TRUSTS

4 Elements:
1. Grantor:
a. Grants the trust
2. Trustee:
a. Guardian of the trust. Usually a bank
3. Beneficiary:
a. Recipient of the trust
4. Trust Asset:
o $$$
o If the Asset is real property:
Beneficiary is the owner.
Examples:
o Retirement Benefits (Mahone)
o Workers Compensation (Calvin)
Rules:
o Creditors cannot get to the trust.
Exception: Child support, Howard v.
Spraggins
Public Policy: You have a responsibility
to you family.
o The trust cannot be dissolved once created.

WILLS: Wills create Estates

Requirements:
1. In writing (statute of frauds)
2. Must be signed and attested to by two witnesses
3. Witnesses cannot be beneficiaries
Funeral homes are the first person to get paid.
You cannot exclude a spouse or minor child from the
will.
If you die without a will, your estate is liable for more
taxes.
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 Intestacy:
o To die without a will.
o Statutory Share:
A way to determine who gets what if theres no
will.
Set by statute.
Rules:
Widow get 1/3
Fee simple interest.
Unlike trusts, debts become part of the decedents
estate.
o Exception: Distribute estate immediately.
Unlike Trusts, wills are revocable.
Gifts:
o Donative intent
o Intent to
Delivery
Acceptance
TRUSTS v. WILLS
TRUSTS
Creditors cannot access the

WILLS
Outstanding debts become

trust
Cannot be dissolved once

part of the decedents estate.

Revocable

created
Right to exclude whoever

Cannot exclude minor

you want

children or widow.

Non-Freehold Estates:
1. Estate for years: O A for 10 years

a. K for possession of property for a period of time

2. Tenancy at will: O A at the will of O
a. No set duration
b. Created by implication
c. Termination:
i. Notice
ii. Death of wither party
iii. Conveyance by landlord
iv. Assignment of interest by the tenant
(subletting)
3. Periodic Tenancy: OA for a month
a. Similar to estate for years, except shorter
duration
b. The period continues automatically unless
termination is given
4. Tenancy at Sufferance:
a. When a tenant holds over
b. A tenant cannot establish a right against the
landlord through adverse possession.
c. Easiest to terminate
What can Landlords do to recover their land?
Ejectment:
o Must be peaceful.
o No Landlord-Tenant relationship
o No agreement for rent.
o Ex: Adverse possession, trespass
Eviction
o Legal course of action between landlord/tenant.
Pre-Javins Landlord

Warranty of Habitability

Tenant Law
Favors the landlord over the

(Post)
Favors tenant over landlord

tenant
Independence of Covenants

No more independence of

(Tuttle)

covenants (Javins)
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Landlord is not responsible

Landlord is responsible for

for 3rd party events

factors that make premises

(Paradine)
Set-Off rent does not excuse

unlivable.
Tenants obligation to pay

non-payment of rent (Tuttle)

rent is dependent on
landlords performance of his
obligation.

Javins Test:
1. Did the violations exist during the period of time for
which the past due rent is claimed?
2. If so, what portion of the tenants obligation to pay rent
was suspended by landlords BOK?
Warranty of Habitability Implications:
Unless the government subsidizes housing, you cannot
make the landlord absorb all the increased costs.
Landlords may become disincentivized to rent homes.
o Shortage of housing.

Gentrification
The restoration or upgrading of deteriorated/aging
urban neighborhoods by affluent people resulting in
increased property values and displacement of lower
income residents.
It is a result of the warranty of habitability.
Benefits:
Larger tax base
Less Crime
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Implications:
Displacement of lower income people.

Rent Control:
Establishes regulation of the use of private property

for the public interest as long as it does not go too far.

Authority is granted through state police power.
An indefinite term goes too far
Price control usually passes constitutional muster
Case law:
o Block v. Hirsch

Standards of Review for the constitutionally of

a statute
Rational Basis
o Is the statute rationally related to a legitimate
government purpose?
Strict Scrutiny
o When there is a suspect class.
Gender, race, sexual orientation.
o When there is a violation of a fundamental right
Ex: 1st amendment rights are violated.
o More likely to be struck down.
o Ex: Lindsey v. Normet
F: Oregon statute required 2 months rent. P
argued strict scrutiny applied.
H/R: Housing is not a fundamental right.
Narrows block v. Hirsch

Buying and Selling a House:

Equitable conversion:
o After k is signed, buyer has equitable title

o After the deed is recorded, buyer has the legal

title.
o The buyer is at risk of loss if anything happens to
the home before closing.
o If seller dies before closing, buyer still gets home.
o If B dies before closing, sale still happens.
Remedies for BOK:
o If buyer backs out of the deal: Specific
performance.
o Seller? Specific performance
Warranties:
o Quick claim deed:
Where the Seller makes no promises. Usually
cheaper.
What you see is what you get.
o Warrant Generally:
Seller is responsible for any defects in the
title.
o Warrant Specifically:
No defects have arisen during the Sellers
ownership
Cannot attest to what happened to the home
before the Seller purchased the home.
Mortgages: The biggest welfare system in the United
States
o Parties:
Seller:
Sellers lender
Buyer
Buyers lender
o Interest is tax deductible.
Title Theory: States east of the Mississippi
o Bank holds the title

 Lien Theory: States west of the Mississippi

o Homeowner holds the title; bank puts a lien on
the title.
Buying and selling a House: Recording Statutes:
Race:
o First to record wins.
Notice:
o Subsequent purchaser wins if they didnt have
notice of the 1st purchaser even if subsequent
purchaser records after the 1st.
Race-Notice:
o Subsequent purchaser wins if they didnt have
notice and they record first.

Concurrent Estates:
Joint Tenancy
Requirements for a Joint Tenancy: PITT
1. Possession; All tenant have right to enjoy/possess the
whole property
2. Interest: All tenants have the same interest in the
property
3. Title: All tenants acquire title by the same deed or will
4. Time: All tenants rights vest at the same time.
How to Destroy Joint Tenancy?
Severance:
o When one of the 4 unities is broken
What if one joint tenant makes out a mortgage on the
property?
Title Theory : Severance
Lien Theory: No severance

JTWROS:
If a joint tenant dies, his share of the property goes to
the other joint tenants instead of his heirs.
Tenancy in Common:
Separate interests
Requires only unity of possession
o Each tenant is entitled to possess everything.
No rights of survivorship
o Portion of decedents interest goes to the heirs.
Courts presume there is a tenancy in Common unless
otherwise specified.
Tenancy by the Entirety:
Between married people
A special type of Joint Tenancy that is harder to sever.
Requirements:
o Possession
o Interest
o Title
o Time
Right of survivorship
Only way to sever is by divorce/death

Equitable servitude:
A restriction on the use to which an owner may use or
put the land.
The basis for enforcing an equitable servitude, is that
one who takes land with notice of a restriction on that

land cannot in equity be allowed to violate that

restriction.
Running with the land:
o Restrictions can be enforced as a covenant
running with the land on if As lnd was burdened
by the same restriction was placed on the
remaining properties. This allows As to enforce
the restriction against other property owners in
the area.
Easements (questions 24-26):

By grant, prescriptive (adverse possession).

The right to enter and maintain the easement (grant) .
If there is no abandonment
Easement by grant can be terminated by a subsequent
owner of the servient estate (estate that the easement
is performed on), if the owner acts in a way that
amounts to adverse possession.

Estates Review
Present Estates:
Fee Simple absolute: O A + her heirs

Must use and his heirs or it is a life estate.

Life estate
Freely alienable inter vivos (b/w the living)
Can be sold or given away
Indefinitely inheritable
Devisable:
o Can be transferred at death by will.
Limitations:
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o Least restrictive estate

o Cannot create a nuisance or violate zoning rules.
Fee Tail: O A + the heirs of his body.
Not freely alienable (sold or given away) or divisible.
May only alienate the right to possession (let someone
use for the life of the grantee).
Completely dead in the U.S.
Limitations:
o Only inheritable by lineal descendants (heir of the
body).
Life Estate: OA for Life

Freely alienable, but expiration still occurs on As death.

Not inheritable
Not devisable (through will)
Possession without condition
Life estate pur autre vie = inheritable and divisible.
Rights and duties of a life tenant:
o Cannot radically alter the land and create waste.
o May use enjoy and occupy the land and collect rents
or profits.
o Terminates on the death of the person.

Fee Simple Determinable: O A + her heirs so long as

used for X purpose
Conditional
Possibility of reverter
o Automatic reversion
Indefinitely inheritable.
Freely alienable:
o Can be sold or given away.
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 Devisable:
o Given away by will.
Terms that make it determinable:
o So long as....
o Until...
o During...
o While...
o Then Reverts to...
Fee Simple on Condition Subsequent: O A and her
heirs, but if not used for X purpose, then O shall have right
of entry.

