PROPERTY D SLIDES Leap Day & National Rare Disease Day

CHANT Monday Feb 29 Music: Cistercian Monks of Stift Heiligenkreuz CHANT

Review Problem 3F: “Continuous” Element Review Problem 3F: “Continuous” Element Sequoia (In-Class for Plaintiff M) Acadia (In-Class for Defendant OO) Olympic (Critique) M Resided in House with Color of Title for Most of 10Y Statutory Period Absent 5 Mos. Undergoing Rehab for Physical Injury While M Away: Utilities & Mail Service Stopped M’s Friend David watered plants every 2-3 weeks M asked David to Feed Cat at M’s House; Instead David Took Cat to Own Home

Review Problem 3F: “Continuous” Element Review Problem 3F: “Continuous” Element Sequoia (In-Class for Plaintiff M) Acadia (In-Class for Defendant OO) Olympic (Critique Due 10 a.m.) Arguments/Missing Facts 1.Should a 5-Month Interruption for this Reason Break Continuity? no 2.Assuming 5 Months with no Evidence of Possession Would Be Too Long, Was There Enough Evidence of Possession During the 5 Mos. M Was Away to Retain Continuity? 3.What is the Legal Significance of David not doing what M asked?

Review Problem 3K: Part of Issue-Spotter Review Problem 3K: Part of Issue-Spotter (Tomorrow) Badlands (In-Class for Plaintiff MM) Everglades (In-Class for Defendant AA) Sequoia (Critique 10 a.m. Thursday) In-Class: Arguments/Missing Facts re Northacre 1.Assuming the other elements were met, were AA’s acts fixing up Northacre and operating the summer camp sufficient to meet the “Actual Use” element? 2.Assuming the other elements were met, was AA’s operation of the summer camp sufficient to meet the “Continuous” element? DF This Week: Arguments/Missing Facts re Southacre (Focus on “Exclusive” and “Open + Notorious”)

CHAPTER 4: The Shadow of the Past

HOLD QUESTIONS FOR TODAY

Approaching Chapter 4

Approaching Chapter 4: Vocabulary SPOT BUTCH LEARN THEIR NAMES

Approaching Chapter 4: Vocabulary

Approaching Chapter 4: Policy Concerns Interests Created by Voluntary Transfers of Property Rights, so Generally Want to Fulfill Grantor’s Intent BUT in Tension with Competing Policy Concerns

Approaching Chapter 4: Policy Concerns Laypeople Don’t Know Categories Leads to Tension Between Grantor’s Intent & Channeling Function (Telling State What to Do w Property You are Transferring in a Way State Can Understand) See White v. Brown (Tomorrow)

Approaching Chapter 4: Policy Concerns Grantor’s Intent v. Channeling Function

Approaching Chapter 4: Policy Concerns Grantor’s Intent v. Channeling Function Dead Hand Control

Approaching Chapter 4: Policy Concerns Grantor’s Intent v. Channeling Function Dead Hand Control Alienability

Approaching Chapter 4: How You’ll Be Tested 24 Question Multiple Choice Test (70 Minutes, Monday 8 am) Closed Book, But Syllabus Attached Approximately 1/6 of Final Grade Sample Qs with Answers/Explanations I’ll Make Many Available & Reuse Some Posted After We’ve Done Relevant Substance Some Early in Break Some Midweek the Week After

Approaching Chapter 4: Relevant Time Frames “At Common Law”: Dates prior to modern streamlining of the rules. (e.g., )

Approaching Chapter 4: Relevant Time Frames “At Common Law”: Dates prior to modern streamlining of the rules. (e.g., ) “Today”: Dates after modern streamlining of the rules. (e.g., 1950-present)

Approaching Chapter 4: Relevant Time Frames “At Common Law”: Dates prior to modern streamlining of the rules. (e.g., ) “Today”: Dates after modern streamlining of the rules. (e.g., present) Precise line between them varies from state to state and from issue to issue, so you don’t need to know where it is.

