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Author:  	Mr. Steven Byle (s.byle@mail.utexas.edu)
School:		University of Texas School of Law
Course:		Property
Year:		Spring 1996
Professor:	Ernest E. Smith
Book:		Cases and Materials on Property, 6th Edition, Cribbet, Johnson, Findley, Smith

Property Law Outline
Section 2, Fall 1995
Cribbet, Johnson, Findley, Smith

1.	Function and Attributes of Property
A.	General Properties:
1.	Cash Value:  has some surrender value, loan value, mortgage value or the like.
2.  Separability from Person:  must be some matter apart and distinct from the person, and not some mere property or ability that they have.
3.	Value After Death of Owner:  must still have some value after the death of the owner.   Must not be extinguished thereby.
4.  Transferability, Alienability:  must be transferable between people.
5.  Product of Own Efforts:  came to you through characteristics unique to you or through own efforts.
Cases in Point:
A.	Military Retirement not property, as has not A-D.
B.	Earning Capacity not property, as has not A-D.
C.	Accrued good will of Medical Practice not property, as has not A-D.
D.	College Degree is not property, as has not A-E.
B.	General Incidents of Ownership:  rights, liberties, and powers
1.	Possession:  right to have, hold and keep the property.
2.	Exclusion:  right to keep others from any of the other rights here laid down.
3.	Disposition:  legal power to alienate, or dispose of the property in any way desired.
4.	Use:  liberty to employ the property as desired, for whatever purpose.
5.	Benefit:  liberty to take (or own) the profits realized from the use of the property.
6.	Destruction:  liberty to destroy the property.
C.	Bentham:
1.	Metaphysical Nature:  there is no natural property right; it is only by agreement between people to discard the natural “might makes right” to possession principle in favor of the securing and labor theory to give a right to possession.
2.	Expectancy:  securing something and/or investing labor into it gives rise to an expectation to use it.  The law should and does honor this expectation in property rights.
D.	Posner:
1.	Transferability:  property must be transferable so that it find the hands most capable of maximizing its use, as person who can use it best will pay the most, giving incentive to those who cannot to sell.  (Gives rise to Adverse Possession, Destruction of Contingent Remainders Rule, Rule against Perpetuities, etc..)
2.	Exclusivity:  the more exclusive the right, the more incentive it gives to invest labor as reward of labor are more likely to be realized.   (Gives rise to rules regarding vestment where open classes exist, and all rules seeking to ascertain owners).  However, where the costs of transferring property are high, the attempt to achieve exclusivity may actually reduce efficiency.
3.	Universality:  All limited resources should be owned.  It is inefficient to have some public some private, as the public part degrades the value of the private, and muddles the method of utilization.  If I have property rights to a diamond mine, but the government has twenty others freely open to the public for mining, there will be very inefficient utilization of the diamond resources.
E.	Comparison:
1.	Anomalies under Bentham:  Under the Posner theory, property is something that has value, not just what is legally defined as property as under Bentham, but from what people hold as having value.  There are several cases of items treated as property without law, such as illegal drugs, territories for marketing such, boyfriends and girlfriends.  Here no property right exists but people treat it as such either by enforcement of societal values or by fear of retaliation.
2.	Anomalies under Posner:  Transferability frequently measures more how much a person wants something, we being non-rational operators, than how efficiently we will do so.  Transferability of some items actually induces inefficiencies, such as those which are merit based.  If you could transfer law school admissions, you would be measuring who wanted it the most, or who could pay the most for it, and not who could best utilize it.
2.	What is Property & Why:
A.	Body Parts:
1.	Kidney’s in India:  
A.	Position in Favor:  there are not enough cadavers to get the kidneys from.  It is going to happen anyway, as there is too much money in it for a poor person to resist, and thus it would be better to legalize it, tighten regulations, and make the process safer to save lives.
B.	Position Against:  The practice exploits large numbers of poor for the benefit of relatively few rich Europeans.  Agent gets most of the money, while he risks nothing, and the donor gets little, while he risks his life.  We would not permit a person to donate his heart for money, as we do not permit people to barter life for money, and yet this is a risky procedure and a necessary organ that we are letting people barter away.
