a problem with real property, only to goods**
d. The Entrustment Rule:
i. Any entrusting of goods to a merchant that deals in the goods as the entrusters rights are then transferred with the
goods
ii. Entrusting includes any delivery and any acquiescence in retention of possession regardless of any condition
expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the
entrusting or the possessors disposition of the goods was punishable under the criminal law.
e. Justifications Underlying the Estoppel Principle: one of the primary purposes of the estoppels principle is to protect reliance
under appropriate circumstances. The Estoppel Principle protects the purchaser in those cases where she has reasonably &
detrimentally relied upon the impression that her seller had good title & where the true owner had by his own conduct created or
contributed to this problem.
f. Real Property: land
i. For land transaction the statute of frauds requires that the owner of the land execute a formal document (called a deed)
which the owner (called the grantor) purports the transfer title to the land described in the deed to the transferee (called
the grantee)
 ii. A transfer of title to the land occurs only after the grantor executes the deed (with the requisite legal formalities and
delivers that grant deed to the grantee
g. There are recording statutes that create an estoppels rule in favor of a bona fide purchaser
h. Functions of Real Estate Recording Acts:
i. Provide a mechanism whereby owners of land interests can notify the world of their rights
ii. By protecting third party reliance, the recording acts provide a reasonably effective means by which a person buying
land can investigate the sellers title, thus creating an efficient transfer of interests in land
iii. Provide a mechanism for resolving disputes between persons claiming conflicting interests in the same land
i. Types of Real Estate Recording Acts:
i. Race: gives priority between conflicting claimants that recorded its deed first. It is irrelevant whether B had known or
had reason to know of As unrecorded claim as the time B purchased said property
ii. Notice: under a notice statute a subsequent purchaser of land will take priority over a prior claimant of the land, so
long as the subsequent purchaser acts without notice (either actual knowledge or constructive notice) of the rights of
the prior claimant.
iii. Race Notice: a subsequent purchaser of land will take priority over a prior claimant only if the subsequent purchaser
both acts without knowledge or notice of the prior claimant and records her deed before the prior claimant records.
j. When a deed is properly recorded a subsequent purchaser of the same land is deemed to have notice of the earlier recorded
interest, regardless of whether the subsequent purchaser actually searched the public records. Such a purchaser should have
known of the existence of the prior claim, & thus does not deserve the protection of a statutory estoppels rule.
k. Adverse Possession cannot be recorded (at least not without a court decree quieting title first, a recording statute generally does
not work statutory estoppels against a person claiming rule by adverse possession.

5. Adverse Possession:
a. Calabrisi and Melamed: two subsidiary inquiries:
i. To whom should the entitlement be assigned
1. Courts uniformly and automatically award it to the true owner
1. There is strong economic justification (no one would leave their things, ever)
2. Civic values: cultural diversity, countervailing centers of political power, and independent
institutions of scholarly inquiry may require larger accumulations of private wealth than would be
possible under a system of mere possessory rights.
3. Justification based on human personality: accumulated material wealth may be important to an
individuals identity and plans for the future, and property rights in material things protect these
interests
ii. Why we are ever justified in shifting the entitlement from the True Owner to the Adverse Possessor after the passage
of a number of years: 4 traditional justifications
1. Problem of lost evidence
1. The difficulty of proving stale claims: by adopting a conclusive presumption against attempting to
prove claims after a certain period of time has lapsed
2. Minimize costs of litigation and trial
3. Fairness concern: prevents the P from unfairly surprising the D with a claim that may be difficult or
impossible to refute because evidence would allow the D to defeat the claim no longer exists
2. Desirability of quieting titles
1. If a buyer has to go back forever to look for easements, etc, in order to get a clear title, then he
would have to go through a complicated process
2. The nuisance value of these claims could easily lead to holding out or other rent-seeking behavior
that would make the process of obtaining clear title even more burdensome
3. Interest in discouraging sleeping owners
4. The shift in entitlement acts as a penalty to deter TOs from ignoring their property or otherwise engaging in
poor custodial practices
1. Reliance interests that the possessor may have developed through longstanding possession of the
property
2. preserving the peace: APs attachment to the property will be so strong after a period of time that
when TO tries to come back and take it, there may be violence
3. AP may have developed an attachment to the property which is critical to his personal identity
4. Sunk costs or quasi-rents: when one takes advantage of an addon that another built accidently on
his land: now he can ask for the value of the land and the addon.
