Property Outline Final-3

PROPERTY OUTLINE
property: anything of value that one may lawfully acquire  Locke’s Labor Theory of Property: must cultivate and develop the land to have ownership possession; the person exercises dominion and control and changes the property’s value by his labor

FIRST POSSESSION: ACQUISITION BY DISCOVERY, CAPTURE & CREATION
I. ACQUISITION BY DISCOVERY
first in time: he who gets there first has property rights terra nullius: land inherited by no one discovery: the sighting or finding of unknown or uncharted territory, it is frequently accompanied by a landing and the symbolic taking of possession conquest: if you occupy the land by force then you own everything and everyone Johnson v. McIntosh (title of property from Native Americans) Issue: Whether title to land conveyed from Native Americans can be recognized in the Courts of the United States? Rule: o First in Time: the first possessor has the best right to the property – ownership o Property: anything of value that could be bought and sold Analysis: Native Americans could possess, but not own the land. They did not do enough to cultivate the land. Conclusion: Native Americans could not give title law of accretion: when natural forces gradually sift a river and cause the adjacent land to receded or advance by the build-up of new soil; the owner of the adjacent land gains or loses land as the water boundary gradually shifts law of accession: when one person adds to the proper of another by labor alone abandoned property: the person who has the best right to abandoned property is the finder besides the original owner; the person who exercises dominion and control – especially of the property changes value by the finder’s labor (Locke’s Labor Theory of Property) law of avulsion: if there is a sudden change in the course of a river (as after a flood), the boundaries do not change

II.

ACQUISITION BY CAPTURE
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capture wild animal: (1) mere pursuit alone does not give legal right of wild animal, must have intercepted it and killed it to have ownership rights; (2) one who mortally wounds an animal and so captures it is almost certain to be deemed to have possession. Pierson v. Post (wild fox case) Issue: since a wild animal does not belong to anyone, how does one become the owner of a wild animal? Rule: to capture a wild animal one must capture it and either take possession or intercept it with a net. Analysis: only pursuit and wounding, but did not capture the fox, and that is not enough to establish possession. Conclusion: did not have title to wounded animal Keeble v. Hickeringill (duck decoy) Issue: Whether conduct to deprive a man of income by engaging in activity that interferes with his livelihood is actionable in court? Rule: Anything on one’s property, then you have constructive possession “where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there an action lies in all cases” Analysis: D did not intend to disrupt the duck decoy except to interfere with P’s attempt to earn income. P invested heavily in his enterprise and D was wrong. Conclusion: Judgment affirmed for P.  someone who kills an animal on property, then you own it; would have to trespass on the land to get it and the owner has constructive possession of the animal

Ghen v. Rick (whale case) Issue: whether a local custom regarding ownership of killed wild animals is sufficient to sustain a cause of action in court? Rule: may use custom, usage and public policy toward determining property rights in certain circumstances Analysis: custom was sufficient here and to go against the local rule would cause damage to the local whaling industry. D knew the local custom of special harpoons marking the kill. Conclusion: judgment for plaintiff   Oil and Gas: when oil or gas escapes and goes to someone else’s land or control, title of former owner is gone if the other person captures it Water Rights: follows similar rule to oil and gas externalities: whether a person in using his or her property should consider its effect on other people?  involves property use restrictions 2

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can’t do what you want because it causes a nuisance

Three Types of Land Use Controls/Restrictions: (1) nuisance: unreasonable interference with another’s use and enjoyment of their land (2) private land use controls   easements – the right to go across someone’s land covenants – real or equitable

(3) legislative – law of zoning (4) defeasible fees    a fee simple determinable a fee simple subject to a condition subsequent a fee simple subject to an executory limitation

III.

ACQUISITION BY CREATION
acquisition by creation: any expenditure of mental or physical effort, as a result of which there is created an entity, whether tangible or intangible, vests in the person who brought the entity into being, a proprietary right to commercial exploitation of that entity, which right is separate and independent from the ownership of that entity. International News Service v. A.P (stealing news copy) Issue: Whether there is any property interest in news? Rule: A.P. has a quasi property interest in news it gathers until its commercial value has passed away. Analysis: locke’s labor theory of law; news is not copyrighted material, the information respecting current events is not a creation of the writer, but is a report of matters that are ordinarily public. Took actions to sneak the info away from INS. Conclusion: Affirmed for P. Cheney Brothers v. Doris Silk Corp. (manufacturer of silk patterns) Issue: Whether silk patterns, proprietary value of which decline rapidly, is subject to copyright protection for a fashion season? Rule: a man’s property is limited to the chattels which embody his invention . . . . Others may imitate these at their leisure. Analysis: to prevent the imitation would go far beyond the sweep of Cong. or the S. Ct.’s interpretation of copyright law. In the absence of some recognized right at common law or statute . . . a man’s property is limited to the chattels which embodies his invention; others may imitate at their leisure. 3

Conclusion: Affirmed. Smith v. Chanel, Inc. (perfume) Rule: a perfume co. could claim in advertisements that its product was the equivalent of the more expensive Chanel No. 5 because it is unpatented Analysis: spending lots of money to create demand for a product does not itself create a legally protected right if the product is unpatented. D serves an important public service by producing a cheaper product.

Nichols v. Universal Pictures Corp. (play v. movie – different religions) Issue: When is a creative work not subject to copyright protection because the material in the work falls into the public domain? Rule: copyright protection does not cover material that falls into the public domain Analysis: the background material for “Abie’s Irish Rose” was in the public domain. The material fell on the stock figures of the Jews, Irish Catholics, and is hardly novel material. The movie “the Cohens and the Kellys” did not infringe on P’s copyright for the play. Conclusion: Judgment for D affirmed. INTELLECTUAL PROPERTY:  patents – patent law protects property rights in novel, useful, nonobvious processes or products; can patent three things: (1) machine; (2) manufacture; (3) composition of matter three types of patents: (1) utility patent; (2) plant patents; and (3) design patents o utility patents: inventions o process: a method of making something, using something, or doing something o an inventor may invent a process, a product or both o products: include machines, articles of manufacture, and compositions of matter o machine: includes every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result o manufacture: the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties or combinations, whether by hand-labor or machinery 4

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o not patentable: laws of nature, physical phenomena; and abstract ideas White v. Samsung (Vanna White’s robot comparison) Issue: Whether P had an exclusive right to control the use of her name and likeness for commercial exploitation? Rule: elements of a common law right of privacy: (1) defendant’s use of plaintiff’s identity; (2) defendant’s appropriation of plaintiff’s name and likeness to defendant’s advantage; (3) lack of plaintiff’s consent; and (4) injury. Analysis: D didn’t use P’s likeness, rather a robot. Overprotecting intellectual property is as dangerous as underprotecting it. “Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it.” Conclusion: judgment for D affirmed. FYI – Test: Whether your persona is a recognizable commodity which will result in commercial advantage? Moore v. UCLA (used body parts) Issue: whether P has a cause of action in conversion against D for using his cells in potentially lucrative medical research without his permission? Rule: no cause of action for conversion because does not have a property interest in internal body parts Analysis: did not a cause of action for conversion – policy reason: don’t want folks selling internal body parts; also Locke’s Labor Theory of Property – didn’t do the work to convert the cells from the spleen into something of value. Had no expectation of dominion, the right to control, use or transfer, the excised cells/ Conclusion: no action for conversion; action for lack of informed consent Diamond v. Chakrabarty (oil eating bacteria) Issue: whether P’s micro-organism constitutes manufacture or composition of matter within the meaning of the statute? Rule: a patent claim may be an invention as a product and as a process, but it must do so in separate claims • some things cannot be patented – laws of nature, physical phenomena and abstract ideas Analysis: P could patent the bacteria because he created something new that was outside the natural state of nature – Locke’s Labor Theory of Property Conclusion:

