1Majority and Two Minority Rules for Adverse/Hostile Possession:
Majority rule – CLAIMANT’S STATE OF MIND IS IRRELEVANT.
Two minority rules:
(1) Good faith AP believes they're the true owner.
(2) Bad faith AP doesn't need to believe they're the true owner.
2A and B are tenants in common of Blackacre. A lives on Blackacre and B lives in another state. After A lives on Blackacre for twenty years, she announces that she is the sole owner of Blackacre.
Will A’s claim be successful?
No, must give actual notice to other tenants that they're claiming as a single owner, not as cotenant.
- Special adverse possession rules for cotenants.
- Constructive notice is not good enough.
- Looking for actual notice to the tenants.
- Stories about the old man who wouldn’t let other cotenants on the property as the record owner of the property.
3O conveys Blackacre “to Pulaski County Animal Control, but if Pulaski County Animal Control does not use the land for animal welfare purposes within ten years, then to the Pulaski County Humane Society.”
- O = Nothing
- Animal Control = fee simple subject to an executory limitation
- Humane Society = executory interest
4What do Precatory words generally express?
Precatory words generally express the grantor’s hope or purpose and they’re unenforceable.
5O conveys “to A for the life of B.” A dies, leaving her entire estate to C.
What's the state of ownership?
What about after B dies.
- O has: reversion
- C has: life estate for the life of B
- C has: nothing
- O has: fee simple absolute
6What are the three Reversionary future interests?
– Interests held by grantor that are devisable, descendible, and alienable.
- (1) Possibility of reverter – follows a FSD
- (2) Right of entry or power of termination – follows a FSCS.
- (3) Reversion: follows a LE, ToY, and some of contingent remainders.
7Why are reversionary future interests not subject to RAP?
Because they're all considered to be vested.
8The four rules of remainders in one sentence:
A remainder must be created at the same time as, and by the same instrument that creates, the prior estate(s).
If the future interest breaks ANY ONE of the four rules, it can’t be a remainder!
9Can a remainder cut short a prior estate?
No, a remainder may never cut short the prior estate(s). A remainder waits patiently for the prior estate to end.
10Why does no living person have heirs?
Heirs are defined at death, heirs have a contingent remainder because they’re unascertained.
11Four Steps to RAP
(1) Classify future interests
(2) Identify relevant event that will cause future interest to vest indefeasibly, become possessory, or fail completely. (usually death).
(3) Find the validating life, who was alive at conveyance.
(4) Is the validating life certain to vest or fail w/in time period after validating dath. (Y: Valid; N: Void)
12Two Warning Signs for RAP Problems
(1) A gift to an open class that is conditioned on the members surviving to an age beyond 21 may violate RAP.
(2) A condition with no time limit tied to anyone’s life followed by an executory interest may violate RAP.
13“To A for life, then to those of A’s children who reach the age of 30.”
Does RAP apply?
A has no children. The last moment we’ll know whether A’s children have a vested interest is A’s death plus 30 years. Thus under the common law RAP we are left with to “A for life”.
14“To A, but when the White Sox win the World Series, to B.”
Does RAP apply?
Here, B has an executory interest.
We cannot find a validating life, however, and so under the common law RAP, A has FSA “to A”.
15"To A, as long as the White Sox do not win the World Series, otherwise to B.”
Does RAP apply?
- B has: executory interest.
- Strike B’s invalid future interest and leave A with grammatically correct “To A unless the white sox don't win the world series”.
- The condition stays.
- A has a fee simple determinable.
- O has a possibility of reverter.
16An absolute restraint on alienation is an absolute ban on the power to transfer ownership .
17Are absolute restraints on alienation of a fee simple valid?
They're not valid, they're void.
18O conveys Blackacre “to A, as long as A never attempts to sell.”
What are the states of ownership?
- This is void. Absolute ban on A.
- Direct, indirect restraint on conditions that make it more difficult.
- A has fee simple absolute
- O has nothing.
19How likely are Restraints for a limited time and for a limited purpose or scope to be upheld?
They're likely to be upheld if it was for a valid purpose for keeping the property in possession within the family.
20Three Types of Damages
(1) Loss of Bargain
(2) Liquidated Damages
(3) Special Damages
21Three Remedies for Contract breach
(1) Rescission\/Restitution: putting the parties where they would be before entering into the contract. (down paymentreturned;damages awarded).
(2) Specific performance: forcing the obligation and sale of the land. (available to both the buyer and the seller)
(3) Damages: (a) Loss of bargain (formula);(b) Retention of deposit (liquidated damages); (c) Special damages (identify possibility and general rule)
22Liquidated damages
Retention of deposit or other amount such as in in escrow;
Viewing the deposit as liquidated damages and retained to pay for the breach to the seller.
23Special damages
Damages caused by the breach, not damages that would have occurred anyway
24Loss of bargain Breach(formula)
Market value at time of breach and price agreed to in contract
25Why must the grantor clearly express the right of survivorship?
Because today, by statute, joint tenancies are disfavored
26What is the approaches to liens w/ respect to Joint Tenancies
- Majority are lien theory, a mortgage won't sever a joint tenancy.
- Minority are title theory, the conveyance of a mortgage by one joint tenant will sever the joint tenancy.
- Split on Judgment lien
- Split on lease
27Tenancy by the Entirety
- Arises presumptively if married at conveyance, unless clear language to contrary.
- Right of survivorship.
- Undivided right to possess, and use whole property.
- Only ended by 4 D's (Death, Debtor, Dual-Transfer, Divorce/Separation)
28Duties of Cotenants
(1) Possession: Undivided Interest
(2) Rents & Profits in possession & from 3rd parties
(3) Carrying Costs (mortgages/taxes)
(4) Split on repairs, maj. not liable unless pre-agree.
(5) Improvements, no contribution but right to value
(6) Waste
(7) Adverse Possession: "bring em home"
(8) Right to Partition (agreement, sale, in kind)
29Homestead in Arkansas
A. life estate in a maximum of 80 acres, in the country.
B. life estate in a maximum of ¼ acre, in town.
30Harry owned a summer cottage that he conveyed six years before his death without his wife Meghan’s consent. At Harry’s death, Meghan has a lien for the value of a dower rights in the cottage. If Harry is also survived by a son, what is the son’s interest in the cottage? NONE children do not have Incohate Dower rights
31Dower/Curtesy in Arkansas:
- Marital sole share of a surviving spouse if decedent spouse is survived by children.
- It is life estate in 1/3 of the decedent's real property.
- Leaves children with 1/3 remainder 2/3.
32Inchoate Dower
Right of the surviving spouse to a lien in the dower/curtesy amount against any property sold by the decedent spouse without release within 7 years of death without a release by the spouse.
33Harry owned a summer cottage that he conveyed six years before his death without his wife Meghan’s consent. At Harry’s death, Meghan has a lien for the value of a dower rights in the cottage.
If Harry is also survived by a son, what is the son’s interest in the cottage?
NONE children do not have Incohate Dower rights