> ## Documentation Index
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> Use this file to discover all available pages before exploring further.

# Session 04

> Property class session 04 organized notes

## Gifts

### Elements Required for a Valid Gift

A valid gift requires three elements:

1. **Intent** - Grantor must intend to divest themselves of title
   * **Present intent** required (not future intent)
   * "I want to give you" = insufficient (future intent)
   * "I will give you" = shows future intent
   * "This is yours" = present intent

2. **Delivery**
   * **Actual Delivery** - Physical, manual transfer of the gift
     * Physically handing the item to the recipient
     * Preferred method when possible

   * **Constructive Delivery** - Delivery through an instrument or symbolic item
     * **Only valid when actual delivery is impractical or impossible**
     * Examples: Handing over car keys, title/pink slip
     * If manual delivery is possible, constructive delivery is ineffective

   * **Symbolic Delivery** - A form of constructive delivery
     * Transfer of something symbolic of the gift
     * Historical example: Clot of dirt or key to symbolize land transfer
     * Example: Car key in a box symbolizing the car

3. **Acceptance**
   * **Presumption**: If something is objectively valuable and recipient does nothing to reject it, acceptance is presumed
   * To reject, donee must take affirmative action evidencing rejection (e.g., pushing it back, stating "I don't want this")
   * Mere silence or inaction = acceptance for valuable items

### *Newman v. Bost* (1898)

**Facts**: Van Pelt (decedent) was a wealthy, bedridden man with Newman (his housekeeper) caring for him. On his deathbed, Van Pelt handed Newman keys to a bureau, stating the keys and everything in the bureau were for her. Inside the bureau were life insurance policies worth approximately \$3,000.

**Issue**: Whether delivery of keys to a bureau constituted valid delivery of the life insurance policies contained within.

**Rule**:

* Constructive delivery is valid **only when actual delivery is impractical or impossible**
* If an article is present and capable of manual delivery, it must be actually delivered

**Holding**:

* **Bureau**: Gift was valid - keys constituted effective constructive delivery because manually delivering large furniture would be impractical
* **Life Insurance Policies**: Gift failed - the policies were small, portable, and easily capable of being handed over, so constructive delivery was insufficient

**Analysis**:

* The decedent was capable of handing over the key, so he was also capable of handing over the life insurance policies
* Since manual delivery was possible, constructive delivery could not substitute
* Court was concerned about fraud - only the caretaker's testimony supported the alleged gift (no corroboration)

**Key Principle**: When property can be manually delivered, constructive delivery is ineffective to legally transfer a gift.

### Gifts in Community Property Context

* Gifts constitute **separate property** in marriage
* Not subject to community property division
* More thoroughly covered in Community Property course

***

## Acquisition by Creation

### Property Interest in News

**General Rule**: The news itself (facts about public events) cannot be owned or monopolized. Everyone has the right to report on public events.

**Freedom of the Press**:

* Everyone is "the press" under the First Amendment
* No exclusive ownership of news about public incidents (e.g., 9/11, natural disasters, nuclear attacks)

**Investigative Reporting Exception**:

* When a reporter/agency **creates news through their own efforts and resources** (investigative journalism), they gain a **temporary quasi-property interest**
* This interest requires others to:
  * Give credit to the original source
  * Respect the reporter's work for a limited time period
  * Allow the original reporter to receive economic benefit

**Rationale**:

* Without this protection, no one would be incentivized to conduct investigative journalism
* Other outlets would simply copy the work without compensation
* The industry would "wither away and die"

**Example**: Reporter investigates and discovers LA County Jail is serving rats to inmates. Other news outlets must credit the original reporter/publication (e.g., "The LA Times reports...") and cannot immediately claim the story as their own discovery.

**Distinction**:

* Public incidents (not created by reporter's efforts) = no exclusive interest
* Investigative discoveries (created through reporter's efforts) = temporary quasi-property interest

### *International News Service v. Associated Press* (1918)

This case deals with the property interest in news created through investigative efforts and reporting. The principle established over a century ago remains relevant today regarding first impression rights and who can claim credit for breaking stories.

***

## Patents and Living Organisms

### *Diamond v. Chakrabarty* (1980)

**Facts**: Petitioner created a bacteria capable of breaking down crude oil for use in oil spill cleanup. Patent application was denied on grounds that bacteria is a living organism and a product of nature.

**Issue**: Can a living organism be patented?

**Rule**: A living organism **can be patented** if it is:

1. **Man-made** (not naturally occurring)
2. **New** (novel)
3. **Useful**
4. The product of **human ingenuity**

**Holding**: The genetically engineered bacteria was patentable because it was not naturally occurring - it was manufactured through human ingenuity.