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copyrights: protects rights in the expression of ideas in books, articles, music and other tangible medium; other may make fair use – one can create a painting and sell the painting and still retain the copyright o copyright term lasts for the life of the author plus 70 years (or a fixed term of 95 years for works made for hire and some other categories of work o an author owns the copyright in any original work of authorship as soon as he fixes it in some tangible form o provide that an author has an inalienable right to terminate any exclusive grant of a transfer or license of any or all the rights under a copyright during a 5 year period after 35 years from the date of the grant by the author MGM v. Groskter (infringing on the net) Issue: Under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties? Rule: must have actual knowledge of specific infringement where an article is “good for nothing else” but infringement, there is no legitimate pubic interest in its unlicensed availability, and there is no injunction in presuming or imputing an intent to infringe. Analysis: it was not enough that mere knowledge of infringing potential or actual infringing uses is not enough to subject a distributor to liability. Conclusion: vacated and remanded. trademarks: protects words and symbols indicating the source of a product or service o last until abandoned o acquires a trademark of making a bona fide use of the mark in commerce; can be a word, phrase or clause, a design, an image, a sound, a color, or fragrance o inherently distinctive marks: those whose intrinsic nature serves to identify a particular source o arbitrary and fanciful marks: those which do not describe or suggest any characteristic of the product o suggestive marks: those which suggest but do not describe the nature or characteristics of the product

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THE RIGHT TO EXCLUDE OTHERS FROM PROPERTY public trust: allows people to cross your property to get the public spaces with limitations eminent domain: right to just compensation for taking of property Jacque v. Steenberg Homes, Inc. (mobile home delivery across private property) Issue: Whether P had the right to not allow D to deliver a mobile home across his property? 6

Rule: a private person has the right to exclude others from his or her land for any purposes which does not invade the property rights of another Analysis: if P could not prevent the delivery over his land then he would have no real right to exclusive enjoyment of his land. Additionally, if P could not resort to the law for help then it would encourage the use of self-help, potentially violent and unnecessary. Conclusion: Judgment for P. State v. Shack (immigrants working on private farm seeking help) Issue: Whether the defendants infringed on the farmer’s property rights by trespassing on the land? Rule: • under State law the ownership of real property does not include the right to bar access to governmental services available to migrant workers and hence there was no trespass within the meaning of the penal statute • a man’s right to his real property is not absolute. . . . one should so use his property so as not to injure the rights of others Analysis: policy considerations make it important to protect migrants workers who are in many ways outside of society. There was no “legitimate need for a right in the farmer to deny the worker the opportunities for aid available from federal, State or local services, or from recognized charitable groups seeking to aid them. Conclusion: D’s acquitted.

SUBSEQUENT POSSESSION: ACQUISITION OF PROPERTY BY FIND, ADVERSE POSSESSION, AND GIFT
I. FIND
Armory v. Delamirie (jewel in the chimney) Issue: Whether the finder of property has the best claim to property over all others except the true owner? Rule: The finder of lost property has a claim against all except the true owner. Trover is a common law action for money damages resulting from the defendant’s conversion to his own use of chattel owned or possessed by the plaintiff. 7

Analysis: brought an action in trover for the jewel (modern day conversion). Here P found the property. Best claim. Conclusion: got value of the jewel abandoned property: treated as lost property possession of property: (1) physical possession; (2) intent to have dominion and control bailment: the rightful possession of goods by a person (the bailee) who is not the owner (there must be delivery and acceptance) voluntary bailment: when the owner of the goods (bailor) gives permission to the bailee (dry cleaners, coat check) – duty of reasonable care for another’s property involuntary bailment (found goods): involuntary from the view of the owner, but the finder assumes the obligation of a bailee; lost goods, involuntary bailee – unintentionally parted with your property – ordinary reasonable care law of finds: finder of lost goods has the best property right against everyone except the true owner   lost property – inadvertently left behind employer/employee: some/some law of mislaid goods: finder has no rights to mislaid goods, when a person voluntarily and intentionally places property in that place but who forgets to retrieve it – just the true owner – better claim on the property by the owner of real property, where the item is found real estate: cause of action for “specific performance”; modern is trespass – value for damages and ejectment: get off my property personal property: at early common law, no replevin; could only sue for trover – recover for value of land Hannah v. Peel (corporal found broach in house) Issue: Who had the better right to claim ownership of property, the finder of the jewel or the owner of the land where the property was found? Rule: A person possesses everything which is attached to or under his land. However, a person does not necessarily possess a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else. Analysis: Corporal had best claim. Followed the right steps, and D was never in actual possession of the property. The broach was never his; the broach was lost and P found it. Bridges v. Hawkensworth: found a package on the floor of a shop and shows the owner and say I’ll hold it until the true owner shows up – the finder gets it because it is lost, not mislaid. Conclusion: Plaintiff.

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McAvoy v. Medina (pocketbook found in barbershop) Issue: Who has the best claim to mislaid property, the finder or the owner of the property where the item is found? Rule: The finder has no rights to mislaid goods (when a person voluntarily and intentionally misplaces property in that place but who forgets to retrieve it) – just the true owner. Analysis: P had no rights to the pocketbook. It was placed voluntarily on the table and the true owner neglected to remove it. From a public policy standpoint it would be best for the owner of the shop to hold onto the property in case the true owner wants to retrieve it. Conclusion: judgment for D affirmed.

II.

ADVERSE POSSESSION

Adverse possession: An actual entry giving exclusive possession that is open and notorious, adverse and under a hostile claim of right and continuous for the statutory period. • Morengo Cave Co. v. Ross: open possession of an underground cave is not notorious – to whomever the soil belongs, goes up to the sky and down to the depths Lutz v. Van Valkenburgh (Yonkers lot dispute) Facts:  L v. V.V.: easement over the land, but is actually a prescriptive right because not written – won Issue: Whether there is evidence that Lutz cultivated or improved the lot sufficiently to satisfy ownership by adverse possession? Rule: To acquire title to real property by adverse possession not found upon a written instrument, it must be shown by clear and convincing proof that for at least fifteen years there was an actual possession under claim of title. The essential elements of proof being that the premises: (1) are protected by a substantial enclosure, or are (2) usually cultivated or improved. Analysis: second suit, screwed up when made a statement against his own pecuniary interest in the first case, easement for the crossway. Also, Lutz didn’t improve the property enough. Conclusion: judgment for VV adverse possession: a method of transferring interest in land without the consent of the prior owner, even despite the dissent of the owner Elements: (1) an actual entry giving exclusive possession that is (2) open and notorious (3) adverse & under (hostile)) claim of right; (4) continuous for statutory  entry must be – exclusive, continuous, uninterrupted, visible & notorious

