Property : Week of 11 February 2008

11 February

• Back with Roosevelt. Our basic question is what is the role of formality vs. black-letter law? How useful is it to know the hornbook?

  FDR could not possibly have made his intentions any clearer, but some of the papers that he wanted to give were still in the desk in the White House. So the issue is whether these papers pass to the donee, or if they're part of the estate. And the executor is potentially liable if he breaches the fiduciary duty to preserve the value of the estate.

  Nobody really wants any other result here, but they need to go through these motions to prevent possible future lawsuits. A fiduciary (especially an institution like a trust company) will be VERY cautious about making sure the exact letter of the law is followed.

  The court says it's a gift: there's intention (abundantly) and acceptance. And so they need to go off and find delivery. It could have found that there was partial delivery, for example. Just as part performance takes a contracts out of the statute of frauds, the court could say that partial delivery fulfills the formal requirement here. Some courts would do this (other courts don't find that partial delivery fulfills anything in particular).

  The court here says there are two ways to achieve a gift: actual delivery, and "deed of gift." That's a whole new deal. A deed of gift is a formal document (ribbons and wax, maybe). A deed amounts to "constructive delivery." (remember quasi- contract or a "constructive contract?") Basically it's a way of saying "even though this isn't a gift, we're going to treat it as though it is." "Constructive" means something that didn't happen, but we're going to treat it as if it did happen.

  They allude to precedent, but don't cite any, to say that informal documents can count. An informal document is a substitute for delivery.

  There are many informal documents out there: what about the notes in Breitenbach? Once we're into the realm of informality, almost anything will do.

  The Roosevelt court reaches the result that everyone wants, with sound policy, but it completely guts the rules of law and undermines certainty. If we want precision, this is a bad decision.

  Note that this situation (with the president, et al.) is rather sui generis, and maybe shouldn't be read as bearing on gifts in general.

• The subsequent cases are all either echoes of Roosevelt or Breitenbach.
• So Smith's Estate...
  The estate is represented by an institution (a bank), and the plaintiff is represented by a guardian. So there is going to be caution galore.

  For whatever reason (the father is alive), Tim was living with Uncle Smith, who treated him as his own child. Uncle Smith wants the bonds to go to his nephew Tom.

  There is no doubt about what the donor wants. That is not the issue here: if there is doubt about that, we can pretty much tell that the donee will not prevail. There's also no doubt about acceptance.

  Who possesses the deed to the stocks? The uncle owns the lock-box, but the bank owns the premises. Was this physical delivery?

  A bond, incidentally, is a formal IOU: a promise to pay a certain amount of money at a certain time. A "coupon bond" (which these were), has actual coupons attached to it, and you can take these to a bank and get the interest. These are bearer bonds (i.e., belong to the bearer, not registered in the name of the holder).

  Anyway, the father claims that the son should get the money: this is insufficient-- he's an interested party. But the uncle did more than say this: he also wrote down a lot of stuff. Vaguely and inconsistently, perhaps. So now we are faced with the question: who gets the bonds?

  The opinion starts out all tough: form is important. An incomplete gift will not be honored. A gift requires physical delivery, and we are not going to fool around by calling this a trust, etc. We are very serious about all this. If it's executory (i.e., inchoate or incomplete), we won't enforce it via equity.

  Equity: the system of courts that arose in England to compete with the rigidity of the common law. This term can also mean anything that derived from the equity courts. Equity courts are abolished, of course (no more chancery courts), but we still differentiate between equity and law. The common law courts didn't recognize trusts or injunctions: this was alien technology to them.

  This is why injunctions and trusts are called "equitable."

  So this can't be a gift because there is no delivery. And it's not a will. And we won't try to make it a trust if it's not really a trust. If it is really a trust, though, why, that will be OK.

  A trust is an institution of ownership in property. In a trust, the donor (or "settlor" or-- rarely-- the "donor") transfers property to the trustee, who holds legal title to the property (not "equitable" title, but legal title). The trustee holds the property for the benefit/use of someone else (the beneficiary). It is a wonderfully flexible way to own property.

  The trustee's obligation is to manage the property, not waste it, and to pay it over to the beneficiary (interest/income/value, whatever).