5. This kind of extortion is unfair and creates disproportionate penalty given the initial wrong of the AP.
5. Rights of a third party:
 1. Vendors, creditors, contractors, etc. cannot be asked to run a title search every time service is to
be provided. The appearance of title, particularly the appearance of title consistently maintained for
a long period of timenecessarily becomes a rough and ready substitute for an expensive and
time consuming title search.
6. Transaction in title would become more costly if without adverse possession
7. Adverse possession rests on a collective judgment that the reduction in information and transaction costs
achieved by wiping these older claims off the books outweighs the demoralization costs of eliminating such
remote claims
8. Only ask the true owner to periodically assert his right to exclude others
1. Allows him to be located easier
9. Also allows privity: the nexus or relationship of succession between one possessor to the next (i.e. transfer
deed from one person to the next establishes privityA1 has five years possession, then transfers deed to
A2, who has 8 years possession, then = 13 years possession, to fulfill the 10 year possession rule)
1. Under English law, it doesnt matter who adversely possess the property: as long as it is 10 years
2. American law: if A adversely possess a property, then B comes and takes adverse possession,
forcibly dispossessing A, then there is no privity
iii. Disability:
1. Many states provide that statute of limitation is tolled (will not run) against the true owner if he is legally
disabled at the time adverse possession commences.
2. Disability includes minors, mentally incompetent, some includes prisoners, and those in the service outside
of US
3. Statutory period will not begin to run until disability is removed
iv. What sort of rule should be used to protect this entitlement a property rule or a liability rule
1. Property rule: allows true owner to recover possession
2. Liability rule: AP would still have to pay owner the fair value
b. Government owned land: Most places, cannot adversely possessed government owned land, but some states allow it with
different statutes (i.e. cannot possess school lands, or public purposes, others distinguish between land owned in a
governmental capacity and land owned for proprietary purposes, allowing adverse possession against proprietary purposes)
i. Include privity and tacking- cannot tack: disability statute.
ii. Actual or Constructive:
1. Requires some degree of physical occupation.
1. Land shall be possessed in the following ways:
i. Cultivated and improved
2. Protected by enclosure (fence)
3. Marks of use
iii. Mullis v. Winchester:
1. Color of title (actual or constructive) is sufficient to claim title of a property.
c. Continuous:
i. AP must be continuous and uninterrupted for the full statutory period
ii. Adverse Possessor can interrupt the period of possession by abandoning the premises
d. Open and Notorious:
i. Possession of land must be clear and unequivocal, immediately visible and owner must be presumed to have
knowledge of the adverse occupancy
ii. Fly the flag of ownership
iii. Minor encroachment does not signify open and notorious
iv. Stump v. Whibco
e. Hostile:
i. Norman v. Allison
1. ROL- Hostile element is satisfied where the party occupies the land in question intending to occupy it as his
own and ignorance of boundary line is irrelevant as an intent to take away from the TO is not necessary
2. Possession under claim of title
ii. ROL
1. Intention and knowledge of hostile must be present
2. Hostility to take right over property
iii. Claim of Right and Claim of title- Good faith and Bad faith
iv. Split in Law-
v. Maine Doctrine
1. Only hostile if there is intent to take property
vi. Connecticut Doctrine
1. Intent not necessary (you always thought it was yours)
 vii. Not hostile with true owners permission- Manillo
viii. Possession under claim of title
f. Exclusive-
i. Possession of land must be exclusive and cannot be shared with true owner
ii. If shared with another adverse possessor they will both gain title as tenants in common
g. Through the possession of statutory period

6. Gifts
a. Inter Vivos Gifts within the life
i. Requirements: most common type of gift (ex. Christmas, Hanukkah, birthday, wedding, etc.) is an inter vivos gift
meaning literally a gift between the living. For such a gift to be legally effective to transfer ownership, it must meet 3
requirements
1. the donor must have donative intent (ie. Intent to make an immediately effective gift).