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 must show by enclosure, cultivation, & improvements; neighbors and others must regard occupant as exercising dominion   protects the true owner before the SOL and the adverse possessor after the SOL some states require payment of taxes to recover for adverse possession

when the life estate owner dies, the timing for adverse possession starts all over again, the remainder men are protected quiet title: a declaratory judgment to find out who owns the property public rights doctrine: implied easement to gain access to some public area while crossing private property color of title: not a prerequisite of Adverse Possession, refers to claim on written instrument that is defective – grantor does not own the thing conveyed (even with deed, u don’t actually own land) claim of title: one way of expressing the requirement of hostility or claim of right on the part of an adverse possessor    • good faith standard: I thought I owned it aggressive standard: I knew/I thought I didn’t own it, but intended to keep it. objective standard: state of mind is irrelevant disability: tolling for the SOL; a disability is immaterial unless it existed at the time when the cause of action accrued. • • Statute of Repose: SOL begins at the date you were injured even if unaware of the disease bring an action for recovery within twenty-one years or ten years after adverse possession period is over

TOLLING OF STATUTE OF LIMITATIONS

ADVERSE POSSESSION AGAINST THE GOVERNMENT • • eminent domain: government can’t take private property for public use without just compensation Under U.S. Law the states are split on adverse possession against the government o can run in some states against the government o some states can’t run against the government o some, longer tolling period against the government than against private land owners o some, only if own property in a proprietorship BOUNDARY DISPUTES Mannillo v. Gorski (fifteen inch encroachment on neighbor’s land) Issue: Whether the defendant’s encroachment met the standard of “open and notorious”? 10

Rule: where there is a minor encroachment, the true owner must have actual knowledge of the encroachment to satisfy the open and notorious standard. Analysis: the encroachment does not have to be hostile if “any entry and possession for the required time which is exclusive, continuous, uninterrupted, visible and notorious” – subsidiary rule that overturns – if encroachment done under MISTAKEN BELIEF then no hostile possession. The true owner MUST HAVE actual knowledge of the encroachment where there is only a dispute. Conclusion: Remanded for trial. doctrine of agreed boundaries: oral agreement enforceable if used for a long period of time doctrine of acquiescence: long acquiescence – though for a period of time shorter than the SOL – evidence of an agreement between parties fixing the boundary lines doctrine of estoppel: when one neighbor makes representations about the location of a common boundary, and the other neighbor then changes her position in reliance on the representation or conduct MECHANICS OF ADVERSE POSSESSION Howard v. Kunto (beach land with wrong title) Issue: What happens when the descriptions in deeds do not fit the land the deed holders are occupying? Rule: tacking, the joining of consecutive periods of possession by different person to the different periods of time as one continuous period, is allowed in adverse possession if the occupants are in privity Analysis: the family in possession were not squatters, but folks who obtained record title, albeit incorrect title. They win on adverse possession by being in privity with previous owners who had incorrect title that they believed was correct. Conclusion: reversed, dismiss P’s action and quiet title to D (in privity family) * continuity is normal use of a property: summer home is used every yr so = continuous • Can tack interest if in privity (a voluntary relationship) Tacking Problems: A enters onto Blackarce in 2000, owned by O. 2007 B kicks A out. Who owns land in 2010 if SOL is 10 yrs? o O owns the land because no privity between A and B because privity is a voluntary relationship between both parties. o A would argue 1st in time because he didn’t pass SOL yet. 11 privity given by deed or can be established by possession.

A leaves in 2003 because threat of force but in 6 months returns and recovers land. Who owns the land in 10yrs? 10 yrs 6months? If in 2000 A abandons Blackacre and B takes possession. If O does nada will B own Blackarce in 2010? o A didn’t pass land voluntarily, there was no transfer. B can only Tack if privity, no privity. He has to start over, so he did make his 10yr SOL. 1994 A enters blackarce, 1995 O dies and leaves will leaving Blackarce to B for life then to C get remainder (fee simple means u own it forever once u get it). 2010 B dies. Who owns land? o Once entry is established, adverse continues even if ownership changes or transfers. A has been on land for 16 years undisturbed so A owns land. o C can contact B if she knows about A before B dies. 1995 O dies and gives B blackarce for life remainder to C. 1996 A enters. In 2010 B dies. Who owns land? o A enters against B. by 2006 A has adverse possession against B. If enter a life estate can only enter adverse against life estate. o A wins against B, but then A SOL starts all over again when the life estate ends and C owns it. SO C wins against A. Disability Problems: • • • • Disability is immaterial unless it’s there at point of entry. What type of disability? Death ends disability. If more than one then pick the one that lasts the longest.

age 21 gets rid of disability and 10 yr extension. O is the owner in 1984 and A enters 1984. O is insane in 1987 dies 2007 intestate (without a will.) o 2017 A gets possession O heir has no disability in 2007. o 2017 A gets possession O heir, H, is 6 in 2007 • A gets possession in 2032

A enters in 84, O is 5 years old in 84. In 94 O becomes mentally ill and O dies intestate in 09. O’s heir, H, is under no disability. Does the adverse possessor here acquire title in 05, 07 or at some later date? If the answer is 05 or 07 how are O’s interest to be protected? o O stops being a minor in 1997. Ten yrs after that is 2010. 12

ADVERSE POSSESSION OF CHATTELS O’Keefe v. Synder (painting not reported) Issue: When did O’Keefe’s cause of action for replevin of her painting begin to accrue? Rule: • under the discovery rule the SOL on an action for replevin beings to run when the owner knows or should reasonably should know of his cause of action and the identity of the possessor of the chattel • discovery rule: in an appropriate case, a cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of the cause of action Analysis: Have to investigate to determine whether P: (1) used due diligence to recover the painting at the time of the alleged theft and thereafter, (2) at the time of the alleged theft there was an effective method, other than talking to her colleagues to inform the art world, and (3) registering paintings with ADAA or any other organization would have put a reasonably prudent purchaser of art on constructive notice that someone other than the possessor was the true owner. Conclusion: reversed and remanded for a plenary hearing

III.

GIFT

Gift – the voluntary transfer of property by one person to another without any consideration or compensation. Is a present transfer property (if future transfer, then it’s a promise to make a gift, and is unenforcement). ELEMENTS: (1) intention to make the gift – oral evidence; (2) delivery of the thing given – objective acts, passing of control of item; (3) acceptance of the gift by the donee (assumed) • constructive delivery: handing over a key or some object that will open up access to the subject matter of the gift • symbolic delivery: handing over something symbolic of the property given – usually a written instrument declaring a gift of the subject matter • acceptance: the law presumes acceptance whenever the gift is beneficial to the donee. GIFT CAUSA MORTIS gift causa mortis: a gift made in contemplation of and in expression of immediate approaching death and is a substitute for a will

