1. Rule of Capture

Possession - Physical control coupled with intention to assume dominion.

Pierson v. PostFacts: Pierson shot, killed, and took a fox that Post was pursuing.Issue: what acts amount to occupancy, applied to acquiring right to wild animals? Reasoning: Since Post did not have the fox physically in his possession, then the fox is fair game for somebody else to come and take.Takeaway: You must have the animal physically in your possession in order for it to be your property. Must deprive it of it’s natural liberty.

- Actual killing and capture - Securing as to render escape impossible - Mortal wounding and continued pursuit is enough.

Policy themes: fairness, certainty, peace and order

Ghen v. RichFacts: Ghen shot and killed a whale and it washed up on shore where rich took it and sold it because he actually found and possessed it.Issue: Does the finder have possession of the found whale? Reasoning: Since the fisherman’s only option was to allow it to sink and then capture it later, they did all they could in order to capture it. Courts also pointed to common practice amongst fisherman being shooting them and waiting for them to wash up on shore, and the court has an interest in establishing common practices as common law. Takeaway: If a party does all they can to seize the property, then it is sufficient to be their property.

- Court finds the Rules of capture are different in certain industries where customs are established and where there is no other reasonable way to conduct business.

- “finder” of the washed up whale is still entitled to a finder’s fee. Policy themes: fruits of labor, social utility, customs

Keeble v. HickeringillFacts: Plaintiff had had a pond where he would catch ducks and the defendant shot a shotgun to scare the ducks away on his own property. Issue: Whether the defendant is in his right by scaring the ducks away on his own property.Reasoning: All the defendant was doing was harming the plaintiff’s business. He wasn’t doing it for any betterment of society or anything. Takeaway: Court is often thinking about social values and what is best for society and in this case, it was the sustainment and acceleration of the markets.

- Unproductive and interruptive acts of an individual that prevent another individual from sustaining their livelihood are not protected despite the acts occurring on their own property.

Constructive possession: someone has possession of a piece of property when it is on their land. Such as a fox.

1

Popov v. HayashiFacts: Ball was hit, hit Popov’s glove first, Popov was tackled, Hayashi picked the ball up and put it in his pocket. Issue: Whether Popov’s had possession of the ball.Reasoning: Judge ordered a settlement because there is no clear decision as to who owned the property. Popov never established full clear possession, rather just pre-possessory interests. Hayashi was the first to achieve actual possession. Takeaway: Doesn’t clarify the rule of capture or possession. Gives us a factual situation in which applying the rule of capture was very difficult. Still know that first to property is the first to possess it.

- Equitable division – provided both parties with a form of relief.

Elliff v. Texon Drilling Co.Facts: Elliff and neighbors shared a large pool of oil underneath the land. The neighbors allowed Texon to drill the oil, something that was allowed, through the law of capture. The law of capture allowed each party to take all the oil they can from a well on their own property, even if the oil flows from the neighbor’s land. The well blew out and wasted a large amount of oil. Issue: Whether the law of capture absolves Texon from liability as they would have been taking the oil anyways.Reasoning: No, there is a difference between taking and putting to productive use and wasting the oil. Since Texon operated in a negligent manner which resulting in a vast waste in oil, then the rule of capture does not apply. Court says it is fair to take up as much oil as they can. However, through the waste was unfair because no one benefitted from this manner and the owners of the property should be protected from negligent behavior. Takeaway: Property rights try to protect the productive use of land, in this manner it was not productive, it was a waste, which prevented others from being productive.

- If there are community resources, both parties have property in the rescources and are entitled to take as much as they want, however this does not extend to the negligent or destructive waste of the resources.

Policy themes: Waste,

Tragedy on the Common- If there is no personal property, there will be no incentive to the sustainment of goods. If

lobsters are a hot commodity, everyone will kill and capture all the lobster, and then no lobsters left to procreate and sustain the lobster markets for the future. Everyone is afraid everyone will take everything and leave nothing for them so everyone takes as much as they can as fast as they can.