2.	Moore v. Regents of the University of California:
A.	Position Against (Majority View):  Moore had no continuing property interest in the excised cells or liver once withdrawn from his body.  The cell line created is physically distinct from those cells taken from him (though this would not exclude those initially taken).  It would be a detriment to science to give a property right to tissues extracted during other procedures.  The cell line itself is under rules which require that it be made publicly available for others research, thus they have a degraded definition as property.  Plaintiff would be unjustly enriched for the work of the doctors if allowed to claim profits from his excised cells.  Conversion is a strict liability crime and it would cast too wide a net in a case like this.
	This does not fall under the normal category of property interests, while it is transferable as a chattel once excised, it is non-returnable in it original form as held by Moore.  You could not put the cells back, thus they only became property once removed.
	Mixes the sacred (that which should have no price: body parts) and the profane (that which we barter like chattels).
B.	Position in Favor (Minority View):  Without defined property rights for body parts there exists greater ability for others to exploit them for purely economic gain.  Patient gives up something which enriches another without receiving anything in return,... like slavery.
B.	The Tragedy of the Commons:
1.	Conscience is Self-Eliminating:  Those who use the commons by the rules of equity will be unequally, adversely affected by the abuse of others.  The greatest abuse getting the greatest reward over the detriment.  The fair player gets run out of business.
2.	Mutual Coercion is Freeing:  The mutual decision to coerce each other not to murder and steal frees us from the fear of being murdered and robbed, thus free to pursue things other than self and property protection, and all for the mere cost of refraining from theft and murder ourselves.
3.	How Property Functions:
A.	Exceptions to Exclusivity:
	When Owners Rights Conflict with Civil Liberties: (State v. Shack)
	When you let others onto your property, you degrade some of your rights to bar access to other third parties.  This is especially true when the owner is in a far more powerful position than those that he allows onto his property, and primarily where those permitted onto the property are either living there or are in some way excluded.  Short term guests haven’t such rights.
A.	Property owner does not have dominion over those whom he permits to stay, secluded from the world on his property.  He may not deny tenants the right of free association.  He may not deny them access to government services.
B.	Where a statute gives authority for one to enter onto property to serve those living there, the owner may not deny access.  This privilege applies only to those defined by the statute to have such authority, and not to those who take it upon themselves (such as right to lifer trying to enforce information about abortion alternative laws at planned parenthood clinics).
C.	When a place is open to the public, owner must allow equal access to all without discriminating by race, gender, etc.  (Applies to shopping malls, stores, etc.)
D.	When workers want to have union meetings on the premises of employment they must allow organizers access.
B.	Importance of Possession:
1.	When a Lost Item is Found:
	Possession of a chattel is the normal measure of ownership.  Where possession is lost and another finds it, this person is then given qualified ownership, the right of property above all others but the true owner.  The tension here is between the rights of a finder and the rights of a landowner to control what is on his property.
A.	Marking an Item is Not Enough to Constitute Possession:  Finding is not enough, nor is the physical marking for future taking.  One must exercise dominion or control to constitute possessing something.  Emphasis on utilization and efficiency theory, to give to those who will use it.  (Eads v. Brazelton, salvage of lead from ship)
B.	Finder has Highest Claim:  a finder of a lost chattel has the highest claim above all but the original owner.  Prior possession gives descending chain of ownership.  Emphasis on exclusivity, to stop and endless chain of confiscations, and allow utilization.  (Armory v. Delamirie, boy who finds jewel and has the appraiser not give it back)
C.	Finder Wins over Shop Owner:  Qualified ownership in finder is true for “lost” items found by one on the property of a third, where there is some public character to the property (public section of a store) and where there is no implied fiduciary duty incumbent upon the owner (person who lost it won’t hold owner liable).  (Bridges v. Hawkensworth, found a package by the door of the shop)
D.	Possessor of Private Property is Possessor of All Items Thereon:  Where the property is exclusively private, any guests or employees who come upon the property have not right to items found there.  (South Straffordshire Water Co. V. Sharman, pool cleaners who find a ring)  Unless, owner of property does not exercise dominion over the property, and/or leases it to strangers.  Then, the one who finds it upon the property has the qualified ownership.  (Hannah v. Peel, where soldier finds some jewelry in house never occupied by owner)
E.	Fiduciary Duty:  Where the circumstances are such that the owner of the public area where something is found would be held to some fiduciary duty, qualified ownership goes to him and not the finder.  (McAvoy v. Medina, person mislaid billfold on counter of barber shop and would probably have realized this - diff’d from Bridges in that this was not lost but mislaid)
2.	Where What You Lost, Another Bought:   (O’Keefe v. Snyder)
	When you lose something, or it is stolen, and the finder or the thief then sell it to an innocent party, there arises the conflict between the good faith buyer and the original owner, both innocent parties.  The bad guys has usually gotten away with the money he made, and one or the other of these parties is going to lose what he gained.
