Massachusettsschool of Law

MassachusettsSchool of Law

500 Federal Street, Andover, MA01810

PROPERTY

COURSE OUTLINE

Fall 2007

Professor Peter M. Malaguti

500 Federal Street

Andover, MA01810

(978) 681-0800

Email:

Web Site:

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NOTE:The purpose of this outline is to provide an organizational reference for the course. The purpose of this outline is NOT to fully state all the rules you need to know or provide a study aid that serve as a substitute for missed classes or unread assignments. This outline is very “bare-bones” are requires additional supplementation from your reading and class notes.

It is essential that you expand this outline greatly, using your own notes, reading and thinking skills, in order to succeed in this course.

Trespass / The Right To Exclude

General Rule/Definition of Trespass: (1) Intentionally (2) going onto someone else’s property (3) without permission.

NOTE: The intent is not the intent to be a trespasser. The intent is merely the intent to go where one is going. Therefore, it is relatively easy to be an unknowing trespasser. Intent is almost always fulfilled unless the person is forced onto the land, or ends up there as a result of some uncontrollable reflex, etc.

NOTE: Before you can even consider the exceptions, you must satisfy the general rule. Stated another way, there is no need to even consider the exceptions if someone is not even a trespasser under the general rule.

Exceptions

State v. Shack: The ability to get vital legal representation to migrant farm workers in their own dwellings is more important that the right to exclude whomever a property owner wants from his or her property.

Necessity/Emergency:Preserving life and avoiding serious injury is more important than the right to exclude whomever a property owner wants from his or her property.

4 requirements for the necessity defense:

(1) the trespasser or another person is faced with a clear and imminent danger, not one which is debatable or speculative;

(2) the trespasser can reasonably expect that his or her action will be effective as the direct cause of abating the danger;

(3) there is no legal alternative which will be effective in abating the danger; and

(4) the Legislature has not passed a law specifically precluding the defense.

Retrieving Property:A person in ”hot pursuit” of his personal property is allowed to go on someone else’s land to retrieve it.

Blocked Road:A person is allowed to go over someone else’s land to continue on his or her journey if the public road is blocked or impassible. Nevertheless, the intruder is liable for the cost of repairing any damage he creates in passing through.

Attractive Nuisance:Children who otherwise would be trespassers are not considered trespassers if:

(1) knows or has reason to know that children are likely to trespass;

(2) the condition involves an unreasonable risk of death or serious bodily harm to such children; and

(3) because of their youth, the children would not discover the condition or realize the risk involved.

Create Your Own

Exception:You can argue an exception that has not been recognized by the courts yet if you have a good public policy reason supporting it. But remember, you must be able to argue that the public policy reason supporting the exception is more important than a property owner’s right to exclude.

Wild Animals/Capture Doctrine

The capture doctrine holds that one must deprive a wild animal of its natural liberty in order to own it.

This can happen in three ways:

(1) killing it;

(2) mortally wounding it; and

(3) physically controlling it in a trap, net house, barn, corral or the like.

If a wild animal escapes and regains its natural liberty, the former owner’s title in the animal ceases and it will again be unowned until someone else captures, mortally wounds or kills it.

If an animal escapes into a non-natural habitat, and as a result cannot survive on its own, it has not regained its natural liberty. Title will remain with the former possessor.

Relativity of Title

Rarely is ownership absolute. There almost always are different degrees of ownership. The trick is to determine who has greater ownership rights in property.

There are different ways of measuring ownership rights:

Priority of Occupation: Usually the person who is associated with the property longer has greater rights.

The ownership status of a person: You will see that different titles are placed on different types of ownership: “true owner,” “finder of lost property,” “finder of misplaced property,” “finder of abandoned property,” “finder of embedded property,” finder of treasure trove,” “possessor of bailed property,” “thief,” etc.

Generally, but not always, the priority of occupation doctrine is more important than status. An example of an exception would be with regard to a thief who, despite length of association with property, never has rights in property.

Please do not rely on trite understandings of property rights such as “finders’ keepers,” or “possession is 9/10 of the law.” These maxims rarely are accurate.

Bailments

Bailor: owner

Bailee: non-owner possessor

Definition: rightful possession of personal property by someone other than the owner.

3 types at common law:1. Benefits the bailee – bailee liable for even slight

negligence. Very high duty of care.

