Property 1

• Personal property


  Every kind of property that is not real property
• Real property


  • Land - material of the earth
  • That which is affixed to land
  • That which is appurtenant to land (i.e. beneficial use or enjoyment of land)
• Property as a Bundle of rights


  • The right to exclude
  • The right to destroy
• An entry onto the real property of another person without privilege to do so is a trespass
• The right to destroy during one's lifetime is broader in scope that the right to destroy pursuant to the provision of a person's will
• The destruction must not injure an important interest of others
• Estate


  An interest in property, can be a present possessory interest or a future interest
• Fee simple absolute


  No future interest, can not be defeasible and is designed to last forever
• Life estate


  An estate whose duration is measured by the life or its owner
• Life estate pur autre vie


  A life estate for the life of another
• Defeasible estates

  Estates that may end upon the occurrence or non occurrence of some future event
• Determinable estates or fee simple determinable


  Comes to end automatically when a certain event or condition occurs giving the right of possession to the transferor
• Estates subject to conditions subsequent

  May be terminated at the election of the transferor when a certain condition or event occurs
• Estates subject to executory limitations

  A defeasible fee simple estate created in a transferee that is followed by a future interest in another transferee, and automatically ends when a certain event or condition occurs
• Reversions


  A future interest retained by a transferor when the transferor transfers an estate or estates of lesser quantum then the estate owned by the transferor at the time of the transfer
• Rights of entry (powers of termination)

  Created when the transferor creates an estate subject to a condition subsequent in favor of a transferee
• Possibilities of reverter


  Created when the transferor creates a determinable estate in favor of a transferee
• Remainder


  A future interest created in favor of a transferee that is designed to become possessory immediately upon the natural expiration of a preceding estate
• Contingent remainder


  A remainder that is either transferred to an ascertainable, but unascertained person or the transferor included a condition precedent to vesting in the instrument of transfer, or both
• Vested remainder


  A remainder that is transferred to an ascertained person and the transferor has not included any condition precedent to vesting in the instrument of transfer
• Executory interests


  An estate that is designed to become possessory upon the happening of an event that cuts short a prior estate
• Doctrine of worthier title

  If a grantor creates a remainder or an executory interest in his own heirs, the grantor retains a future interest in himself rather than creating a future interest in those heirs
• Rule in Shelley's case

  If a freehold estate is given to a person and in the same instrument, a remainder is given to the heirs (or heirs of the body) of that person, he takes both the freehold estate and remainder
• Rule against perpetuities


  A non-vested property interest is invalid unless it is certain to vest or terminate no later than 21 years after the death of an individual then alive, or the interest either vests or terminates within 90 years after its execution
• Doctrine of destructibility of contingent remainders


  A contingent remainder that has not vested at the termination of the preceding freehold estate is destroyed
• Tenancy-in-common


  Interest may be equal or unequal, equal right to possess the whole property, the transferee is a tenant in common with the other owners
• Joint tenancy


  Equal interest, and equal right to possess the whole property, right of survivorship
• Per the common law, the unities of time, title, interest and the possession must exist for a joint tenancy to exist
• In California, a joint interest is one owned by two or more persons, by title created by a single will or transfer, or by transfer from sole owner to himself or herself and others, when expressly declared to be a joint tenancy or when granted or devised to executors or trustees as joint tenants
• Joint Tenancies

  Equal interest, and equal right to possess the whole property. A joint tenant may deed his or her interest, the joint tenancy is severed as to the transferred interest. Right of survivorship
• Joint Tenancy


  • Unity of time - must have been given interest at the same time
  • Unity of title - must have come from the same instrument
  • Unity of interest - must have the same interest
  • Unity of possession - must have equal rights to possess
  • Intent
• Severance of joint tenancy

  Methods: Conveyance by a joint tenant to another person, Secret severance, Title theory, Lien theory, Joint tenant leases the joint tenancy property, Equitable conversion doctrine
• Partition


  • Common law - In kind is a division of property into areas that are equivalent to the owners' interest in the property in question. If not practicable then go to partition by sale.
  • State statute - in kind or By Sale is where the courts look to sell the fee simple absolute, and split the net sale proceeds based on undivided interest.
• License


  Informal permission and is a revocable permission to use someone else's real property which use would be trespass but for the permission. However, a license is irrevocable if coupled with an interest. It is created expressly in written or orally and is generally not transferable.
• Easement


  The irrevocable right to use someone else's real property. The scope is the degree of use of another person's property allowed to an owner of an easement that burdens the servient land.
• Easement in gross


  An easement that is not for the purpose of aiding the easement owner in the use of any property that might be owned by the easement owner.
• Easement appurtenant


  For the beneficial use and enjoyment of the dominant property.
• Express Easements

  • Must have a Statute of Frauds. Was created voluntarily by the servient owner, usually in a deed by grant or reservation.
• Easements Implied by Prior Use


  • Claimant must prove: Common ownership, Severance of common ownership, Prior use (apparent, continuous, necessary)
• Easements Implied by Necessity

  • Required elements: Severance of title to land held in common ownership AND Necessity for the easement at the time of severance