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• if the donor lives the gift is revoked, although some courts may hold that revocation occurs only if the donor elects to revoke upon recovering gift inter vivos: ordinary gift in which the donor is not responding to any threat of death • intend to give an ownership property interest today, although a possessory interest may occur in the future Newman v. Post (woman took care of dying man – piano) Issue: Whether the deceased made a valid gift causa mortis to the plaintiff? Rule: to constitute a donation causa mortis, two things are indispensably necessary: an intention to make a gift, and a delivery of the thing given . . . . Requires but one witness • the intention to make the gift need not be stated explicitly and may be inferred from the facts attending to delivery, but it must always clearly appear that he knew what he was doing and he intended the gift • constructive delivery – where it plainly appears that it was the intention of the donor to make the gift, and where the things intended to be given are not present, or, where present are incapable of physical delivery from weight and size Analysis: the manservant was there to witness the gift and P became owner of anything that the keys unlocked in the bureau the rest of the stuff not in her bedroom was the property of D’s estate. On remand P must prove that D intended to give her the piano. Unlikely to prove the entire property, just the keys to what was unlocked. Conclusion: new trial. Gruen v. Gruen (father gifted painting to son) Issue: whether a valid inter vivos (between the living/ while living) gift of chattel may be made where the donor has reserved a life estate in the chattel and the donee never had physical possession of it before the donor’s death? Rule: to make a valid inter vivos gift there must exist the intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee, and acceptance by the donee. • delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties would reasonably permit • it is unreasonable to expect the donor of the remainder of the property interest in chattel to physically deliver the chattel into the donor’s hand only to have the donee redeliver it

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Analysis: P’s father intended to give the painting to him and intended to transfer the ownership of the painting to his son and the remainder of the property interest would pass upon death. P kept two letters, showed the paintings to friends and remarked that he owned it over the course of 17 years. Delivery occurred at the receipt of the letter – vested – father kept a life estate. Created a remainder interest in the son at the day the letter (second) was received and gave a present ownership interest with possession in the future. Conclusion: judgment for son affirmed • so long as there is a present conveyance of an interest in property now (TODAY) it does not matter that possession occurs in the future Rule: if the grantor intends to make a transfer now, there has been an effective delivery even though possession may be postponed until the grantor’s death

SYSTEM OF ESTATES (LEASEHOLD ASIDE)
POSSESSORY ESTATES
FREEHOLD ESTATES o fee simple absolute: largest estate can do anything with it, infinite duration o fee simple defeasible: can last 4eva unless cut short upon an event occurring o fee simple determinable: so limited it will automatically end when specific event occurs estate: a bundle of rights – a word denoting legal relationship to a thing fee simple: endures forever, unless cut short fee simple absolute: largest estate, gives owner freedom to sell, give away, etc. may endure forever and there are no limits on inheritability; a fee simple absolute is absolute ownership, with potentially infinite duration. There are no limitations on inheritability. It cannot be divested, nor will it end on the happening of any event. • – “to A and his/her heirs”: A fee will be passed to his heirs, their heirs, so on but only if prior person owned land at death. WORDS OF LIMITATION B/C HEIRS ONLY GET IF A HAS LAND AT TIME OF DEATH. • fee – potentially infinite; simple – no limit in inheritability; absolute – cannot be cut short fee tail: an estate in land created by a conveyance “to A and the heirs of his body” look for those words; has the ability to endure forever but will necessarily cease if and when the first fee tail tenant has no lineal descendants to succeed him in possession” when A blood line of kids die, so does fee tail. 15

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only in four states (Delaware, Maine, Mass., Rhode Island) fee simple defeasible: a fee simple that may last forever or be cut short or defeased upon the happening an event in the future

• fee simple determinable/fee simple subject to a condition subsequent/fee simple subject to an executory limitation (shifting/springing) fee simple determinable/possibility of reverter: a fee simple so limited it will automatically end when some specified event happens • “so long as”, “used for”, “while used for”, “until”, “during”

• You only get this if you stay blue, when u become not blue then the land not urs. • • Sometimes doesn’t give everything away or give to future 3rd party O to A and his heirs so long as land is used for….., then to B. fee simple subject to a condition subsequent/right of reentry: a fee simple that does not automatically terminate but may be cut short (divested) a the grantor’s election when a stated event happens • • • “but if”, “provided, however”, “on the condition that if the premises” right of re-entry the land is urs but if u cut down trees it’s not your anymore.

• O to A and his heirs, but if the land is ever used for non residential purposes. fee simple subject to a to an executory limitation: the event that cuts short the estate (ends estate) but goes to 3rd party not previous owner. • 3rd party has executor interest life estate: an estate that will end necessarily at death of a person “to A for life” Problem: O to A (purchase) and Hiers (limitations) p. 213 In 1600 O conveys Blackarce “to A for Life, then B forever”. What estates do A and B have? If A dies and then B dies, who owns Blackarce? Suppose conveyance take places in 2010? o A has life estate, B has at common law a life estate, then goes to escheat?? o In 2010, A has life estate, B has Fee simple 16

In 1600 O conveys Whiteacre, “to A for life, remainder to the heirs of B.” B is alive in 1600 but dies intestate soon after. B heir is C. Subsequently, A dies. What estate does C have? o C has fee simple because never given to B. Common law only males can be heirs. O conveys Green arce “to A and her Heirs”. A’s only child B, is a spendthrift and runs up large unpaid bills. B creditors can attach B property to satisfy their claims. Does B have an interest in Greenacre reachable by B creditors? Suppose A wishes to sell Greenarce and use the proceeds to take a trip around the world. Can B prevent A from doing this? o B doesn’t have interest until A dies. A has words of limitations not words of purchase. Heirs determined at point of death (heir must be living) o B has an expectancy but not a property interest I living person has no heirs, must be dead to have heirs O to A for life= when A does no 1 gets land/estate Legal life estate Equitable life estate INHERITANCE OF A FEE SIMPLE • heirs: Common Law: if a person dies intestate, heirs (children) get property. person who survive the decedent and are designed as interstate successor under the state’s statute of descent; a person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property o under modern statutes: first issue  parents  collaterals o Wife wasn’t heir in common law. Modern law wife is heir along w/kids if husband dies. Ie: if husband dies and lives a wife and child, wife gets half and child get half. If husband leaves wife and 2 kids, each get 1/3. • intestacy: if a person dies without a will, that person dies intestate, laws of heirship will control, common law adopted kids weren’t allowed but now they are like reg birth kids issue: descendant, not just children but grandchildren, great grandchildren, etc. ancestors: parents tenancy: Land lord tenant collaterals: all persons related by blood to the decedent who are neither descendents nor ancestors are collateral kin (brothers, sisters, cousins, etc.) Purchasers: those who get land from an instrument as opposed to inheriting it. escheat: a person dies interstate without any heirs, the property reverts back to the state 17

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in a will you devise land and bequeath personal property Only if there were no sons would the person daughter inherit. if no kids then all to spouse or split between parents and spouse. Common law: Children born out of wedlock couldn’t inhereit nada. MODERN law: inherit from mom and dad if known. Common Law: adoption not recognized. MODERN, inherit from adoptive parents and natural parents