2. Benefits the bailor – bailee liable only for gross negligence or wanton and willful conduct. Very low duty of care.

3.Benefits both bailor and bailee – bailee liable in ordinary negligence. Must act as a reasonably prudent person would given the circumstances.

Misdelivery rule: Regardless of the type of bailment, a bailee who delivers property tot he wrong person is strictly liable for conversion.

Trend in most jurisdictions: All types of bailments, and misdelivery, are guided by the ordinary negligence rule.

Adverse Possession

BrooklynBridge rule: If someone sells you something they don’t own, you get nothing. As a general rule, you must own it to be able to pass title to it. Said another way, you can only sell up to, or less than, that which you own.

Elements

Open & notorious
Continuous
Actual
Hostile
Exclusive

Additional Concepts

-Constructive Adverse Possession / Color of Title

-Tolling

-Seasonal Use Doctrine

-Quantity of Title

-Quality of Title

Estates in Land

Theories of Estates in Land:

Ownership Measured over Time.

Two or More People Having Interests in Real Estate at the Same Time.

A Word on Medieval Logic.

Present Estates (Generally)

1.Freehold

Fee Simple

Fee Tail

Life Estate

2. Non-Freehold (Mostly Left for Landlord-Tenant Law)

A.Estate for Years

B.Periodic Tenancy

C. Tenancy at Will

Tenancy at Sufferance

Present Estates (More Specifically)

A.Fee Simple

1.Definition

Five Powers of Fee Simple Owner:

-Use

-Abuse

-Exclusive Possession

-Reap the Fruits

-Convey in Two Ways (inter vivos or by will/intestate distribution)

2. Characteristics

i. Potentially Unlimited Duration (First “Stupid Rule”)

ii. How to Convey

Common Law (“to A and her heirs”)

Modern Rule (Presume Fee Simple Absolute)

3. Types of Fee Simples

i. Fee Simple Absolute (FSA)

Definition

Characteristics

Examples

Fee Simple Determinable (FSD)

A. Definition

B.Characteristics

Potentially Lasts Forever (First “Stupid Rule”)

Terminates Automatically

“Clue Words” (“Until,” “So Long As,” “As Long As”)

Upon Forfeiture Estate Goes Back to Grantor (Person Creating the Estate)

Distinguished from Covenants Running With the Land

C. Examples

iii. Fee Simple Subject to a Condition Subsequent (FSSCS)

Definition

Characteristics

1.Potentially Lasts Forever (First “Stupid Rule”)

2. Does Not Terminate Automatically: Must Be Terminated by Grantor (Re-Entry or Law Suit)

3. “Clue Words” (“Upon Condition That,” “Provided That,” “But If,” “If It Happens That”)

4.Upon Forfeiture Estate Goes Back to Grantor (Person Creating the Estate)

Examples

D. Hybrid FSD/FSSCS

1.Ignore Clue Language

2. If all else fails, choose FSSCS

3. Examples

iv.Fee Simple Subject to an Executory Limitation (FSSEL)

A. Definition

B.Characteristics:

1. Potentially Lasts Forever (First “Stupid Rule”)

2. Upon Forfeiture Estate Does Not Go Back to Grantor. It Goes To Another Grantee/Third Party (Someone Who Did Not Grant the Estate)

C. Examples

D. Final Word: Watch for Violations of the Rule Against Perpetuities

A Final Word on Fee Simples

Second “Stupid Rule” Relating to Fee Simples: Even though the FSD, FSSCS and FSSEL Are “Conditional” and Subject to Forfeiture, in the Eyes of the Law They Are the Equal of the FSA.

ii. Tip about the “Conditional” Estates Such as the FSD, FSSCS and FSSEL: These Types of Conditional Estates Are Not Limited to the Fee Simple; They Also Exist as to Other Present Freehold Estates Such as Life Estates.

B. Fee Tail

1. Definition

2. Characteristics

3. Forget About It!

C. Life Estate

1. Definition & Characteristics; Three and One-Half (3½) Powers of Owner of Life estate:

i. Use

ii. Exclusive Possession

iii. Reap the Fruits

iii½. Convey in One Way (Inter Vivos, but Not by Will/Intestate Distribution). Exceptions: Life Estate Pur Autre Vie, Mortgage.

