Property Law Final

• Rule of Finders


  Exploring when someone has something and loses it and then someone else gets property rights
• For finders issues won't know who the true owner is because the true owner will always win
• Threshold Question


  1. Is it lost property

  2. Mislaid property

  3. Abandoned property

  4. Treasure trove
• Lost property


  • Determine that the object is lost
  • The finder of lost property has possessory rights as against all the world except the rightful owner or prior possessors
  • If the object is found in a public space, it weighs in favor of finder
  • If private, weighs in favor of landowner
  • Attached to or under the land weighs in favor of landowner
  • Master/servant relationship weighs in favor of master
  • Legal right to be on real estate in possession (via lease) doesn't automatically give rights over the owner in buried items on real estate
• Mislaid property


  • Voluntarily and knowingly places it somewhere but unintentionally forgets it
  • Once declared mislaid, it goes to owner of property where found (locus quo)
• Abandoned property


  • Knowingly relinquish right
  • Physically vacating or leaving the property
  • Lacking the intent to return to the property
• Treasure trove


  Intentionally concealed long ago
• Elements of a gift (inter vivos)


  • Intent
  • Delivery (manual, constructive, symbolic)
  • Acceptance
• Gifts (inter vivos)


  • Cannot revoke if all three elements are satisfied
• Elements of a gift (causa mortis)

  • Intent
  • Delivery
  • Acceptance
  • Donor's anticipation of imminent death
• Gifts (causa mortis)


  • Donor can revoke gift prior to death
  • If donor doesn't die from anticipated threat, most jurisdictions say that the gift is automatically invalidated, other jurisdictions allow donor to decide whether to revoke the gift
• Devise or Bequest is a gift made via a will after person's death
• Elements of adverse possession


  • Actual Entry
  • Exclusive Possession
  • Open and Notorious Possession
  • Continuous for the statutory period
  • Adverse and Hostile to the interest of the record owner (under a claim of right)
• If someone acquires property through adverse possession and then abandons it, in order for the original owner to get it they would have to capture it
• Tacking


  Have someone adverse possess and then someone else begins adverse possessing, have to be in privity to tack
• Types of concurrent interests


  • Tenancy in Common
  • Joint Tenancy
  • Tenancy by Entirety
• Tenancy in Common


  • Default and presumed concurrent interest
  • Devisable and conveyable
  • No right of survivorship most common form of concurrent interest
  • Result of severance
  • Owners have a separate but undivided interest with equal rights to possession
  • Can't sever a tenancy in common, a tenancy in common is the result of severance of other concurrent interests
• Joint Tenancy


  • The 4 Unities (Time, Title, Interest, Possession)
  • Use of magic words: as joint tenants with rights of survivorship
  • Modern view - intent test
  • Law doesn't recognize death or a term of years to be a condition
• Mortgages


  • If one of JT w/o the other it presents a problem
  • Lien theory vs title theory
• Leases


  • Unity of possession is at issue
  • Could potentially sever
• Tenancy by Entirety


  • Created same way as JT plus additional element (need to be married)
  • Unlike JT can't break unilaterally
• Partition


  • Severance - severs a JT but parties remain in a concurrent interest (TIC)
  • Partition - parties no longer have a concurrent interest, there's no undivided interest anymore it is divided
• Types of partition


  • Partition in Kind (actual/physical division)
  • Partition by Sale (property is sold and proceeds divided)
• Ouster


  • Majority rule is that the tenant in sole occupation of the premises doesn't have to account to other co-tenants for rent, absent ouster
  • Ouster is refusing a demand by the other cotenants to be allowed to use and enjoy the land
  • Demand for possession - demand to be able to possess and if denied = ouster
• Ouster & Adverse Possession


  • Way to defend against ouster is adverse possession
  • To overcome the presumption against AP of a co-tenant, adverse possessor must show actions of such an unequivocal nature, so distinctly hostile to the rights of other co-tenants, that the intention to disseize is clear and unmistakable
• Types of marital property


  • Community Property
  • Separate Property
• Community Property


  • Property acquired while married and residing in a community property state
  • Spouses are treated as equal co-owners of property acquired during the marriage
  • Upon death community property is split 50/50 regardless of will with ½ retained by spouse, other half retained by estate
  • Rights of survivorship trump community therefore only applies in a TIC
  • Divorce - some states say 50/50, other states use equitable distribution
• Separate Property


  • Property owned before marriage or never shared during marriage
  • Gifts, inheritances, property acquired in one name and never used to benefit the other spouse
• Elective Share


  • Most states have modern version
  • Surviving spouse has the choice to take whatever is bequeathed in will or the percentage set forth in the statute
• Fee Simple Absolute


  • To A = To A and her heirs
  • It is the presumed conveyance
  • No future interest
• Life Estate or Finite Estate


  • In order to get a life estate have to say "to A for life"
  • For finite estate have to say "to A for X years"
  • Life estate pur autre vie
• Types of Remainders


  • Indefeasible Vested Remainder
  • Vested Remainder Subject to Divestment
  • Vested Remainder Subject to Open
  • Contingent Remainders
• Fee Simple Determinable


  • Possession until the right to use expires automatically by terms of the grant (when the stated condition occurs)
  • Possibility of reverter held by transferor
• Fee Simple Subject to Condition Subsequent


  • Possession occurs until condition is violated and original transferor enforces the violation by retaking the property
  • Original transferor has right of re-entry
• Fee Simple Subject to Executory Limitation


  Possession until condition is violated and automatically transfers to third party
• Leasehold Estates (Non-Freehold Estates)


  • Tenancy for a Term of Years
  • Periodic Tenancy
  • Tenancy at Will
  • Tenancy at Sufferance (Holdovers)
• Tenancy for a Term of Years


  Need definite time, Death has no effect, Divorce doesn't effect
• Periodic Tenancy


  Parties must state that going to terminate, Both parties must be able to terminate, Landlord and tenant agree at outset about period, No end date, Must give notice of termination w/ maximum of 6 months' notice for any lease 6 months+, Death doesn't effect
• Tenancy at Will


  Can terminate at anytime at all, Death will terminate a tenancy
• Covenant of Quiet Enjoyment


  • Actual eviction, Partial actual eviction, Constructive eviction, Implied warranty of habitability