O+W A A1 Problems: B

half to A and B, then B half gets divided

B1 B2 B3

O, has 2 children, A (daughter) and B(son). B dies testate, devising all his property to W, his wife. B is survived by 3 children, B1 (daughter), B2 (son), B3 (Daughter). A1 (son) born to A. O dies intestate (w/o will). Who owns in 1600? o B2 because it takes place of B because he died b4 O died and only male. How about modern law? o B1-3 would get, A1 can’t get until A dies. half to A and B, then B half gets divided to his kids if he dies. LIFE ESTATE • a life tenant cannot: (1) sell a fee simple; (2) enter into a long-term lease; (3) cannot get a bank to hold his/her interest in the land as collateral for a loan because the collateral lasts only during the life of the life tenant; (4) cannot safely take minerals/cut timber/take down still useable building without committing waste White v. Brown (will of property to niece and home to sis-in-law) Issue: Whether the decedent’s will, when taken as a whole, clearly evidences her intention to convey only a life estate or fee simple in her home to her niece? Rule: state law creates a presumption that property is passed in fee simple unless express or clearly implied language indicates a life estate or a fee interest subject to a condition subsequent can’t inherit a life estate because it reverts back to the grantor in fee simple Analysis: The language of the will was ambiguous and her restraint against alienation of the property “shall not be sold” is void as a matter of public policy. Fee simple b/c will unclear or if go thru the trouble to write a will and divide prop then she wanted some1 to get her prop. if life estate then no point of having will. 18

Conclusion: reversed.

life estate per autraphie: a life estate based upon the lifetime of the grantor of a life estate O to A for life-A sells to B per autre vie-when A dies the ownership ends (is sold for her lifetime only) Baker v. Weedon (skipped kids in will, but gave interest to grandchildren) Issue: Whether the Chancery Court had jurisdiction to sell the land and set up a trust at Anna’s request? Rule: a court of equity has the power to order the judicial sale of land affected with future interest and an investment in the proceeds where this is necessary for the preservation of all interests in land, but consideration should be given to the question of whether a sale is necessary for the best interest of all parties Analysis: the sale would be best for Anna, but not the grandchildren. At the trial level, it should be determined whether a partial sale would be enough to set Anna up with a trust to take care of her for life. Ct had jdx to prevent waste Conclusion: reversed and remanded. Legal Life Estates in Personalty: life estates in personal property • person has the use of the tangible item for life, the law of waste does not adequetly protect the interest, other laws enacted to protect the interest.

Protecting the life tenant by creating a trust: A trustee holds the legal fee simple and as the “manager” and administers the trust for the benefit of the life tenant and remaindermen. The trustee has the power to sell, lease, mortgage, remove minerals, or do whatever a prudent person would do with respect to the property. A life tenant can be made a trustee. WASTE law of waste: whenever two or more people have rights to possess property at the same time – A should not be able to use the property in a manner that would unreasonably interfere with the expectation of B • • permissive waste: arising from a failure to act; essentially a question of negligence – failure to take reasonable care of the property affirmative waste: liability results from injurious acts that have more than trivial effects; injurious, acts that substantially reduce the value of the property in question IM GOIN TO CHOP DOWN ALL THE TREES life tenants can make substantial alterations or even demolish a structure when conditions change, provided the value of the remainder is not diminished by these actions 19

•

•

amielative waste: good waste, increases value but still considered waste. Where it is clear that the grantor intended for particular use and use still possible.

Woodrick v Wood (George died and left life estate to wife and then remainder to both kids. Wife and son want to tear down prop and daughter didn’t want to b/c waste. Even though bar was worth a certain amount but needs lots a repair and tearing it down makes it more valuable) • Issue: Is the holder of a remainder interest in some land entitled to stop the life tenant from destroying buildings there? • Rule: While at common law anything that altered leased premises in any way constituted waste, under Ohio case law there must be substantial damage to the reversion in order for waste to be actionable. • Analysis: The court finds that even though tearing down the rotting barn results in gross waste, it does not result in net waste because removing the barn actually increases the value of the property overall. If there is no reduction in the net value of the property, then there is no waste and no cause of action. The court accepts the lower court’s decision to award the value of the barn to Patricia as fair to both parties. • Conclusion: The trial court’s decision is upheld.

FEE SIMPLE DETERMINABLE/A POSSIBILITY OF REVERTER Rule: if the condition listed is a fee simple determinable at the very moment at the breach of the condition the land automatically reverts back to the grantor • “so long as”; “while used for”; “until”; “used for”, “during” Fee simple, fee tail and life estate were freehold estates, possessor. Examples: • O conveys Blackacre to town library so long as used for library purposes. Note: If use stops, the property automatically reverts to O. Review Problems pg. 1197 1. Fee Simple Subject to Condition Subsequent 2. A has title unless B exercises title because of the breach of the condition 3. Fee simple Determinable 4. Fee simple determinable 20

5. Fee Simple subject to executory limitation, B has fee simple absolute (if the limitation is breached) LEASEHOLD ESTATES Non-freehold estates, so no seisin. When lease involved (chattel b/c real property), then Landlord still has seisin even if actual possession given to lease holder. Common law term of years most important factor (lease ends on a fixed calendar date)

DEFEASIBLE ESTATES Estate last forever unless a future event happens. See Above For Fee Simple Absolute/Defeasable (p.13) • • Fee simple determinable, SOL starts when party doesn’t use land as told Fee simple subsequent must assert ur interests of re-entry

Mahrenholz v. Cty Bd. of Trustees (school grounds conveyed; land for school purposes only, if not back to grantor) Issue: Whether the trial court correctly concluded that the plaintiffs could not have acquired any interest in the school property from the Huttons? Rule: A right of reentry cannot be transferred by will or inter vivos conveyance; the rights of reentry for a condition subsequent and possibilities of reverter are neither alienable nor devisable, they are inheritable. Analysis: The use of the word “only” in the conveyance indicates that the lands when to the school district for as long as it was needed and no longer. The deed created a fee simple determinable followed by the possibility of reverter. Conclusion: reversed and remanded. Problems p. 215 O conveys Blackacre to “A and his heirs so long as the premises are not used for sle of beer, wine, or liquor and if beer, etc are sold on the premises. Subsequently A opens a restaurant on blackarce that serves dishes with wine in the food with complementary wine. 11 years later B wants to buy blackarce and add a bar. Advise Bar. o Is it a determinable or subsequent? Which Jux are you in? Is sub. What’s the SOL and does I have full title if O not there for x amount of years. o If determinable then A doesn’t own property anymore if condition been broken.

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Mountain Brow Lodge v Toscano ( lodge can use for fraternity use only) Facts: P was given a land as a gift from decedent’s. D is trustees and admin estate. D says deed creates a fee simple subject to condition subsequent. P argues the restrictive language is an absolute restraint on the alienation of land and is void, and if the language is not void then the reversionary clause only goes into effect if the P sells or transfers the land. DEED IN P. 216. Ct ruled for D. Issue: Whether the condition in a deed of conveyance created a fee simple subject to a condition subsequent or was a restraint on alienation of property? Rule: No formal language is needed to create a fee simple subject to condition subsequent as long as the intent of the grantor is clear. The object in construing a deed is to ascertain the intent of the grantor from words that were used in the deed and surrounding circumstances. Analysis: P may sell their land to whomever they like, but only they can use it; distinction by the way, is restriction on land use and alienation. A clause which prohibits appellant from selling or transferring the land under penalty of forfeiture is an absolute restraint against alienation and is void Conclusion: Affirmed. The language of the deed created a fee simple determinable.

