• Tapscott v. Lessee
• A prior peaceable possessor who was ousted by a subsequent possessor can recover possession even though the former cannot demonstrate he or she has a legal right to possession 

• Popov v. Hayashi (Bonds baseball case)
• When an outsider interferes with a person's ability to establish first possession, but defendant was not at fault, the parties have equal claim to first possession 

• majority rule for underground oil and gas
• minority rule for underground water
  •  "doctrine of free use" or "doctrine of absolute ownership"
• the owner of a tract of land acquires title to all of the underground oil and gas that is captured by wells on his land, even if those resources migrated from adjoining lands

• Law of capture only applies to reasonable and legitimate drainage of underground resources, not to the waste of these underground resources due to negligent conduct
• Must exercise ordinary care to avoid injury or damage to property of others
• if you waste underground resources through negligence liable for damages to reasonably compensate the injured party as the proximate result of negligent conduct 

• Majority rule for ground water
• Owners of land overlaying an aquifer may withdraw water only if they out the water to a reasonable use on their overlaying tracts
• water withdrawals that unreasonably harm other surface landowners or exceed reasonable share is actionable 
• courts balance the interest of parties in case and society as a whole when determining what is reasonable

• minority rule for ground water 
• for ground water allows each surface landowner to withdraw and equitable share of ground water

• ground water minority rule
• allocates rights according to who drew on water first, and how much they drew historically. (first in time is first in right)

• majority rule for surface water
• allocate water to owners of land bordering a surface source
• follow reasonable use doctrine

• minority rule for surface water
• Allocates water rights based on who first put the water to beneficial use, and how much water they used beneficially.
• first in time first in right
• beneficial uses: irrigation, industrial, drinking water 

• A process by which a person who lacks legal title to property can acquire legal title without having had the property transferred 
• the adverse claimant or the true owner can be the plaintiff in adverse possession lawsuit 

• an adverse claimant may bring a claim as plaintiff to quiet title in the property. True owner is named defendant 

• Must prove each element by clear and convincing evidence

1. actual possession
2. that is visible
3. open and notorious
4. that is exclusive
5. that is continuous
6. for the minimum statutory period in the relevant jurisdiction 

• adverse claimant treat land as an average owner would
• a question of fact thus highly contextual
• gold standard of proof is a fence 
• must prove he or she engaged un significant activities on the land 

• possessory act is sufficiently visible and obvious to put a reasonable owner on notice that her property is being occupied by a non-owner
• enclosing property using a fence is sufficiently visible
• Ex. building structure, parking, storage, gardening, clearing land. 

• possession was not shared with true owner
• the owner was generally excluded from property
• can acquire joint ownership rights as co-owners via adverse possession

• Possession was never abandoned during the statutory period
• not abandon property as the owner would during the statutory period 

Without Permission

(Adverse or hostile)

• The true owner has not given permission for use
• if the true owner expressly gives permission, the adverse claimant cannot satisfy this element
• Adverse claimant can satisfy element if true owner orally denies permission (via no trespassing or stay out sign) 

• the minimum statutory period element of adverse possession
• law permits periods of possession by series of non-owners to be "tacked together" to satisfy the statutory period
• must prove each prior possessor peacefully conveyed the property to subsequent possessor and all possessors in the chain of possession satisfied the elements required for adverse possession 

• when a written instrument purports to pass title to the claimant but is ineffective because of a defect in the means of conveyance or because the grantor did not actually own the land he purported to convey
• A flawed deed is not void for color of title purposes for lack of proper description if a surveyor can ascertain the parcel's boundaries using:
  • the language of the deed
  • extrinsic evidence on the ground
  • the acts of the parties 

1. Doctrine prevents long-time possessors from being wrenched from their land while simultaneously,
2. encouraging true owners to make use of the land (or risk losing it

• adverse possessor showing they deeply value land 
• true owner should show they value land

• Property ownership without a future interest
• when a person owns a fee simple owns absolute everything there is to own
• "to A"
• " to A and his heirs"

• a fee that (per language of the deed) would terminate at the happening of a specified event other than the death of the owner
• property reverts to the original giver or their estate or moves to the a third party depending on the language in the instrument 

1. fee simple determinable
2. fee simple subject to condition subsequent
3. fee simple subject to executory limitation 

1.  possibility of reverter
2. right of entry
3. executory interest
4. contingent remainder
5. vested remainder
6. reversion 

• created when, if and when a stated event happens, the property will reverter back automatically to the grantor
• Always followed by possibility of reverter 
• Key language
  • "so long as"
  • "while"
  • "during"
  • "unless" 

• created when if a stated event happens, the grantor would have the option of taking the property back
• Always followed by future interest
  • "right of entry"
  • "power of termination"
• Key language
  • "on condition that"
  • "but if"
  • "provided that"

• created if stated even happens a third party would receive the property.
• Always followed by future interest called "executory interest"
• No key language

• grant of a possessory interest until the grantee's death
• Always followed by reversion in O or remained in B
• If upon the expiration of A's interest the property would go back to "O," "A" has a life estate and "O" has a future interest called a "reversion"
• If upon the expiration of A's interest the property would go to a third person, "B," then "A" has a life estate and "B" has a future interest called a remainder 

• life estate for the life of another
• ex. to A for the life of B or
• A sells his own life estate to B

• grant of possessory interest until the expiration of a term fixed by the calendar (for example to "A" for 10 years)
• Always followed by reversion in O or remained in B

• instrument creates a contingent remainder if
  • the triggering event would cause "B" to get the property may never happen
  • "B's" identity cannot be ascertained at the time of the conveyance

• Remainder is not contingent 

• a person who dies with a will has beneficiaries
• his or her beneficiaries are determined by the language in the will

1. Issue- Direct descendants
2. Ancestors- parents and grandparents
3. Collarerals- siblings, cousins, aunts, uncles
4. The state (escheat) 

1. Court seeks to implement the intent of the grantor
2. Courts seek to maximize the free use and alienability of property via presumption AGAINST finding a future interest (that is, a presumption that what was granted was a fee simple absolute

Sometimes these two policies are intension

• disfavored in the law
• Instrument will be interpreted as having created a fee simple absolute rather than a defeasible fee if the language of the instrument is not crystal clear

• void and will not be enforced by a court
• Ex. "To A, but if A ever sells the property, then to B"
  • not an enforceable future interest 

• However, a condition in an instrument that prohibits alienation of a life estate is valid and will be enforced by court
• Ex. "To A for life, but if A ever sells the property then to B"
  • creates an enforceable future interest

• A life tenant or term of years holder has a duty not to injure the property
  • keep property in sufficient repair to prevent decay and not to take any action that is destructive or fundamentally alters the condition of the property 

• failure to exercise the ordinary care of a prudent person for the preservation and protection of the estate
• ordinary depreciation of property due to age and normal use does not constitute permissive waste 

• changing the property in a way that increases its value but fundamentally changes the character and condition of the property 
• a defendant may answer a claim for ameliorating waste by arguing complete and permanent change of surrounding conditions has deprived the property of its value and usefulness as previously used 

• No restrictions on race since 14th amendment
• restrictions marriage typically upheld as long as they are motivated by a desire to furnish support to the devisee while unmarried, rather than by a desire to punish the devisee for marrying

• Property law prefers fee interest over a life estate  or term of years
• if an instrument can be fairly interpreted as having created either a fee interest or life estate/term of years, the court will typically find it created a fee interest 

• A single property interest can be owned by two or more persons at the same time
• ex. duplex or condominium complex

• Rules
  • Each TIC has an equal right to possession of the entire parcel
  • if the property is sold each TIC has a right to his or her fractional share of the sale price
  • When TIC dies his or her fractional share passes to beneficiaries or heirs
• Law Prefers TIC over JT or TBE, so if the langiage in the conveyance is imprecise, the law will typicaly find the instrument created a TIC

Joint Tenancy

("JT")

• deliberately created by four unities 
  • Unity of time (all joint tenants received their interests at the same time)
  • Unity of title (all joint tenants received their interests via the same written instrument)
  • Unity of Interest (each joint tenant has an identical interest
  • Unity of Possession (each joint tenant has right to possess the whole0

• If one tenant sells, thus severing joint tenancy, severance occurs only between the selling owner and the remaining owners
• Ex. IF A, B, and C own property as JTs, and A conveys his interest to D, B and C are sill JTs with a right of survivorship vis-a-vis each other; but D is a TIC vis-a-vis B and C

• JTs and TICs are free to transfer their interests without the consent of their co-owners 
• Tenants by the entirety may both transfer their interest without the consent of their spouse

Tenancy by the Entirety 

(TBE)

4 unities plus marriage

1. time
2. title
3. interest
4. possession 

• if concurrent owners cannot agree on how to manage property they may file suit to ask the court to partition 
  • carve parcel into smaller parcels
  • can also voluntarily partition 

• actual- changing the locks
• constructive- asking spouse to leave
• have no duty to pay rent unless one person ousts the other
  • Oustee has to pay rent to ousted party 

• have the right to the numerical share of rents paid by their parties who possess the property
• have a duty to pay their numerical share of basic expenses (mortgage payments, property taxes, property insurance)

• one tenant can enter into a valid lease of the property without the consent of the co-tenant
• a lease entered into by a single TIC survives the death of the leasing tenant
• A lease entered into by  single tenant dies when that joint tenant dies 
• If property subject to a valid lease is transferred, the lease survives the transfer and the property comes with the lease

• A creditor of one party in a TIC can foreclose on the property to satisfy the debts of one JT
• but a creditor of one party in a TBE cannot foreclose on the property to satisfy the debts of one tenant by the entirety