2. The donor must deliver the object/ of the gift
1. Actualphysically vests possession of the object in the done, must be placed beyond the dominion
and control of the donor
2. Constructivewhen and item, because of its size or location, would be impossible or impracticable
to manually deliver
i. Donor surrenders as much control over the object as possible.
ii. Ex. Giving car keys as a constructive delivery of the car itself.
iii. In re Estate of Evans: ROL: Regardless of the intention to make a gift, there was not an
inter vivos gift as there was no dominion & control given with the gift to the person
Must meet all
receiving.
3 3. Symbolic: appropriate when manual delivery is impossible or impracticable.
i. Occurs when the donor hands over some object other than the item given, which is
symbolic of the item.
ii. Most commonly effectuated by delivering a written instrument
iii. Gruen v. Gruen: letter was found to be acceptable for delivery
what is sufficient to constitute deliervy must be tailored to meet the
circumstances of the case.
3. the donee must accept the object of the gift
4. Imminent death
b. Mortis Causa (Testamentary Gifts) intestee & will because of death
i. Mortis Causa (Testamentary Gift): is one that a donor intends to take effect only at the time of the donors death.
Usually made in a will: a written instrument that complies with the states statute governing testamentary gifts. A will
takes effect (and thus an effect a transfer of property rights) only at the death of the testator. While testator is
alive he or she may can destroy, revoke the will, or replace it entirely with a new will disposing of the property in a
different fashion.
c. Causa mortis in case of death
i. a gift of personal property made by a party in the expectation of death, then imminent, subject to the condition that the
donor dying is anticipated; establishment of the gift has uniformly call for proof of delivery.
ii. sometimes these gifts are called deathbed gifts. If a donor makes an effective gift causa mortis, ownership passes to
the donee immediately upon delivery & acceptance, even while the donor remains alive.
1. If donor recovers from imminent death then
1. the gift is revoked, and
2. donor can revoke at any time before as well by changing her mind.
2. If donor does die and does not revoke then gift is ABSOLUTE. It allows a dying person, without a will,
dispose of their property as he or she wishes in anticipation of her death.
3. Schere v. Hyland: ROL: When donative intent is clear through the actions of the donor, although intention &
delivery are separate they work together, to show that one is giving their dominion & control to another.
d. Gifts of Future Interests
i. Right to possession of an object at a future date. Can divide property into different class of rights. Possessory or future
rights are subject to condition or condition in future.
1. Gruen v. Gruen: ROL: Letters serve as the instruments of gift of delivery of the property, and donee has right
to possession until after death and the acceptance by the donee is essential to the validity of inter vivos gift,
but when the gift is of such high value the law will presume an acceptance on donees part.
2. Ferrell v. Stinson: ROL: Delivery is essential to the validity of a deed, and delivery depends upon the
intention, through words or through actions, of the grantor as he/she gives dominion & control to the donee.
e. Conditional gifts: Subject to a condition subsequent: a gift that is still irrevocable;
 i. Ex. as long as B is capable of completing law school in 3 years or less, A cannot simply revoke the gift and demand
possession of the car, that A had offered to B as a gift if B completed law school in 3 years.
ii. Lindh v. Surman: court found that giving an engagement ring is condition upon the
act of marriage.