  So what does it take to create a trust? Intention, obviously, and we've got that here. Acceptance, also. No problem there. We need a declaration of terms (will be problematic). We also need a subject of the trust: here, the $13K in bonds. And also, an object of the trust: a named beneficiary. Here, this would be Tom.

  So do we have a trust? The court says yes.

  There was an oral declaration (this is a problem; it doesn't count). But what is a "declaration?" It means to make something public and overt. Does writing something that gets stored in a lock-box count? This is a completely revocable statement: only he knows about it, and he can go in and tear it up at any time, and nobody can undo it.

  Can you give something in trust and have it be revocable? Yes-- a trust, unlike a gift-- can be revoked. It is a delicious substitute for a gift: we can give things to trustees, and ask trustees to give them to beneficiaries, with the provision that I can revoke it. Yay! We can make the functional equivalent of a revocable gift? Better still: I can be trustee of my own trusts. A massive assault on the law of gifts. What is delivery, if I give something to myself in trust? But the trustee and the beneficiary can not be the same person.

  Note that you can't give things in trust after you die. When you die, your property is fixed. So if the trust wasn't established before the uncle's death, he'd be out of luck. Interestingly, the court says that he declared the trust, but he just didn't mean for the declaration to be public until after his death. But good grief: if it wasn't made public until after death, it wasn't declared, and therefore no trust was established.

  And on top of that, what was declared? That the certificates were Tom's! Not that they were the property of a trustee. In another place, the uncle says they're being "held for Tom." That sounds kind of like a trust.

  And what are the terms of the trust (even though there's no trust)? There are none. When does Tom get this property? Unspecified. Does Tom get the income from the trust? Doesn't say.

  A "spendthrift trust," by the way, prevents people from running up debts against the property. It's for people who can't seem to hold on to money. This is the opposite of Bretitenbach: no formality.

  Maybe one policy is that we want property to go to the younger generation as smoothly as possible.

  Arguments on the side of the state: well, precision. We paid a lot of lip service to the concept early in the decision. Why even have formalities if some judges will deviate? Doesn't this just leave us with the worst of all possible worlds? It means we have to litigate everything, not just those things that fail to conform to the good patterns. Plus, lawyers will be out of work for non-litigation tasks: what good is expertise in how to make a gift, if we're just going to ignore the form?

  Also, this was probably a gift in contemplation of death: a tax-avoidance scam.

  So this is like Roosevelt, but applicable to real life. :)

• McMahon v. Standard Bank & Trust Co.
  Where's the line between a passive trust (where the trustee doesn't have to do anything; these are illegal) and an active trust, in WI?

  Passive trusts are not honored, but people keep creating them, instead of going to lawyers and getting it done right.

  Kind of a diversity-law nightmare, incidentally.

  The court says this is a valid trust. What did the trustee have to do? A first, nothing. But then the bank would handle the task (not the money) of paying the real estate taxes. The court says this is OK: the bank would have taken over if the settlor dies.

  Again, the formalities are eviscerated: we can have malformed trusts be valid.

• Read to P. 91

12 February

• Auric v. Continental Casualty Company:
  There's a revocable living trust. We need a declaration, terms, an object, and a subject. Presumably we have all of that. There's no need for witnesses or signatures to a trust. But they have some of this stuff because they are being super-careful. After cases like Breitenbach you'd want to err on the side of caution.

  A trust, remember, gets you out of all kinds of hassles: you can revoke it, change the terms, etc., all without any need to visit your lawyer. You can make yourself a trustee, etc. Then, in your will, you name a few specific things you want to give away, and then the will ends with the "residual clause," which specifies what to do with the rest of the stuff. You can make the trust a beneficiary of the will (this is a "pourover will/trust"). Now you don't have to change your will when you change your mind: no need to worry about screwing up formalities. You make a pourover will and make your revocable living trust the residual beneficiary, and you get to end-run around all the formalities of wills.

  Usually, when you want to amend a will, you create a "codicil," which requires all the formalities of a will. A typical law-firm will these days is about 30pp, and 29pp is boilerplate about the responsibilities of the executor, etc.

  Anyway, here we don't have a pourover trust. They want to make a new will, and pass $25K to the brother of the testator. So the testator goes to the lawyer's office, and the ceremony takes place with the witnesses, etc. But the secretary neglects to sign. Big screw-up. The lawyer, the partner, and the secretary are all supposed to have known better.

  Incidentally, why is 3 witnesses too many for WI, and 2 (our requirement) too few for others? No idea has ever been offered.

  Anyway, the lawyer signs as a witness. That's ok, except that a lawyer who drafts a will CAN NOT be a beneficiary of the will. This is why you don't want to write your parents' will. :)

  OK, so when you have a will, the original usually stays with the lawyer's office, and the client gets a "conformed" copy. The office filing system is supposed to be better than the client's one...

  Here, then, the non-signing secretary leaves the firm. So mistake number two is that the new secretary, who was supposed to file the will, just files it, without checking whether it's properly formed. Then time passes, and the testator dies. The lawyer goes to probate the thing, and collect fees, and... ooop... the will is mal-formed, and there's no way to fix it now that they guy is dead.

  What do you do when you see that the will is mal-formed? Well, first you throw something at the wall. Then you try and get the will admitted to probate (the process by which a will is established as being valid). You try to get it admitted, but the judge will say, well, there are no witnesses. So you know there are going to be probate troubles. Next, you think, hey, my malpractice insurers might want to say something about this. So you call your insurer, and they take over the project of trying to get it probated. They almost succeed, but they took too long and the statute of limitations ran out.

  So the court says that this will, duly signed, but not duly witnessed, is invalid. And so we're going to pass the property under the previous will, which excludes Auric: he is cut out of the will by formality.

  And so now Auric is suing the lawyer (well, his insurance company) for breach of contract and negligence. [and he was found to be at fault, by the Supreme Court, and heard about it on the radio... the insurers hadn't told him]

  The WI Supreme Court says that there's a constitutional right to make a will. Never mind that there's nothing about wills in the constitution. Still, property is a sacred right, and we want to protect the owner's constitutional right to dispose of property as he/she sees fit. The court says they will vindicate this right, and make the lawyer accountable to the frustrated would-be beneficiary. The insurance company will pay $25K to Auric, and the lawyer's premiums will go up. Note that whoever got the $25K from the will gets a windfall: more than the value of the estate is paid out here (because $25K goes to whoever it went to, plus $25K to Auric), and the person(s) who got the $25K weren't supposed to, under the (invalid) will.

  Usually you'd tear up the prior will, and the first clause of the new will says "I revoke all previous wills." There's a doctrine called "dependant relative revocation" which says if you revoke an old will with a defective instrument, the old will comes alive.

  How does the insurance company try to make this work? Well lawyers are officers of the court, and officers of the court are super-honest. And there was an extra lawyer in the room when the will was signed. So the word of a non-signing lawyer could count for the signature of an ordinary mortal. But then there was a falling-out in the law firm, and the partner declined to help out. Plus, he wouldn't want to admit that he witnessed this error and failed to do anything about it. So that option failed. Could have maybe subpoenaed him, but time ran out.

  Nearly every lawyer carries malpractice insurance (more than 99%). So does the law school. So do even the part-time almost-lawyers who do clinical work. So who is paying for this? Indirectly, all lawyers are. So all of us are going to pay more in malpractice insurance. Doctors pay about $100K/year in malpractice; lawyers maybe pay $10K. Now the bill comes, and it has gone up. We pass that cost onto our clients. So a will that used to cost $50 now costs $100. But we started off by saying this was a constitutional right. If we were serious about the premise of it being a constitutional right, we should probate it in the most efficient manner possible, and funneling this all through malpractice is very inefficient.

  On the other hand, though, maybe handling it this way would make lawyers more careful, says the court, because they can be held accountable for their mistakes. But they're not: that's what the insurance is-- a large community pooling resources to cover the errors of the few. And anyway, the real sanction is the humiliation.

• Mrs. Chake Avakian v. Mr. Artin Avakian
  This is an Armenian family in Ethiopia.

  Lower courts are much more cautious than Supreme Courts, because they hate getting overruled. The higher the court, the more attention to policy, and the less to form. The lower the court, the opposite.

  Here they go so far as to say that four means three. So now we have no way of knowing anything about the Ethiopian code of wills at all. Predictability, precision, all that stuff is gone.

  On the other hand, the court achieved the desired economic/policy result.

  Still, that is pretty darn extreme.

  This was a well-wrought newly minted civil code. This decision shocked the civil lawyers. Common-law lawyers thought it was good: the life of the law isn't logic, it's experience. The problem is that the code's requirements are wildly out of step with what actual Ethiopians need: it would pretty much invalidate every last will in the country, because there are almost never four witnesses.

  A nice example, though, of the tension between technical law and policy law.

• Fox v. Snow
  A US version of the invalid will pattern. One judge says we should not be blinded by form, and we should do what the testator wanted.

  The other six judges say the law is the law, it has always been this way, and we should just move on. If you want to give the property to your niece, don't give it to your husband: make it a trust. We are not going to fiddle with form.

  Also, note that often the majority doesn't do a lot of explaining, but the dissent will spend a lot of time agonizing about why the majority is wrong. Also, the policy explanations tend to be more verbose than the technical explanations, for obvious reasons.

• A brief moment of intellectual property. Traditionally not a part of property courses. It tends to show up in advanced courses, so we're not going to deal with it much here. It's a growing lucrative esoteric specialty, not fit material for introductory courses.

  Still, there are five basic sources of IP (US Constitution Art I, Sect. 8):

  • Copyrights: intellectual artistic works (books, e.g.). This is federal law, not state law. The creator is given the right to control the distribution of the work (i.e., to demand royalties from anyone who wants to use it). It started off as a 28-year period. Now it is life of creator+75 years. It's widely agreed that some copyright is a good idea, but it has been over-extended. Hard to argue that Margaret Mitchell would have declined to write Gone with the Wind if copyright had been a little shorter.
  • Patents: an even more narrow specialty, generally demanding some science knowledge. This is federal, as well, and it covers inventions. Patents only last 20 years.
  • Trademarks: more informal. Both federal and state have concerns here. The function of a trademark is to protect the *buyer* of a product-- so they know what they are buying, and can trust in reputation. It also protects the investments that companies make in building their reputations.
  • Trade Secrets: yet more informal. There's no formal law here, but you can sue for breach of a trade secret.
  • Rights of Publicity: still a point of evolving law. Nobody else can call herself Brittany Spears and put on shows. Also, there may be some limits on what the press can do to them. Note (Con Law) that the law of defamation protects private people differently from public people.
  That article empowers Congress to do 17 things. Which, over time, have turned into 17 million, but that's another discussion...
• Estates in land. The materials are former lecture notes.

13 February

• Definition day. Not too long ago, pp. 76-77 would be the entire Property course. But the legal education system is changing, and nowadays many lawyers wouldn't even know these terms any more. Real Estate practice is highly specialized, nowadays, and these terms are increasingly irrelevant. But they are not gone altogether. Still, mostly you can just look them up. On the surface, these terms are all easy to define, but there are perilous depths behind them. For example, the Wis. Stat. contain a model will (in case you didn't want to pay for one). The model will is short. It says that the executor has "all the powers" (in order not to waste space enumerating the powers). But it doesn't say "personalty and real estate and fixtures too." There are reasons for these formalities, and particularly in real estate, it is important no be sensitive that there may be many hidden pitfalls.
• Feudalism: people are down on it nowadays, and think it was really bad. It's more or less dead and gone in the US, but this is where we get all our terms. But the reason for these terms hasn't been applicable in the US for many years. So it's hard for us to know the reasons for some of this stuff. Remember that it wasn't just a real estate system: it was a way of life. The king owned everything in England-- that was the first principle. So the land of the king was owned ("of the king") by various lords, and then there would be intermediate lords who owned it of the main lords, and then minor lords who owned of the immediate lords. The people on the land owned nothing.

  In the US, the land is said to be owned by individuals. So in a feudal system, all power is derived from the feudal structure. And we don't have that. Wis. Const. I §14: all lands are "allodial" (meaning non-feudal) and "feudal tenures are prohibited." They are driving home the point that we're awesome and non-feudal. Long-term leases are abolished (i.e., over 15 years). Now there are long-term leases galore (agricultural land, e.g.), but they are void in WI.

  While it seems like Feudalism is the opposite of the US, it is ironically similar to what happens in communist states (despite the fact that they regarded it as being like capitalism). But really what it is: government ownership of the land. Whoever has government authority controls the land.

  Land isn't leased by an overall owner, and feudalism is dead and gone here.

