Property I Class Website

Prof. Scott B. Ehrlich
Fall 2016


Welcome to the Property Class Website

This website provides updated information about the course and assignments. It also contains links to the handouts and materials used in the course, as well as links to sites on the web.  Feel free to contact me if you have any questions.

Please note: All materials on this web site are protected by copyright and intended for use only by students enrolled in Property II at California Western School of Law. Students enrolled in the class may copy these materials to their own computers. However, these materials may not be transferred to others or posted on publicly accessible web sites.


Assignments

 

Past Assignments: As the semester moves forward, you can find earlier assignments by clicking here: Past Assignments.

 

Current Assignments: Below are the day-to-day assignments for the course.  They are updated often so hit the “Refresh” button on your browser to assure you are viewing the most recent updates. Many browsers will use a cached version of the website & may not reveal the most recent updates unless you hit the refresh button.  All of the Assignments for the course are on-line via this link: Assignments for the entire Semester. 

 

1.    Tuesday, September 27:

a.    Adverse Possession:

i.      Look carefully at the California statutes dealing with Adverse Possession:  California Adverse Possession Statutes. What are the elements (and sub-elements if applicable) that a possessor must satisfy to gain title by adverse possession in California?

ii.     Read Mannillo v. Gorski at pages 164-169 and the notes following the case.

(1)  Can you reconcile the “open & notorious” requirement in Krona and Mannillo?  Do these two courts interpret the elements of open & notorious consistently?

(2)  The court focuses on the element of “adverse & hostile”.  Be prepared to discuss the “mistake doctrine”, the “Maine Doctrine” and the rejection of the “Maine Doctrine.”

b.    Explain the meaning of “color of title.”

c.    Explain the meaning of “constructive possession”

d.    Howard v. Kunto at pages 170-177 and the notes following the case.

2.    Thursday, September 29

a.    Marengo Cave Co. v. Ross at pages 25-29 of the Supplement. 

i.      Query: After reading Marengo Cave Co. v. Ross, is it possible for an underground possessor to ever fulfill the “open & notorious” element of adverse possession?  Some student treatises say no, underground possessors can never claim title by adverse possession due to an inability to fulfill the open and notorious element.  Do you agree? 

ii.     Answer the Olive & Paula Hypothetical

b.    The California View:

i.      Gilardi v. Hallam at pages 30-34 of the Supplement and the relevant California Adverse Possession Statutes.

(1)  In Gilardi v. Hallam, the California Supreme Court held that the Hallam’s did not satisfy one of the elements for title by adverse possession (the payment of taxes under §328 of the California Code of Civil Procedure). 

(2)  Why did the court remand the case to the trial court and why did the trial court deny recovery to the Gilardi’s?

c.    Challenge: There will be a prize for students who solve the challenge.

i.      Supposedly, many states do not require a “good faith” claim of right.  Nevertheless, courts are unlikely to find in favor of an adverse possessor who acts in bad faith & attempts to knowingly gain title to land of a neighbor using the doctrine of Adverse Possession.  The challenge is to find three cases (that were not overturned by statute or on appeal), in two or more states, in the last 20 years that gave title to a squatter who knew he/she was not making a GFCR or based on Color of Title.  You cannot use the case of Chaplin v. Sanders.

ii.    To participate in the challenge, email your response to me by no later than Wednesday at 4:00 pm.

d.    Adverse Possession – The Statutory Period & “Disabilities”:

i.      In some states, the statute of limitations will be “tolled” & extended for the period of the disability if, at the time the possession commences, the true owner is:

(1)  A minor

(2)  Insane

(3)  Imprisoned

ii.     Read these provisions from the California Code of Civil Procedure: CCP §328 and 328.5 and answer the following hypothetical:

(1)  Suppose in Howard v. Kunto Lot C (the lot possessed by Kunto) is technically owned by Howard.  There is a 10 year statute of limitations:

(a)  1995: Kunto pays $400k & takes possession of Lot C after receiving a deed to “Lot D” from his seller (everyone is on wrong lot)

(b)  1999: Howard dies.  His sole heir is his five year old daughter, Helen.

(c)  2012: Helen turns 18.

(d)  2016: Helen brings an ejectment action (21 years after the Kunto’s mistakenly occupy).

(2)  Keep in mind that the Kuntos are in actual possession, under a good faith claim of right, continuously, etc. for 21 years and the state statute is 10 years.  Will the Kuntos gain title by adverse possession?

3.    Tuesday, October 4

a.    Acquiring Rights To Property - Gift

i.      Pages 189-191

ii.     Gruen v. Gruen at pages 199-205 and notes 1-2 following the case.  Then, answer the following question:

(a)  Question: What is required for a valid transfer of tangible personal property while the grantor is alive?  Suppose that you have a brother or sister who lives in New York.  As a graduation gift you want to give him or her title to your laptop computer.  You call your sibling by telephone (who is 3,000 miles away), or you text him/her, and state:  “Happy graduation, the laptop is now yours.”  Five minutes later you change your mind and call/text again, stating: “Sorry, I decided to keep the laptop.”  Who owns the laptop?

(i)    You because a verbal gift is not valid unless the property, or a written instrument, is physically delivered to the grantee.

(ii)   You because you validly revoked the gift before delivery could occur.

(iii)  Your brother or sister because title to the laptop was validly delivered and cannot be revoked.

(iv) Your brother or sister because they can use the doctrine of promissory estoppel, or equitable estoppel, to compel completion of delivery.

b.    Introduction to Estates in Land & The Fee Simple

i.      Pages 207-226.

ii.    Answer, in writing, hypotheticals 1-6 at pages 35-38 of the Supplement.  Don’t answer questions 7-12 at this time.  Make sure you bring your written answers to class.  This is a required writing assignment.  Bring a hard copy to class with you.  If you will not be attending class, you must email the responses to Prof. Ehrlich before the start of class.  On line copies of the hypotheticals: PDF, Word

4.    Thursday, October 6

a.    Interpretation of Deeds & Wills:

i.      White v. Brown at pages 226-234 and notes 1-2 following the case.

(1)  In White v. Brown, what are the rules regarding “restraints on alienation” Suppose that Jesse Lide wrote the following in her will:  “I Jesse Lide hereby grant my house to Evelyn White in fee simple absolute, however . . . :

(a)  Evelyn shall not have the right to convey the land.”  Or

(b)  Evelyn must live on the land during her natural life.”  Or

(c)  if Evelyn sells the land it shall revert back to my estate.” Or

(d)  Evelyn promises to live on the land during her natural life and not sell the land.

(2)  In White v. Brown the court refers to three earlier Supreme Court of Tennessee cases.  How did the court interpret the grants in each case?

(a)  Green v. Young (1931), in a will, the decedent disposed of all of her property to her husband "to be used by him for his support and comfort during his life."

(b)  Williams v. Williams (1933), in a will, the decedent disposed all of his real property to his children "for and during their natural lives" without provision for a gift over at their death.

(c)  Webb v. Webb (1964), in a will, the decedent disposed of his personal property to his wife "for her maintenance, support and comfort, for the full period of her natural life" with complete powers of alienation. The will was silent as to any reversion or remainder.

b.    Life Estates & Waste:

i.      Baker v. Weedon at pages 235-243 and read notes 1, 2 & 4 following the case. Read the note on Seizen at pages 243-244.  We will be discussing life estates & waste (voluntary and permissive).  Make sure you use some outside resources for some insights into the doctrines of voluntary and permissive waste.  Any of the following will help:

(a)  Moynihan & Kurtz (West Hornbook)

(b)  Bernhardt (Black Letter Series)

(c)  Makdisi (Little Brown Examples & Explanations Series)

(d)  Gilbert’s, Emanuel’s

5.    Tuesday, October 11

a.    Life Estates & Waste:

i.      Can you distinguish the following types of “waste”:

(1)  Permissive Waste

(2)  Affirmative Waste

(3)  Ameliorative Waste

b.    Ameliorative Waste

i.      What, exactly, is “ameliorative waste”?  If Ann (the life tenant) is engaging in ameliorative waste, can Bob (the remainder holder) succeed in an action seeking damages or injunction for waste by Ann?  To answer this question, read Melms v. Pabst Brewing Co.  For an interesting article about the Melms case see this link: Melms Article.[i]

c.    Waste Hypotheticals:  Respond to the following hypotheticals.

i.      Grant dies, leaving his land to his wife, Ann “for Ann’s life, then to the American Cancer Society.”  Ann is 25 years old and healthy.  The land is 5,000 acres in size and has a sub-surface pool of oil. The fair market value of the land is $1 billion.  There is also a small house on the land.  The surface can be rented for about $2,000 per month, which is enough to pay all current taxes and expenses.  Can Ann pump some of the oil and sell it if:

(1)  Grant knew about the oil but was not pumping it?

(2)  Grant didn’t know about the oil?

(3)  Grant was already pumping oil?

d.    Brief Introduction to Leasehold Estates: Page 244.

e.    Adverse Possession & Life Estates

(1)  Grant deeded land “To Ann for life, then to Bob.”  The deed was defective.  Ann took possession for 45 years.  After 45 years, Ann brings an action alleging that she has gained title to the FEE by adverse possession.  Should Ann succeed in this action?

(2)  Grant deeded land “To Ann for life, then to Bob.”  The land was vacant.  Grantor then executed a deed: “To Xavier in fee simple absolute.”  Xavier did not know about the prior grant to Ann & Bob.  Xavier took possession and built a home.  He lived there for 45 years.  Ann died 3 weeks ago.  Today Bob brings an action alleging that he is the rightful owner.  Xavier alleges that he has gained title by adverse possession.  Who will succeed in the action of Bob v. Xavier?

6.    Thursday, October 13

a.    Defeasible Estates:

i.      Pages 244-247

ii.     Answer, in writing, hypotheticals 7-12 at pages 35-38 of the Supplement.  Make sure you bring your written answers to class. This is a required writing assignment. On line copies of the hypotheticals: PDF, Word, If you will not be in class, make sure you email the assignment to me before class.

iii.    Mahrenholz v. County Board of School Trustees at pages 248-256 and notes 1-4 following the case.

(1)  Note that this case is a mid-level appeals court.  Carefully note the cases referred to in the opinion, which are opinions of the Supreme Court of Illinois. 

(2)  This mid-level appellate court is clearly wrong in applying Illinois law about interpretation of deeds and wills.  Why? Concentrate on the middle of page 250 (starting with “The difference . . .”) through the second paragraph on page 251.  Is the intent of the grantor to create a fee simple determinable clear – or is the court engaging in speculation about the intent?

b.    Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano at pages 258-264 and notes 1-2 following the case.  Also read the note on page 243. The will in Mountain Brow Lodge stated:

(1)  "Said property is restricted for the use and benefit of [Mountain Brow Lodge], only; and in the event the same fails to be used by [Mountain Brow Lodge] -- or -- in the event of sale or transfer by the [Mountain Brow Lodge] of all or any part of said lot  --  the same is to revert to the first parties herein, their successors, heirs or assigns."

ii.     Why should both provisions be unenforceable as restraints on alienation?

c.    Read Defeasible Life Estates at pages 271-273.

d.    Modern Curtailment of Defeasible Fees:  Read the statutory provisions of the California Civil Code at pages 39-41 of the Supplement.  Be prepared to explain the purpose of each statutory section.  Prepare, in writing, a short explanation of the purpose of each statutory section. 

7.    Tuesday, October 18

a.    Future Possessory Estates

i.      Possibilities of Reverter, Rights of Entry (Powers of Termination. Pages 42-43 of the Supplement.

ii.     Dukeminier pages 275-281.

iii.    Remainders: Pages 281-285. Do all notes, examples and problems.

iv.   Executory Interests: Pages 286-285.

v.    Remainders, Reversions & Executory Interests: Answer, in writing, the hypotheticals at pages 44-47 of the Supplement. Make sure you bring your answers to class. This is a required writing assignment.  On line copies of the hypotheticals:  PDF, MSWord

8.    Thursday, October 20

a.    Remainders, Reversions & Executory Interests:

i.      Review the remainder hypotheticals at pages 44-47 of the Supplement. PDF, MSWord

ii.     Review the answers to the remainder hypotheticals:  Answers to Remainder Hypotheticals (available on line after class on Tuesday)

b.    Do the “Estates In Land Worksheet”: PDF, MSWord

i.      The answers to the Worksheet are also available online.  Answer the Worksheet hypos first, then check your answers against the answers: Answers to Estates in Land Hypos

9.    Tuesday, October 25

a.    Some Anomalous Doctrines - Preventing Limitations on Marketability

i.      Read about the Destructibility of Contingent Remainders, and the abolition of the Rule, at pages 303-306.

ii.     Read about the Rule in Shelley's Case, and the abolition of the Rule, at pages 306-307.

iii.    Read about the Doctrine of Worthier Title at page 307

b.    The Rule Against Perpetuities

i.      Read Supplement pages 48-49.

ii.     Read Dukeminier pages 307-312. Do problems 1-4 on pages 312-313.

iii.    Grantor’s Interests: pages 314-315.

iv.   Answer the following Rule Against Perpetuity hypos:  PDF, MSWord

v.    The answers to the Rule Against Perpetuities Hypos are online.  Answer the hypos first, then check your answer against these: Answers

10.  Thursday, October 27

a.    Introduction to Concurrent ownership

i.      Pages 343-348. Read Riddle v. Harmon and notes 1-2 following the case at pages 348-354.