7. Possessory Estates
i. Fee Simple: Potentially infinite in duration. It is freely alienable (may be sold), devisable (may be mortgaged) and
descendible (may be left to heirs).
ii. Absolute: a fee simple estate is absolute if it is not subject to any condition or limitation that might terminate it. This is
the highest & best form of ownership. It is created when A obviously conveys estate with the words to A to (1) identify
the person (2) the duration of the estate that O is conveying to A (3) includes words of limitation (magic words that
identify the type of estate being granted. Must include the words and his heirs).
iii. The estate lasts in perpetuity conceptually either in the owner or the owners successors. The largest estate in the
common law denotes maximum legal ownership (greatest possible aggregate of rights, privileges, powers, &
immunities).
iv. Largest collection of rights in property. Pre-1600 required words of limitation indicating a continuing interest in heirs.
Today, presumed to create a fee simply if no words of limitation are used.
v. Historically, it was created by the use of the phrase: to A, and his heirs.
1. Owner conveys to B in Fee simple
2. Traditionally owner has only conveyed a life estate. B/c the conveyance only indicates an intent to give to B
w/out a stated limitation
3. Example: Owner conveys Black Acre to B and his heirs
1. Owner has conveyed a fee simple absolute to B
2. And his heirs give no interest to Bs heirs. Now you dont need to use and his heirs just say to
B
b. Fee Tail:
i. Automatically descended to the heirs of the estate owner upon his or her death and continued so descending to the
lineal descendents until the entire line of lineal descendents became extinct
ii. The person who granted a fee tail maintained a reversionary interest which could become possessory only at such
time, if ever, that the grantee (tenant-in-tail) and his entire line of descendents became extinct.
iii. Possessory Estate vested in lineal descendents. Automatically created a remainder interest in the conveyor. In
America, generally disfavored, though still used in a limited fashion in some jurisdictions.
iv. To create a fee tail to and the heirs of his or her body
1. Could also be specific:
1. To A and the male heirs of his body
2. To A and the female heirs of his body
3. To A and the heirs of her body with B
2. The effect of this interpretation was it vested in B more power to alienate the land than the grantor intended,
specifically:
1. When B had a child, B could then sell in Fee simple absolute, thereby depriving the issue of the
land
2. B also thereby extinguished any revisionary interest that the grantor held.
3. In order to prevent the circumvention of the grantors wishes, the statute de Donis provided that B
could not convey Blackacre so as to extinguish the right of the heirs of Bs body to inheir the alnd
on Bs death.
4. B could also not convey the land in such a way that extinguished the reversionary interest
5. Example: Owner leaves Blackacre to B and the heirs of Bs body, B has a child D. B later conveys
to C and his heirs Blackacre. C gets a life estate, during the life of B, but D gets the fee tail.
c. Life Estate: Lasted only as long as the life of the tenant names. It terminated automatically when the tenant died, regardless of
who was holding possession. When the life estate terminated, it either reverted to the grantor or vested in another person
holding a remainder interest. Life estate was alienable.
i. Create a life estate by:
1. To A for life and then to B
2. To A for the term of as life and then to B
1. Words for life or for the term of As life are words of limitation and therefore describe the term of
the estate.
ii. Tenant holding a life estate had the right to use the fruits of the estate and to dispose of the life estate and its fruits to
another
iii. Tenant also had the right to mortgage, to create liens, easements, leases, and the other rights on the estate. No
interest created by the life tenant could extend beyond his life.
iv. Tenant is entitled to exclusive possession, except that an owner (grantor) whom a reversionary interest is vested may:
1. Enter the estate to determine if waste has been or is being committed
2. Enter the estate to conduce repairs to protect the reversionary interst
3. Enter the estate to collect rent if any is due
4. Enter the estate to remove timber which has been severed & which belongs to grantor
5. And to do such acts as may prevent grantors reversionary interest from being terminated
6. Ex. White v. Brown: ROL: A testator can express the intent to create a fee simple and express an intent to
place a restraint on alienation. The unspoken effect of of creating two competing conditions on the estate is
that one of them is not enforceable.
v. Restraints on Alienation:
1. Reasons for not allowing restraints on alienation:
1. Makes property unmarketable
2. Restraints tne to perpetuate the concentration of wealth by making it impossible for th owner to sell
the property and consume the proceeds
3. Restraints discourage improvements on the land b/c landowners are unlikely to invest capital on
property when that capital cannot be recovered in the form of proceeds of the sale; simiarily,
lenders will not lend money to improve the land if they cannot enforce a sale of the property for
default.