• Usufruct: a lease.
• Allodial: non-feudal. Owned by individual.
• Freehold: land ownership of someone else. This was status in feudal England. Land was THE basis of wealth-- nowadays there are many other types of valuable property. All freeholds are one of three types of thing:
  • Fee Simple ("fee" or "fee simple absolute"): The central ownership interest in land. Total ownership of the property. Not just ownership with respect to use. Absolute in terms of duration. The right to use it while you live and pass it on when you die. To create a fee, you had to use the right magic phrase: "To A and his heirs." This is simplified in Wis. Stat. §700. Three kinds of defeasible fee simple:
    • Determinable: expires automatically on an event
    • Subject to condition subsequent: expires on re-entry by owner if A does (or fails to do) some thing
    • Executory interest: will change on a condition
    No fees simple in HI, as we shall see. These are all designed to transfer perpetual ownership, with a means of cutting them off. Defeasible fees are uncommon-- usually ownership is transferred outright.
  • Fee Tail: property given to A and the heirs of his body (not just "heirs," N.B.). In a fee simple, A can dispose of the property at any time. A Fee Tail stays in the family (the king liked this, because it makes it easy to know who owes him loyalty). Nowadays, we don't have much of this-- property is an economic asset, not a political one, and we want it to be transferrable. This is abolished in nearly every US state... in WI it is converted to a fee simple.
  • Life Estate: property is transferred for the life of the recipient. A fee tail is essentially a succession of life estates. You get to have the land while you live, and then it goes to someone else. You don't own the remainder interest. Lots of married people want their property to go to their spouse when they die, and then to the children when the spouse dies. This is also nice for tax purposes: if I leave $1M to you in fee simple, my estate pays taxes on it, and the remainder goes to you. When you die, the tax collector takes a second bite, before it goes to your kids. If we set up a life estate, it looks like we could diminish taxes. Tax people are onto this tactic, and they've closed up most of these loopholes. Nevertheless, it's a popular strategy, for whatever reason.
• Seiszin: to be "seised" of a property is to own it. Ownership of a freehold estate.
• Non-freeholds: didn't convey power, and used to be of less interest, but they're quite popular now. Both the lessor and the lessee have property interests in the property.
  • Term for Years: a lease. This can be for any period (not just years). Not a freehold estate, this conveyed no power. This was a way of getting around usury laws (i.e., to get high rates out of land ownership). So this had a sort of negative connotation. "Ejectment" was a remedy for terminating a term for years. Today this would be a clumsy way to end things-- landlords have other remedies at this point. But Ejectment was really easy compared with resolving disputes about freeholds. So landowners would develop sort of ficticious leases so they could use ejectment to get people out of their estates. This was an exploit on the common law: by calling a thing by a certain name, you could do special stuff with it.
  • Periodic tenancy: like month-to-month. Automatically rolls over/renews.
  • Tenancy at will: no period specified.
  • Note that there may be multiple owners, even in fee simple. So, for example, me and the bank. The bank has a security interest, of course.
  • Marriage: at common law, the husband owned the property, and the woman was likely to be a wife at all.
    • Dower: Property went to the eldest son at the death of the lord, so widowhood got a little sympathy. A life estate in 1/3 of the freehold estate in which the husband was siesed during marriage. Dower rights pertain to realty of which the husband was siesed at any time during the marriage (includes property sold during the marriage): nobody will buy that property unless she waives her dower rights. Otherwise maybe she'll come along and take it. This tied up property a lot. We now routinely sign waivers of dower rights. Even thought one spouse appeared to own the property, there was really a secret second owner. As long as he owns it during the marriage, dower attaches (this is an inchoate form of ownership; also if she dies before him, the rights evaporate). Dower is abolished in WI, but it lives on in most other states.
    • Curtesy: the male equivalent of dower. Life estate in all of the wife's freeholds (not just 1/3), if issue born alive during the marriage. Husbands would have representatives present at the birth, because even if the issue died 30 seconds later, it would entitle him to the curtesy.
    • Community property: in the 8 civil law states, the marriage owns property (real estate only), not the individual spouses. This looks like an advance for womens' equality, but it's misleading, because under civil law the husband owns the marriage, and therefore has the right to manage the property.
    • Marital property: WI only. Wis. Stat. §766. Nearly all property owned by the marriage (i.e. jointly).
  • Future interests: flexible. Temporal division of property (instead of dividing it up by person: as in co-tenancy). These are very widespread and valuable in the US. A "secure" future interest is on that will happen. A "vested" interest means there's no way to destroy that interest before it happens (it turns out that "vested" is a messier term than you'd expect). Two types. Remainders:
    • Indefeasibly vested: whether or not you survive, it goes to you (i.e., you can will your future interest to your heirs, and your grandchildren can sell that interest now, etc.)
    • Vested subject to open: I leave the project in ten years to my children. So maybe there will be more children then. Or fewer, of course, but we're worried about leaving to a class of persons that will grow as time goes on. I can leave it to children not yet born.
    • Vested subject to complete Defeasance (complete divestment): ?
    • Contingent interests (or "subject to a condition precedent"): to one party for life, and then to another party if that person survives.

    ---

    • Reversion: it can come back to the donor if the donee expires
  • Rule in Shelley's Case (not actually from Shelley's Case): "To A for life, remainder to A's heirs" = to A in fee. A can sell it, in other words. The WI rule: A's heirs have a vested remainder (this is frightfully like a fee tail)
  • Statute of Uses: some sort of gaming with trusts to get around some of the formality rules: instead of transferring property, create "uses on uses," and transfer those. (this would mean that B gets out of death taxes when B dies and it gets transferred to C, because A still owns it... the king hates that).This rule outlawed that trick. If you leave property to A for the use of B, you just left property to B. Crafty people next created three-tier uses. Good grief. Anyway, this is where trusts got started, because uses and the statute of uses were just getting out of hand.
  • Rule Against Perpetuities: the most famously tricky of all the old common law rules. "An interest must vest, if at all, within lives in being plus 21 years." It's easy to state what complies with this: I leave this to child, the remainder to child's children within born within 20 years. You can't leave property more than a generation + 21 years into the future. This will be enormously complex, in practice. Thankfully WI has abolished this (the only state to have done so)? But in WI, you can't suspend the power of alienation for more than lives in being plus 30 years. So a trustee *must* have the power of alienation. As long as I leave property in trust, if the trustee has the power to sell the property, the trust can go for 50 generations. So in WI, you can have a will that goes on in perpetuity. Most jurisdictions don't like property to be tied up for that long.

14 February

• Back to the vocabulary...
• Rule against Perpetuities: interest must vest, if at all, within lives in being plus 21 years.

o - Owner
A - a person
[] - dies early
c - child
g - grandchild

         O
         |
         A (for life, remainder to children)
       / | \
    c1  c2  [c3]
   / |   |   |\ \ 
 g1 g2  g3 g4 g5 g6

• The (typical) scenario above shows all three children having a vested interest: A will die. C3 takes, even though he pre-deceased A.
• Now, O leaves property to A for life, and the remainder to surviving children. Then C3's folk get nothing.
• What if we say O leaves property to A for life, and on A's death to then surviving children, and on their death, to the grandchildren. Now, note that A's children may not have been alive at the time when the property was transferred to A. The children are not necessarily lives in being, then. The grandchildren, then may not be in the lives-in-being plus 21 years: the interest may vest in the grandchildren at a period longer than A's life + 21 years. If it can't vest in that period, the whole transfer is void. So this is a substantial snare-- and many lawyers never even try to control anything beyond the living generation. In WI, you'd accomplish this via trusts (plus power of alienation).
• Per sterpes (by the root) vs. Per capita (by the head). The former means that inheritors take by right of inheritance going the chain. So how much do the G's take? If it's per capita, it's just 1/6 for each. Per sterpes: g1 and g2 each get 1/6 (half of what c1 got). C3, however, would get 1/3. And g4-g6 get 1/9 each. Most wills are per sterpes, but some folks wish it were the other way.
• Real estate = real property or "immovable property." Chattels Real = Leases.
• Livery of Seisin: It was in the king's interest to know who owned what, so there were public formalities to make sure everyone knew what was being transferred, etc. Livery is short for "delivery," by the way. Over the years, this got less and less formal, to the point where there would be a handing over of a twig from the property.
• Land Recordation: the modern system.
• Personal property (or personalty, or chattels, or movable property): the opposite of real property. Two kinds:
  • Tangible (corporeal): actual physical goods.
  • Intangible (incorporeal): like a share of stock, e.g.
• Fixtures: We're going to spend most of our time on real property. But once in a while we'll find things that straddle the boundary. Usually it's spelled out what comes with property: things that are attached, things that are adapted to the property. What about drapes? Rugs? And so on.
• Wills: we've seen these.
  • Testate: died with a valid will.
  • Probate: the process of proving a will.
  • Holographic will: handwritten by the testator (can substitute for witnesses in some jurisdictions; not tolerated in WI).
  • Residual clauses: disposing of remaining property after specific bequests.
  • Codicils: amendments to wills (require all the same formality). Now mostly handled by bare-bones wills with pour-over clauses.
  • Devise: a transfer of real property via a will (devisee is the person who gets it)
  • Legacy: a transfer of personal property (legatee is the person who gets it)
  • Executor: nearly all wills have someone who manages them. Has the obligation to manage the estate, locate the property of the deceased, pay the just debts of the deceased, etc. Also called "personal representative." A court-appointed executor (i.e., if the will doesn't specify who it should be): the administrator/ix with the will attached.
  • Intestacy: a person dies without a will, or the will doesn't dispose of all property. At common law, we had primogenitor. Nowadays, there are different priorities when property passes through intestacy: Spouse (or split with non-spouse issue) -> Issue -> Parents -> Siblings (and issue thereof) -> Grandparents -> Collateral relatives; Escheat.
  • Issue: includes children, grand children, great-great-grand...
  • Escheat: can't find anyone to take the property, so it goes to the state.
  • Easment: a right of use of property. The dominant holder is the one with the right. The subservient interest is held by the property owner. This is a recordable legal interest, and must be recorder.
  • Profit: a sort of easment for limited purpose and time.
  • License: a sort of vague, broad profit. The right to be someplace, but not to own it. If I invite you over to dinner, you have a license to be there. You don't get charged with trespass. Licensee == Invitee == guest. Owed a duty of ordinary care. This is why a lot of people don't allow, for example, hunting on their land.
  • Trespassor: a non-licensee without any other legitimate purpose for being on the property.
  • Appurtenances: easements, sheds, orchards.
  • Heriditaments: inheritable as land
  • Appurtenances and Heriditaments overlap, and lots of transfers mention both (even though people forget what they are) in order not to miss anything.
  • Power to appoint: one of the rights of a property owner. The right to name someone who will receive the property when the owner dies. A general power to appoint: the designee can give the property to himself. Special power to appoint: you decide which of my children gets this when I die. Can be either inter vivos or testamentary.
  • Power of attorney: a kind of power to appoint, only a bit broader. Power to manage the property (may not have the power to appoint others). General power of attorney has unlimited power to deal with the property while people are away/incompetent. Special power of attorney is limited-- to specific property or to specific powers. Stock powers, for example, are a special power of attorney.
• Phew. Now we're done with the introduction of the course: generalities about the nature of the law, and terms. Now we'll start actually digging into the field.
• Jaque v. Steenberg Homes
  One of those seminal cases (not that it itself is so famous, but that it is like unto many many others): the importance of rights of ownership. You could cite this in every single case in the course-- it's that fundamental.

  The Jaques are a bit prickly: they are paranoid, and don't want people on their property. They go out of their way to make it clear that Steenberg is not to go across their property.

  Adverse possession: if someone adversely uses your property for 20 years, they own it. More on this later-- this is just a very brief nutshell sufficient to explain the Jacques' paranoia.

  Compensatory damages are $1, but punitives are $100,000. Whoah.

  That's how seriously we take ownership.

  Note that the court doesn't say why property is sacred. Or why libel is not.

  But there are reasons.

  So why make this decision? For one thing, we want to discourage absolutely brazen trespass.

  The owner of the property is supposed to be king, and inviolate. The whole system is based on individual ownership of property. The WI constitution Art I (13) mentions the importance/value of property (the "takings" clause). Also, the constitution says all lands are allodial, and feudal tenures are abolished.

  The US Constitution (14A) says property is sacred as well (no taking w/o due process), also 5A (takings clause there).

  The WI Constitution: for every wrong (and invasion to property), there must be a remedy. The Fed constitution doesn't really have this, although Marbury v. Madison says essentially this.