**Key Principle**: Living organisms that are products of human manufacture and ingenuity (not naturally occurring) are capable of being patented.

**Policy Implications**:

* Pharmaceutical companies can patent manufactured cancer-fighting cells
* Patent holders can prevent others from using similar treatments
* May suppress research by competitors who independently develop similar solutions

***

## Property Interest in One's Body

### *Moore v. Regents of the University of California*

**Facts**: Patient required medical procedure (removal of cells/tissue). Doctor did not disclose that patient's cells were valuable for medical research. After extraction, doctor used cells for research purposes.

**Issue**: Do individuals have a property interest in their body parts, cells, and biological materials after removal from their body?

**Holding**:

* Once biological materials are removed from the body, the individual **loses property interest** in them
* Cannot keep removed body parts (tonsils, appendix, blood, etc.)
* Doctors cannot give patients their extracted body parts in a bag

**Rationale - Public Policy Considerations**:

1. **Hazardous Materials**: Human biologicals can be hazardous and require proper handling/disposal
2. **Medical Progress**: Using biological materials for medical research advances science and benefits society
3. **Waste Management**: Standardized procedures needed for disposing of medical waste

**Tort Claim**:

* Doctor **breached fiduciary duty** by not disclosing the value of patient's cells
* Physicians have duty to inform patients when their biological materials have significant value
* However, this does not create ongoing property interest in the materials after removal

**Note**: The case was primarily a **conversion** claim (tort), but property principles apply to determine whether there was property that could be converted.

***

## Present and Future Interests - Introduction

### Overview

This section covers **estate planning** and the transfer of property interests. The material applies to:

* Land (most common teaching example)
* Personal property (cars, chattels)
* Any transferable asset ("Grandma's CVS China")

### Critical Concepts

**Two Universes of Law**:

1. **Common Law** - Hundreds of years old; applies to bar exam multiple choice questions
2. **Modern Law** - Contemporary principles; generally applies to essays unless specified otherwise

**Important**:

* You must know **both** common law and modern law
* Fact patterns will indicate which applies, or you may need to discuss both
* "If they have an iPhone" = use modern principles

**The Architect Concept**:

* **O** = Owner/Grantor (the architect who designs the property's path)
* **A, B, C** = Recipients/Grantees
* O decides who gets property, for how long, and under what conditions

**Fundamental Rule**: Property will **always** go somewhere - it never just "floats around"

**Conveyance Limitation**: You can only convey an interest equal to or less than what you have (never more)

***

## Fee Interests (3 Types)

### 1. Fee Simple Absolute (FSA)

**Definition**: The **maximum ownership interest** possible - complete, absolute ownership

**Duration**: Forever and ever; survives owner's death and passes to heirs or designated beneficiaries

**Common Law Requirements**:

* **"O to A and his/her heirs"**
* MUST include the word **"heirs"**
* Without "heirs" = creates only a life estate (not FSA)

**Modern Law**:

* **"O to A"** is sufficient
* Word "heirs" NOT required
* Presumption: Grantor intends to transfer the largest possible estate

**Example Conveyances**:

* Common Law: "O to A and her heirs" = Fee Simple Absolute
* Common Law: "O to A" = Life Estate (NOT FSA)
* Modern: "O to A" = Fee Simple Absolute

**Owner's Rights**:

* Use property however desired
* Sell property
* Transfer by will
* Property passes to heirs if no will

**Key Distinction**:

* FSA vs. Life Estate: FSA continues after death; Life Estate terminates at death
* Life Estate holder cannot put property in their will (no interest to convey after death)

***

### 2. Fee Tail

**Status**:

* **Common law only** + minority of states (approximately 4 states)
* **ABOLISHED** in modern majority jurisdictions

**Purpose**: Keep land within **lineal descendants** (bloodline/DNA)

**Common Law Language**: "O to A and the heirs of her body"

**Effect**:

* Property can only pass to A's lineal descendants (children, grandchildren, etc.)
* Limited to bloodline only

**Modern Interpretation**:

* Modern majority jurisdictions treat fee tail language as creating **Fee Simple Absolute**
* Fee tail has been abolished in most states

**Future Interest - Reversion**:

* O retains a **reversion**
* If A dies without lineal descendants (no children), property reverts back to O (or O's heirs)
* Prevents property from "floating" - it must go somewhere

**Example**:

* "O to A and the heirs of her body"
* Common law: A has fee tail; property stays in A's bloodline
* If A never has children, property reverts to O
* Modern law: A has fee simple absolute