4. Restraints work a hardship on lenders who rely on the owners enjoyment of the property in
extending credit.
2. 3 Types of Restraints:
1. Disabling Restraints: withhold from the grantee the power of transferring his interest
i. Ex. To A and his heirs, but any attempt to transfer Blackacre hereafter is null and void.
2. Forfeiture Restraints: Provide that if a person tries to transfer his interests, then the interest costs
in another person.
i. Ex: To A and his heirs, but if A attempts to transfer their interst, then to B and his heirs.
3. Promissory Restraints: a restraint in which a grantee promises not to transfer his interest
i. Ex. To A and his heirs, and A promises not to transfer his interest in Blackacre
ii. Promissory restraints, if enforceable, are supported by the contractual remedies of
damages.
3. Baker v. Weedon: court holds that a sale would not be in the best interest of al of the parties (particularly the
remaindermen), and authorizes the chancery to form an equitable solution of short sale. (Anna was
restrained)
4. Donative Transfers: treats all three restraints as void if they are total restraint on a fee simple absolute.
However, it allows for the possibility of partial restraints on a fee simple
5. Factors of reasonableness of partial restraint:
i. The one imposing the restraint has some interest in land that she is seeking to protect
ii. The restrain has a limited duration
iii. The enforcement of the restrain accomplishes a worthwhile purposeThe type of
conveyances prohibited are ones not likely to be employed to any substantial degree by
the one restrained
iv. The number of persons to whom alienation is prohibited is small
v. The restraint is imposed upon a charity
6. Factors that make restraints unreasonable
i. The restraint is capricious
ii. Spite or malice motivate the imposition of the restraint
iii. The one imposing the restrin has no interst in the land that is benefited by the
enforcement of the restraint
iv. The restraint is unlimited in duration
v. The restraint prohibits alienation to a large number of people
vi. Life Estates and the Law of Waste:
1. Affirmative (voluntary): an affirmative action by the life tenant that damages the land by changing its nature,
character, or improvements to the detriment of the future interst holder
2. Permissive: damages to the future interest hodler that aoccurs by viture of the life tenants failure to maintain
and preserve the land and its improvements
3. Ameliorating: when the life tenant changes the nature or character of land or its improvements, but the
change increases the economic value of the land
d. Defeasible Estates: those that are capable of being divested from the estate holder upon the
occurrence of a certain condition
i. Defeasible: Capable of being annulled or made void
ii. Three types of defeasible estates in fee simple
1. Fee simple determinable: ends automatically upon the occurrence of a
condition (Mahrenholz)
1. The limitation uses words like until, during, so long as while
and is placed before the punctuation mark
2. Includes an automatic reversionary interest called the possibility of
reverter: cannot be passed by will or deed
3. The language must indicate that the interest only exists as long as the
condition is satisfied
4. Language indicates a temporal limitation on the grant
i. Ex: while used for school purposes; during the continuance of
said school; until the board no longer uses the land for a school
5. Language that merely indicates the purpose of the gift is not sufficient
i. Ex: A to B to build a school
6. Every fee simple determinable is accompanied by a future interest
7. May be transferred or arise by operation of law
i. Ex: To A as long as he operates a school
8. Possibility of reverter arises by operation of law and vests in the
grantor
2. Fee simple subject to condition subsequent: an interest that does not
automatically divest, but which may be cut short at the transferors election
1. The limitation uses words like but if however on condition that
provided that and is placed after the punctuation mark
2. Language used is less determined:
i. But if not used for a school
ii. On condition that if the premises
3. Language creating the grant is conditional
4. Includes the reversionary interest called the right of reentry or a
power of termination: cannot be passed by will or deed
5. Humphrey v. CB Jung Educational: Covenant legally restricts the owner
from engaging in certain defined uses of the land, butviolation of the
restriction does not result in forfeiture of title, instead violation
subjects the owner to an action for damages caused by the violation or
an injunction to force the owners future compliance with the
restriction. (bad decision)
3. Fee simple subject to executor limitations
1. Note: Usually when an ambiguous statement can be read as either a
fee simple determinable or a fee simple subject to condition
subsequent, the normal rule is to construe it as fee simple subject to
condition subsequent

e. Future Interests:
i. Reversionary Interest: a reversionary interest is the interest remaining in the grantor
or in the successor in interest of the testator who transfers a vested estate of a lesser
quantum than that of the vested estate of which he has
1. Is transferable and can be transferred inter vivos
2. Falls City v. Missouri Restraint may be enforceable when it doesnt impact the
marketability of real estate & residential convenants. Tolerate defeasible
estates for the social benefits.