(1)  Challenge Question:  In Riddle v. Harmon, the co-owners took title as Joint Tenants With Right of Survivorship.  Either co-owner could easily sever the joint tenancy survivorship feature at any time prior to death by a new conveyance of his or her 50% interest to a strawman (such as a lawyer), who then immediately conveyed it back to him or her.  This would break the four unities.  Write a simple grant to Ann and Bob in a manner that the survivor will take 100% when the other co-owner dies, and no co-owner can unilaterally change that outcome.

ii.     Harms v. Sprague and notes 1-3 following the case at pages 354-359.

(1)  Respond to this Hypothetical:  Ann & Bob own Blackacre, as joint tenants with right of survivorship. Blackacre is worth $1 million.  Ann needs to borrow $100,000 so she applies to Bank for a loan.  Bank requests a mortgage lien on Ann’s 50% interest in Blackacre as collateral for the loan.  Ann executes a “mortgage” of her 50% interest to Bank.  Does the granting of the mortgage to Bank sever the survivorship component of the JTWROS between Ann and Bob?  Should it sever? If we apply the hyper-technical “4 unities” then the answer will depend on whether or not we are in a “Lien Theory” state or a “Title Theory” States.  In lien theory states, the lien is just an encumbrance on the fee and does not sever.  In title theory states, the mortgage is seen as a conveyance in trust to the Bank and will sever the right of survivorship.  Why are both points of view problematic?

11.  Tuesday, October 29

a.    Joint Tenancy

i.      Respond to the following questions:  Ann & Bob own Blackacre as JTWROS.  Ann executes a lease to Carl for 10 years.  Ann dies, devising (by will) her interest in Blackacre to her daughter, Annette.

(1)  Has the survivorship feature been severed by the lease?

(2)  What happens to Carl if the lease has 9 years remaining in the term?         

(3)  If you were Carl, what would you demand before signing the 10-year lease with Ann.  Suppose the property is a house and the rent is $5,000 per month.

(4)  What does Annette get upon Ann’s death?

b.    Partition & Relations Among Concurrent Owners:

i.      Pages 361–362.

ii.     Delfino v. Vealencis at pages 362-371 and notes 1, 2, 4 and 5 following the case.

c.    Relations Among Concurrent Owners:

i.      Note “b” at page 371.

ii.     Spiller v. Mackereth at pages 372-375 and notes 1-3 following the case.

d.     


Links and Reference Materials    

There is a password for some documents on this website.  It will be announced in class and emailed to you.

1.    California Adverse Possession Statutes

2.    California Codes. This link connects you to the official site of the State of California and allows you to search any of the California Codes.  For instance, to find out about tenant security deposits, click “Civil Code” and insert “tenant security deposit” in the search block.


Questions & Answers

If you have a question that you would like answered, e-mail Prof. Ehrlich at: sbe@cwsl.edu. Your name will not be posted, just the question & answer. We have powerful & enthusiastic junk email filters. If you send me email from an outside account (not your law school email account) make sure you put the word “Property” in the Subject line.

 

The following links will take you to a compilation of questions posed by prior students, and answers posted by Prof. Ehrlich:  

 

General Questions & Answers

Estates in Land Questions & Answers

 


Contact Prof. Ehrlich

E-mail: sbe@cwsl.eduPlease put the word “Property” in the Subject line.
Tel: 619-525-1416
Office: Room 309, Administration Building (225 Cedar St.)

 

Office Hours

Tuesday:

2:30-3:30

Wednesday:

12:15-2:15

Thursday:

2:30-3:30

Other Times:

I’m often available, please knock.

 



[i] Some web browsers, such as Safari, may not open password protected PDF files.  If you can’t open the file in your browser, download the file to your computer and open it with Adobe Reader.