Possession is conditional.
Indefinitely inheritable.
Freely Alienable.
Devisable
Reversion:
o Grantor has to re-enter and claim the property.
Conditions:
o Must be stipulated at the time the grant is
created.
o Must operate on the entire estate.
o Cannot make unlawful stipulations.
o If conveyance doesnt have re-entry clause then
Ct. will likely treat it not as a condition
subsequent, but as a covenant on the part of the
grantee to obey/ if not grantor may only get
damages.
Terms:
o But if... then
o Provided that...
o On condition.

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Fee simple subject to executor limitation: O A and his

heirs, but if X happens to B and his heirs.
Alienable, inheritable, devisable.

Future Estates:
Possibility of Reverter: O A + his heirs, so long as land
is used for X purpose.
Inheritable
Devisable by will.
Possibility of reverter to O is not alienable.
Right of Entry: O A + his heirs on condition that X
happens. If condition is violated, O or his heirs may re-enter
the premises.
Inheritable.
Not alienable.
Reversion: O A for life.

Reversion is an interest left in the Grantor.

Follows a fee tail or life estate.
Indefinite.
Alienable.

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Vested Remainder: O A for life, then to B and his heirs.

(B has living heirs).

B is born and ascertainable.

Created in someone other than the Grantor
No condition precedent is attached to it
Subject to open:
o Number of heirs could change.
o Also Alienable, Inheritable, Devisable.

Contingent Remainder: O A for life, then to B and his

heirs
The remainder is created in favor of a person who at
the time of creation is either unborn or unascertained.
Subject to condition Precedent.
Alienable/devisable/inheritable.
If it fails to vest before the expiration then the grant is
destroyed.
Not alienable inter vivos (b/w living)
Is devisable and inheritable.
If condition that makes it contingent remainder
requires survivorship, the interest would not be
devisable/inheritable until the condition requirement of
survivorship is met.
Terms:
o Survivorship:
When someone dies, the other person takes
the interest.
A situation where the condition is that B
survives A. B has a contingent remainder

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because we do not know that B will survive

A.
Can be destroyed by Merger:
o Merger occurs when two larger interests come
together.
o Is both A and B sell interest to X X gets fee
simple absolute. Contingent remainder is
destroyed.
o Can be destroyed by forfeiture:
Ex: Commit a felony.

Executory Interest:
Occurs when there are 3 parties.
Shifting Executory interest
o Skips From one grantee to another grantee.
o From B C
Springing Executory Interest:
o O A only after he marries B.
Vested and Contingent Remainders:
Remainder:
o Is more than a mere expectancy
o A legally cogniable in land to preserve ownership
of land at a future time.
o Can be sold, devised, given away
o Major changes require permission from Grantor
o 3 Characteristics:
Arise simultaneously with present interest

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 Not possessory until the present interest

expires naturally
Ex: As Remainder doesnt vest until B
dies.
Possessory when present interest expires:
No gab between expiration and
conveyance.
o Vested Remainder:
Vests thwne the person is born and whose
identity is presently ascertainable.

Review of Theories:
Abrahams Bundle of Sticks:
1.
2.
3.
4.

To possess
To alienate
To use/Alter
Exclude

Acquiring/possession animals and minerals:

Mere pursuit is not enough
You have to have dominion and control over the
animal/mineral.
Constructive Possession:
o You can constructively posses something without
phycially possessing it.
o Whale case:
The whale was marked and identified as
their own.
Ejectment:
Allegations: Title

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 Wrongfully disposed/Ousted
Suffer Damages:
Adverse Possession
Open- was the assertion of the claim visible to everyone
Notorious-notice, rightful owner is aware
Exclusive- exercised dominion
Continuous- regular and uninterrupted
Adverse- against the rights of another
Right- acting like you have a right to the land
Statutory Period- 7, 11, or 21 years
Tacking:
Passing possession from one adverse possessor to
another.
Needs continuity and privity
Clock: statutory clock does not reset with the new
adverse possessor.
Case Law:
Lessee of Ewing v. Burnett : ONECARS
Ghen v. Rich (Whale case) : Constructive Possession
Pierson v. Post: Mere pursuit is not enough. Have to take
away freedom of the animal.
Easement vs License

Easements:
An interest in anothers property. That is adverse to the
right of the titleholder.
Run with the land
Types:

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o Appurtenant:
For the benefit of an estate.
o In Gross:
For the benefit of a particular person.
o Positive:
Allows you to do something on anothers
land.
o Negative:
Holder of the us
Must be ONCARS, no Exclusive
How are easements acquired?
Prescription:
o ONCARS, no Exclusivity
Grant by an owner: you have to pay
Statute:
Custom:
o School children, beach goers.
Eminent domain
Implication:
o built into the design of construction.
License:
o Owners permission, do not have to pay. The
owner has the right to rescind.
Necessity:
o Rarely used.
Acronym : PENGIL
How do you terminate an easement:
Release by the dominate esatate ( benefiting estate) to
the servient estate (burdened estate).
o Must be in writing to satisfy the SOF.
Expiration on its own terms:
o A time limit was given.
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 Unity of Title:
o When the dominate pays the servient?
Prescription:
o When the servient estate re-adverse possesses the

land.
Estoppel:
Buyout:
o Servient buys out the Dominate
Abandonment
ACRO: RAPE EBU

License, Covenants, Servitudes:

License:
Right to use the licensor;s land at his will
Does not have to satisfy SOF
Revocable.
Covenant:
Property Interest
Must be in writing to satisfy SOF
Remedy:
o Damages
In order for a covenant to run with the land:
o Touch, concern the land
o Privity ( Horizontal, and vertical)
Equitable servitude (restrictive covenant):
o SOF applies
o Negative promise or restriction
o Relief: Injunction.

Condominiums:
Each apartment is owned in fee simple
All of the residents own the common areas.
Mix of easement, license and covenants:
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o Easement: Common areas like the pool

o Covenants: maintenance fees.
o Licenses: parking
Condo Associations:
Quasi-Sovereign bodies
Must exercise discretion in a reasonable manner
Have the power to make rules and regulations

regarding use of condos

Right of first refusal for new oqnwea usually ok.
Cant make rules after the fact
Cant restrict who occupies the condo
o Age discrimination only protect the old
Dual family ownership does not violate single family

requirement
Cant be arbitrary and capriscous
Residential Self Government and Role of the State:
Subsequent buyers inherit covenants
Hidden Harbour:
o Each unit owner must give up a certain degree of
freedom of choice.
Rhue:
o Must exercise discretion in a reasonable manner.
o Good faith
Burger
o If a restrictive covenant is imposed upon certain
land for a neighboring landowners benefit, that
landowner may enforce the restriction.
Davis v. Huey:
o Mutuality of obligation

Zoning:
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 Authority is derived from state police power

Test:
o Whether the state action goes too far.
Yes : Taking, requires
Regulation v. Taking
Regulation
o For public use
o Police power
o No Compensation.
Taking:
o Just compensation
o Public use/public purpose
Case law:
Euclid:
o Rule: Need a substantial relation to a public
purpose
o Ex: Health, general welfare, safety
Wheeler v. Schad:
o Rule: The standard used depends on the right
being violated instead of the power being
exercised.
Moore v. City of East Cleveland: Poor family
o Taking because it went too far can intruded into
family relations.
Village of Beltaire: Frat Bros
o Rule: Not too far because
Schad v. Burogh of Mt. Effram: Nude Dancing
o Rule: You can regulate the time place and
manner of free speech
Penn Central:
o Rule: Regulation was ok because did not impede
the reasonable rate of return.

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State Action
Shelly v. Kramer:
Restrictive Discrimintion and state action.
Rule: Discriminatory restrictive covenants are ok if
they are private. State action to enforce the covenant
is not ok.
Argued under the 14th amendment
Charlotte Park:
The grant was speaking by itself and did not require
state action.
o The grant stated no AAs allowed at the parkgfds
Jones v. Alfred Mayer Co:
Decided by the 13th amendment
Even private discriminatory covenants are
unenforceable.

Private Property
The more an owner opens up his property for use by
the public in general, the more do his rights become
circumscribed by the constitutional rights of those
who use the property.
Marsh: J-Hove passes out papers in company owned town.
Rule: A privately owned town was acting as a
government/performs a public function, then the entity
cannot restrict constitutional rights.
Lloyd Corp v. Tanner: Shopping center case
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 Rule: Private property owner may restrict the

dissemination of info, on his property in a nondiscriminatory manner
Rule: The commercial center held itself open to the
public so long as the invitation is limited to commercial
purposes.
Pruneyard: Zionism students distributing pamphlets in a
shopping center
Rule: The pamphlet isnt impairing the value or use of
the property.
Rule: Here no public burden was undertaken, so there
was no taking by allowing the pamphlets.

Eminent Domain and Takings

Taking Requirements:
Public Purpose
Just compensation
Derived from police power.
Too Far Standard
A regulation that deprives the property owner of the
reasonable rate of return of his property is a taking.