	The efficiency argument would let the purchaser have it outright with a clear title to encourage commerce.  The natural property argument, that its MINE, would say that the original owner should never be deprived of ownership unless voluntarily alienated.
A.	Adverse Possession for Land: Originally coming from land law the rules where:
1.	Had to have possession of the land
2.	Had to possess it openly and publicly
3.	Had to possess adversely to the owner, where the owner had some legal remedy for removing you from possession which she did not do.
4.	Had to possess through the duration of the statutory period
B.	Adverse Possession for Chattels:  Have the problem of open and public character of possession of discrete and moveable items, and how to deal with it.  Not adverse, really, unless the true owner could through reasonable effort recover it.  The method of handling this has been to impose a statute of limitations, differing from state to state, within which the owner must bring detinue to recover it.
C.	Statutes of Limitation:  But when should they start to run.
1.	Immediately:  As soon as possession is lost and gained by another.  This is greatly favors the economic efficiency argument and the good faith buyer, to the extent that it aids thievery and conversion.
2.	Immediately Unless Owner Makes Reasonable Effort to Recover:  Unless and owner makes reasonable efforts to recover the chattel, the possession of another is not adverse, thus the statute does not start ticking.  This is the theory set forth in O’Keefe v. Snyder, sides more toward efficiency argument.
3.	When Possession Becomes Open and Obvious:  If purchaser can prove that the original owner could have found it with diligence, or that it was held openly to the public such that the owner should have know.  This sides more toward the MINE argument, due to the difficulty in showing this.
4.	Upon Discovery:  As soon as the owner discovers the chattel and demands it back.  This greatly favors the MINE theory and the original owner to the extent that title may never be clear.
3.	Possession Alone is Not Sufficient:  (Johnson v. Macintosh)
A.	Grant by Sovereign:  in absence of an original grant by a sovereign, long term possession is not sufficient.  Origin must come from a recognized and sovereign functioning under similar property theories to have validity.  When the goals of the property law held by that community clash with that of the sovereign, that community loses.  Why the Indians got no property right from possession, but Mexicans did.  The Mexicans grant was originally from Spain, and they held similar land values.
B.	Theory of Use and Development:  The principles held high in our land law is use and efficiency; when held by “savages” who do not develop the land or utilize it to our law’s paradigms, the possession of the land is not adverse but separate.  This comes from Loecke’s theory of investment of labor giving property rights, and thus “savages” do not earn this right.
4.	Interests in Land:
A.	History:  In prefeudal days land was owned absolutely by groups of persons living in communities, but with the fall of the Roman Empire, people began to to gather into feudal groups to seek protection from the chaos of the time.  There peasant revolts, marauding neighbors, extortion of the various governments, all which led to the feudal system.
B.	Subinfeudation:  Apart from cattle land was the only form of wealth.  When William took England he declared himself the sole owner of all land, and let others hold of him in return for incidence paid.  The incidence became a part of the land, unalterable by those who submesned under it.  On the continent this system only applied for military service, but in England it applied for military, pecuniar, and agricultural incidence.
	The primary lord of the land under the king was the seignorie, holding it in service to the king, in mesne.  Under him were the submesne tenants.  There could be a chain of submesne tenant each under another, where each transfer of land was not a transfer in fee, but a submesne transfer, dividing up the land into very small subdivision.  The king abolished this practice in 1290 with the statute Quia Emptores, after which all transfers were in fee simple.  The power to create new tenancies was gone.