City of Palm Springs v Living desert (land used for gold course not reseve) Facts: McCallum Foundation gave 30 acres to P to be used as reserve. Deed had fee simple condition subsequent “if land not used for reserve it goes to D and P forfeits all its rights” P wanted to use land for golf course. Issue: Under CA property law, may City of Palm Springs move to condemn the reverting party from holding its rightful claim to the land when the City wants to build a golf course on land which was earmarked for an equestrian center in the decedent's will? Rule: Restatement 53 only applies when a paramount authority condemns property and ousts the possessor Analysis: If the court allowed Palm Springs to do what they wanted they could simply make their land a fee simple unrestricted and have paid nothing for it. There is something about notions of degrees of fairness, justice and virtue that should characterize public entities. Living Desert was entitled to be compensated 100% of the value of the unrestricted fee in the land. Conclusion: When the condemnor owns the present possessory interest in the land, the action of condemnation itself makes violation of the condition imminent.

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Ink v. City of Canton (public park conveyance) Issue: Under OH property law, may a city who was granted a tract of land, be permitted to keep all proceeds from the land when the city sold most of the land granted to it in order to appropriate a highway? Rule: • a fee simple determinable does not automatically revert when the use ends because the government takes property in an eminent domain proceeding • the value of the possibility of reverter is the full market value of the land discounted by the probability that the reverter will never become possessory Analysis: the parcel was condemned by the state, not the city, but the government must pay the market value of the property not used as a public park. The court held that: (a) any monies received by the city which was not reinvested in those parts of the property not taken should be paid to the grantor’s heirs; (b) the value by which the use of property for highway purposes exceeds the value of the property as a park should revert to the grantor’s heir; and, (c) any payments to Conclusion: FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT/RIGHT OF REENTRY RULE: no automatic right of reentry, must take affirmative steps to retake the land o “but if”; “provided that”; “on condition” Examples • O conveys Whiteacre to the Hartfold School Board, its successors and assigns but if the premises are not used for school purposes, then to O and his heirs. • executor: handles the property of a person who dies with a will

COOWNERSHIP AND MARITAL INTERESTS
Tenancy in Common: Separate but undivided interest  • No survivorship

“T devises Blackacre to A and B” Right of survivorship 23

Joint Tenancy: each tenants equal interest 

 •

4 entities: time, title, interest, possession (if one missing becomes a tenant in common)

time: the interest of each joint tenant must be acquired or vest at the same time

• title: all joint tenants must acquire title by the same instrument or by a joint adverse possession; a joint tenancy can never arise by intestate successor or other act of law • • interest: all must have equal undivided shares and identical interests measured by duration possession: each must have a right to possess the whole Tenancy by entirety   • • only between husband and wife same 4 entities

same four unities plus marriage – time, title, interest and possession surviving tenant has the right of survivorship

• neither husband or wife can defeat the right of survivorship of the other by a conveyance to a third party; cannot be unilaterally severed by the action of one spouse Concurrent interest tenancy in common: have separate, but undivided interests in property • “T devises Blackacre to A and B” A and B become tenants in common

• interest of each is descendible and may be conveyed by deed or will; unity of possession is essential NO SURVIVORSHIP rights • don’t have to have equal interest in the land – i.e. A 33% interest and B – 67% interest joint tenancy: have the right of survivorship; each tenant equal to the other in all respects. four unities are essential – time, title, interest, possession (can be any two people) cant be passed by deed or will. 4 requirements: if any are not there, then auto to tenancy in common • time: the interest of each joint tenant must be acquired or vest at the same time • title: all joint tenants must acquire title by the same instrument or by a joint adverse possession; a joint tenancy can never arise by intestate successor or other act of law • interest: all must have equal undivided shares and identical interests measured by duration • possession: each must have a right to possess the whole. One tenant can give that right to the other joint tenant.

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IF ALL 4 UNITIES ARE NOT THERE, IF A TENANT TRANSFERES HIS INTEREST TO A 3RD PARTY, OR IF THE UNITIES ARE THERE BUT LATER SEVERED, THEN NO JOINT TENANCY BUT A TENANCY IN COMMON CREATED. tenancy by the entirety: only between husband and wife • same four unities as joint tenancy, plus marriage – time, title, interest, possession AND Marriage • surviving tenant has the right of survivorship • neither husband or wife can defeat the right of survivorship of the other by a conveyance to a third party; cannot be unilaterally severed by the action of one spouse. • • Husband and wife considered 1 person so both need to convey. Divorce destroys this tenancy

Presumptions: -

common law favored joint tendency b/c better to divide equal then small portions. NOW: must expressively say “A and B as joint tenants”. “A and B jointly wont work.
Joint tendency is equivalent to a will but at a tenants death, probate of property can be avoided. Probate courts assign administrators to collect decedents assets to pay debts and taxes and distributes the rest to beneficiaries. w/ joint tendency, when tenant dies the property goes to surviving interest and decedents interest vanish so can’t be collected as an asset.

Avoidance of probate (avoidance in proving a will valid): -

1. T devises Blackacrce to A and B as joint tenants for their joint lives, remainder to the survivor, what interests are created. How does a joint tenancy in fee simple differ? In a fee simple A and B have control to do what they want with the interest. In a joint tenancy for life, T is determining what to do with the property 2. O conveys blackacre to A,B, and C as joint tenants. A conveys his interest to D. Then B dies intestate, leaving H as his heir. What is the state of the title? 1. D is a co- tenant w/ B&C (joint tenants). D 1/3 interest, C 2/3 cuz B died. 2. Joint life estate with a contingent remainder b/c we don't know who will survive A or B 3. Don’t have tenancy in entirety b/c not married 25

3. A and B are planning to be married. 2 wks b4 the ceremony, they buy a casa and take title as “tenants in entirety”. Yrs after the marriage, A moves out the casa and conveys his interest to C, his brother. C brings an action to partition the property. What result? A & B marrying A & B buy house before marriage as tenants in entirety A – C after divorce C sues to partition Joint tentants C gets ½ and B gets ½

SEVERANCE OF JOINT TENANCIES
Riddle v. Harmon (wife wanted to sever joint tenancy of property with husband) Issue: Whether a wife/husband can unilaterally terminate a joint tenancy by conveying her interest from herself as a joint tenant to herself as a tenant in common? Rule: • joint tenancy has the four unities: interest, title, time and possession; if one is destroyed, then a tenancy at common is created • an indisputable right of each joint tenant is the power to convey his or her separate estate by way of gift or otherwise without the knowledge or consent of the other joint tenant and to thereby terminate the joint tenancy Analysis: a fictional strawman is no longer necessary. When wife destroyed the four unities she created a tenancy at common. Husband no longer has right of survivorship. Conclusion: judgment for husband reversed. Harms v. Sprague (mortgage interest in joint tenancy) Issue: Is a joint tenancy severed when less than all of the joint tenants mortgage their interest in the property and does such a mortgagee survive the death of the mortgagor as a lien on the property? Rule: the execution of a mortgage by a joint tenant on his interest in the property would not destroy unity of title or sever the joint tenancy Analysis: when the joint tenant dies, the mortgage ceased to exist against the property and the joint tenant took the property by survivorship free of the encumberance Conclusion: reversed. title theory: the mortgagee takes legal title to the land; the mortgagor has only the equity of redemption 26

lien theory: the mortgagor keeps legal title and the mortgagee only has a lien on the property When tentants in common give a tenant exclusive possession does that destroy joint tenancy? NO, does not work as severence.