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Penn Coal: Regulation goes too far

Rule: regulation n goes too far if it depreives the
owener of a reasonable rate of return.
Poletown: GM takes over polish town
Rule: If the public purpose overrides the private
benefit, then taking with compensation.
Hawaii Housing: Government seizes all private land and
redistributes it
Rule: Redistribution to other homeowners is valid
public purpose.
Burman v. Parker:
If most of the area is blighted, the government can
take the whole thing.
Kelo v. City of New London:
Rule: Economic development plan was valid public
purpose.
Dissent: All private property can now be taken and
given to another private owner.

New Property
14th amendment and property interest:
o Due Process means you need notice and the
opportunity to be heard.
o An interest in property is enough to invoke due
process
Fuentes v. Shevin:
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o Continued possession and use of a good gives a

person a property interest sufficient to trigger
due process protection.
Jackson:
o Rule: State regulation of private enterprises, now
matter how extensive.
Fleming v. Nestor: Commy wants S.S benefits
o Rule: Social Security benefits are not an accrued
property right.
o S.S benefits are used to stimulate the economy.
Cant do that from another country
o Nestor had not claimed benefits before he left.
Goldberg v Kelley: Welfare benefits
o Statutory entitlement benefits are a new form
of property interest
o Cost/Benefit analysis:
How much close to the truth with more
process
Burden on the govt to provide the process?
How much is at stake for that person?
Dandridge v. Williams: large families on welfare
o Rule: Welfare cap on larger families is ok
o Rational Basis standard applies:
Related to a legitimate government purpose.
Roth: Professor with 1 year contract
o Rule: Constitutional protection only applies to
already acquired property interests, not mere
expectations.
Perry:
o H/R: Customary interpretation of an employee k
can establish a property interest.

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o Protected by union- > cannot prohibit someone

from exercising free speech in relation to job.
Important Cases:
State v. Shack:
o Cannot use property rights to infringe on others
personal rights.
Johnson v. Mcintosh:
o Cannot sell whats not yours!
Indians do not own the land, they occupy it
o Conquering = property rights
Pierson v. Post:
o Mere pursuit does not constitute ownership, must
take away animals natural freedom
Ghen v. Rich:
o By marking the whale as his own through trade
custom, he constructively possessed it.
Hammonds v. Central Kentucky natural gas:
o Once gas flows naturally you cannot have
exclusive ownership.
Oil/Gas = wild.
Tapscott v. Lessee of Cobbs:
o The titleholder has superior rights over an
adverse possessor and AP has superior rights over
a 3rd party.
Lessee of Ewing v. Burnett:
o Adverse possession.
Diamond Housing v. Robinson, I and II
o H/R:
You cannot waive statutory notice to quit( 30
day notice)

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 Retaliatory evictions are bad.

There must be a legitimate business
justification.
Javins: Implied warranty of habitability
o Housing code violations are grounds for
withholding rent.
o No more separation of Covens!
o Implied warranty of habitability.
Block v. Hirsh: Washington D.C rent control
o Govt can enforce rent control as long as it
doesnt go too far.
Tulk v. Moxey: equitable servitudes
o Equitable servitude:
An equitable interest in property, that
restricts the use of the land (injunctive
relief).
You are bound by equitable servitude if you
have notice of the restriction.
Penn Central v. NYC: Historic landmark case
o Ordinance that restricts use of property is valid if:
o Taking is ok when it is related to a public good,
not arbitrary or capricious, and not restrictive of
all uses.
Mt. Laurel: Zoning, Rich neighborhoods in NJ
o Regular Zoning: tells you what you cant do.
o Positive zoning: tells you what you must do
o Rule: Developments must include cheaper units.
Shelley v. Kremer: AA family tries to buy house
o States cannot enforce discriminatory restrictive
covenants.

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 Jones v. Alfred H. Mayer: Real estate company

wouldnt sell house based on race.
o Broadens Shelley.
o No racial discrimination in the sale or rental of
property.
Penn Coal v. Mahon: Coal Company had rights to
minerals beneath land.
o Taking goes Too Far.
o If regulation oes too far = taking
Goldberg v. Kelly: Welfare benefits case ( Due
Process)
o Welfare is a property interest if you have received
the benefit.
o Because there is a property interest due process
applies.
Board of Regents v. Roth: Anti- Vietnam War
professor (Due Process)
o 14th amendment only applies to existing property
interest, not future interests.
Trade Custom:
Everyone has to know and agree
Has to have been around for a long time
Has to be applicable to that industry.
o Ex: whale industry

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