C.	Fuedalism:  Under this systme was a system of tenure, bifurcated into free tenure and non-free tenure (or copyhold).  Free tenure had two branches also, in spiritual and lay.  Under lay were three types:  knight service, sergeantry, and socage.
1.	Free Tenure:
A.	Spiritual Tenure:  Under this type of tenure,also called Frankalmoin, land was granted to the chruch in return for masses and prayers for the soles of the grantor and his heirs.
B.	Lay Tenure:  
1.	Knight Service:  Under this type of tenure, land was granted in return for military service at the disposal of the grantor.  This was an inefficient way of raising an army and this purpose fell out of use, but this tenure did not for the beneficial incidents to the grantor.
A.	Relief:  upon death of tenant, his heir could not enter the land until had done homage to the lord of the land and paid relief.
B.	Aids:  the tenant was required to contribute money for ransom in the event of the lords imprisonment, for meking the lord’s eldest son a knight, and for the lord’s eldest daughter’s dowry upon her marriage.
C.	Escheat:  in the event that the tenant committed any felony, the lord had the land returned to him.  Reconfirmed by the Magna Carta  in 1215.
D.	Wardship:  during the minority of a tenant, male under 21 or female under 14, the lord was entitle to do with the land as he wished without an accounting.
E.	Marriage:  while minor tenant was in wardship, the lord had the right to select a match, which if rejected forced the tenant to pay the value of the marriage, or if the minor married another without the lord’s consent, twice the value.
2.	Sergeantry: Under this type of tenure, the tenanat performed service of a personal nature:  keep accounts, carry letters, manage estates, provide armor, food, etc.  This was a prestigeous tenure, but fell into disuse by 1300’s.
3.	Socage:  In 1660 the statute for the abolition of military tenures destroyed all but this lay tenure.  The service was of a fixed and definite type that was unchanging.  Under this type of tenure, one performed any non-military service or pay a money rent to the lord, and while it was originally held only by peasants it became used by all classes because it was free from all of the incidents of knight service. In 1267, the statute of Marlborough, fixed the wardship of minor socage tenants to the most near relative, and there was no right of marriage.
2.	Copyhold:  The tenant under this tenure, called a villein, held the land under the lord but the lord’s powers were dictated by the customs of the manor and these customs were enforced by the crown.  In the 1300’s, the villein was bound to provid agricultural services for the lord’s desmesne, by personal service.  This fell away by the 1400’s and the villein was allowed to hire labor to provide the incidents, and was freed from personal servility.  He could exchange his tenure freely as well.
	As of 1925, the majority of tenures in England were socage, with a substantial part in copyhold, leaving only a few held in sergeantry and frankalmoin. The Law of Property Acts were passed in 1922, and destroyed all English rules of descent, escheat, and converted all the tenures into that of socage.  The effect was that overlords still existed, but had no rights over the land they had, and the tenants fee simple was effectively complete.
D.	Estates:  Following the Law of Property Acts there were still several types of estates recognized as interests that could be held in land.  They are:
1.	Freehold Estates:  Hold seisen
A.	Fee Simple
B.	Fee Tail
C.	Life Estate
2.	Non-Freehold Estates:  No Seisen
A.	Term for Years
B.	Periodic Tenancy
C.	Tenancy at Will
3.	Non-Possessor Interests:
A.	Easements
5.	Freehold Estate:
A.	Current Interests:
1.	Fee Simple:
A.	Absolute:  theoretically infinite grant of land or property, held without any restriction on its use
B.	Subject to Special Limitation (Determinable):  a fee simple that could be lost, subject automatic reversion upon violation of some condition.  Created using words of limitation, such as “so long as,” “until,” “during,” or “upon the happening that.”
C.	Subject to Condition Subsequent:  A fee simple that could be lost, subject to reversion upon violation of some condition if reverter takes affirmative action to get reversion.  Created using words of purchase, such as “upon condition that,” “provided that,” or “but if.”