***

### 3. Defeasible Fees

**Note**: This topic was introduced but **postponed** in this session. Will be covered after Life Estates.

**Three Types** (to be studied later):

1. Fee Simple Determinable
2. Fee Simple Subject to Condition Subsequent
3. Fee Simple Subject to Executory Limitation

***

## Life Estates (3 Types)

### General Characteristics of Life Estates

**Duration**: Only for the duration of a specified person's life

**Termination**: Interest **automatically terminates** upon death of the measuring life

**Non-Devisable**:

* Cannot be transferred by will
* Holder has no power to designate property after death
* Last breath = property gone

**Alienability**: Life estate holder CAN sell/transfer the life estate, but transferee's interest is limited by the measuring life

***

### 1. Life Estate - Life of the Grantee

**Modern Law Requirements**:

* Must include **"for life"**
* "O to A for life"

**Common Law**:

* "O to A" = creates life estate (no "heirs" = not FSA)
* No requirement to say "for life"

**Effect**: A has property for A's entire life, then it terminates

**Example**:

* "O to A for life"
* A has present possessory interest in life estate
* Duration: A's life
* When A dies, interest terminates (cannot pass by will)

**Murder Motive**: Recipients of future interests (who take after A dies) have motive to murder A to accelerate their interest

***

### 2. Life Estate Per Autre Vie (Life of Another)

**Definition**: Life estate measured by the life of someone **other than** the grantee

**Language**: "O to A for the life of B"

**Effect**:

* A has the property
* A's interest lasts **only until B dies**
* When B dies, A loses the property (even if A is still alive)

**Murder Motive**: A has incentive to **keep B alive** (no motive to murder B)

**Reversion**: When B dies, property typically reverts to O (future interest coverage upcoming)

**Unresolved Issue**: If A dies before B:

* Some sources: Property reverts to O (because O's intent was specific to A)
* Professor's modern view: Property passes to A's heirs until B dies
* Sources contradict each other on this point

***

### Selling a Life Estate - Creating Per Autre Vie

**Scenario**:

* O conveys to A for life
* A sells to B

**Result**:

* B receives a **life estate per autre vie**
* B's interest measured by **A's life** (not B's life)
* When A dies, B loses the property
* B can never possess property longer than A's life

**Rationale**:

* O gave specific directions: property for A's life only
* A cannot convey more than A has
* B's interest is "under the umbrella" of A's life estate
* A's life is the maximum duration

**Practical Implications**:

* Buyers need to be aware they're buying limited interest
* Risk of fraud: A might misrepresent to B that conveyance is fee simple absolute
* If A dies and B remains on property without O's consent = B becomes **adverse possessor**
* Potential claim: Adverse possession based on color of title (defective deed)

***

### 3. Defeasible Life Estates

**Note**: **Postponed** for future session

**Three Types** (to be covered later):

1. Life Estate Determinable
2. Life Estate Subject to Condition Subsequent
3. Life Estate Subject to Executory Limitation

These work similarly to defeasible fees and will be covered after defeasible fees are taught.

***

## Study Tips and Warnings

### Difficulty Level

* Students consistently report this is the **most challenging** section of Property
* Not inherently "hard" but **easy to lose grasp** of concepts
* Material typically "clicks" around Thanksgiving (several weeks after introduction)
* Requires consistent review and practice

### Common Pitfalls

* **Contradictions**: Textbooks contradict themselves; courts misidentify estates; supplement sources disagree
* **Compounding complexity**: Starts simple, becomes increasingly complex
* **Must understand basics** before moving to advanced scenarios

### Success Strategy

1. Master the basics first (white belt before black belt)
2. Review constantly - material compounds quickly
3. Don't underestimate the difficulty
4. Call professor with questions (texting inefficient for complex questions)
5. Keep up week-by-week (cannot catch up at week 14)

### Bar Exam Note

* Common law = Multiple choice questions
* Modern law = Essay questions (unless specified otherwise)
* Must know both systems

***

## Key Terminology Review

* **O** = Owner/Grantor (the architect)
* **A, B, C** = Grantees/Recipients
* **FSA** = Fee Simple Absolute
* **Grantee** = Person receiving property
* **Grantor** = Person conveying property
* **Heirs** = Those who inherit (required word in common law FSA)
* **Lineal descendants** = Bloodline (children, grandchildren, etc.)
* **Reversion** = Future interest retained by grantor
* **Present possessory interest** = What someone has RIGHT NOW
* **Future interest** = What someone will receive later
* **Per autre vie** = "For the life of another"

***

## Exam Tips

1. **Always identify** whether common law or modern law applies
2. **Parse the language** carefully - every word matters
3. **Identify O** (the architect) first
4. **Determine what A receives** (present possessory interest)
5. **Remember**: Property always goes somewhere (never "floating")
6. **Check for key words**: "heirs," "for life," "heirs of her body"
7. **Life vs. Fee**: Can it be put in a will? If no, it's a life estate
8. **Conveyance rule**: Can only convey equal to or less than what you have