- Tierney – Australia – highly regulated and doing well vs MA not regulated and is terrible.- Private property reduces disputes

2. Possession and Presumption of Title

Willcox v. StroupFacts: Willcox found a bag of Civil War Documents from the State of South Carolina in his closet. Willcox sought to sell the documents and the State of South Carolina was claiming possession of the documents.

2

Issue: Whether the documents were Willcox’s since he had actual possession of them.Reasoning: Yes, possession is 9/10ths of ownership. The burden of proof was on the state to prove that the documents were theirs, and they were unable to provide any evidence as to their true ownership of the documents. Takeaway: The possessor of a piece of property is generally the owner, unless otherwise proven. Possession plus claim of title is enough for a claim of ownership. Other party trying to claim ownership has the burden of proof to show otherwise.

- “Possession is 9/10ths of the law.” Policy Themes: Fairness

3. Acquisition by Find

Armory v. DelamarieFacts: Chimney sweeper finds a ring and brings it to the defendant’s jeweler to get it appraised. The defendant steals it and claims ownership of it. Issue: Whether the chimney sweeper has property rights in the ring.Reasoning: Yes, Finder generally has a superior right to property over everyone except the actual possessor. The finder also loses to the owner of the locus. Takeaway: Real finder rule - A finder has a right to property, true to all except the prior possessors or rightful owner. This rules discourages thievery, promotes administrative simplicity and gets the property closer to the original owner.

Two Finding Rules:1. True owner always wins2. Finder wins against all except true owner

a. Finder might also lose to owner of the locus b. Finder would also lose to previous possessors c. Finder would NOT win if he was a trespasser, a thief, or the property was mislaid.

Benjamin v. Lindner Aviation Inc.Facts: Benjamin finds 18k in a wing of a plane working for Lindner that belongs to State Central Bank. The money seemed to be placed there on purpose as it was wrapped in paper and stacked nicely and all from the 60’s. Issue: Whether finder’s rights change depending on the type of property. Reasoning: Classification of found property:

1. Abandoned: owner no longer wants it, owner relinquishes all property rights and new finder against all others, including the original owner.

2. Lost: Owner unintentionally and involuntarily parts with its possession and does not know where it is. Becomes the finder’s property once the finder follows all the correct statutory procedures.

3. Mislaid: property that is voluntarily put somewhere and then forgotten about. Generally, put somewhere for safe keeping. Finder has no rights, the right of possession of the property goes to the owner of the locus, as against all persons except the true owner.

3

4. Treasure Trove: Coins or currency concealed by the owner, includes the element of antiquity. Must be hidden for such a length of time that the true owner is probably dead or undiscoverable. Belongs to the finder against all except the true owner.

5. Embedded property: Property that has been there so long that it has become part of the earth. Goes to the owner of the locus, as the owner of the land would expect to have property rights to stuff that lies on their property.

- Cases seem to turn on how/where/when the original owner last left the property and what condition the object was in.

Takeaway: Mislaid property goes to the owner of the locus, as it is more likely to get back to the original owner because they may go back to where the once placed it. True owner always wins – except abandoned property. Policy Themes: social utility, peace and order, fairness, finding the true owner.

Corliss v. WennerFacts: Corliss sued Wenner and Anderson when Corliss was working for Anderson paving a driveway on Wenner’s land and discovered a jar of gold coins buried in the ground. Issue: Whether this was treasure trove, or embedded property. Reasoning: The court classified this as embedded property because it solves some issues of law that may cause a conflict. As embedded property goes to the owner of the locus, it discourages people trespassing on other land and people trying to steal stuff off other land. Takeaway: Embedded property goes to the owner of the locus, as the owner of the land would expect to have property rights to stuff that lies on their property. Policy themes: social utility, peace, order, fairness

4. Gifts- Voluntary transfer of property, must be executed or actually made. A promise to make a

gift in the future is not binding.