Approaching Chapter 4: Relevant Time Frames In Multiple Choice Qs, I Will Do One of the Following: a)Explicitly Say “At Common Law” b)Provide a Date After 1950 (Clearly Means “Today”) c)Provide a Fact That Clearly Means “Today” (e.g., cell phone; computer) d)Give no Info in Q, but Some of the Answer Choices will Indicate “Common Law” or “Today”

Present Possessory Estates

PRESENT POSSESSORY ESTATES Present v. Future (Tenant v. Landlord)

PRESENT POSSESSORY ESTATES Present v. Future Possessory v. Non-Possessory: (Tenant v. Trust Beneficiary)

FEE SIMPLE ABSOLUTE

“Simple”= can go on forever (to distinguish from “Fee Tail”)

FEE SIMPLE ABSOLUTE “Simple” = can go on forever (to distinguish from “Fee Tail”) “Absolute” = no conditions (to distinguish from conditional or “defeasible” fees, which we’ll introduce Thursday.)

Right to possess and use forever Right to transfer all present and future rights (inheritable/devisable) Right to liquidate assets Default estate today FEE SIMPLE ABSOLUTE

CREATION (today or at common law): Lloyd grants Redacre “to Mimi and her heirs.”

FEE SIMPLE ABSOLUTE Lloyd grants Redacre “to Mimi and her heirs.” WORDS OF PURCHASE: Who Gets the Estate?

FEE SIMPLE ABSOLUTE Lloyd grants Redacre “to Mimi and her heirs.” WORDS OF PURCHASE: Who Gets the Estate? WORDS OF LIMITATION: What Estate Do They Get?

FINITE ESTATES TERM OF YEARS FEE TAIL LIFE ESTATE

FINITE ESTATES TERM OF YEARS: “TO ANN FOR TEN YEARS” Words of Purchase = “to Ann” Words of Limitation = “for Ten Years” LIFE ESTATE FEE TAIL

TERM OF YEARS Finite period specified Can alienate, devise, inherit (until term ends) Need explicit time language to create: (“for 99 years”) Effectively creates long-term lease

FINITE ESTATES TERM OF YEARS: TO ANN FOR TEN YEARS LIFE ESTATE: “TO BEA FOR LIFE” Words of Purchase = “to Bea” Words of Limitation = “for Life” FEE TAIL:

Fee Simple Absolute v. Life Estate Right to possess and use forever Right to possess and use only for lifetime of original grantee

Fee Simple Absolute v. Life Estate Right to possess and use forever Right to transfer all present and future rights (inheritable & devisable) Right to possess and use only for lifetime of original grantee Right to transfer only rights for lifetime of original grantee (not inheritable or devisable)

What if a living person transfers a life estate? Opal conveys Gemacre “to Ruby for life” (retaining a reversion for herself). Ruby then conveys her life estate “to Esmeralda.” What does Esmeralda have?

What if a living person transfers a life estate? Opal conveys Gemacre “to Ruby for life”, retaining a reversion herself. Ruby then conveys her life estate “to Esmeralda.” Esmeralda has a life estate pur autre vie (for the life of another). The duration of the interest is still measured by Ruby’s life.

Fee Simple Absolute v. Life Estate Right to possess and use forever Right to transfer all present and future rights (inheritable & devisable) Right to liquidate assets Right to possess and use only for lifetime of original grantee Right to transfer only rights for lifetime of original grantee (not inheritable/ devisable) Right only to present income; can’t liquidate capital (Doctrine of Waste)

Fee Simple Absolute v. Life Estate Right to possess and use forever Right to transfer all present and future rights (inheritable & devisable) Right to liquidate assets Default Estate Today Right to possess and use only for lifetime of original grantee Right to transfer only rights for lifetime of original grantee (not inheritable/ devisable) Right only to present income; can’t liquidate capital (Doctrine of Waste) Default Estate at Common Law