D.	Subject to Executable Limitation:  A third party gets the property in the event of a violation.  Executory intersts vest only when have right to possession, thus they are also subject to possible violation of the rule against perpetuities.
2.	Life Estate:
	Is a grant for the use and occupancy for life of land and/or property which is alienable. May contain any of the limitations that a fee simple could contain, and is also subject for damages or forfeiture for waste of any character, whether it increases or decreases the value of the ppty.
3.	Fee Tail:
	Is a grant for the use and occupancy for life, created using the clause, “to X and the heirs of his body,” with the property then passing on by the rules of primogeniture at death (a never ending series of life estates kept within the family, to the eldest son, but slowly being subdivided in the event of no sons being born, it then went two the daughter jointly).  No longer honored in US.  In the US one of several possibilities could occur:
1.	Fee Simple Conditional:  fee tail that converts to a fee simple upon the birth of a child.
2.	Life Estate:  life estate in the grantee then by primogeniture in fee simple
3.	Fee simple absolute:  fee simple in the first grantee
4.	Fee Tail:  fee tail held for one generation and then converts into a fee simple, or one subject to disentailment by ordinary deed.
B.	Future Interests in Grantor:  
Anything held back by a grantor of property.  In many state possibility of reverter is alienable inter vivos, whereas right of entry is not, though some allow both.  All types are inheritable everywhere, and in almost all devisable.  In some states attempts to alienate one of these interests which cannot be alienated has the effect of destroying it.
1.	Possibility of Reverter:  What is left over after granting a fee simple determinable.
2.	Right of Entry (Power of Termination):  What is left over after granting a fee simple subject to condition subsequent.
3.	Reversion:  Whatever else that is left when granting anything short of a fee simple absolute.
C.	Future Interest in Grantee:  
A future interest in someone other than the grantor following the natural end of previous estate.
1.	Vested Remainder:
A.	Indefeasibly Vested Remainder:  Currently vested as all future recipients are ascertained, without clauses of purchase or limitation.
B.	Vested Remainder Subject to Open:  Currently vested in at least one ascertained person of a class of future recipients that could grow in number.  Or viewed another way, at lease one person has a vested interest, subject to this interest being reduced.
C.	Vested Remainder Subject to Divestment  Currently vested but with some restriction, a condition subsequent, that could cause forfeiture.
2.	Contingent:  a remainder given to any unascertained person, to be ascertained at a later time, or to an ascertained person upon a condition precedent to their vesture.
D.	Executory Interest:  
A future interest in someone other than the grantor following divesture of another estated granted.
6.	Granting, Divestment, and Restrictions:
A.	Granting:
1.	How To:
A.	Granting Clause:  identify grantor, grantee, consideration, and property to be granted
B.	Description:  identify the property to be granted and describe the transaction
C.	Habendum Clause:  state type of interest to be conveyed by the grant
D.	Warranty Clause:  promise to defend the title being granted, and to be partly liable in the event of poor conveyance, or argument of grantors heirs.
E.	Formalities:  state the date, get the witnesses and parties to sign, and add notarization
2.	Importance:
A.	Four Corners Rule:  The wording is all important, as a court will only look within the four corners of the will or deed, and not outside, to discover the intention of the grantor.
A.	Clouded Title:  Improper wording can cloud title and make it unmarketable (Cole v. Steinlaugh, omitting “to heirs” from habendum clause), and leaving possible reversion to grantor.
B.	Clarity:  Fee granted using “to heirs” only with a clause to be divided (determinable) upon marriage, is unclear as to what it actually granted as did not mention anything about after death of grantee.  (Lewis v. Searles, court ruled that a fee simple determinable was granted)
B.	Divestment:  All divestures must be in favor of another person, cannot have a divestment without a recipient.
1.	Life Estates:  A life tenant owes duties to the remainderman not to waste the property.  Whether waste decreases (Moore v. Phillips, where mother let the place rot and kids brought suit after her death, liable for damages from her estate) or ameliorates (Pabst Brewing, built a brewery and tore down and old house, still liable for damages) the value of the property is not of concern.  