ii. Vested Estates:An estate with a present right of enjoyment or a present fixed right of
future enjoyment
iii. A future interest is vested, rather than contingent, if it takes effect upon an event
which must happen at some time
iv. A vested interest is one that is capable of becoming possessory immediately upon
the expiration of a preceding estate
 v. Remainder: a remainder can either be vested or contingent. A future interest
created when a grantor conveys an inherently limited possessory estate and, in the
same conveyance, conveys the future interest to a second grantee
vi. Future interests in the transferees: Three types
1. . Vested remainders: An interest that is certain to possess upon the end of a
previous estate
1. A remainder is vested if it is given to an ascertained person and it is
not subject to a condition precedent other than the natural termination
of the preceding estate
2. Ascertained taker is born and identified
2. Conditioned precedent:
1. A condition that is set out within the description of a particular estate
and
2. Must be satisfied before that estate can become possessory
3. Indefeasible vested remainders: a vested remainder that cannot be divested
1. Ex: To A for life, then to B and his heirs
4. Vested remainders subject to open (aka vested subject to partial divestment):
the ascertained grantee who has an interest not subject to a condition
precedent may be joined by one or more other persons to share equally in the
interest
1. Ex: To A for life and then to Bs children. If B has one child, then the
child is vested. The vesting is open because if B has more than one
child, then the children must share
5. Vested remainders subject to divestment: the estate is determinable, and is
subject to condition subsequent or subject to executor limitations
1. Ex: To A for life, then to B and his heirs, but if B does not survive A,
then to C and his heirs
6. Contingent Remainders: an interest that might vest upon the occurrence of a
condition
1. A remainder is contingent if it is given to an unascertained person or it
is subject to a condition precedent other than the natural termination
of the preceding estate
2. Ex: To A for life, then to As Eldest son and his heirs. If A later has a
son, the interest vests, if he does not, then the interest reverts back to
the owner
3. Kost v. Foster:
i. After the death of A creates a contingency
If I die before Ross
I have no control over what land is
Contingent so children inherit
ii. Not contingent b/c Oscar is alive, so the conveyance is
granted w/ a limitation
7. Alternate Contingent Remainders: when they each follow the same estate and
when their conditions precedent are the opposite of each other, so that the
vesting of one precludes the vesting of another
8. Doctrine of Destruction of Contingent Remainders: a contingent remainder is
destroyed if it is still contingent when the prior estate ends
9. Parties can terminate a contingent remainder by merging a lesser estate into
a greater estate
vii. Executory Interest: a future interest in a transferee that can only take effect by
divesting another interest
viii. A future interest in a transferee that must in order to become possessory:
1. Divest or cut short some interest in another transferee (shifting executory
interest)
2. Divest the transferor in the future (springing executory interest)
f. Vested in class: the interest vest in a class if one person is ascertained and there is no
condition precedent
i. Merger:
1. Doctrine of merger: if a lesser estate and the next vested estate comes into
the hands of the same person, then the two estates merge
 1. Ex: To A for life and then to B and her heirs. If A then conveys As life
to B, Bs remainder and the life estate merge to create a fee simple in
the hands of B
2. Requirements of merger:
1. Lesser estate is possessory and transferred
2. transferee holds a vested remainder or reversion
3. Does not apply to executor interests; however, the courts held that
where possible you must interpret a grant as a contingent remainder
rather than an executor interest
3. If
