Property I-Prof. Bross, G.S.U., Fall 1999

Property I-Bross 1
Property I - Prof. Bross, G.S.U., Fall 1999

I. Possessory Interests
A. Adverse Possession- Basically legally stealing land by occupying it for a fixed length of time.
1. Adverse possessors must:
Act like an owner.
Maintain a degree of hostility, exclusivity, and continuity in relation to the land they are
possessing.
Use the land in a manner consistent with an ideal owner.
2. Tacking- Adding occupant times together to achieve continuity for statute of limitations.
3. Cannot adversely posses against Federal or State Government.

B. Estates In Land
1. Fee Simple Absolute- Highest possible form of ownership.
2. Fee Simple Determinable- Has limitation based on time element.
Example: O to A until (time element) war is over (limitation).
Grantor (O) retains a Possibility of Reverter.
3. Fee Simple Subject to Condition Subsequent- Has limitation based on condition element.
Example: O to A, but (condition element) if war ends (limitation), O may re-enter.
Grantor (O) retains a Right of Re-entry.
4. Fee Simple Conditional/ Fee Tail- O to A and heirs of his body; property stays within
bloodline.
5. Other Estates: Grantor always has a reversion
Life Estate- Estate with natural expiration at death of grantee. Example: O to A for life.
Estate for years- Lease for a fixed time, then over; duration is beyond the control of the
parties once begun.
Periodic Tenancy- Estate from period to period (year, month, week); continually
renewing until stopped by 1 full periods notice.
Estate at Will- No fixed time period, no notice requireds; ends at the will of either party.
Estate at Sufferance- cannot be created, happens at the end of another tenancy when
occupant stays past the ends of the tenancy. Occupant cannot adversely posses.

C. Future Interests
1. Reversion- Only created in the grantor; automatically occurs at the end of a life estate of
estate for years.
2. Possibility of Reverter- Only created in the grantor; automatically occurs upon the
fulfillment of the condition in a Fee Simple Determinable.
Transferrable in 3 ways:
- Alienable: transfer or sell it while still alive.
- Devisable: left to someone in will.
- Descendable: left to heir (as defined by the state) if no will exists.
3. Right of Re-entry/ Power of Termination- Only created in the grantor; goes into effect
upon fulfillment of the condition in a Fee Simple Subject to Condition Subsequent.
Grantor may or may not decide to exercise right/power; not automatic.
Only descendably transferred.
Property I-Bross 2
4. Remainders- created in a third party. MUST:
Take effect immediately,
Upon the natural expiration,
Of a prior particular estate,
Created in the same instrument.
If it is subject to a condition precedent other than the termination of the prior estate, or
if the grantees are unborn/unascertainable it is a contingent remainder, if not, it is a
vested remainder.
- Vested Subject to Complete Divestment: Party will take, but may lose
possession if a condition occurs (subject to condition subsequent).
- Vested Subject to Open: Taking class is started (someone exists) but not yet
completely determined.
5. Executory Interest- Occurs if any of the conditions for remainders fail.

D. Future Interests Doctrines
1. Rule in Shellys Case: O to A for life, then to the heirs of A becomes: O to A for life,
then to A
2. Rule of Merger: O to A for life, then to A becomes: O to A (A has Fee Simple
Absolute)
3. Destructibility Rule (Obsolete): O to A for life, then to heirs of B. If A dies before B,
estate reverts to O and remainder in Bs heirs is destroyed. Living person, B, has no
heirs, so seisin is interrupted.
4. Rule Against Perpetuities: Any remainder must vest within a life in being plus 21 years.
Only applies to Contingent Remainders and Executory interests.
Future Interests created in the grantor are considered vested for purposes of RAP.
RAP Reforms:
- Wait and See: wait and see how events play out, see if estate vests.
- Cy Pres: courts try to get as close as possible to original intent.

D. Concurrent Estates- shared present rights.
1. Tenancy in Common: presumed tenancy; no right of survivorship.
2. Joint Tenancy: has right of survivorship; must expressly state that there is right of
survivorship.
Joint Tenancies must have 4 unites:
- Unity of time: Must acquire interests at the same time.
- Unity of title: Must acquire interests in the same deed or will.
- Unity of interest: Must have same/equal interests.
- Unity of possession: Must have common right to possess the whole property.
3. Tenancy by the Entireties: marital estate, only exists between husband and wife; has right
of survivorship. Creates a life estate and remainder in each spouse.
Courts are of three opinions as to what voluntary creditors of only one spouse can get:
- Cant get anything (majority)
- Can get all interest of that spouse
- Can get only the remainder of that spouse (KY, TN)
4. Co-tenant can collect from fellow co-tenant for:
Ouster
Fair share of rent from third parties
Waste: occurs by depleting resources or exhausting use. If ordinary person can divide
resources (i.e. trees), co-tenant can take his fair share. If only expert can divide, only
court can divide. If divided without court order, all co-tenants share profit.
Absent co-tenant cannot collect for occupancy of 2
nd
co-tenant if absence from the
property is voluntary, unless by statute or Exclusion: where property can physically be
used by only some of the co-tenants, non-occupants get more money at sale.
Property I-Bross 3
II. Non-possessory Interests
A. License- Right to use given for a period of time at will of licensor.

B. Profit- Right to take resources (trees, minerals, etc.) from land.

C. Easement- Right to use for a pre-determined, fixed length of time (1 day, 1 year, forever).
1. Expressed easements- explicitly defined in deed.
Dominant Estate- Receives benefit.
Servient Estate- Receives burden.
2. Non-expressed easements
Quasi-Easement- Easement not explicitly granted, but implied.
- Previous Usage: Any actual use during common ownership of property.
- Used for: Reasonably necessary infrastructures.
- Gained on: Previously commonly owned land.
- Standard for Discovery: Apparent.
- Gained By: Implied agreement; consensual.
*Implied Grant- Sell benefit, keep burden.
*Implied Reservation- Sell burden, keep benefit.
Prescription- Easement gained by use.
- Previous Usage: Actual use for set period.
- Used for: Any easement.
- Gained on: Any identifiable group of land, except land owned by government.
- Standard for Discovery: Open and notorious.
- Gained By: Basically stealing (equivalent of adverse possession).
Common Law Necessity- Easement for necessity.
- Previous Usage: No actual use.
- Used for: Access.
- Gained on: Previously commonly owned land.
- Standard for Discovery: Discoverable by expert.
- Gained By: Necessity for access to otherwise landlocked parcels; consensual.
3. Change in use/overuse of easement.
Express Easement- if not defined by document, look at:
- Dominant tenement: any reasonable use.
- Easement: different kind of use AND additional burden for servient estate.
Prescriptive Easement- if not defined by document, look at:
- Dominant tenement: normal evolution of use.
- Easement: change in physical character, purpose, and relative burden (what is
happening now compared to what was happening when it was prescribed).
- Cannot gain more land.
4. If the easement is exceeded, trespass occurs.
5. Abandonment of easement requires time to prove.

Property I-Prof. Bross, G.S.U., Fall 1999

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