1. Inter vivos- The irrevocable transfer of property during one’s life time.- Promise to make a gift at a later time, it is an unenforceable promise to make a gift at a

later time

2. Gift Causa Mortis- Gift made in the contemplation of an in expectation of imminent death - Made between two living people, in anticipation of one person’s immediate death.- Substitutes for a will and can be revoked at any point before death as the gift is

conditional on the event of death. - Requires all 3 gift elements plus the donor’s expectation to die.

3. Testamentary Gift- Must be written in a will

Elements to Make a Gift1. Donative intent2. Delivery

4

o Actual – manual delivery of the object o Constructive – the donor transfers something that will allow access or a means to

control the property – “Manner of access” Ex. keys to a car Symbolic – a way of giving possession where manual delivery is not

possible writing of a letter (Gruen) deed or title to car

3. Acceptance – Typically when there is an object of value, acceptance is assumed.

Gruen v. GruenFacts: Father gave the son the gift of a painting but retained a life estate in the painting. The father physically kept the painting. Seventeen years later the father dies and the son sought to get the painting. Issue: Whether the son possessed the painting enough to claim ownership of it. Reasoning: Yes, as with the 3 elements of a gift, the father satisfied all 3 when conveying the gift to the son. He transferred the gift through the letter, and delivered it through the delivery of the letter, and then the acceptance was implied. Takeaway: As long as the evidence establishes an intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately.3 elements of a gift

1. Intent of the owner – irrevocable present transfer of the gift2. Delivery – actual, constructive (car keys, house deed, etc.), symbolic (written instrument-

letter from Gruen)3. Acceptance – if it is of value, then acceptance is implied

Policy Themes: fairness, settled expectations

5. Acquisition by Conquest- Conqueror decides what happens to the land as generally the people who are conquered lose their property rights.

Johnson v. M’IntoshFacts: Johnson bought land from Indians. McIntosh bought same land from Government. Suit tried to figure out who had the best claim to the land. Issue: Who had the best claim to the land.Reasoning: Indians didn’t use the land that traditionally land was used. The land went to McIntosh because the land was taken over by the US. Since the US had ultimate possession, they had the final say as to what they could do with it. Takeaway: Acquisition by conquest rules that the land goes to the conqueror and the conqueror decides what to do with it and what rights to give to the people living there.

- Land title transfers are only valid when made under the rule of the currently prevailing government.

Policy themes: civilization, power

6. Adverse Possession

5

5 Elements of Adverse PossessionContinuous – stay on the land throughout the duration of the SoL

- Continuous use of the land may be used “like a true owner”- Tacking - If there is “privity” between the the adverse possessor and the new possessor,

then the new possessor “gets credit” for the time the original adverse possessor occupied the land. The time does not restart, rather it continues to run. (Kunto)

o Privity – voluntary transfer of the property or deedHostile – state of mind of the adverse possessor

- Must not have the owner’s permission to be on the land- Objective standard – stave of mind is irrelevant, as long as it is without the owner’s

consent, you are satisfying hostile – most states don’t require a certain mind set- Good faith (CT) – “I thought I owned it” – necessary mind set- Bad Faith (ME) – “I know I didn’t own it, but I’m trying to take it.” – necessary mind set

Actual – Actually enter the land and possess it- Only take possession of the land you are actually adversely possession - Exception: color of title

Notorious and open – visible to others and to the true owner to give reasonable notice to the true owner

- Cannot try to hide or disguise the land Exclusive – must have ousted the true owner to claim it as one’s own, not sharing the land with the true owner.

- Tacking is the exception – successive adverse possessors can tack their time limits as long as the conveyances were made in privity.

Ejectment – Action looking to kick off the adverse possessor from your landQuieting Title – When two parties in court are trying to determine who is the owner of a piece of property.

- AP discourages true owners from “sleeping on” their property and encourages them to actively be productive with their land.

Ad Coleum – all the land above and below your property is yours. From the heavens to the center of the earth.

Marengo Cave Co. v. RossFacts: Marengo had a cave below Ross’ land. The opening was on his land and he had been operating it as a tourist spot for about 45 years. Ross then bought the land and suspected that some of the cave fell within his property. Marengo claimed the cave through adverse possession. Issue: Whether Marengo met all the required elements to satisfy adverse possession, as the land cave was beneath Ross’ land. Reasoning: No, Marengo did not satisfy the element of exclusivity. He had been sharing the property with Ross for all the previous years. The land is not severed from the subsurface. Although the cave was below, it was not separated from the land above where Ross had been living. Until Ross had known that the land was being taken, Marengo could not adversely possess it. Takeaway: Must satisfy all 5 elements in order for clock to run, especially exclusivity.

6

- Open and notorious – the use of the cave did not give clear and unequivocal notice to the true owner that his land was being occupied adversely.

Mannillo v. GorskiFacts: Plaintiff built 15 inches onto the neighbor’s land by accident. It was an honest mistake, however now the plaintiff is claiming the land through adverse possession. Issue: Whether the NJ statute requiring a malicious state of mind was an element.Reasoning: No, the court struck down the malicious intent element and established that state of mind is irrelevant. However, the court found this did not meet the open and notorious guidelines because it was such a small piece of land. Could not discern who’s land it actually was without an actual survey.Takeaway: State of mind is not always relevant, minor encroachments require actual notice to the true owner.

Color of Title – a claim that relies on a false instrument, such as a false deed- The only way to gain constructive possession through adverse possession is through a

color of title document.- Actual possession always trumps constructive possession.

Howard v. KuntoFacts: Three families all has summer homes, built on the land plot next to where their actual houses were. The Kuntos only had the land for about a year but the property was there for a while and was sold a bunch of times under the false deed. Issue: Whether the adverse possession was defeated because the use of the homes was for summer use only. Whether tacking can be used to gain possession through adverse possession. Reasoning: The land was used in a continuous manner, thus satisfying this element of adverse possession because since it was a summer home, the way a normal owner would use such a property would be in such a way to use it in just the summer months. Thus using the land as if they were the actual owners. In order to tack, the transactions must have been done in privity (a voluntary conveyance) and since all the previous owners sold the homes under voluntary conveyances of the false deeds, then tacking is permissible. Takeaway: Tacking is permissible if it is done in privity (voluntarily conveyance) and continuous means you would use the land as the actual owner would use the land.

- Continuous use through the use of the property as a true owner would use the property

Pimental v. MedroFacts: Pimental lived next to Ibbotson who planted a bunch of trees that were inside of her property line. On the other side of the trees, Ibbotson left some of her land, which Pimental maintained. He put in a shed, fence, garden, and maintained the area for 30 years. Ibbotson sold to Medro who looked to take back the land and establish the actual property line.Issue: Whether Pimental established adverse possession. Reasoning: Yes, he met all the requisite criteria. Takeaway: If you satisfy all 5 areas of CHANE, you are the rightful owner of the property.

7

Boundary line agreements – as there was original uncertainty as to the true property lines and there is an established line through a fence or some other means, which was a lengthy agreement, the courts would probably adjust the property lines accordingly to the agreed upon lines.

Disabilities- Statute of limitations does not run if you are a minor, mentally incapacitated, or

imprisoned. - The owner gets an additional 10 years after the disability ends to make a claim for the

land. 10 years, or the SoL, whatever is longer.- However, if the Adverse Possessor enters before the disability begins, then the owner

does not get the 10-year benefit.

Adverse Possession and Future Interests- The statute of limitations does not run against the holder of future interests until that

interest becomes possessory. - If someone leaves life estate of Blackacre to A with life estate to B, the adverse possessor

can possess and take the land but up until the land switches possession.

7. Right to Exclude A. The Hermit’s Right- You can live in solitary isolation if you want, however you need to allow public

emergency people such as firemen and policemen on the property. Government may use this method to exclude people from certain wildlife reservations or nuclear areas.

- Keeping people out might prevent them from being exposed to certain types of things like toxic waste.

B. The Bouncer’s Right- The owner’s right to discriminate upon various parties, permitting some to enter and

excluding others - Does not need to let everyone on their land if they don’t want to C. Exclusionary Vibes - The owner does not exclude anyone per se, however they merely make it a point to show

that certain people way not feel welcome if they enter the community in question because they will not share certain affinities with the current residents.

- A way of trying to attract a certain crowd or demographic, to exclude another crowd or demographic

D. Exclusionary Amenities- A particular amenity within a community that is embedded with the purpose of attracting

a particular community that is willing to pay for the amenity. - Catholic community

Jacque v. Steenberg Homes, Inc.Facts: Jacque owned a plot of land in the middle of Wisconsin. Steenberg wanted to deliver a mobile home to Jacque’s neighbor and the easierst way was to do it across Jacque’s land. Jacque told Steenberg he could not go across his property. Steenberg went across Jacques property. Jacque sued Steenberg. Issue: Whether Jacque should be able to exclude Steenberg from delivering the mobile home

8

across his land.Reasoning: Jacque is free to exclude anyone from his land if he desires. Policy Issues: Protecting social aspects of preventing trespassing and preventing conflict by stopping people from taking acting by engaging in protection of their own lands.Takeaway: The court holds that it is every person’s constitutional right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another person.

- One of the biggest sticks in the bundle of property rights is the right to exclusion.

State v. Shack Facts: Tedesco hired migrant farm workers to work on his farm and as part of the deal he would house them. One of the men got injured and a doctor and a lawyer went to see the man. Tedesco agreed that the men could only see the worker if they agreed to meet with Tedesco there in his office. The lawyer refused and Tedesco sought legal action. Issue: Whether Tedesco could exclude the guests of the workers despite it being their housing. Reasoning: The court holds that the land owner’s rights are limited because the workers were isolated and were outside the main stream of society and didn’t have a private sphere they could entertain private parties. Very unique in that once you provide housing to migrant workers, you must consent to allowing them government access. Takeaway: The land owner has a right to exclude people from your land, but not at the cost of their rights. Policy Issues:

8. Intellectual Property

3 Major Categories1. Copyright – protect the expression of ideas

o Protected for the life of the creator plus 70 yearso Books, songs, videos, etc

2. Patents – protection to inventors of products and processes o Must be useful and non-obvious to qualify o Patents typically last 20 years

3. Trademarks – word, symbol, or device used by a person to identify or distinguish his or her goods or products

o Consumers often buy things based on the trademark symbol

- Courts struggle with striking a balance between protecting the consumption and production of intellectual property.

- Courts don’t want to unduly stifle future creators by giving too much protection to the current creators, but don’t want to leave people’s vulnerable to be stolen.

INS v. APFacts: INS would steal AP’s news off their bulletin boards in NY and send the headlines to LA where they would be produced.

9

Issue: Whether there is a property right in news? Can INS just take the AP’s bulletin board postings and post it?Reasoning: No, News is very time sensitive, like fish, people only want “fresh” news. AP did all the work and spent all this money to get fresh news and then INS would jump in at the last second and seize the news at the last moment to reap the benefits. It is unfair business practice since INS swooped in at the last second and stole the news, producing the story without going through all the work but still gaining the economic benefits of producing a story. Policy Issues: Unfair business practicesTakeaway: Hot news doctrine: Can’t jump in at the last second and seize something thus reaping the benefits, or else it is unfair business practice and a violation of property rights.

- Different types of property, and property is valued relative to different parties. o Ex. New News and news production is very valuable to news companies.

White v. SamsungFacts: Samsung ran an advertisement with a robot standing in front of a Wheel of Fortune board dressed like Vanna White Issue: Whether the ad depicted the likeness and image of Vanna White.Reasoning: Majority opinion in this case gave celebrities exclusive right to anything that reminds the viewer of them. Dissent says this view took copyright laws too far. Protecting property this much stifles creativity too much. Prevents others from building on ideas. The point of the robot was not to be Vanna White, but look something like Vanna White. Policy Issues: Overprotection of likeness and image. Takeaway: The point of copyright is to strike a balance where people are able to flourish and other people’s ideas are able to be protected. Overprotection can extend the meaning of copyright too far.

Body Parts Moore v. Regents of The University of California Facts: Moore had a rare type of leukemia and consented to a research study which allowed the researchers to take his spleen and a bunch of other DNA from him. They developed a cell line worth 3.3 billion dollars and Moore wanted the right and direct control over the use of his cells. Issue: Whether Moore had property in his cells and the developed cell line. Reasoning: No, the lymphokines they extracted from Moore were not unique to him, he just produced them more rapidly. Cells do not have value in the current state in which Moore has them until the researchers developed them into the cell line. CA statute prevented the sale of cells. Policy Issues: If legislators were to give donors property interests in their donated cells or organs, the researchers may be restricted in what they can do. Donors may restrict what researchers can use them for, making research harder. Takeaway: No interest in donated body parts for research, as once the cells leave the persons body, they no longer have any interest in them.

- Doctor has a fiduciary duty to protect the donor and disclose all personal interests in the donors cells before gaining consent.

Flynn v. Holder

10

Facts: Flynn sought declaration that donors could get compensation for the donation of bone marrow as there is a new method of donation that is as easy as blood donation called apheresis. Issue: Whether apheresis should be compensated for. Reasoning: Yes, since it is essentially the same as blood donation, it should be compensated for. It is no more intrusive, and they take nothing more than they would take if they were going to donate blood, so it should be compensated for. Takeaway: Policy Issues:

- Poor people would be selling their organs and worsening their health if we were to compensate for the donation of organs.

- Quality of the pool of organs could become degraded, as more and more people would donate.

Philosophical: - People are repulsed at the idea of selling one’s body for money. - Financial incentives will distort the motivation of potential donors.

9. Estates and Future Interests

10. Concurrent OwnershipI. Partition

- When one or more of the co-tenants wants to sell or divide up the property. Co-tenancy will be terminated at the end of the partition process.

- 2 types of partition o Partition in kind – equitable physical division of the property between the

former co-tenants by distribution of lando Partition by sale – equitable financial division of the property between the

former co-tenants by distribution from the proceeds from the sale of the property.

Ark Land v. HarperFacts: Coal company in WV looked to gain possession of a property with large amounts of coal on it. They bought the majority of the interest in the Caudill property from various members of the family, however, a few remaining members still didn’t want to sell. Ark Land looked for partition by sale, Harper looked for partition in kind (wanted to keep their property).Issue: Whether the court should partition by sale or in kind.Reasoning: Kind, whenever partitioning by kind is an option, the court should elect to exercise it. There is a presumption in favor to partition in kind. Kind does not force an unwanted sale on anyone. Takeaway: The economic value of property is not the only decisive factor in determining whether to partition in kind or by sale, as other prejudices such as emotional, sentimental, and longstanding ownership are other factors that should be considered. Policy Issues: Forcing an unwanted sale on a party, fairness, emotional attachment to property.

II. Rights and Obligations as Co-Tenants - Two types of issues

o Basic costs involved with the ownership of a property in a co-tenancy

11

o Liability of a co-tenant who is in sole possession to pay rent to the other co-tenant who does not live there

Esteves v. Esteves Facts: Parents and Son bought house together, each paid half. Son lived there for 3-6 months then moved out. Parents lived there for 18 years, and are now looking to sell. Parents are looking for reimbursement for the $62,000 they paid in “caring costs” like sewer, water, electric, etc. Son looked to get rental money. Issue: Whether the son or parents are entitles to compensation from each other.Reasoning: Yes, where a cotenant has sole possession of the property and demands contribution for operating and maintenance expenses from the non-possessing cotenant, the tenant in possession must allow a corresponding credit for the value of his sole occupancyTakeaway: Majority: TIC not in possession cannot get rent,

- Middle ground: however, they can get a credit for caring costs, as an offset against the expenses.

- Minority – TIC can get rent if they demand it

Spiller v. Mackereth Facts: Spiller and Mackereth own a building, which spiller used half the building as a warehouse. They had a tenant. The tenant left, and Spiller took possession of the whole building. Mackereth sent Spiller a letter telling him to vacate half the building or pay rent. Spiller changed the locks, however he contends it is because the old tenant left. Issue: Whether the co-tenant is liable for rent money.Reasoning: No, Spiller would have to oust Mackereth in order to demand some sort of compensation. Spiller, as a cotenant, is just exercising his interest as a cotenant to use the whole building. Takeaway: A cotenant in common, having an undivided right to the entire property, does not owe rent to his cotenant unless he agrees to, or unless he has effected the ouster of his cotenant.

Improvements to the Joint Property- Generally, if a co-tenant unilaterally decides to make an improvement to a property, the

other co-tenants are not liable to incur the costs to help pay for ito However, once the property sells, the co-tenant who made the improvements is

entitled to the excess proceeds from the sale as a result of the improvements.

General Rules regarding Expenses and Co-tenancies:Repairs: If one cotenant makes a repair, then they are not entitled to demand contribution from another cotenant, unless there was a prior agreement. However, they can get a credit or get the value back at sale. Accounting expenses: (Taxes) – bring a suit right away to get money for taxes Profits from the property: (a bunch of lumber sold off the property) – co-tenant can make a demand for it.Rent from a third Party: co-tenant can make a demand for it

12

Joint Tenancies - Big difference: RIGHT TO SURVIVORSHIP- Heirs and devisees do not receive anything when there is a right to survivorship- If there or 4 people all and ¼ share and one person dies, the 3 remaining people’s shares

increase to 1/3 shares. Last man standing owns the property outright. - Require special language at the creation of the grant- 4 “Unity” requirements under Common Law to make a Joint Tenancy

o Time All parties interest must be acquired at the same time

o Title Acquire title from the same instrument Joint tenants get their possession from the same deed, will, etc.

o Interest All parties must all have equal shares i.e. 4 people all sharing 25% interest

o Possession All parties must have equal possession and use No one party can have more or less access than another party.

- Grantor must use clear language when conveying a joint tenancy – “to A and B in joint tenancy.” “as joint tenants.” “jointly.”

Two sets of issues:(1) involves their creation- If a grantor intends to create a joint tenancy and fails to meet the requirements of

creation, then a tenancy in common will result(2) involves the severance of the joint tenancy relationship- A joint tenant can sever, or end, the joint tenancy relationship, converting it to a tenancy

in common and ending the right of survivorship

Straw man – if a person wanted a JT, then property owner could transfer their property to the straw man, who would then transfer it back, satisfying all the conditions of PITT and the clear language in the grant. Owner (A) Straw Straw Joint Tenants (A and B)(grant would have all the unities satisfied to create a JT)

Severing Joint Tenancies - If there is a joint tenancy, and one party conveys their interest, then the JT is severed. - If there are more than 2 joint tenants, then the party conveying their interest severs their

joint tenancy and creates a tenant in common. All other joint tenants remain as joint tenants.

A -JT- B B conveys to CA –TIC- C the conveyance from B to C destroyed the JT and created a TIC

13

A-JT-B-JT-CB conveys to DA and C are still joint tenants, however D and A and D and C are TIC.When A/C dies, each party will have right to survivorship to their interest in the property

- Traditional common law and Majority rule: Conveying to yourself does not sever the Joint tenancy

Tenants in Common - Everything else except a joint tenancy. - Much more common than a JT- Courts are more willing to give a TIC - Severed JT’s become TIC’s- Can convey your interest in a will- Interest percentages can be different, lower percentages still can use the property 100%- As long as the tenancy lasts, each tenant has the right to possess the entire property

equally, even if they have an unequal share.

Harms v. SpragueFacts: William and John were JTs. Sprague helped John and have him a mortgage on the property. John died, leaving all his interest to Sprague. Issue: Whether the mortgage severed the JT and allowed John to convey his interest in a will. Reasoning: No, a lien or mortgage on the property doesn’t destroy JT. Takeaway: Mortgages and liens do not destroy Joint Tenancy.

14