1. 1. a possessory or vested life estate and the next vested estate in fee
simple come into the hands of the same person and
2. these two estates are not separated by the another vested estate,
4. Then
1. . the life estate merges into the next vested estate held by the same
person, and
2. if there is a contingent remainder between them, the contingent
remainder will be destroyed
ii. Rule in Shelleys Case: if a life estate is conveyed to a person and the remainder is
conveyed to their heirs, then the two estates are joined in the person holding the life
estate in fee simple
1. If
1. 1. the same document
2. 2. conveys a life estate to a grantee and
3. 3. a remainder to that grantees heirs
2. Then
1. The conveyance to the grantees heirs immediately becomes
conveyance to the grantee
iii. Doctrine of worthier title: holds that where a grantor gives by intervivos conveyance
a remainder or executory interest to his own heirs, then the future interest is not
created in the heirs, but rather the conveyance holds the reversion
1. If
1. The same intervivos conveyance
2. Conveys an inherently limited estate to a grantee and
3. A remainder or an executor to the grantors heirs
2. Then
1. The conveyance to the grantors heirs is read as a conveyance to the
grantor
3. Definitions of successors:
1. Heirs: persons acquiring property by intestate disposition.
i. Does not include spouses
ii. A living person has no heirs
2. Issue: generally descendents of the testator or the decedents
3. Ancestor: parent of the decedent
4. Collateral: all persons related by blood who are neither issue or
ancestors
5. Escheat: process by which a persons property reverts to a landlord
(feudal) or state (modern) in the absence of heirs or a testament
i. Will escheat if there are no heirs (including ancestors or
collaterals)
8. Concurrent Ownership
a. Tenancy in Common: most common, tenants in common have an interest that is
undivided yet separate. Two owners simultaneously enjoy the right to possession, but
each has a separate interest (US prefers)
b. Joint Tenancy: each co-owner holds a separate and undivided right to possession. Differs
from common b/c joint tenants have a right of survivorship (I.e. the right to claim individual
ownership to the property as the surviving joint tenant. Each person holds a separate &
undivided interst.
i. A joint tenant can transfer her share during her lifetime, if joint tenant makes no
inter vivos transfer of her share, then her death extinguishes her share and the
surviving joint tenants hold the land.
 ii. 4 unities to create a joint tenancy:
1. unity of time: each joint tenant had to acquire her interest at the same time as her fellow tenants
2. Unity of title: each join tenant had to acquire her interest by virtue of the same instrument that created the
ALL 4 MUST BE IN interest of her fellow joint tenants
TACT 3. Unites of interest: each joint tenant had to hold an interest identical to that of her fellow join tenant, both as
to the size of their respective shares and sas tot eh duration of the estate held in joint tenancy
4. unity of possession: each joint tenant had to have an undivided right to posses and enjoy all of the property.
iii. If a joint tenancy is conveyed then it is a tenancy in common (no survivorship in tenancy in common)
c. Tenancy by Entirety: a special form of co-ownership only possible between spouses the tenancy by the entirety. Each
spouse holding a right of survivorship, requiring 5 unities (1) time (2) title (3) interest (4) possession (5) marriage. One spouse
could not take unilateral action during the marriage to sever the cotenancy and thereby defeat the other spouses survivorship.
i. Failure to possess all 5 unities, then there is NO entirety, but a tenancy in common.
ii. Smith v. Rucker: a joint tenancy of the property is subject to partition.
d. Severance of Joint Tenancies: one joint tenant can unilaterally take action to breach 1 of the
4 unities, severing the joint tenancy, and destroying the right of survivorship.
i. Harms v. Sprague: Judicial liens are allowed on joint tenancies.
1. Title Theory of Mortgage:
2. Lien Theory: