b'Property\n\n\n\nFreehold Estates\n\nPresent Estates\n\nEstate\n\nLanguage\n\nDuration\n\nTransferability\n\nFuture Interest\n\nFee Simple Absolute\n\n"To A and his heirs"              \n\n\n\n"To A"\n\nAbsolute ownership, potentially infinite duration\n\nAlienable Descendible Devisable\n\nNone\n\nFee Simple Determinable\n\n\n\n\n\n"To A so long as"     "To A until..."           \n\n"To A while..."\n\nPotentially infinite, so long as event doesn\'t occur.  If it does, forfeiture automatic\n\nAlienable Descendible Devisable \n\n(all subject to condition)\n\nPossibility of Reverter (held by grantor only)\n\n\n\nFSDPOR\n\nFee Simple Subject to Condition Subsequent\n\n\n\n\n\n\n\n"To A, but if event X happens, grantor reserves the right to reenter and retake"\n\n\n\n[Grantor must carve out right to reenter]\n\nPotentially infinite, so long as the condition is not breached, and thereafter, until the holder of the right of entry timely exercises power of termination.  Not automatic.\n\nAlienable Descendible Devisable\n\n(all subject to condition)\n\nRight of Entry/Power of Termination (held by grantor only)\n\n\n\n\n\nFee Simple Subject to Executory Limitation\n\n"To A, but if X event occurs, then to B"\n\nPotentially infinite, so long as stated contingency doesn\'t occur. If it does, estate goes to 3rd party, not grantor\n\nAlienable Descendible Devisable\n\n(all subject to condition)\n\nExecutory Interest (held by third party only)\n\nLife Estate\n\n"To A for life"          \n\n\n\n"To A for the life of B"\n\n\n\nNot \xe2\x80\x9cTo A for 100 years\xe2\x80\x9d\n\nMeasured by life of transferee or by some other life (pur autre vie)\n\nAlienable, Descendible\n\nDevisable\n\n (all if measuring life is still alive)\n\nReversion (if held by grantor); Remainder (if held by third party)\n\n\n\nHeirs: a living person has no heirs; only has prospective heirs.\n\nFee Tail: abolished; attempted creation of a fee tail creates a fee simple absolute.\n\nDefeasible Fees Require Clear Durational Language: Words of mere desire, hope, or intention are insufficiently limiting, and instead create fee simple absolute.  Insufficiently clear: \xe2\x80\x9cTo A for purposes of constructing a day care center\xe2\x80\x9d; \xe2\x80\x9cTo A in hopes he becomes a lawyer.\xe2\x80\x9d\n\nAbsolute Restraints on Alienability: void if not linked to any reasonable time or purpose.  Instead, FSA results.  E.g., \xe2\x80\x9cTo A so long as she never attempts to sell.\xe2\x80\x9d\n\nLife Estate\n\nWaste Doctrine: Life tenant is entitled to all ordinary uses and profits from the land.  However, the life tenant must not commit waste.  Three types of waste:\n\nVoluntary/Affirmative Waste: overt conduct that decreases value.  \n\nNatural Resources: Life tenant must not consume or exploit natural resources on the property, unless (i) prior to grant, land was used for exploitation; thus, one may continue to mine, but limited only to mines already open, (ii) reasonable repairs: life tenant may consume them for reasonable repair and maintenance of the premises; (iii) if granted the right to do so, or (iv) land is suitable only to exploit, not for any other purpose.\n\nPermissive Waste / Neglect: land falls into disrepair.  Life tenant must maintain premises in reasonably good repair.\n\nTaxes: life tenant is obligated to pay ordinary taxes on land to extent of his profits, or if no profits, to the extent of the fair rental value of land.\n\nAmeliorative Waste: life tenant must not engage in acts that will enhance property value unless all future interest holders are known and consent to it.\n\nFuture Interests in Estates\n\nFor Grantor\n\nPossibility of Reverter: accompanies FSD.\n\nRight of Entry / Power of Termination: accompanies FSSCS\n\nReversion: grantor\xe2\x80\x99s future interest when grantor transfers estate of lesser quantum then she started with, other than FSD or FSSCS.\n\nFor Transferee\n\nRemainders: follows expiration of estate that must end (life estate, term of years) and was created in same conveyance of the expiring estate.  Never follows possession by grantor.\n\nVested Remainder: both created in an ascertained person and not subject to any condition precedent.\n\nIndefeasibly Vested Remainder: holder is certain to acquire an estate in the future with no conditions, precedent or subsequent.\n\nVested Remainder Subject to Complete Defeasance: no condition precedent for remainderman, but his right to possession can be cut short because of a condition subsequent.  How to Tell?  Read from left to right, set off by commas. E.g., O conveys \xe2\x80\x9cTo A for life, remainder to B, provided however, that if B dies under age 25, to C.\xe2\x80\x9d  B has vested remainder subject to complete defeasance.\n\nVested Remainder Subject to Open: a remainder is vested in a group of takers, at least one of whom is qualified to take possession (if no one was qualified, it would be contingent, not vested).  Each class member\xe2\x80\x99s share is subject to partial diminution because additional takers, not yet ascertained, can still qualify as class members.  E.g. \xe2\x80\x9cTo A for life, then to B\xe2\x80\x99s children.\xe2\x80\x9d B has two children.  \n\nClass Closing: Class is closed when its maximum membership has been set so that persons born thereafter are shut out.  According to the rule of convenience, the class closes whenever any member can demand possession, even if subject to diminution.  This usually occurs at expiration of prior estate.  E.g. O conveys to \xe2\x80\x9cA for life, then to B\xe2\x80\x99s children.\xe2\x80\x9d A is alive and B has two children, C and D.  Class closes when A dies. However, child of B in the womb at A\xe2\x80\x99s death will share.\n\nContingent Remainder: created in an unascertained person or subject to condition precedent.  E.g., \xe2\x80\x9cTo A for life, then to B\xe2\x80\x99s first child.\xe2\x80\x9d  Once ascertained or precedent is met, transforms into indefeasibly vested remainder.\n\nRule of Destructibility (historical): contingent remainder would be destroyed if still contingent at the time the preceding estate ended.  Goes to grantor and heirs in fee simple absolute.\n\nRule in Shelley\xe2\x80\x99s Case (historical): if the same instrument creates a life estate in A and gives the remainder only to A\xe2\x80\x99s heirs, remainder is invalid, and A takes in FSA. E.g. X conveys \xe2\x80\x9cto A for life, then to A\xe2\x80\x99s heirs.\xe2\x80\x9d  Rule of law, regardless of intent of parties.\n\nDoctrine of Worthier Title (rule against remainders in grantor\xe2\x80\x99s heirs): a remainder in grantor\xe2\x80\x99s heirs is invalid and becomes a reversion to grantor.  E.g., A conveys to \xe2\x80\x9cB for life, then to A\xe2\x80\x99s heirs.\xe2\x80\x9d  This is a rule of construction, and does not apply if an intent to create a remainder in heirs has been clearly manifested, using term \xe2\x80\x9cheirs.\xe2\x80\x9d  Applies only to inter vivos transfers.\n\nExecutory Interest: a future interest created in a transferee that isn\xe2\x80\x99t a remainder and which takes effect by cutting short interest of another person (shifting) or the grantor and his heirs (springing)\n\nShifting: always follows a defeasible fee, and cuts short someone other than the grantor. E.g. O conveys \xe2\x80\x9cTo A and her heirs, but if B returns from Canada sometime next year, to B and his heirs.\xe2\x80\x9d B has shifting executory interest.\n\nSpringing: E.g. O conveys \xe2\x80\x9cTo A, if and when he marries.\xe2\x80\x9d A is unmarried.  A has springing executory interest.\n\nRule Against Perpetuities: certain future interests void if any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life (life in being).\n\nWhat Future Interest is in Question?  \n\nRAP Applicable To: Contingent Remainders, Executory Interests, and certain Vested Remainders Subject to Open.\n\nRAP Inapplicable To: Does apply to: Any Future Interest In Grantor, Indefeasibly Vested Remainders, and Vested Remainders Subject to Complete Defeasance.\n\nTwo Bright Line Rules of Common Law RAP\n\nA gift to an open class that is conditioned on the members surviving to an age beyond 21 always violates the common law RAP.  \n\nBad as to One, Bad as to All: To be valid, it must be shown that the condition precedent to every class member\xe2\x80\x99s taking will occur within the perpetuities period.  If it is possible that a disposition might vest too remotely with respect to any member of the class, the entire gift is invalid.\n\nMany shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP.\n\nCharity-to-Charity Exception: RAP inapplicable.\n\nReform of RAP\n\nWait & See / Second Look Doctrine: the validity of any suspect future interest is determined on the basis of facts as they end up existing at the conclusion of the measuring life, not at possible scenarios before the measuring life is over.\n\nUniform Statutory Rule Against Perpetuities (USRAP): provides for an alternative 90-year vesting period.\n\nBoth Wait and See and USRAP embrace cy pres doctrine: when reformulating invalid provision, try as best to carry out donor\xe2\x80\x99s intent.\n\nConcurrent Estates: Joint, Entirety, Common\n\nJoint Tenancy: two or more own with right of survivorship\n\nRight of Survivorship: share passes automatically to the surviving joint tenant.\n\nTransferability: Alienable, but not Devisable or Descendible.\n\nCreation: common law requires\n\nFour Unities: joint tenants must take their interests\n\nAt the same time\n\nBy the same title (in same instrument)\n\nWith identical, equal interests, and\n\nWith identical rights to possess the whole\n\nGrantor must clearly express/state the right of survivorship.\n\nStraw: if I own Blackacre, and want to hold it in joint tenancy with B, I convey to straw, who conveys it back to B and I as joint tenants with right of survivorship.  \n\nSeverance of Joint Tenancy: any of SPaM\n\nSale: joint tenant can sell or transfer interest, even without other tenant\xe2\x80\x99s knowledge or consent.  Buyer becomes tenant in common with remaining joint tenants.  Remaining joint tenants still have a joint tenancy among them.  Under equitable conversion, mere entry into sale contract counts as sale.\n\nPartition\n\nVoluntary Agreement\n\nPartition in Kind: court physically divides real property if in the best interests of all.\n\nForced Sale: court sale of real property if in the best interests of all, proceeds divided up among tenants.\n\n*Mortgage \n\nMajority: one joint tenant\xe2\x80\x99s execution of a mortgage or lien on his share will not sever the joint tenancy \n\nMinority: one joint tenant\xe2\x80\x99s execution of a mortgage or lien on his or her share will sever the joint tenancy as to that now encumbered share\n\nTenancy by the Entirety: a highly protected marital interest between married partners with the right of survivorship\n\nCreation: presumed in any conveyance to married partners, unless clearly stated otherwise.\n\nLimits on Creditors: Creditors of only one spouse cannot touch the tenancy.\n\nNo Unilateral Conveyance: neither tenant, acting alone, can defeat the right of survivorship by unilateral conveyance to a 3rd party.\n\nTenancy in Common: two or more own with no right of survivorship\n\nEach co-tenant owns an individual part (need not be equal) and each has a right to possess the whole.  \n\nTransferability: unlimited.  Devisable, Descendible, Alienable.\n\nDefault tenancy unless proven otherwise.\n\nRights & Duties of Co-Tenants\n\nPossession: each co-tenant is entitled to use and enjoy the whole of the property.  If a co-tenant excludes another from any part, he has committed ouster.\n\nRent from Co-tenant in Exclusive Possession: absent ouster, a co-tenant in exclusive possession is not liable to the others for rent.\n\nProfits: no need to share profits (unless rent from third-party)\n\nRent From Third Parties: a co-tenant who leases all or part of the premises to a third party must account to the others and provide them their fair share of rental income.\n\nAdverse Possession: absent ouster, co-tenant cannot acquire title by adverse possession because hostility is absent.\n\nCarrying Costs: each co-tenant is responsible for his or her undivided share.\n\nRepairs: repairing co-tenant has right to contribution for reasonable, necessary repairs, provided she has told the others of the need.\n\nImprovements: during life of co-tenancy, no right to contribution for improvements.  At partition, improving co-tenant is entitled to a credit/debit equal to increase/decrease in value.\n\nWaste: co-tenant must not commit unilateral waste of any sort (even improvement). Co-tenant can bring a waste action during life of co-tenancy.\n\nPartition: joint tenants and tenants in common have rights to bring an action for partition.\n\nLandlord-Tenant Law\n\nFour Leasehold Estates\n\nTenancy for Years: fixed period of time (e.g. 1 day or 50 years)\n\nNo notice required to terminate, as term of years states date at the outset.\n\n> 1 year must be in writing (Statute of Frauds)\n\nPeriodic Tenancy: continues for successive intervals until L or T give proper notice of termination.  E.g. L conveys to T for month to month or year to year.\n\nMay Arise by Implication: in any of the following ways: (i) no duration but rent at set intervals; (ii) oral term of years in violation of the Statute of Frauds creates an implied periodic tenancy measured by the way rent is paid; or (iii) Holdover: in a residential lease, if L elects to holdover a T who has wrongfully stayed on past end of the original lease, an implied periodic tenancy arises measured by the way rent is currently tendered.\n\nTermination: notice, usually written, must be given.  At common law, at least equal to the length of the period itself, unless otherwise agreed.  However, if tenancy is year to year or greater, notice must be 6 months unless otherwise agreed.  The periodic tenancy must end at the conclusion of a natural lease period.\n\nTenancy at Will: tenancy for no fixed duration (\xe2\x80\x9cas long as T desires\xe2\x80\x9d)\n\nMust be Express: otherwise, payment of regular rent will result in treatment as an implied periodic tenancy.\n\nTermination: traditionally, by either party at any time; however, a reasonable demand to vacate is now usually required.\n\nTenancy at Sufferance: created when T has wrongfully heldover past the expiration of the lease.  Lasts only until eviction or L elects to hold T to a new tenancy.\n\nIndependence of Duties/Covenants: generally, covenants contained in the lease are independent of one another, such that breach of one does not excuse performance of any other.  Non-breaching party must sue for damages, and cannot withhold performance or rent.  Exceptions: eviction, implied covenant of quiet enjoyment, implied warranty of habitability.  In some states, failure to pay rent is additional exception.\n\nTenant\xe2\x80\x99s Duties\n\nLiability to 3rd Parties: matter of tort law.  Tenant is responsible for keeping premises in reasonably good repair, and is liable for injury sustained by third parties tenant invited, even where landlord promised to make all repairs.\n\nTenant\xe2\x80\x99s Duty to Repair\n\nLease is Silent: must maintain premises and make ordinary repairs.  No waste.\n\nFixtures (linked to waste). A fixture is a once moveable chattel that by virtue of its attachment to the property objectively shows the intent to permanently improve the realty, e.g. heating systems, custom storm windows.  Removal of a fixture is voluntary waste, even if tenant installed it.  Fixtures pass with ownership of the land.  How to know if given tenant installation is a fixture: express agreement as to the issue; in absence of agreement, removal of a self-installed chattel is permitted so long as it doesn\xe2\x80\x99t cause substantial harm to the premises.  If it will cause substantial damage, then in objective judgment tenant has shown the intent to install a fixture, and the fixture must stay.\n\nTenant Expressly Agreed to Maintain: historically, tenant liable for any loss. Today, majority view is that tenant not liable for loss due to things that aren\xe2\x80\x99t tenant\xe2\x80\x99s fault, unless the tenant has expressly agreed to do so.\n\nTenant\xe2\x80\x99s Duty to Pay Rent: where breached:\n\nTenant Still in Possession: landlord can only evict through the courts or continue the relationship and sue for rent due.  If landlord moves to evict, she is still entitled to rent from tenant (who is tenant at sufferance) until tenant vacates.  No self-help (e.g. changing locks or forcibly removing tenant). \n\nTenant Not in Possession: landlord can\n\nTreat as Surrender: treat abandonment as tacit offer of surrender.  If unexpired term is greater than one year, treatment as surrender must be in writing.\n\nIgnore abandonment and hold tenant responsible for unpaid rent as if tenant was still there.  Only available in minority of states.\n\nRe-Let premises on tenant\xe2\x80\x99s behalf, and hold tenant liable for deficiencies.  Majority rule is that landlord must at least try to mitigate.\n\nNote: other than expressly provided (e.g., implied covenant and warranty), tenant cannot withhold rent for a breach of a covenant contained in the lease.  Must sue.\n\nLandlord\xe2\x80\x99s Duties\n\nDuty to Deliver Possession: Majority (English) Rule: landlord must put tenant in physical possession of premises.  Minority (American) Rule: landlord need not put tenant in physical possession, but only must provide legal possession.\n\nImplied Covenant of Quiet Enjoyment: applies to residential and commercial: tenant has right to use and enjoyment of the premises without interference from L.\n\nHow Breached: \n\nActual Wrongful Eviction\n\nConstructive Eviction: (1) substantial interference (a chronic problem due to landlords actions or failure to act), (2) notice to landlord, and (3) tenant vacates within reasonable time after failure to correct problem.\n\nLandlord Liability to Tenant for Acts of Other Tenants: generally no, but L must not permit a nuisance on the premises, and L must control common areas.\n\nImplied Warranty of Habitability: non-waivable right to residential premises fit for human dwelling.\n\nStandard may be supplied or illuminated by housing code or caselaw.  \n\nTenant\xe2\x80\x99s Alternative Entitlements Upon Breach\n\nMove out and end lease\n\nRepair and deduct from rent\n\nReduce or withhold rent (into escrow) until court determines fair rental value.\n\nRemain in possession, pay rent, and seek money damages.\n\nRetaliatory Eviction prohibited (including raising rent, harassing).\n\nAssignments & Subleases\n\nGenerally: absent of prohibition in lease, tenant may freely transfer his remaining interest in whole (assignment), or in part (sublease).  In lease, landlord can prohibit assignment or sublet without landlord\xe2\x80\x99s written consent, or completely, regardless of whether reasonable.  However, once landlord consents to one transfer by tenant, landlord waives right to object to future transfers by that tenant unless he reserves the right expressly.\n\nPrivity Resulting from Transfer\n\nSublease: L and sublessee share no nexus.  T2 is responsible to T1.\n\nAssignment: L and T2 are in privity of estate, but not privity of contract, unless T2 expressly assumed contract; thus, they are liable to each other for covenants of the original lease that run with the land.  L and T1 are no longer in privity of estate, but are still in privity of contract, and are thus secondarily liable to each other. \n\nCovenants Running With Land: payment of rent and money, durational terms (e.g., renewal), to do or not do something on the land.\n\nLandlord\xe2\x80\x99s Tort Liability\n\nCommon Law: in tort, L was under no duty to make the premises safe for tenant.\n\nExceptions (CLAPS): Common areas (L must maintain), Latent defects rule (L must warn T of hidden defects of which L has knowledge or reason to know), Assumption of repairs (L voluntarily makes repairs negligently, he is liable), Public use rule (if L leases public space such as convention hall and should know because of the nature of the defect and the length of the lease that T will not repair, is going to be liable for any defects on the premises), Short term lease of furnished dwelling (L is responsible for any defect which proximately harms T).\n\nServitudes: Non-Possessory Interests in Real Property: Easement, Covenant, Eq. Servitude\n\nEasements: grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another\xe2\x80\x99s land, called the servient tenement.\n\nEither\n\nAffirmative: right to do something on servient land (e.g. lay power lines)\n\n*Negative: entitles holder to prevent servient land-owner from doing something, limited to Light, Air, Support, and Streamwater from artificial flow.  Must be created expressly by writing signed by grantor.\n\nEither\n\nAppurtenant to Land: it benefits its holder in physical use or enjoyment of his property.  Two parcels of land must be involved: a dominant tenement (derives the benefit) and a servient tenement.  The easement is appurtenant only to the dominant land.\n\nHeld in Gross: confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his own land.  There is servient land, but no benefited dominant tenement.  Only requires one land.  Common examples: right to place a billboard on another\xe2\x80\x99s lot.\n\n*Transferability\n\nAppurtenant Easement: passes automatically with any conveyance of the dominant land.  The burden of the easement on the servient land will pass automatically with the servient estate, unless the new owner is a bona fide purchaser without notice\n\nEasement in Gross: not transferable, unless it is for commercial purposes.\n\n*Creation of Affirmative Easement: PING: Prescription, Implication, Necessity, or Grant.\n\nGrant: an easement to endure for more than 1 year must be in a writing that comports with formal elements of deed, called a deed of easement.\n\nImplication: implied if the previous use was apparent, and the parties expected that the use would continue because it is reasonably necessary to the dominant land\xe2\x80\x99s use and enjoyment.\n\nNecessity: an easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way for grantee to get to the land except over a portion of grantor\xe2\x80\x99s remaining land.\n\nPrescription: an easement may be acquired by satisfying adverse possession: continuous use for the statutory period, open and notorious, actual and exclusive use, and hostile use.\n\nScope of Easement: set by terms of grant or conditions that created it.\n\n*Termination of Easement: END CRAMP\n\nEstoppel: servient owner materially changes his or her position in reasonable reliance on the easement holder\xe2\x80\x99s assurances that the easement will not be enforced.\n\nNecessity ends: easements created by necessity expire as soon as necessity ends, however, if it was created by express grant, even if necessary, it will not end automatically once necessity ends.\n\nDestruction of the servient land other than through willful conduct of the servient owner will end the easement.\n\nCondemnation of the servient estate through eminent domain ends the easement.\n\nRelease: a written release given by easement holder to servient owner.\n\nAbandonment: easement holder must demonstrate by physical action the intent to never use the easement again.  Mere non-use, or words, isn\xe2\x80\x99t enough.\n\nMerger (unity of ownership): easement is extinguished when title to easement and title to servient land become vested in the same person.\n\nPrescription: the servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession.\n\nLicense: a mere privilege to enter another\xe2\x80\x99s land for some delineated purpose.  Not subject to statute of frauds, need not be in writing.  Freely revocable at will of licensor unless estoppel applies to bar revocation\xe2\x80\x94where there is substantial investment of money or labor or both in reasonable reliance on the license\xe2\x80\x99s continuation.  E.g., theatre tickets, neighbors talking by fence giving what purports to be an oral easement.\n\nThe Profit: entitles its holder to enter servient land and take soil or some substance of the soil.  Profit shares all the rules of easements.\n\nCovenant: a promise to do (affirmative) or not do (restrictive) something related to land (which is either benefitted or burdened by the covenant).  It is not the grant of a property interest, but a contractual limitation.  Sprang from the need to have negative easements beyond narrow situations in which they can be had.\n\nHow to Distinguish Covenant & Equitable Servitude: see remedy.  If money, it is covenant (contract).  If injunctive, equitable servitude.\n\nWhen Covenant Runs With Land: when capable of binding both successors.  Must find that both the burden and the benefit run.\n\nBurden Runs where\n\nWriting: original promise in writing\n\nIntent that covenant should run\n\nTouch & Concern: promise affects parties\xe2\x80\x99 legal relations as landowners\n\nHorizontal Estate Privity among original parties (grantor-grantee, landlord-tenant, mortgagor-mortgagee).  Hard to establish.\n\nVertical Privity between original and subsequent burdened party, such as contract, devise, but not adverse possession\n\nNotice to potentially burdened party\n\nBenefit Runs where\n\nWriting\n\nIntent\n\nTouch & Concern\n\nVertical Privity\n\nEquitable Servitude: promise that equity will enforce against successors, accompanied by injunctive relief.\n\nWhen Successors Bound: \n\nWriting: original promise in writing \n\nIntent: parties intended promise would bind successors\n\nTouch & Concern\n\nNotice: successors of the burdened land had notice of the promise.  \n\nNo privity of any kind is required.  Equitable servitude more flexible than covenant.\n\nImplied (Negative) Equitable Servitude (general or common scheme doctrine): where a subdivider sells vast majority of lots with a certain restrictive covenant, but sells to D without the restrictive covenant, court will find an implied negative equitable servitude imposing the restrictive covenant on D where (i) when sales began, subdivider had a general scheme of residential development which included D\xe2\x80\x99s lot, and (ii) D had notice of the promise contained in the prior deeds.\n\nNotice: AIR: three forms of notice: Actual, Inquiry (neighborhood conforms to common restriction), & Record (but courts split on sufficiency, better view is no).\n\nDefense to Enforcement of Equitable Servitude: Changed Conditions: if there have been pervasive changes to the entire area or subdivision, these changed circumstances release a lot-holder from the restrictions of the equitable servitude.  Mere limited or piecemeal change is insufficient.\n\nAdverse Possession\n\nElements: for possession to ripen into title it must be (COAH)\n\nContinuous: uninterrupted for given statutory period.\n\nOpen & Notorious: sort of possession that usual owner would make under the circumstances.\n\nActual & Exclusive Use: the entry cannot be symbolic, you must actually enter onto the property. Leasing it to another counts.\n\nHostile: the possessor doesn\xe2\x80\x99t have the owner\xe2\x80\x99s consent.\n\nPossessor\xe2\x80\x99s subjective state of mind or actual knowledge is irrelevant.  Even if possessor thought he was merely borrowing land, and had no intent to get title, it can happen.\n\nTacking: so long as there is privity \xe2\x80\x93 any non-hostile nexus (e.g. blood, contract, deed, or will).  Tacking is not allowed where there has been ouster.  Ouster defeats privity.\n\nDisabilities: SOL will not run against a true owner who is afflicted by a disability at the inception of the adverse possession (if he becomes disabled after inception, it doesn\xe2\x80\x99t toll the statute).  Common disabilities include insanity, infancy, and imprisonment.\n\nLand Conveyancing: Purchase & Sale of Real Estate: two-step process: 1) the land contract, which endures until step two; 2) the closing, where the deed becomes operative document.\n\nLand Contract\n\nStatute of Frauds Requirements: Must be in writing, signed by the party to be bound.  Must describe the land and state some consideration.\n\nException to Writing: Doctrine of Part Performance: if any two of the following three circumstances, equity will intervene and force specific performance even though contract was oral: buyer\n\ntakes physical possession of land\n\npays all or part of the purchase price\n\nmakes substantial improvements to the land\n\nWhen amount of land recited in land contract is more than the actual size of the parcel, remedy is specific performance with pro-rata reduction in purchase price.\n\nProblem of Risk of Loss Until Closing: Equitable Conversion: In equity, once the contract is signed, B is owner of the land, subject to the condition that he pay purchase price at closing.  Thus, if between contract and closing land is destroyed through no fault of either party, buyer bears risk of loss unless contract says otherwise\n\nTwo Implied Promises in Every Land Contract: provided by seller\n\nTo Provide Marketable Title: free from reasonable doubt\xe2\x80\x94lawsuits and the threat of lawsuits.  Three circumstances render title unmarketable: \n\nAdverse Possession: if any portion of the title resting on adverse possession.  All of the title must be record title.\n\nEncumbrances: marketable title means unencumbered fee simple.  Thus, servitudes and mortgages render title unmarketable unless buyer has waived them.  Seller can always satisfy outstanding mortgages or liens up to point of closing, such as using the proceeds of the sale.\n\nZoning Violations\n\nNo False Statements of Material Fact: Majority of states also hold sellers liable for failing to disclose latent material defects (omissions).  If the contract contains a general disclaimer of liability (e.g. sold \xe2\x80\x9cas is\xe2\x80\x9d), it still does not excuse seller from liability from fraud or failure to disclose.\n\nLand contract doesn\xe2\x80\x99t contain any implied warranties of fitness or habitability (contrast to landlord/tenant).  There is, however, an implied warranty of fitness and workmanlike construction where the sale of a new home is by a builder-vendor.\n\nClosing\n\nDeed: now controlling document is deed, and passes legal title to buyer by being (1) lawfully executed and (2) delivered.\n\nLawful Execution: must be in writing, signed by the grantor, generally (but not perfectly) describing the land (e.g., \xe2\x80\x9call of O\xe2\x80\x99s land\xe2\x80\x9d), but need not recite consideration, nor must consideration pass.\n\n*Delivery: can be satisfied when grantor physically or manually transfers the deed to the grantee, and may use mail or messenger.  However, delivery does not necessarily require actual physical transfer of the instrument itself; delivery is legally a question of grantor\xe2\x80\x99s intent.  If the grantor had the present intent to be immediately bound, there is delivery, even if the deed wasn\xe2\x80\x99t literally handed over.  If the recipient expressly rejects the deed, defeats delivery.  If a deed, absolute on its face, is transferred to a grantee with an oral condition, the oral condition drops out and delivery is valid.  Delivery by escrow is ok (escrow holds until certain conditions are met, when title transfers automatically to grantee).\n\nTypes of Deed (Covenants of Title)\n\nQuitclaim: contains no covenants, not even that grantor has good title.  Grantor, though, does implicitly promise in the land contract to provide marketable title at closing.  However, with quitclaim, grantor is not liable for post-closing problems.\n\n*General Warranty: warrants against all defects in title, including those attributable to grantor\xe2\x80\x99s predecessors. Typically contains all 6 covenants, whereby grantor promises:\n\nPresent Covenants: breached, if ever, only at time deed is delivered. \n\nSeisin: owns estate he now purports to convey.\n\nRight to Convey: has power to make the transfer.\n\nAgainst Encumbrances: no servitudes, liens, or mortgages on the land.\n\nFuture Covenants: breached, if ever, when grantee is disturbed in possession.\n\nQuiet Enjoyment: grantee won\xe2\x80\x99t be disturbed in possession by a third party\xe2\x80\x99s lawful claim of title.\n\nWarranty: to defend grantee against any lawful claims of title brought by others\n\nFurther Assurances: to do whatever future act is necessary to perfect grantee\xe2\x80\x99s title if it later turns out to be imperfect (even pay the liens).\n\nStatutory Special Warranty: provided for by statute in many states, this deed contains two promises that grantor makes only on behalf of himself (not on behalf of predecessors in interest): (1) hasn\xe2\x80\x99t conveyed the estate to anyone other than grantee, and (2) estate free from encumbrances made by the grantor only.\n\nRecording System\n\nModel: O conveys Blackacre to A.  Later, O conveys Blackacre to B.\n\nThe Two Brightline Rules\n\nIf B is bona fide purchaser in Notice Jurisdiction, B wins.\n\nIf B is bona fide purchaser in Race-Notice Jurisdiction, B wins if she records properly before A does.  If no one records, A wins.\n\nBona Fide Purchaser: one who purchases for value without notice\n\nValue: substantial pecuniary consideration, even if very much under value of the property.  Recording statutes don\xe2\x80\x99t protect donees, heirs or devisees, unless the shelter rule applies.\n\nForms of Notice\n\nActual: prior to B\xe2\x80\x99s closing B, gets literal knowledge of A\xe2\x80\x99s existence.\n\nInquiry: whether he looks or not, B is on notice of whatever an inspection of the land would reveal or a reasonable investigation.\n\nRecord: whether grantee checks or not, B is on record notice of A\xe2\x80\x99s deed if at the time B takes, A\xe2\x80\x99s deed was properly recorded.\n\nThe Recording Statutes\n\nNotice Statute: \xe2\x80\x9cA conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is (properly) recorded.\xe2\x80\x9d  Thus, if at the time B takes, he is a BFP, he wins if A hadn\xe2\x80\x99t recorded by that time, even if A thereafter records before B does.  However, B should record, so a new BFP doesn\xe2\x80\x99t come along.  Last BFP to enter wins.\n\nRace Notice Statute: \xe2\x80\x9cAny conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first (properly) recorded.\xe2\x80\x9d  Thus, to prevail, B must be a BFP and also win the race to record.  If A records first, A wins.  If no one records, A wins until someone records.\n\nChain of Title Problems\n\nShelter Rule: one who takes from BFP prevails against any entity that the transferor BFP would have prevailed against, even if the taker had notice or gave no value.\n\nWild Deed\n\nProblem: O sells Blackacre to A, who doesn\xe2\x80\x99t record.  Then A, sells to B.  B records the A-to-B deed.  Note: the A-to-B deed, although recorded, is not connected to the chain of title, because it contains a missing link, the O-to-A link.  The A-to-B deed hasn\xe2\x80\x99t been recorded properly and is a \xe2\x80\x9cwild deed.\xe2\x80\x9d\n\nRule: If a deed, entered on the records, has a grantor unconnected to the chain of title, the deed is a wild deed, and is incapable of giving record notice.\n\nApplication: If O, initial grantor and double dealer, later sells Blackacre to C who records and has no notice, who prevails in contest of B vs. C?  C wins.\n\nEstoppel by Deed: one who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires the interest that he had previously transferred.  Note: grantee of this fraudulent conveyance only wins against the fraudulent grantor, not against anyone else, as his recording is improper.\n\nMortgages\n\nGeneral Definition: the conveyance of a security interest in land, intended by the parties to be collateral to secure the debt.\n\n*Legal Mortgage: The note is the promise to pay back the loan and agreement to give security interest, and the mortgage is the actual security interest.  Must be in writing to satisfy statute of frauds.\n\n*Equitable Mortgage: instead of executing a legal instrument, O hands creditor a deed to Blackacre that is absolute on its face.  As between O and creditor, parol evidence is freely admissible to show the parties true intent, which must be to enter into mortgage.  What if creditor proceeds to sell Blackacre to BFP?  BFP owns the land.  O\xe2\x80\x99s only recourse is to proceed against creditor for fraud and recover proceeds of the sale.\n\nParties\xe2\x80\x99 Rights During Mortgage: unless and until foreclosure, debtor-mortgagor has title and right to possession.  Creditor-mortgagee has a lien \xe2\x80\x93 the right look to the land in the event of default.\n\nTransferability: each party can transfer note, and, if properly transferred, mortgage automatically follows the note.\n\n*Creditor-Mortgagee Transferring Interest \n\nDone by either (1) indorsing the note and delivering it to transferee or (2) executing a separate document of assignment.  If done by (1), the transferee is eligible to become a \xe2\x80\x9cholder in due course:\xe2\x80\x9d he obtains the note free of any personal defenses the debtor-mortgager could have raised against the original creditor.  These personal defenses include lack of consideration, fraud in the inducement, unconscionability, waiver, and estoppel.  Thus, the holder of the mortgage may foreclose it despite the presence of such defenses.  However, the holder in due course is still subject to the following real defenses (MADFIFI4): material alteration, duress, fraud in the factum (lying about what instrument a person is signing), incapacity, illegality, infancy, and insolvency.  \n\nTo be a holder in due course, the following must be met: (i) note must be negotiable (able to be made payable to a different person), (ii) the original note must be indorsed\xe2\x80\x94signed by the original creditor-mortgagee, (iii) the original note must be delivered to transferee; (iv) the transferee must take the note in good faith without any notice of illegality, and (v) the transferee must pay value for the note\xe2\x80\x94some amount that is more than nominal.\n\nDebtor-Mortgager Selling the Land\n\nRecording statutes protect mortgagees.  If land has a mortgage on it, and is sold, mortgage will remain with land if it was properly recorded.  All recording statutes apply to both deeds and mortgages.  Any buyer is on record notice of mortgage.\n\nPersonal Liability for Debt: if the land is sold, who is personally liable on the debt secure by the interest in the land?  If the buyer has \xe2\x80\x9cassumed\xe2\x80\x9d the mortgage, both the buyer and the original owner are personally liable, the buyer being primarily liable and the original owner secondarily liable.  If the buyer has taken the land \xe2\x80\x9csubject\xe2\x80\x9d to the mortgage, buyer assumes no personal liability on the debt, but, if the mortgage has been properly recorded it passes with the land, and buyer risks foreclosure if original owner doesn\xe2\x80\x99t pay back debt.\n\nForeclosure: when debt is not satisfied, foreclosure is process of satisfying debt.\n\nMust Foreclose by Judicial Proceeding.  Land is sold, and proceeds go to satisfying debt.  If deficit, mortgagee brings action for deficiency judgment.  If surplus, any leftover after junior liens (paid in order of priority) goes to debtor.\n\nEffect of Foreclosure on Various Interests\n\nTerminates Property Interest of Junior Liens: to the extent of mortgage value.  Junior lienholders may seek deficiency judgment, but cannot look to property for recourse.  Junior lienholders and mortgagor are necessary parties to foreclosure action, and if improperly excluded, their claims to land are preserved.  Also, if senior holder failed to give notice to juniors, juniors could have recovered in foreclosure sale, and senior got it all, juniors can go after senior for money judgment.\n\nDoes Not Affect Senior Interests: The buyer at foreclosure sale takes the property subject to those interests.  While not personally liable for the debt, the buyer could face foreclosure of the land by senior interest holder.  Thus, foreclosure sale buyer has strong incentive to pay off senior debts.\n\nPriorities\n\nTo get any priority, creditor must properly record, or else no priority.  Once properly recorded, priority is determined by the norm of first in time, first in right.  \n\nPurchase Money Mortgage: creditor who lent money to purchase property takes priority over all others, even those who recorded first in time.\n\nRedemption: from foreclosure\n\nRedemption in Equity: at any time prior to the foreclosure sale, debtor has a right to redeem, freeing the land of the mortgage.  Right is exercised by paying off delinquency + interest and costs.  If the note contains an acceleration clause, must pay full balance + interest and costs.  Note: cannot waive right to redeem in the mortgage, but can at time of breach.\n\nStatutory Redemption: available in some states: statutory right to redeem for some fixed period after the foreclosure sale has occurred. Amount paid is foreclosure sale price, not the amount of the original debt. Debtor will often even have a right to possess property during statutory period.  Redemption nullifies the foreclosure sale. \n\nLateral Support: if land is improved by buildings and an adjacent landowner\xe2\x80\x99s excavation causes that improved land to cave in, the excavator will be liable only if he acted negligently.  Strict liability does not attach to the excavator\xe2\x80\x99s actions unless plaintiff proves that the improvements could not have caused the caving in.\n\nWater Rights\n\nStreams, Rivers, and Lakes: two systems for determining allocation\n\nRiparian: water belongs to those who own the land bordering the watercourse.  Riparians share the right of reasonable use of the water.  One riparian will be liable to others if his use unreasonably interferes with others\xe2\x80\x99 use.\n\nPrior Appropriation: water belongs initially to the state, but the right to use it can be acquired by an individual regardless of whether he happens to be a riparian owner.  Rights are determined by priority of beneficial use.  The norm for allocation is first in time, first in right.  Thus, a person can acquire right to divert and use water from a watercourse merely by being first to do so, for any beneficial use, even agriculture.\n\nGroundwater: water beneath surface of the earth.  Surface owner is entitled to make reasonable use of groundwater, but the use must not be wasteful.\n\nSurface Waters (those which come from rain, springs, or melting snow, and which have not yet reached a natural watercourse or basin): Common Enemy Rule: because surface water is considered a bad thing, a landowner may change drainage or make any changes on his land to combat the flow of surface water.  Many courts modify it to prohibit unnecessary harm to others\xe2\x80\x99 land.\n\nPossessor\xe2\x80\x99s Rights: possessor of land has right to be free of trespass and nuisance\n\nTrespass: the invasion of land by tangible, physical object.  To remove a trespasser, you bring an action for ejectment.\n\nNuisance: the substantial and unreasonable interference with another\xe2\x80\x99s use and enjoyment of land.  Unlike trespass, nuisance doesn\xe2\x80\x99t require tangible, physical invasion.  Thus, odors and noise may give rise to a nuisance, not trespass.  Hypersensitive plaintiffs lose.\n\nZoning: pursuant to police powers, gov\xe2\x80\x99t may enact statutes to reasonably control land use.\n\nVariance: exception from zoning ordinance: proponent must show 1) undue hardship and 2) that the variance won\xe2\x80\x99t cause detriment to neighboring property values.\n\nNonconforming Use: a once lawful, existing use now deemed non-conforming because of a new zoning ordinance cannot be eliminated all at once unless just compensation is paid.  Otherwise, it could be deemed an unconstitutional taking.\n\nUnconstitutional Exactions: Exactions are those amenities government seeks in exchange for granting permission to build.  E.g. if we give you permission to build, you must put up street-lights.  To pass constitutional muster, the exactions must be reasonably related both in nature and scope to the impact of the proposed development.\n\n\n\n\n\nWhen down to the wire, study: Concurrent Estates, Landlord Tenant, Servitudes, Land Conveyance'


b'Torts Outline\n\n\n\nIntentional Torts\n\nPreliminary Points\n\nNo Incapacity Defenses (e.g., insanity, intoxication, child)\n\nMust be Deliberate: must intent to do physical act constituting tort.\n\nTransferred Intent: if defendant has intent to produce legally forbidden consequences, that intent transfers even if a different consequence results or different person is injured.\n\nBattery: harmful or offensive contact with plaintiff\xe2\x80\x99s person\n\nOffensive: if unpermitted by reasonable/normal person (regardless of whether permitted by this particular plaintiff)\n\nPlaintiff\xe2\x80\x99s Person: includes anything plaintiff is holding, touching or carrying.  Thus, mugging or purse-snatching may be battery.\n\nAssault: creating reasonable apprehension of an immediate battery\n\nReasonable Apprehension: reasonable knowledge (need not be fear at all).  Plaintiff must be aware of the threat, or doesn\xe2\x80\x99t apprehend.\n\nImmediate Battery\n\nWords Alone Lack Immediacy: must be accompanying conduct (e.g., display of a weapon, drawing arm back).\n\nWords Can Negate Immediacy of Conduct\n\nFalse Imprisonment: act of restraint & plaintiff confined in a bounded area\n\nAct of Restraint\n\nThreats Sufficient\n\nOmissions Sufficient only if duty to assist in mobility is owed.\n\nPlaintiff Must be Aware of Confinement or Suffer Harm\n\nBounded Area: not bounded if reasonable means of escape that plaintiff can reasonably discover.  \n\nNote: robbery can constitute false imprisonment.\n\nIntentional or Reckless Infliction of Emotional Distress: outrageous conduct causing severe distress.\n\nOutrageous Conduct: exceeds all bounds of decency tolerated in civil society\n\nNot Outrageous: mere insults; exercise of 1st Amendment rights.\n\nMay be Outrageous: continuous or repetitive conduct; defendant is common carrier or innkeeper; plaintiff is member of fragile class (child, elderly, pregnant women).\n\nAlways Outrageous: exploit or target known emotional weakness.\n\nSevere Distress: plaintiff need not suffer physical symptoms\n\nTrespass to Land: physical invasion interfering with exclusive possession of land\n\nInvasion: either (a) entering property, even if defendant is unaware; or (b) deliberately throwing tangible object onto land.\n\nInterference With Exclusive Possession: proper plaintiff is person in possession, rather than owner; possession also covers air above and soil below to reasonable distance.\n\nTrespass to Chattel & Conversion: intentional interference (damage or deprivation of possession) with item of personal property.  \n\nSlight Interference\xe2\x80\x94Trespass; Significant Interference\xe2\x80\x94Conversion.\n\nRemedy: conversion plaintiffs recover full value, not just cost of repair.\n\nNo Defense for Mistake as to Ownership.  Thus, BFP can commit.\n\nAffirmative Defenses\n\nConsent\n\nPlaintiff Must Have Legal Capacity to Consent.  However, children can consent to age-appropriate issues.\n\nImplied Consent: by custom or based on reasonable interpretation of plaintiff\xe2\x80\x99s objective conduct.\n\nConsent Has A Scope: if exceeded, liability.  However, implied consent for doctor to address adjacent issue if likely you\xe2\x80\x99d want it.\n\nSelf-Defense, Defense of Others, Defense of Property\n\nThreat Must Be in Progress or Imminent\n\nReasonable Belief That Threat is Genuine\n\nForce Must Be Proportional.  No deadly force to protect property.\n\nNecessity: Defense to Property Torts Only\n\nPublic Necessity: interference with property in an emergency to protect community as a whole or significant group of people.\n\nPrivate Necessity: invasion of property in emergency to protect personal interest.  Legal consequences: (1) remains liable for compensatory damages; (2) no liability for nominal or punitive damages; and (3) during emergency, property owner cannot throw defendant off land but must allow him to remain in position of safety.\n\nDefamation: a published defamatory statement specifically identifying the (living) plaintiff, causing damages.\n\nDefamatory: tends to adversely affect reputation.  But not mere insults.\n\nGroups: if statement references small group, every member is identified.\n\nPublication: sharing statement with someone other than plaintiff.  Publication need not be intentional, but may be negligent.\n\n*Damages\n\nPresumed \n\nLibel\n\nSlander Per Se: must be statement about (a) business or profession, (b) commission of crime of moral turpitude, (c) imputing unchastity to woman; or (d) loathsome disease (leprosy or venereal disease).\n\nMust be Proven: Slander Not Per Se: economic harm.\n\nStatement of Public Concern: plaintiff must prove falsity + fault (if plaintiff is public figure, requires malice; otherwise, negligence).  Malice is subjective.\n\nDefenses\n\nConsent\n\nTruth: defendant must prove truth (unless matter of public concern).\n\nPrivileges\n\nAbsolute: status-based\n\nSpouses: may communicate defamation to each other\n\nGovernment Officer in Official Duty: also judges, lawyers, witnesses\n\nQualified: where public interest in encouraging candor.  Must have good faith reasonable belief in truth, and cannot include irrelevant information (e.g., student is good but is gay), even if true.  E.g., letter of rec.\n\nPrivacy\n\nAppropriation: unauthorized commercial use of name or picture.  Newsworthiness Exception: may be used for newsworthy purposes.\n\nIntrusion: invasion of physical seclusion in a way highly offensive to average person.  Must have reasonable expectation of privacy.\n\nFalse Light: widespread dissemination of material falsehood highly offensive to average person.  Damages: unlike defamation, can get for non-economic harm.  Also, unlike defamation, falsehood need not damage reputation.\n\nDisclosure: widespread dissemination of (truthful) confidential information where highly offensive to average person.  Newsworthiness exception applies.  Also, information must truly be private.\n\nDefenses\n\nConsent: defense to all.\n\nPrivileges from Defamation: defense in False Light and Disclosure suits only.\n\nProcess & Prosecution\n\nMalicious Prosecution: (1) institution of proceedings, (2) favorable termination, (3) absence of probable cause, (4) improper purpose, and (5) damages.\n\nAbuse of Process: wrongful use of process for ulterior purpose and act or threat to accomplish purpose.  Doesn\xe2\x80\x99t matter if suit has merit.\n\nNegligence: Duty, Breach, Cause, & Damage\n\nDuty of Care: obligation to take risk-reducing cautions\n\nOwed to Whom?  Only foreseeable victims of carelessness.  Exception: rescuers need not be foreseeable.\n\nHow Much Care Owed: Default: that exercised by hypothetical reasonably prudent person acting under similar circumstances.  Objective standard (doesn\xe2\x80\x99t matter if D is retarded, novice).  Exceptions:\n\nDefendant Has Superior Skill or Knowledge: reasonable person is person with that skill or knowledge.\n\n*Defendant\xe2\x80\x99s Physical Characteristics: reasonable person is person with similar physical characteristics (e.g., blind, wheelchair).\n\nSpecial Duty Scenarios: duty owed is modified where defendant is\n\n*Child Over 5: hypothetical child of similar age, experience and intelligence acting under similar circumstances.  Subjective standard.  Exception: if child is engaged in adult activity, use default standard of care.\n\nProfessionals: skill and knowledge normally possessed by members of that profession in good standing in similar communities.   This is an empirical standard that looks to custom.  Expert typically required.  Note: specialists are measured on national scale, primaries on local.\n\n*Premises Liability \n\nKind of Trespasser\n\nCause of Injury\n\n\xc2\xa0\n\nActivity Being Done by Possessor On the Land\n\nDangerous Condition On the Land\n\nUnknown Trespasser\n\nNo Duty Owed\n\nKnown or Anticipated Trespasser\n\nDefault\n\nPossessor must protect against conditions that are (1) artificial, (2) highly dangerous, (3) concealed, & (4) known to possessor.\n\nLicensee (enters with permission but confers no economic benefit on possessor,\n\ne.g. social guests)\n\nDefault\n\nPossessor must protect against any conditions (1) concealed and (2) known by possessor.\n\nInvitee (either enter premises for commercial purposes or enters land open to public)\n\nDefault\n\nPossessor must protect against any conditions (1) concealed and (2) either known or could have discovered through reasonable inspection. \n\nFirefighters & Police Officers: never recovers negligence damages for injuries inherent to their employment.  They assumed risk.\n\nChild Trespassers: owed duty of reasonable prudence with regard to artificial conditions on land.  The more foreseeable the trespass, the more care required (e.g., pool, candy).  May also consider child\xe2\x80\x99s own ability to appreciate danger and take precautions.\n\nAvoiding Liability: fix the problem or give a warning.\n\nStatutory Standards of Care: criminal statutes providing duty which plaintiff might seek to import to tort.  \xe2\x80\x9cBorrowing\xe2\x80\x9d permitted if (1) plaintiff is in class of persons statute seeks to protect, and (2) accident is in class of risks that statute seeks to prevent.  Exceptions to Borrowing: compliance with statute (1) more dangerous than violation, or (2) impossible. \n\nDuties to Act Affirmatively: Generally, none.  No duty to rescue imperiled person.  Exceptions: (1) if relationship, duty to rescue; or (2) defendant put plaintiff in peril.  But, defendant need not put own life in peril.  Gratuitous Rescuer: if voluntarily opt to rescue, liable for negligence.\n\n*Negligent Infliction of Emotional Distress: negligent act (but unlike others because) causing no physical trauma itself but causing emotional distress: plaintiff can recover for emotional distress only in any of the following: \n\nNear Miss: (1) plaintiff in zone of danger of act; (2) distress caused subsequent physical manifestations (but modern trend to relax).\n\nBystander: (1) serious injury to or death of third person, (2) close relationship between bystander and third person, and (3) plaintiff sees injury and is distressed.\n\nRelationship: (1) plaintiff and defendant in business relationship, and (2) highly foreseeable that negligence will distress plaintiff.  E.g., lab.\n\nBreach: plaintiff must identify specific behavior (act or omission) that was wrongful and articulate theory as to why unreasonable.\n\nRes Ipsa Loquitur: used by plaintiff that cannot identify wrongful conduct: plaintiff must show accident of a type normally associated with negligence of someone in defendant\xe2\x80\x99s position (usually shown by control).  This gets issue to jury, but jury need not accept inference.\n\nCausation\n\nFactual: But For breach, plaintiff would be uninjured today.  Modifications for multiple tortfeasors:\n\nMerged Causes: each liable if each a substantial factor\xe2\x80\x94i.e., each breach could have caused the harm by itself.\n\nUnascertainable Cause: burden shifts: each defendant must demonstrate his breach did not cause the harm.\n\nLegal: Proximate: harm must be foreseeable.  Following are examples of instances in which proximate cause has been found despite attenuation:\n\nIntervening Medical Negligence\n\nIntervening Negligent Rescue\n\nIntervening Protection or Reaction Forces\n\nSubsequent Disease or Accident: after D causes weakened condition\n\nNote: intervening criminal acts and intentional torts can, in some cases, be foreseeable result of negligence, where negligence increases their likelihood.\n\nDamage\n\nEggshell Skull: defendant is liable for all harms suffered even if surprising (this applies to all torts, not just negligence).\n\nAffirmative Defense \n\nComparative Negligence: plaintiff failed to exercise reasonable care for his own safety.  Jury assigns percentage of fault to each, plaintiff\xe2\x80\x99s recovery is reduced accordingly.\n\nPure: Majority Rule: go strictly by numbers.\n\nModified/Partial: if P >50% negligence, P gets nothing.\n\nContributory Negligence: at common law, barred recovery entirely\n\nVoluntary Assumption of Known Risk\n\nStrict Liability\n\nInjuries Caused by Animals\n\nDomestic: No Strict Liability, unless knowledge of vicious propensities\xe2\x80\x94unless victim is trespasser on your property.\n\nWild: Strict Liability.\n\nAbnormally Dangerous Activities: activity (1) creates foreseeable risk of serious harm even with reasonable care, and (2) not common where conducted.\n\nProducts: strict liability for (1) merchants of a (2) defective product that (3) has not been altered and (4) is being used in a foreseeable manner.\n\nEssay Tip: see if question asks about strict liability, negligence, or breach of contract (e.g., warranty of merchantability).  It is possible for products liability to be based in strict liability, but also, as alternative, in negligence or contract.\n\nElements: plaintiff must prove\n\nMerchant: routinely deals in goods of this type.  Includes lessors, but not service providers who provide attending product.  Every party in chain of distribution is a merchant and potentially strictly liable.\n\nDefective Product\n\nManufacturing Defect: product differs from all others from same assembly line in manner making it more dangerous than expected\n\nDesign Defect: there is a hypothetical alternative design (1) safer, (2) economical, and (3) practical.  Warning will not absolve.\n\nInformation Defect: no superior design and still has residual risks that are not adequately disclosed.\n\nNo Alteration: product not altered since left defendant.  Presumed if product moved in ordinary channels of distribution.\n\nPlaintiff Making Foreseeable Use of Product\n\nAffirmative Defense: Comparative Responsibility: plaintiff misconduct will reduce liability accordingly.\n\nDisclaimers of Liability are Irrelevant\n\nIntermediary\xe2\x80\x99s Failure to Discover Defect is No Defense\n\nNuisance: excessive interference with ability to use and enjoy one\xe2\x80\x99s property.  Court balances interests, very subjective.\n\nVicarious Liability\n\nEmployer-Employee: employer liable provided tort committed in scope of employment.  Generally, intentional torts outside scope, unless (1) job involves use of force, (2) tort serves employer\xe2\x80\x99s interest (even if overzealous), or (3) employer authorized tort.\n\nHiring Party-Independent Contractor: no vicarious liability unless contractor injures invitee on business\xe2\x80\x99s property.\n\nCar Owner-Driver: no vicarious liability unless driver is doing errand for owner.\n\nParent-Child: no vicarious liability, no exceptions.  However, parents liable for own torts that enable kids to commit torts.\n\nCo-Defendant Contribution: Comparative Contribution: assign percentages of fault and pay accordingly.  However, Co-Defendant can recover complete contribution (i.e., Indemnity) from co-defendant: (1) in vicarious liability cases, the purely passive party can get indemnity from tortfeasor, and (2) in product liability, a non-manufacturer can be indemnified by manufacturer.\n\nLoss of Consortium: in any case where victim of tort is married, uninjured spouse has a separate tort claim.  Allows uninjured spouse to recover loss of household services, loss of society/companionship, and loss of sex.  Any defense asserted against injured spouse can be asserted against uninjured spouse.'


b'Trusts Outline\n\n\n\n*Private Express Trust: a fiduciary relationship with respect to property whereby one person (trustee) holds legal title for the benefit of another (beneficiary) and which arises out of a manifestation of intent to create it for a legal purpose.  [Memorize this definition.]\n\nTrust Property: any presently existing interest in property that can be transferred can be the corpus of a trust.  Even contingent future interests.  But not future profits to business, debt settler owes beneficiary, or what one expects to inherit or receive as gift.\n\nBeneficiary: any ascertainable person or group, including corporation, and under modern law, an unincoporated association.\n\nTrustee: trust must have a trustee, but court can appoint trustee.\n\nIntent: must be present manifestation of intent to trust, and no magic words necessary.  Must use mandatory words, not precatory words (hope and desire).  But, precatory words + parol evidence may be sufficient.  Otherwise, \xe2\x80\x9ctrustee\xe2\x80\x9d owns in fee simple.  Trusts of personal property need not be in writing, SOF only for real property.\n\nCreation \n\nTrust To Take Effect At Settlor\xe2\x80\x99s Death: must comply with probate code, i.e., be in will.\n\nTrust To Take Effect During Settlor\xe2\x80\x99s Lifetime\n\nTransfer in Trust: a 3rd party is trustee.  For real property, S must execute and deliver deed to trustee (actual, symbolic, or constructive; promise to deliver insufficient).  For personal property, S must deliver property to trustee. \n\nDeclaration in Trust: S is trustee.  For real property, there must be a writing satisfying SOF indicating S is trustee.  For personal property, must be present manifestation of intent.\n\nPurpose: trust must have some valid purpose not contrary to public policy or illegal.\n\nIllegality at Creation: try to excise illicit portion.  If cannot, court will either (1) invalidate at inception or (2) permit trustee to retain property for himself.\n\nIllegality After Creation: a resulting trust is decreed.  Must transfer to S or his estate.\n\nCharitable Trust: any trust which confers a substantial benefit on society.\n\nCreation: same as private express trust.\n\nBeneficiary: no ascertainable person or group, as society is beneficiary.  If trust benefits small group, split in authority as to whether Charitable or Private Express, so argue both.\n\nRule Against Perpetuities Inapplicable to charitable trusts.\n\nCy Pres: if settlor manifests a general charitable intent, but mechanism for effectuating intent is not possible or practicable, court (not trustee) can modify as nearly as possible to effectuate intent.  Court will admit extrinsic evidence to ascertain intent.  However, if settlor manifests specific charitable intent, no modification, and resulting trust.\n\nPour-Over Will (see Wills lecture)\n\nMiscellaneous Trust\n\nHonorary Trusts: a trust which has no ascertainable beneficiary and confers no substantial benefit on society.  E.g., to further fox hunting or care for S\xe2\x80\x99s pet.\n\nTrustee not required to carry out intent, but has power to do so.  If trustee refuses, trust fails\xe2\x80\x94court will not appoint new trustee.  Resulting trust.\n\nRule Against Perpetuities: applicable.  Some court strike trust at inception, others allow endurance for 21 years, followed by resulting trust.\n\nTotten Trusts: named beneficiary takes whatever is left in bank account at death.  Not a true trust, because depositor/trustee owns account during lifetime and has no fiduciary duties to beneficiary.   May be elevated to Private Express Trust if settlor manifests appropriate intent.\n\nRestraints on Alienation\n\n*Spendthrift Provision: provision that prevents beneficiary from transferring, and creditors from attaching, his right to future payments.\n\nVoluntary Alienation: generally, beneficiary cannot voluntarily transfer his rights to future payments.  But, sometimes a court will recognize assignment on ground that beneficiary has merely ordered trustee to pay agent/rep.\n\nInvoluntary Alienation: generally, creditors cannot attach right to future payment.  However, at common law, preferred creditors can attach (e.g., Gov\xe2\x80\x99t, those who provide necessities of life to beneficiary, child or spouse for support, tort creditor).  Many jurisdictions also allow attachment by any creditor of \xe2\x80\x9csurplus\xe2\x80\x9d (as measured by beneficiary\xe2\x80\x99s \xe2\x80\x9cstation in life\xe2\x80\x9d).\n\nCreation for Oneself: trust is valid.  Involuntary alienation permitted (creditors can attach).  Voluntary alienation: split of authority.\n\nSupport Provision: provision that allows trustee to pay to beneficiary only as necessary for his health, support, maintenance, or education.  Same rules as Spendthrift Provision.\n\n*Discretionary Provision: provision that gives trustee sole and absolute discretion to determine when and what, if ever and anything, to give to beneficiary.\n\nVoluntary Alienation: on one hand, beneficiary cannot transfer right because he may not get anything.  On the other hand, if he does, transferee steps into beneficiary\xe2\x80\x99s shoes, and if trustee decides to pay, he must pay transferee.\n\nInvoluntary Alienation: on one hand, creditors cannot attach beneficiary\xe2\x80\x99s right, because there might not be any.  On the other hand, if trustee has notice of debt and creditor\xe2\x80\x99s judgment against beneficiary, and decides to pay, he must pay the creditors.\n\nCreation for Oneself: same as Spendthrift Trust.\n\nHybrid?  If provision has both support and discretionary language, note that it could be either, and discuss both.\n\nResulting Trusts: an implied-in-fact trust based on presumed intent of parties.  If decreed by the court, trustee will transfer property to settlor or estate.  Arises when (1) Private Express Trust ends by its own terms, and no provision for aftermath, (2) Private Express Trust fails for lack of beneficiary or illegality; (3) there is excess corpus in Private Express Trust, (4) Charitable Trust ends because of impossibility/impracticability, and cy pres unavailable, (5) purchase money resulting trust, or (6) semi-secret trust.\n\nPurchase Money Resulting Trust: A pays B to transfer title to C, C is presumed to be trustee for A, unless C is closely related to A, in which gift is presumed.\n\nSemi-Secret Trust: when will makes a gift to a person to hold as trustee but does not name the beneficiary.  Distinguish from Secret Trust.\n\nConstructive Trusts: an equitable remedy to prevent fraud or unjust enrichment.  Wrongdoer is deemed trustee and must transfer property to intended beneficiary.  Arises when: (1) trustee of a Private Express Trust or Charitable Trust profits by self-dealing; (2) fraud in inducement or undue influence re a will; (3) oral real estate trust; or (4) there is a Secret Trust.\n\nOral Real Estate Trust: settlor transfers title to property to A on oral condition that it be used for the benefit of B.  Normally, A can invoke SOF, but cannot do so, and constructive trust imposed, where: (1) S & A in fiduciary relationship, (2) A committed fraud in inducement, or (3) beneficiary detrimentally relied.\n\nSecret Trust: will makes outright gift to A, but on basis of oral promise by A to use property for benefit of B.  Parol evidence is admissible to show that B is intended beneficiary.\n\nTrustee Powers & Duties\n\nTrustee Powers: powers expressly enumerated in instrument, provided by state law and court decree, and implied powers\xe2\x80\x94those helpful and appropriate to carry out trust purpose.  Trustee can sell property, incur expenses, lease, and borrow money as necessary.\n\n*Trustee Duties to Beneficiary\n\nDuty of Loyalty: trustee must administer trust for benefit of beneficiaries, having no other consideration in mind. No self-dealing.  Trustee is liable for loss, and must turn over ill-gotten gains as constructive trustee.  Cannot sell to trust, or sell trust asset to relative, even at FMV.  Beneficiary can recover profits from trustee or set aside the transaction.\n\nDuty of Due Care: trustee must act as a reasonably prudent person dealing with his own affairs.\n\nDuty to Invest: three alternative rules, discuss all 3\n\nState Lists: some states have default lists of permissible investments: federal government bonds, federally-insured CDs, first deeds of trust in real estate, sometimes stocks of publicly-traded corporations (depends on jurisdiction).  Never invest in new business or second deed of trust.\n\nCommon Law Prudent Person Test: trustee must act a reasonably prudent person investing his own property, trying to maximize income while preserving corpus.  Each investment is scrutinized.  Good investments include federal government bonds, federally-insured CDs, first deeds of trust in real estate, blue-chip stocks, mutual funds (depends on jurisdiction).  Never invest in new business or second deeds of trust.\n\nUniform Prudent Investor Act: trustee must act as a prudent investor.  Each individual investment is not scrutinized, and may include risky/esoteric stuff.  Performance is measured in context of entire portfolio.\n\nUnder any standard, trustee has a duty to diversify.  For breach of duty to invest, trustee must make up for loss.  No netting for big wins.\n\nDuty to Earmark: trustee must label trust property as trust property.  If breached:\n\nCommon Law: if there is a loss to the property, even if no relation to failure to label, trustee is liable for loss.\n\nModern Approach: liable for loss only if caused by failure to label.\n\nDuty to Segregate: trustee cannot commingle personal funds with trust funds.  If breach, trustee can be removed and held liable for loss.\n\nDuty Not to Delegate: trustee can rely on professionals in reaching decision, but cannot delegate decision-making authority to them.  Modernly, trustee can delegate duty to manage money to professional.\n\nDuty to Account: trustee must, on a regular basis, give beneficiary statement of income and expenses.  Remedy is action for accounting.\n\nRemedies for Breach: damages, constructive trust, equitable lien, ratify transaction if good for beneficiary, remove trustee.\n\nTrustee\xe2\x80\x99s Liability to 3rd Parties\n\nContract Liability\n\nCommon Law: trustee is sued in personal capacity and personal assets at stake, but may get indemnification from trust assets if acting within powers and not personally at fault.\n\nModern Approach: if counterparty knows trustee is contracting in capacity as trustee, trustee must be sued in representative capacity.\n\nTort Liability\n\nCommon Law: trustee sued in personal capacity, but may get indemnification from trust assets if without personal fault  (e.g., strict liability, or agent committed tort.).\n\nModern Approach: trustee sued in personal capacity and is personally liable only if at fault.  Otherwise, representative capacity (e.g., strict liability, or agent committed tort.).\n\nModification & Termination of Trusts\n\nModification by Settlor: settlor can modify the trust if settlor expressly reserves power to modify or has power to revoke.\n\nModification by Court\n\nCan be modification of Charitable Trust via cy pres.\n\nDeviation Power: court can also modify trust to change administrative or management provisions if both (1) circumstances unforeseen by settlor, and (2) necessity\xe2\x80\x94deviation necessary to preserve the trust.  Court cannot change beneficiaries.\n\nTermination of Revocable Trust\n\nMajority: to retain power, settlor must expressly reserve in trust instrument\n\nMinority: settlor has power unless trust expressly made irrevocable.\n\nTermination of Irrevocable Trust: any of the following 3 methods for premature termination:\n\nSettlor & All Beneficiaries Agree: must account for contingent remainderman, by guardian ad litem.\n\nAll Beneficiaries Agree & Material Purposes Accomplished: court will set aside sufficient assets to accomplish minor purpose.\n\nOperation of Law:  in some jurisdictions, where there is a Private Express Trust of real property, and trustee has only passive duties (just holds bare legal title to res), trust terminates under the Statute of Uses, and beneficiary gets legal title by operation of law.  Generally doesn\xe2\x80\x99t apply to personal property, but should by analogy because equity should not see a useless act done.\n\nIncome & Principal Problems\n\nIncome & Expenses Allocated to Life Tenant: \n\nGets: cash dividends, interest income, net business income.\n\nPays: interest on loan indebtedness, taxes, and minor repairs.\n\nIncome & Expenses Allocated to Remainderman:\n\nGets: stock dividends, stock splits, net proceeds on sale of trust asset.\n\nPays: principal part of loan indebtedness, major repairs or improvements.\n\nAdjustment Power of Trustee: trustee can disregard above-state rules regarding allocation if a different allocation is necessary to administer the trust fairly.\n\nViolation may be a breach of the duty of loyalty.'


b'Community Property Outline\n\n\n\nBasic Default Principles & Presumptions\n\nDefinitions\n\nSeparate Property: property (1) owned by either spouse before marriage, (2) acquired by gift, will, or inheritance, or (3) acquired during the marriage with separate funds, (4) rents, issue and property derived from separate property, even if acquired during marriage.\n\nCommunity Property: property, other than separate property, acquired by either spouse during marriage.  E.g., salary, income from community assets.\n\nCommunity Presumption: all assets acquired during marriage are presumptively community property.  Burden on party asserting it is SP.\n\nExtension of CP System: applies to registered domestic partners (RDPs).  Available to (1) same-sex couples, and (2) elderly opposite-sex couples receiving social security.  Same-sex couples lawfully married after In re Marriage Cases (2008) but before Prop. 8 (Nov. 5, 2008) may claim community property rights as spouses, not as domestic partners.\n\nWhen Does Economic Community End? Permanent physical separation and intent (by one party) not to resume the marital relation.  Note: if both maintain the fa\xc3\xa7ade of marriage, community has not ended, even if cheating and not living together.\n\nFor CP not divided on divorce, court retains continuing jurisdiction to award, and on motion will divide 50/50 unless interests of justice require otherwise.\n\nHow is CP Handled on Divorce?\n\nEqual Division Required: absent agreement, all CP must be divided equally, on an individual asset basis.  That is, each community asset and liability must be divided 50/50.\n\nEconomic Circumstance Exception: permits entire asset to one spouse and cash to other: residence, closely-held corporation, pension.\n\nStatutory Exceptions: misappropriation of CP by a spouse; educational debt; spouse\xe2\x80\x99s tort Liability not based on activity for benefit of community; personal injury is CP but on divorce is awarded to injured spouse unless interests of justice require otherwise; negative Community: where community liabilities exceed assets, ability of each spouse to pay is considered, and may not be 50/50 division (concern to protect creditors).\n\nDisparity in Earning Power: may be considered only as to spousal support or child support.\n\nRules Governing Gifts of CP\n\nNo Unilateral Lifetime Gift: neither spouse can make gift of CP without other spouse\xe2\x80\x99s written consent.  If gifting spouse is alive, non-gifting spouse can set aside gift in entirety or, on divorce, take equal offsetting CP to recover her half.  If gifting spouse dead, non-gifting spouse can set aside gift as to her half, and recovery will be either from donee or spouse\xe2\x80\x99s estate.  Same result if third-party is named on spouse\xe2\x80\x99s CP life insurance.  However, if gift was U.S. Bonds, federal law preempts and provides that cannot be recovered from third party.\n\nYes Unilateral Testamentary Power over \xc2\xbd CP.  Each spouse has testamentary power over \xc2\xbd CP and all SP.  \n\nWidow\xe2\x80\x99s Election Will: if will purports to dispose of more than \xc2\xbd CP, surviving spouse cannot read will selectively, and must elect either to take (1) under the will as written or (2) against the will by claiming \xc2\xbd interest, but must then relinquish all testamentary gifts in her favor.  \n\nAcquisition on Credit During Marriage: under the Community Credit presumption, funds borrowed during marriage and goods purchased on credit during marriage are presumptively CP.  However, ultimately classified according to primary intent of the lender.  Single spouse\xe2\x80\x99s personal credit score or reputation in community is not sufficient primary intent, as both are CP.  However, where funds secured by mortgage on single spouse\xe2\x80\x99s SP, sufficient primary intent to defeat presumption of CP.  Note, and items obtained with funds from note, would be SP.\n\nConfidential Relationship, Fiduciary Duty, Undue Influence: spouses are fiduciaries and owe duty of highest good faith and dealing with each other.  If one spouse gains advantage from transaction, presumption of undue influence arises.  Spouse has burden of proof to show no breach.  Under 2002 statute, grossly negligent and reckless investment of community funds is breach of fiduciary duty.\n\nEffect on Characterization of How Title is Taken\n\nProperty Acquired Pre 1975-Married Woman\xe2\x80\x99s Special Presumption: where CP was used to take written title in a married woman\xe2\x80\x99s name and the title did not indicate CP or joint tenancy was intended, presumptively wife\xe2\x80\x99s SP.  This is exception to general rule that assets in one spouse\xe2\x80\x99s name does not overcome community presumption.  \n\nRebuttability: not rebuttable as against BFP who takes in reliance that it is wife\xe2\x80\x99s SP, but as between wife and husband, husband can rebut by showing he did not intent to make a gift to wife. \n\nWeird Examples: title taken in name of \xe2\x80\x9cHobie Gates & Winkie Gates\xe2\x80\x9d (with no reference to marital status), or \xe2\x80\x9cWinkie Gates, a married woman,\xe2\x80\x9d presumption applies.\n\nPresumption From Taking Title in Joint Form Where SP Used for CP (i.e., only where title lists both spouses\xe2\x80\x99 names) on ownership and reimbursement where SP is used to purchase or improve the property.  These rules only apply if a title or deed document exists.  A receipt is not enough.\n\nSP in Death: Marriage of Lucas: presumptively CP, and any SP is presumptively a gift to community.  No SP ownership interest or claim for reimbursement unless written agreement to that effect.\n\nSP in Divorce: Anti-Lucas Statutes\n\nOwnership: presumptively CP, rebutted by express statement in deed or other instrument of title, or written agreement.\n\nRight to Reimbursement: spouse contributing SP entitled to reimbursement without interest for DIP: contribution to Down payment, Improvements, and Principal payments on mortgage (as well as principal even if no mortgage).\n\nDuring Marriage: could be joint tenancy, in which each has a SP interest.  Must check instrument.  Not necessarily CP.\n\nAltering Character of Assets by Agreement: parties can, by agreement, opt out of CP and SP default characterizations as to particular assets or all acquisitions.  No consideration required.\n\nPremarital Agreements\n\nRule: must be in writing signed by both parties, unless (1) oral agreement is fully performed, but marriage alone is not sufficient performance, or (2) estoppel based on detrimental reliance.\n\nScope: parties can agree to anything except to limit child support contributions. \n\nDefenses to Enforcement\n\nNot Signed Voluntarily: a premarital agreement is deemed involuntary unless challenging party was given at least 7 days to sign and was either represented by independent legal counsel or was fully informed in writing of terms and basic effect, and executed acknowledgement.\n\nUnconscionable: a question of law for judge\n\nSpousal Support Provision: unenforceable if either (1) party not represented by independent counsel at time signed, or (2) provision is unconscionable at time of enforcement, even if represented.\n\nAnything Else: unenforceable if both unconscionable when made and (1) no full and fair disclosure of other party\xe2\x80\x99s property or financial obligations; (2) right to disclosure not waived in writing, and (3) party challenging had no adequate knowledge of other party\xe2\x80\x99s property or financial circumstances.\n\nIntra-Marital Agreements (Transmutations): prior to 1985, oral transmutations permitted, but after 1985 all transmutations must be in writing, signed by spouse adversely affected, and explicitly state that a change of ownership is being made.  No usual exceptions to writing requirement for SOF, estoppel, part performance.  However, no writing required for gift of tangible property of personal nature (e.g., inherited jewelry) which is not substantial in value under circumstances.\n\nWill/Revocable Trust as Evidence: in any proceeding commenced before death, statements contained therein relating to character of property is not admissible evidence of a transmutation.\n\nEffect of Parties\xe2\x80\x99 Actions on Characterization of Assets\n\nInstallment Purchase Pre-Marriage, Debt Paid With CP During Marriage: Pro-Ration Rule: community estate takes pro-rata portion of the property measured by the percentage of principal debt reduction attributable to the CP.  To get percentage, you do not look at contributions to interest, taxes, etc.\n\nInsurance: pro-ration rule applies to whole life insurance.  But for term insurance, pro-ration inapplicable, and the last premium determines the character, as each payment governs each respective portion of the term.\n\nCP Used to Improve SP\n\nSpouse Expends CP to Improve Own SP: where CP used to improve SP by way of fixture, community has no ownership interest in the SP.  However, community has right to reimbursement of the greater of the CP or the SP\xe2\x80\x99s increase in value.\n\nSpouse Expends CP to Improve Other Spouse\xe2\x80\x99s SP: courts are split: some require reimbursement, others do not and presume a gift to other spouse\xe2\x80\x99s SP rebuttable only by evidence of agreement to reimburse community. \n\nTracing Property Purchased From Commingled Funds\n\nRule: to establish that property purchased from commingled funds is SP, spouse must use one of the following tracing methods on an asset-by-asset basis: \n\nExhaustion: at time asset purchased, community funds had already been exhausted.\n\nDirect Tracing: at time asset purchased, there were separate funds available, and proponent intended to use them to purchase SP.\n\nFamily Expense Presumption: expenditures for family expenses are presumed to be made by community funds even if SP available.  If SP is explicitly used, however, presumption of gift to community, unless agreement otherwise.\n\nNo Recapitulative Accounting: SP proponent cannot simply show that total community expenses exceeded total community income and conclude all remaining funds and assets purchased from commingled account are SP.  Burden is to show that each asset was purchased with SP funds.\n\nMere fact of commingling of SP and CP does not effect a recharacterization.\n\nCommon Characterization Problems\n\nSP Business Increases in Value During Marriage: two tests for determining how much increase is CP vs. SP, and both should be discussed.\n\nPereira Accounting (Personal skills and effort of spouse\xe2\x80\x94Pay interest): SP is businessperson\xe2\x80\x99s separate capital + a fair rate of return.  Remaining value is CP.  [The idea is that since the increase came as a result of spouse\xe2\x80\x99s hard work, and hard work is community asset during marriage, community should get a lot.]\n\nVan Camp (Valuable Company or asset\xe2\x80\x94Value Community labor): CP is value of spouse\xe2\x80\x99s services less family expenses paid from business earning.  SP is everything else.  [The idea is that since spouse\xe2\x80\x99s work, which is community asset, didn\xe2\x80\x99t do so much, community should get little.]\n\nCourt is not bound to adopt either, and can select whichever achieves substantial justice between the parties. \n\nPension\n\nRule: if accumulated during marriage, whether or not vested at time of divorce, it is CP, subject to pro-ration rule: percentage of years service while married out of total years employed to retirement.\n\nAwarding Before Vesting: if at divorce pension has not vested, spouse can be awarded either (a) \xe2\x80\x9cif and when received decree\xe2\x80\x9d in which when pension is received, spouse gets share, or (b) cash-out by awarding other assets of equal value.  If vesting has occurred, spouse has present right to her share of the pension, even if other spouse does not opt to retire.\n\nFederal Law: if a non-participant spouse (NPS) in a qualified pension plan divorces a participant spouse, her CP interest is recognized, and under federal law, she can get a Qualified Domestic Relations Order and receive payments from the plan.  If the NPS predeceases the participating spouse, NPS cannot devise her CP interest in the plan, because federal law preempts and prevents her from doing so.\n\nDisability & Workers\xe2\x80\x99 Compensation: treated as wage replacement.  Thus, classified according to when received, not according to when earned.  However, where an election is possible, a spouse cannot defeat community interest by way of electing the kind of benefit.\n\nSeverance Pay After Marriage Ends: no clear rule.  Some court say SP because it replaces lost earnings, others say CP because it was earned during marriage.\n\nStock Options Awarded During Marriage But Vesting After Marriage: pro-ration formula depends on the employer\xe2\x80\x99s primary intent:\n\nTo Compensate for Past Performance: Marriage of Hug Formula: CP = number of shares multiplied by fraction of years of employment to date community ended over employment to date option vests.\n\nTo Encourage Remaining: Marriage of Nelson Formula: CP = number of shares multiplied by fraction of years from date option is granted to date economic community ends over years from date option granted to date option becomes exercisable. \n\nGoodwill of Professional Practice: is CP to the extent acquired during marriage.  Any agreement among the business partners as to value of goodwill to each partner is a factor that may be considered, but not conclusive as to CP value.  Valuation methods: (1) current-sale value, or (2) future income from accrued goodwill.\n\nEducation & Expenses \n\nEducation Not Property, But Right of Reimbursement: not property subject to division on divorce, even if other spouse funds education.  However, funding spouse entitled to reimbursement if education enhanced earning capacity.\n\nEquitable Defenses to Duty to Reimburse: (1) if community has already benefitted from education, which is presumed if more than ten years have passed since education, or (2) other spouse also received CP-funded education, then no right to reimbursement.\n\nStudent Loans: on divorce, assigned solely to the party that incurred the debt.\n\nTort Liability to Spouse or Creditors\n\nSpouse Injures Other Spouse: any recovery is SP of injured spouse.\n\nSpouse Injured by 3rd Party: any recovery is CP, but in a property division on divorce, entire award goes to injured spouse so long as can be traced and was not already spent, unless interests of justice requires.  However, on death rather than divorce, treated as CP.\n\nTort Creditors of One Spouse: CP is subject to tort liability of either spouse.  If spouse committed tort to benefit community (e.g., drive child to school), liability is satisfied first from CP and then from spouse\xe2\x80\x99s SP.  If spouse not performing act for benefit of community, liability first satisfied from spouse\xe2\x80\x99s SP, and then from CP.  Can never reach non-negligent spouse\xe2\x80\x99s SP.\n\nContractual Liability to Creditors\n\nGenerally: contractual creditors of one spouse\n\nIntra-Marital Debts: can reach CP in satisfaction of a spouse\xe2\x80\x99s business debts.  \n\nPre-Marital Debts: can reach CP, except cannot reach earnings of nondebtor spouse held in separate account in which debtor spouse has no right of withdrawal and not commingled with CP.\n\nMedical Expenses: can reach CP and even non-debtor\xe2\x80\x99s SP because each spouse had duty to support other spouse and children, and is thus personally liable for their necessities.  However, if CP was available, non-debtor spouse may be reimbursed.  Note: spouse still liable even if, when debt incurred, spouses had separated and marital community ended, because, for this purpose only, still husband and wife until divorce.\n\nPrior Child/Spouse Support Obligations: if arose before marriage, even if ordered during, is considered pre-marital debt.  If after, intra-marital debt.  Treated like any other debt.  However, if CP is used for pre-marital, right to reimbursement if spouse had SP available to satisfy the obligations.  If not, no reimbursement.\n\nVice Debts: debts for gambling, prostitutes, even if legal, do not benefit community and, though creditors can reach CP, other spouse has right to offset in divorce.\n\nPost-Divorce: after divorce, a creditor cannot reach the CP awarded to a non-debtor spouse unless that spouse was assigned the debt by the court.\n\nManagement of CP: each spouse has equal management and control over all CP, and has full power to buy or sell CP and incur debts to community without other spouse\xe2\x80\x99s consent.  Exceptions:\n\nPersonal Family Belongings Exception: one spouse cannot encumber personal property used in family dwelling without written consent of other spouse, and harmed spouse can void the transfer.\n\nBusiness Exception: spouse operating business that is all or substantially all CP has primary management and control, and may act alone, except must give prior written notice of any sale, lease, or exchange of all or substantially all of personal family property used in the business.  If notice not given, spouse has remedy only if breach substantially impaired her interest, but cannot void the transfer.\n\nReal Property: for transfer of interest in real CP, both spouses must join in executing instrument of conveyance.  Neither spouse can convey their \xc2\xbd interest in CP, unless to pay for family attorney in divorce action (Family Attorney\xe2\x80\x99s Real Property Lien).\n\nWhen CP title in one spouse\xe2\x80\x99s name and he sells to a third party by misrepresenting his marital status, nonconsenting spouse has 1 year to bring action to void transfer, unless transferee not good-faith, in which case no SOL.  Transfer to good-faith purchaser is presumed valid, but may be rebutted, in which case transfer voided and purchase price must be returned to good-faith purchaser.\n\nForeign Property: where spouses move to CA from a non-CP jurisdiction, property acquired in other state during marriage which would be CP if acquired in CA is deemed \xe2\x80\x9cquasi-CP\xe2\x80\x9d, and treated like CP.  Same for SP.\n\nForeign Real Property: for purposes of division on divorce, quasi-CP foreign real property is treated as CP (and though no jurisdiction over property, jurisdiction over acquiring spouse); for purposes of division on death, though, foreign jurisdiction\xe2\x80\x99s law controls (no jurisdiction over dead spouse, and thus no jurisdiction over property).\n\nDeath of Non-Acquiring Spouse: Where non-acquiring spouse dies first, she has no power of disposition over quasi-CP.  Thus, she cannot devise quasi-CP.  However, where spouses move from a CP state, CA will treat not as quasi-CP, but as true CP.\n\nProperty Acquired Outside Marital Relation\n\nCommon Law Marriage: where people live together and hold themselves out as married: not recognized in CA, and thus property acquired is not CP, unless validly contracted in a recognizing state.\n\nPutative Spouse: if party has objectively reasonable and good-faith belief of marriage, assets are \xe2\x80\x9cquasi marital property\xe2\x80\x9d and split 50/50.  Be sure to make argument that while unclear, possible lying spouse may be entitled to less.\n\nUnmarried Cohabitants: governed by contract law.\n\nMiscellaneous\n\nU.S. Savings Bond is, under federal preemption, SP of named party.\n\n\n\nEssay Tips\n\n\n\n1.  First Paragraph of Any CP Essay Answer: California is a community property state.  In California, there is a community presumption, whereby all assets acquired during the marriage are presumptively community property. There are, however, areas of so-called separate property: property (1) owned by either spouse before marriage, (2) acquired by gift, will, or inheritance, or (3) acquired during the marriage with separate funds, and (4) rents, issue and property derived from separate property.\n\n\n\n2.  Look to certain key, threshold issues.  Divorce or death?  Out-of-State property?\n\n\n\n3.  Organize analysis under headings for each item of property.\n\n\n\n4.  For each item of property, address (1) the source of property, (2) basic presumption for that source; (3) any actions that would change that presumption (every sole bank account is a transmutation/gift issue), (4) any special rules that change presumption, and (5) distribution of property.'