(5) JOINT TENANCY BANK ACCOUNT
• • are used by depositors with different intents and for a variety of reasons true joint tenancy accounts: when a person may intend to present a gift or pat of the sum and the rights of survivorship; majority of jurisdictions hold that the surviving joint tenant takes the sum remaining on deposit in a joint bank account unless there is clear and convincing evidence that a convenience account was created payable on death account: only a gift of survivorship rights; not permitted in some jurisdictions because it is viewed as testamentary in nature and violates the Statute of Wills convenience account: only the power to draw on the account to pay bills and no survivorship rights

•

•

(6) RELATIONS AMONG CONCURRENT OWNERS
PARTITION partition: equitable action available to any joint tenant or tenant in common; unavailable to tenants in the entirety – when the court sells the land and divides the proceeds Delfino v. Vealencis (garbage business) Issue: whether the trial court properly ordered the sale of property owned by the plaintiff and defendant in common? Rule: a partition sale should be ordered only when two conditions are satisfied: (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable; and (2) the interests of the owners would be better promoted by a partition sale. • courts prefer a partition in kind over a partition in sale Analysis: the partition in kind would be practicable because the land is rectangular in shape. The defendant could still operate her garbage business with a partition in kind and plaintiffs could sell the lots around and “any inference that D would probably not be able to continue her business is unfounded.” Conclusion: reversed. Partition by Sale: sell land and then give everyone their portion in market value Partition in Kind: severs land into parts so that each party can have their interest in the land to control and do as please. Rockin chair prob in p. 300: (comes right b4 section b) 27

Spillar v. Mackereth (warehouse vacated and cotenant stored stuff there) Issue: Whether the plaintiff could establish ouster to force her cotenant to move out of the property or pay rent? Rule: before an occupying tenant can be liable for rent, he must have denied his cotenants the right to enter • in the absence of an agreement to pay rent or an ouster of a cotentant, a cotenant in possession is not liable to his cotenants for the value or his use and occupation of the property Analysis: no adverse possession in this case; P did not demand equal use or enjoyment of the building in her letter. D did not deny P use or access to the building and only put locks up to protect his property. Conclusion: judgment for rent is reversed • where a cotenant is in exclusive possession of concurrently owned property, the majority of jurisdictions hold that unless there has been an ouster, the cotenant in possession does not have to pay a proportionate share of the rental value to the cotenants out of possession Swartzbaugh v. Sampson (boxing arena) Issue: can one joint tenant who has not joined in leases executed by her cotenant and a third party maintain an action to cancel the leases where the leasee is in exclusive possession of the leased property? Rule: a joint tenant not joining in the lease is not bound by its terms and he can recover from the tenant of his cotenant the reasonable value of the use and enjoyment of his share of the estate, if the tenant under the lease refuses him the right to enjoy his moiety of estate Analysis: the plaintiff did not lose the right to possession and she did not attempt to reenter the leased portion of the land and was denied by the defendant. She cannot attempt to cancel the two leases. Conclusion: affirmed. Pg. 347 Prob. 7 • • • Can sell and split the money Have joint tenancy in common Can have an agreement, or share the item at different times, shared custody

ACCOUNTING FOR BENEFITS AND RECOVERING COSTS pg. 356 -if puts more than their share they can ask for the money back paid, taxes, mortgages and other charges, but not for improvements.  accounting: an equitable proceeding 28

o rents and profits: a cotenant who collects from third parties rents and other payments arising from the co-owned land must account to cotenants for the amounts received. So lessor must give co tenants the excess after he takes his share. o absent ouster, accounting is usually based on actual receipts, not fair market value  taxes, mortgage payments, and other carrying charges o a cotenant paying more than his share of taxes, mortgage payments, and other necessary carrying charges, generally has a right to contribution from the other cotenants, at least up to the amount of the value of their share in the property o principle: protection of the interest of each cotenant from extinction by a tax or foreclosure sale imposes on each a duty to the extent of his proportionate share of the money required to make such payments  repairs and improvements: o necessary repairs: in most jurisdictions a cotenant making or paying for them has no affirmative right to contribution from the other cotenants in the absence of an agreement – no way for courts to really determine if the repairs & associated costs were reasonable ( person paying for them cant get others to help out w/o agreement b/c cant tell if repairs rznble) o improvements: a cotenant has no right to contributions from other cotenants for expenditures for improvements  no credit given for the costs of the improvements is given as such in an accounting or partition action; BUT IT MAY BE GIVEN TO PREVENT UNJUST ENRICHMENT  the interests of the improver are to be protected if this can be accomplished without detriment to the interest of the other cotenants

(7) MARITAL INTERESTS
• • Common law marital property: the husband and wife have separate property; ownership is given to the spouse who acquires the property community property: rests on the notion that husband and wife are a martial partnership and should have their assets equally (what’s urs is mine what’s mine is urs) will get divided equally

Problem; p. 313 Husband gets a stroke and told wife that she will get everything if she doesn’t send him to a home. H dies and gives all his property to daughter from separate marriage. o Had H and W provided services so she should get it, but H can argue that no consideration for a valid consideration. Sawada v. Endo (injury without insurance and transfer of land to sons)

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Facts: P was in accident w/ D. P tried to become creditors and get money from D property, but D conveyed estate to their sons. Issue: whether the interest of one spouse in real property, held in tenancy by the entirety, is subject to levy and execution by his or her individual creditors? Rule: under the Married Women’s Property Act (women are in control of their own prop, no longer one w/ husband) the interest of a husband/wife in an estate by the entireties is not subject to the claim of his or her individual creditors during the joint lives of tenants. • an attempted conveyance by either spouse is wholly void, and the estate is not subject to the separate debts of one spouse only • creditors cant get shared property Analysis: tendency by the entirety is not subject to the claims of the creditors of one spouse during their joint lives. The conveyance to the son was not a fraud, in essence the parents kept a life estate. The estate held in a tenancy in the entirety cannot be reached by creditors. Conclusion: Affirmed. IRS can attach liens of one spouse when seeking debt form the other spouse, tendency in its entirety doesn’t matter. Ie: H and W own a pharmacy. H is selling illegal drugs and W is an innocent party. Gov’t will forfeiture interest’s in H survivorship interest. Ie: when H arrested for fraud, govt cant forfeiture casa b/c it wasn’t used for criminal activity as the pharmacy was, so W deserves more protection. TERMINATION OF MARRIAGE BY DIVORCE • equitable distribution: property is divided by the court, in its discretion, on equitable principles regardless of how the prop was acquired or by who. o Uniform Dissolution of Marriage Act (court divide property, regardless of misconduct) o Alimony not forever anymore, limited time. Until spouse enters job market, etc. • at common law, upon divorce, property of the spouses remained the property of the spouse holding title o husband keeps his wages, what he bought and wife gets continued support (alimony) • tendency by the entirety (MUST BE MARRIED) once divorced then become tenancy in common or joint tenants In re Marriage of Graham (MBA and then dipped) Issue: Whether in a marriage dissolution proceeding a MBA constitutes marital property which is subject to division by the court? 30

Rule: An educational degree, such as an MBA, is not encompassed under the broad views of property. Under the Uniform Dissolution of Marriage Act marital property is all property EXCEPT: (1) property acquired by gift, bequest, devise or descent, (2) property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by G, B, D, D, (3) property acquired by a spouse after a decree of legal separation; and (4) property excluded by valid agreement of parties. Analysis: no property acquired during marriage. An educational degree is not transferable nor does not a value on the open market. No way to divide the attainment of the degree. If one spouse supports the other while in school, that is considered as a factor when awarding relief but not considered prop. Conclusion: Affirmed, no martial property in MBA. • reimbursement alimony: (some/some) circumstances where a supporting spouse should be reimbursed for the financial contributions he or she made to the spouse’s successful professional training: should include all costs – household, tuition, travel expenses, etc. o All jdx follow reimbursement alimony or Graham (case above) EXCEPT NY  Degree should be property b/c it was an investment in the partnership of marriage and represent direct and indirect contributions.