D.Concurrent Estates

1. Two or more people owning the same interest in the same land at the same time.

2. There are three concurrent estates:

Tenancy in common
Joint tenancy
Tenancy by the entirety

3. All cotenants own an “undivided interest in the whole.”

A. All own the whole parcel

B. All can use the whole parcel

Severance: Individual cotenants in both the tenancy in common and joint

tenancy can alienate (sell or convey) their interests, even without the permission of the remaining cotenants. Individual cotenants in the tenancy by the entirety cannot alienate their interests unless they meet the DAD rule:

A. Death

B. Agreement

C. Divorce

Right of survivorship: exists with the joint tenancy and tenancy by the

entirety, but not with the tenancy in common.

The right of survivorship means that on the death of a cotenant his/her interest doesn’t pass through a will or by intestate distribution. Instead, the surviving cotenants continue to own the real estate free of the interest of the dead cotenant.

B. The dying cotenant’s interest does not pass to the surviving cotenants. The other cotenants just become owners free of the interest of the dying cotenant.

C. Example: O to A and B as joint tenants. A gives a mortgage to M. A dies. Does B take subject to A’s mortgage to M?

D. B is free of A’s participation when A dies and the mortgage ceases to encumber the property.

E. If B died instead, the mortgage would continue to exist, but on A’s whole interest in the property, not just on ½ interest.

Tenancy by the entirety can only exist between two legally married

people.

A. Forget about “common law marriages” unless you are told that they are recognized in a particular jurisdiction.

It does not follow that a jurisdiction recognizes “untraditional” marriages or relationships merely because they allow life partners to receive health, retirement, disability or other benefits.

C. Discussion about equal rights in tenants by the entirety estates.

1. Most states have abolished the tenancy by the entirety because of incidents or rank sexism.

Other states have merely equalized the rights.

Updating old tenancies by the entirety.

Dower and curtesy, and the movement to abolish the concepts.

5. Cohabitation without marriage; what rights are there?

7. How do you know which of the concurrent estates you have?

As with contracts and legislation, look to the words contained in the grant and determine whether there is a clear, unequivocal, unambiguous expression of the type of cotenancy intended.

1. “As tenants in common” creates a tenancy in common.

2. “As joint tenants” creates a joint tenancy.

3. “As tenants by the entirety” creates a tenancy by the entirety.”

If the grant language is not absolutely clear, there may be a need to employ some rules of construction. Here are some:

1. If the right of survivorship is expressed, it cannot be a tenancy in common because the tenancy in common has no right of survivorship. (Massachusetts and Multistate)

In multistate law, a grant to a legally married husband and wife, which does not expressly created a tenancy in common or joint tenancy, is presumed to be a tenancy by the entirety. That is not the case in Massachusetts because the only way to create a tenancy by the entirety is to do so expressly. Mass. Gen. Laws, Ch. 184 § 7.

In multistate law, if there is no survivorship expressed, and the grant is not to a legally married husband and wife, choose the tenancy in common over the joint tenancy. A tenancy in common is always preferred over a joint tenancy. In Massachusetts, since there is no presumption that a tenancy by the entirety exists between legally married couples, apply the tenancy in common over a joint tenancy rule even if the couple is legally married.

The word “jointly” creates a joint tenancy in Massachusetts (Mass. Gen. Laws, Ch. 184 § 7), but not in multistate law. Multistate law treats the word “jointly” as a mere expression of an intent to create some form of cotenancy. If no right of survivorship is expressed therewith, the preference for tenancies in common over joint tenancies applies.

A failed tenancy by the entirety – where the grantor attempts to create a tenancy by the entirety but cannot because the couple is not legally married – is a joint tenancy, not a tenancy in common. It would be unfair to deny the couple the right of survivorship, which was undoubtedly a primary consideration in the attempt to choose a tenancy by the entirety.

Examples and hypotheticals.

8. The “Unities.”

-They are:

A.Time

B.Title

C.Interest

D.Possession

E. Person (Marriage)

-The tenancy in common always has at least one unity – unity of possession – and can have as many as four (the first four, not the unity of the person)

-The joint tenancy always has four unities (the first four, not the unity of the person)

-The tenancy by the entirety always has all five unities

-Tracing the unities: examples and hypotheticals.