DEFAULT ESTATE (“To Bill.”) What does Bill get if not specified (no words of limitation)? Common Law: Default was Life Estate Bill gets Life Estate Grantor keeps remaining piece (Right to control parcel after Bill’s death = Reversion)

DEFAULT ESTATE (“To Bill.”) What does Bill get if not specified (no words of limitation)? Common Law: Default was Life Estate Bill gets Life Estate; Grantor keeps Reversion Today: Default is Fee Simple Bill gets Fee Simple Absolute Grantor keeps nothing

FINITE ESTATES TERM OF YEARS: TO ANN FOR 10 YEARS LIFE ESTATE: TO BEA FOR LIFE FEE TAIL: “TO CAL & THE HEIRS OF HIS BODY”

VOCABULARY: ISSUE v. HEIRS “Issue” = Direct (= “Lineal”) Descendants (Children, Grandchildren, etc.)

VOCABULARY: ISSUE v. HEIRS “Issue” = Direct Descendants “Heirs” = People who inherit your property at the time of your death under the relevant Intestacy Statutes.

VOCABULARY: ISSUE v. HEIRS “Issue” = Direct Descendants “Heirs” = People who inherit your property at the time of your death under the relevant Intestacy Statute You cannot have heirs until the moment of death (presumptive heirs before that).

FINITE ESTATES TERM OF YEARS: TO ANN FOR 10 YEARS LIFE ESTATE: TO BEA FOR LIFE FEE TAIL: TO CAL & THE HEIRS OF HIS BODY Words of Purchase = “to Cal” Words of Limitation = “and the Heirs of His Body”

FEE TAIL: TRADITIONAL RULES Grantee(X) has present & future possessory right until death Only X’s issue can take after X's death Only issue of issue-who-took can take in future Equivalent to downward chain of life estates (thus finite) Present holders can only alienate life estates; no rights to transfer rights to own/possess the parcel after their death

FEE TAIL: TRADITIONAL RULES Creation at common law: “to A & heirs of his body” Grant creates no interest in A's issue until A dies. B/c chain of life estates, won't know who takes till A dies Can have special fee tails “To A & heirs of his body by Wilhelmina” (only future takers are children of both A & W and the issue of those children) “ To A & male heirs of his body” (only future takers are A’s male issue)

FEE TAIL: TODAY Traditional fee tail abolished in every American jurisdiction. What to do if grantor uses language “heirs of his/her body?” Statutes determine; different solutions in different states. Outside scope of course.

Future Interests that Follow Finite Estates

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REVERSION REMAINDER

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REVERSION Future interest retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires.

Fun with Scissors

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REVERSION Future interest retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires. E.g.: Ceci conveys Greenacre “To Didi for life.” (No other instructions.) Ceci retains a reversion.

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REMAINDER Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor.

FUTURE INTERESTS THAT FOLLOW FINITE ESTATESREMAINDER Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor. E.g.: Fifi conveys Tanacre “To Gigi for life, then to J.J. and his heirs” J.J. has a remainder. Fifi retains nothing. Lots More on Remainders Going Forward

ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous (cont’d) 5. Adverse/Hostile

Adverse Possession Continuous: Overview of Tacking Focus: Time Used Without Interruption (1) What constitutes sufficient interruption to stop clock? (2) Tacking: When can you add the time of successive Os or APors to get to SoL? Add time of both if privity (legal “electricity”) But don’t if consecutive unrelated trespassers

DQ3.18: Continuous Evidence in E. 13 th Street Why did the claimants not satisfy the “continuous” element? Is the case distinguishable from Ray? What other evidence would have been helpful to claimants on this issue? Should it matter/count if all belong to same organization?

DQ3.18: Continuous Evidence in E. 13 th Street: Context Intermediate Appellate Court (Supreme Court Appellate Division v. NY Court of Appeals) Like Lutz: Overturning lower court decision despite supposed requirement of deference. Dissent: Enough evidence facts are like Ray to affirm. Equivalent of preserving space in Ghost town APors part of “cohesive group” (= not quite “privity”)