Elkus v. Elkus (opera singer who made mad money while married, dipps) Issue: Whether a career as a performing artist, and its accompanying celebrity status, constitute marital property subject to equitable distribution? CAREER IS MARITAL PROP AND SUBJECT TO EQUITABLE DISTRIBUTION. Rule: an interest in a professional career (potential) is marital property which may be represented by direct or indirect contribution of the non-title holding spouse, including financial contributions and nonfinancial contributions made by caring for the home and family. Analysis: husband gave up his career to enhance wife’s career and contributed to her career trajectory – photos, voice training, etc. – as well as took care family. His work greatly increased her career potential. Diff from degree b/c husband contributed greatly to career success by being coach, etc. Conclusion: reversed and remanded for proceedings to determine equitable share. • • • good will: essentially the reputation that will probably generate future benefits. professional goodwill: a divisible marital asset in most jurisdictions –if they helped contribute Celebrity goodwill: 31

Worried about earning potential not degree, more earning potential as a celebrity. TERMINATION OF MARRIAGE BY DEATH OF ONE SPOUSE • common law o dower: COMMON LAW a gift made by the groom to the bride at the wedding so she can be supported if husband dies. any land owned by husband was subject to Dower. Usually 1/3 of estate. Life estate for wife, possessory freehold estate. Divorce releases Dower o curtsey: at wife’s prior death, a widower was, at common law, entitled to a life estate in each piece of the wife’s real property if certain conditions were fulfilled. What a man can claim at wife’s death. Doesn’t attach unless kids who can inherit estate were born alive. • modern elective share o forced share legislation: giving the surviving spouse an elective share in all property – real and personal – that the decedent spouse owned at death; ordinarily applied to property that the decedent spouse owned at death o elective share statutes: the surviving spouse can renounce the will and elect to take the statutory amount, usually ½ or 1/3 of the estate/ property. Doesn’t apply to joint tendency. • community property (AZ, Cal., Idaho, Nev., N.M., Tex., Wash., Ala) o the earnings of each spouse during the marriage should be owned equally in undivided shares by both spouses; property acquired during the marriage by joint efforts o separate property: property acquired before marriage and property acquired during marriage by gift, devise, or descent RULES: (1) community property can only exist between a husband and a wife; (2) neither spouse acting alone can convey his/her undivided ½ share of community property to a third person; (3) at death, each spouse has the power to dispose by will ½ of the community property; (4) in most states, if a spouse dies intestate, his or her share of the community property passes to the surviving spouse PROBLEMS p. 386 1. O marries W and during the marriage, O conveys blackacre to A and B as joint tenants (a) O dies, is W entitled to W? o W is entitled to dower. (b) Suppose A dies and is survived by his wife X. Does X have right in Dower? o no b/c joint tenancy and not inhereitable (c) y has dower b/c ??? 2. H wants to buy brown acre. He wants to deal with land w/o interference of his wife. In what way can he take title of land in a dower jdx? 32

o He can place it in a trust PROBLEMS p. 387 During his life H took out a life ins policy for $60,000 payable to W. H and W also bought a casa as joint tenants (casa worth $60,000 by H death). H dies and blackarce worth $90,000, stocks worth 20,000 and 10,000 in savings. H by will gives all his esate to daughter of 1st marriage. How is H estate distributed? o 90,20,10 are probate. 60 and 60 not probate. 120 (not probate) is given to W. and she gets half of everything else. W will get 180k in an elective share. • community property (AZ, Cal., Idaho, Nev., N.M., Tex., Wash., Ala) o the earnings of each spouse during the marriage should be owned equally in undivided shares by both spouses; property acquired during the marriage by joint efforts o separate property: property acquired before marriage and property acquired during marriage by gift, devise, or descent wife can agree for it to not be community property, then it becomes 100% wifes. RULES: (1) community property can only exist between a husband and a wife; (2) neither spouse acting alone can convey his/her undivided ½ share of community property to a third person; (3) at death, each spouse has the power to dispose by will ½ of the community property; (4) in most states, if a spouse dies intestate, his or her share of the community property passes to the surviving spouse PROBLEMS p. 390 H married to W and puts $5k of his own $ into a lot, they move in as joint tentants, he dies and leaves community property and his own to his son, nothing to wife. o belongs in community property. After death, W gets the estate because married and he didn’t give ½ to any 1 Both spouses can manage property and then creditors can get at community property • • req both spouse to sign to have valid transfers managers have good faith obligations.

Pg. 386 Problem 1. a. O to A&B as joint tenants W entitled to dower? Yes, dower attaches to any freehold acquired during marriage b. X-Dower? (A dies) no, A’s interest dies with him, it is a joint tenancy and not inheritable 33

A to C (C + B tenancy in common) A dies wife X dower? c. C’s wife Y, if C dies, Y dower? Yes, have tenancy in common, is a freehold estate and a right to dower. Pg. 387 60,000 Life Insurance-W-Non Probate 60,000 House J +T- W-Non Probate 90,000 Blackacre-D-Probate 20,000 Stocks-Bds-Probate 10, 000 Saving Ace-Probate Wife has the right to an elective share of what is in probate Pg. 392 under inception of right title belongs to wife who bout the property when single..the common property is the return of the investment. Only what the community put in Pg. 393 Marriage pd. $10,000 out of community funds H is named for the 50,000 LI police S=beneficiary: This is considered community property and the son gets half and the wife gets half so 25k each (perada) Before Marriage paid $3,000 premium During Marriage paid $7,000 premium out of community funds $10, 000 total H=the beneficiary of the Life Insurance policy minus the policy premiums paid out of the community funds. Under the inception of right, The community is entitled to a return of it’s investment plus interest, so that would be $7000 plus interest (inception of right gets back premium) o Son doesn’t get whole 50 b/c community property so H can have half of it. H can dispose his half to his son so son gets 25k. o If 7 and 3 add, then W entitled to 50 b/c….Pro rated??/

Goodridge v. Dep’t of Public Health (Mass. Same Sex Marriage) Issue: whether consistent with the Mass. Const., the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry? Rule: barring an individual from the protections, benefits, and obligations of civil marriages solely because the person would marry a person of the same sex violates the Mass. Const. Analysis: marriage is a secular institution that conveys secular property rights. Conclusion:

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Problem 344 Everything in wife’s name, H can do elective share and get half of everything. If they move to TX, it doesn’t become community property and the husband loses the protection of common law.

Common law marriage: DC allows it, co-habitates.

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