2.	Fee Simple Defeasible:  if in the deed conveying land the overall intent is such that a limitation is put on the fee, often using such words as “so long as,” divestment occurs upon the mere proof of breach of the condition.  In the absence of words of limitation expressly stating or necessarily implying reversion upon the occurrence of some even, what is created is a fee simple.  (Roberts v. Rhodes, deeds state “it being understood grant is only for school purposes” did express a limitation of the fee simple.  This was the mere expression of the purpose of the use of the land.  Also words like, for X purpose is not a limitation no matter how explicit.  Also not even enough for condition subsequent.)
3.	Fee Simple Subject to Condition Subsequent:  if in the deed conveying land the overall intent is such that the intent was one that   (Oldfield v. Stoeco Homes, Inc., while deed used words “automatically revert” it further stated that grantor reserved the right to modify the restrictions and conditions under which the property was taken, thus making the conditions subsequent and not precedent.)
C.	Restrictions:
1.	Alienation of Remainders and Reversions:
A.	Reversions:  All reversions are vested and thus alienable, defeasible, conveyable, etc.
A.	Vested Remainders:  General rule is that all vested remainders may be alienate, even where subject to open or condition subsequent or divestment.  (Kost v. Foster, foreclosure upon vested remainder subject to open and divestment if not survive life tenant is upheld)
B.	Contingent Remainders:  Are in many jurisdiction alienable.  Some do no not allow this for reasons of fairness to remainderman, as any creditor trying to attach, or any purchaser of, the property would greatly undervalue the price.
2.	Doctrine of Destructibility of Contingent Remainders:
	A contingent remainder that fails to vest prior to the termination of the preceding estate is destroyed under this rule.  
A.	Destruction for Failure to Vest:  An example would be “to B for life, then to C’s heirs,” B predeceases C.  A living person cannot have heirs, thus their contingent remainder is destroyed.  This is just a reality and not really part of the doctrine, some states would allow it to be held in trust, but most do not.
B.	Destruction by Merger:  An example would be “to B for life, then to her surviving children.”  The grantor then conveys his reversion to B, and destroys the contingent remainder in her children by merger.  (Abo Petroleum Corp. V. Amstuz, where parents gave only a life estate first with unascertained contingent remainderman, then conveyed their reversion.  Court held that this did not destroy the contingent remainder by squeezing it out.)  This doctrine is obsolete in almost all states in the US.
3.	Rule in Shelley’s Case:  
	Abolished for all grants after 1964.  Where the remainder is vested in the heirs of the life tenant, a fee simple is granted.  This occurs unless there is special language such as “to heir equally” or “to heirs under law” or “to heirs by rules of succession” to specifically state that the you desired that the life tenant not be able to devise the land to own wishes.  (Sybert v. Sybert, where man’s brothers bring suit and lose against the widow of a life tenant granted with the remainder “to the heirs of his body””, he got a fee simple absolute)
	Originally used as a means of skipping over property taxes every other generation, now not useful.
4.	Doctrine of Worthier Title:
	This is a left over rule of construction, rather than an absolute rule of law, that if an (1) inter vivos conveyance  or will leaves (2) a remainder by limitation over to his heirs, that it is not a remainder but a reversion.  This is a presumption in favor of remainder to be rebutted by the use of special language again, that “heirs” do not mean the term of art, but certain specified people.  If it is a remainder, they are ascertained at the time of termination of the previous estate.  If it is a reversion, they are ascertained at the time the grantor dies.
	The problems with this doctrine are:
A.	False Assumption:  Based upon a false assumption that a grantor is not granting full title, but intending to keep a reversion which he can dispose of again.  You can then end up with accidental subsequent conveyances, if grantor died and willed everything to someone else, thinking that this land was gone, it now reverts and goes unintentionally to this other party.
B.	Breeds Litigation:  the presumption leaves the meaning of a conveyance in question, leaving it possible to defeat it by showing that the grantor meant what he said, but requiring litigation to do so.
C.	Tax Trap:  Can end up having to pay inheritance taxes for one thought was an inter vivos transfer, or could make the taxes payable twice for a will.
	This is a left over from common law, preferring that title pass through “worthier” channels of descent, rather than that of purchase.  It still exists in most state, but only as a rule of construction.