9. When contenants cannot get along:

A.Partition

Physical division

Sale

Equitable accounting

Figuring damages: examples and hypotheticals

D. Future Interests

1. The Future Interests (Generally):

A. Reversion

B. Possibility of Reverter

C. Right of Entry for Condition Broken (Sometimes Called “Right of Entry” or “Right of Re-Entry”)

D. Remainder

E. Executory Interest

2. General Rules and Considerations

A. First “Stupid Rule” as to Future Interests:

i. The First Three Future Interests (A., B. and C.) Are Always Owned By, or in Favor Of, the Grantor (Person Creating the Estate)

ii. The Last Two Future Interests (D. and E.) Are Always Owned By, or in Favor Of, A Grantee (A Person Who Did Not Create the Estate)

B. Common Law Conveyancing Rules:

i. Executory Interests: Not Possible Before the Statute of Uses Was Enacted in 1535 (Effective in 1536). You Will Not Get Any Problems Predating 1536, So Always Assume That There Are Executory Interests.

Outside Materials/Study-Aides Will Cover Arcane “Common Law Technical Rules” Such as the “Doctrine of Worthier Title,” the “Rule in Shelley’s Case” and the “Destructibility of Contingent Remainders.” Forget about Them. Nearly Every State Abolished These Rules Long Ago, and They Are Rarely, If Ever, Tested on the Bar Exam.

3. The “Close the Circle,” or “Balance the Equation” Theory of Future

Interests:

A. Will Help You Know You Are Doing it Right.

B. Rule: You Always Begin with a Fee Simple Absolute, and Must End with a Fee Simple Absolute. If You End with Less than a Fee Simple Absolute (E.g., a Life Estate), You must Find Additional Future Interests to Get Yourself Back to a Fee Simple Absolute.

4. Future Interests (Specifically):

A. Reversion

Always Owned By, or in Favor Of, the Grantor (First “Stupid Rule” as to Future Interests)
Always Occurs When the Grantor Conveys a Smaller Estate than That Which He or She Owns (E.g., Life Estate from Fee Simple)

Reversion Fills in the “Gap” Created When Smaller Estate Is Conveyed. Remember, You Always Begin with a Fee Simple Absolute, and Must End with a Fee Simple Absolute.

A Reversion Occurs by Operation of Law Rather than by the Express Language of the Grantor.

Examples

All Reversions Are “Vested” (Not Subject to the Rule Against Perpetuities). The Two Types of “Vested” Reversions:

1. Indefeasibly Vested (Cannot Be Divested)

Subject to Divestment: Usually, When the Grantor Conveys a Smaller Estate Followed by a “Contingent” Remainder

Examples

B. Possibility of Reverter

Always Owned By, or in Favor Of, the Grantor (First “Stupid Rule” as to Future Interests)

Stupid Rule: a Possibility of Reverter Only Occurs When the Grantor Conveys an Estate Equal to His Own. (Usually, Grantor Owns Some Type of Fee Simple and Conveys Some Type of Fee Simple. Remember, All Fee Simples Are Equal in the Eyes of the Law.)

Always Follows the Grant of a Determinable Estate (Usually a Fee Simple Determinable)

Examples (Distinguish from Reversion)

C. Right of Entry for Condition Broken (Sometimes Called “Right of Entry” or “Right of Re-Entry”)

Always Owned By, or in Favor Of, the Grantor (First “Stupid Rule” as to Future Interests)

Stupid Rule: a Right of Entry Only Occurs When the Grantor Conveys an Estate Equal to His Own. (Usually, Grantor Owns Some Type of Fee Simple and Conveys Some Type of Fee Simple. Remember, All Fee Simples Are Equal in the Eyes of the Law.)

Always Follows the Grant of a “Subject to Condition Subsequent Estate (Usually a Fee Simple Subject to Condition Subsequent). This Is the Rule That Distinguishes it from the Possibility of Reverter.

Examples

D. Remainder

Stupid Rule: Always Owned By, or in Favor Of, A Grantee (A Person Who Did Not Create the Estate)

Stupid Rule: Remainders Only Become Present Possessory Estates upon the Natural Termination of the Prior Estate

On the Expiration of the Prior Estate, the Interest “Remains Away” from the Grantor

There can be no remainder immediately following a fee simple because a fee simple is supposed to last forever, and it cannot “naturally terminate.”

Examples

Types of Remainders:

1. Vested Remainders