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50 Cards in this Set
- Front
- Back
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Property is whatever interest in a thing the legal system protects against invasion by others
Real Property- land and what is affixed Personal Property- anything that isn’t real property- May be broken into elements- -right to use -right to exclusive possession -right to dispose or transfer |
What is property?
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1- Labor theory-
Originated by John Locke Mixing your labor with something unowned to become yours 2- Utilitarianism Society protects other peoples possessions as property because we want the same protection for our stuff 3- Economic Efficiency 4- Custom People develop customs between themselves and the objects of acquisition |
Labor theories:
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The first person to take possession of a thing owns it. Private possession prevails over a subsequent possessor ---- Acquisition by discovery is related to first in possession.
Johnson v. M’intosh- Discovery rule- US holds absolute title to all, Indians are occupants. Indians have no power to convey land, only US Labor Theory- John Locke when a party finds property worthless and greatly increases value by labor and expense the obtain title by labor. Indians did not greatly increase value of property. |
1- Discovery
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First in time-
Rule- Occupier must intend to capture, must deprive of liberty and bring under certain control. Reasoning- certainty and to prevent disputes Dissent Property rights may be acquired in wind animals by one who has reasonable prospect of capture Reasoning-uphold custom and to promote hunting |
2- Capture
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a- Posses- active pursuit
Intent to kill is not enough Can lose constructive possession if they get away b- Occupy-depriving animal of liberty- -Kill -Capture- “All that is done to be secure” whale customs- “Can’t be a malicious interference with trade- ducks, we favor those that use skill and industry to promote trade” -Mortal wound -Necessary (pierson v post- post was chasing fox with his dogs- Pierson knowing that the fox was already pursued, killed the fox and carried it off) |
Possess and Occupy under Capture
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conventional view that an owner of land has constructive possession of wild animals on his land. --- Landowners are regarded as the prior possessor of any animal ferae naturae (wild animals) on their land until the animal takes off.
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Ratione Soli (by the reason of the soil
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Fugitive resources- Oil Gas Water-once it escapes you lose title-
Appropriation-west- first in line to as much as you want- Ripariation Rights-east – Each owner beside water has the right to its use in consideration of neighbors us |
Early Property Law ***NOTES***
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Ghen v. Rich- P killed whale and it washed ashore three days later- Custom was for whoever found it to send word to town and owner would come claim it by bomb-lance- Instead D sold it at auction-
Court went with first in time to chase or kill- -P did everything in his power to bring the whale under his control; nature of whale hunting does not allow you to have actual possession immediately- -To go against custom could lead to a decrease in whale hunting and would have a negative effect on society- Keeble v Hinkeringill- P had duck decoy pond on property- D discharged his gun and the noise and smell of the gunpowder scared away the ducks- Not an issue of whether P owned the ducks but instead was Ps livelihood wrongful? Yes because Ds actions were malicious---- competition is okay if D had setup his own decoy pond and drew ducks away it wouldn’t be unlawful. |
3- Custom
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A person can acquire property by creating it – generally apply first in time right but it is not exclusive- if you create something 1st in time it is yours because of the money and labor you put into it.
-Common law- to avoid monopoly and encourage competition the common law allows copying and imitation. -Statutes- a person cannot copyright an idea but can copyright the expression of it—a person can imitate another’s work but not too much. Law of misappropriation-Unfair competition- courts have sometimes protected labor and investment under the law of unfair competition |
4- Creation
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society thinks it is more important to discourage trespass than to reward first possession of unowned objects when the two values collide- right is not absolute; owner may be required to tolerate some unwanted intrusions.
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5- Right to Exclude
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an owner does not lose title by losing the property- a finder has rights superior to everyone but the true owner- Prior Possessor wins- ownership is title to the property- Possession is easier to prove than ownership, an owner always wins against a mere possessor
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6- Find
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true owner voluntarily gives up ownership/rights to property—Property is considered unowned and first finder becomes owner which obtains both possession and title.
Abandoned-intentionally + voluntarily give up all control |
Abandoned Property
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goes to the finder rather than the owner of the premises--finders must come forth to admit they found property to allow real owners to claim property-- Lost- unintentionally + involuntary parted with-finder has full possession unless they’re an employee or trespasser
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Lost Property
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voluntarily/intentionally placed, accidentally forgot-mislaid property goes to the owner of the premises- it is assumed that the true owner will remember and go back to the premises to claim it-owner of premises entitled to possession
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Misplaced/Mislaid
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if object is lost and find is not by a trespasser →finder prevails
If finder is an employee or invitee of landowner → landowner prevails If object is embedded in soil → landowner prevails |
Landowner v Finder
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to one who exercises control over land- a landowner is in constructive possession of the objects under the surface of the land even if they are unaware of them- awarded to the owner as well as objects found inside an owners home – If the owner hasn’t moved into the house then it is not constructive possession.
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Constructive Possession
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who was residing at time it was alleged to have occurred- soldier that found brooch not owner because didn’t have actual title was NOT attached to land
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Locus in quo
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Open to public to finder- $ in door of store- owner would have picked it up – there is private areas of public property
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Public
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Method of gaining title by possessing property for a statutory period uninterrupted. Think the land is theirs and expect to use it.
OCEAN |
7- Adverse Possession
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Sleeping theory- if the owner neglects to enforce their rights why should the courts protect—you snooze you lose.
Earnings Theory- Property should be put to its best use to maximize the productivity of the property. Stability Theory- Promote efficient resolution over disputes of claim of title and possession/quiet title. |
Rationale for Adverse Possession
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O- Open and Notorious Occupancy- Must be public visible so it can be detected by the true owner
C- Continuous Occupancy- Must be continuous for entire statutory period & no voluntary abandonment by adverse possessor. E- Exclusive- exclusive of the rights of others, just like the true owner A- Actual Entry- Required to start the statute of limitations- Gives notice of your presence N- No permission/Adverse/Hostile- without owner’s consent- you are there with no consent- if you have the owner’s consent then it is not adverse possession- Courts want good faith possessor- person believes in good faith they have a right to possess the premises. |
OCEAN
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adverse possessor knows occupation is wrongful but still intends to claim the property-also squatters cannot be an adverse possessor
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Aggressive trespass
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after the statute of limitation has been fulfilled the old title is extinguished and a new title is created with the adverse possessor. Title is not recorded in courthouse- if they want it recorded must file a quiet title action against the former owner
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Adverse title
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means that a possessor voluntarily transferred to a subsequent possessor estate in land or physical possession
Pivity of estate requires a voluntary transfer for tacking-tacking not permitted where one adverse possessor abandons the property even if another enters immediately |
Privity
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the joining of consecutive periods of possession by different persons to treat the periods as one continuous period- must have privity of the estate (voluntary transfer) either an estate in the land or actual possession of it.
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Tacking
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if disabled – must exist at time of entry- most statutes give additional period of time if owner is under disability- possibly extends statute an additional 10 years at time statute is up (insane, infantry, infancy, imprisoned →cannot be Adverse Possessed)
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Disability of owner
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Party has a document (will,deed,judgment) that seems to convey title but does not actually do so because of some legal defect- gives adverse possessor constructive possession- ex: person gets defective deed for 100 acre parcel of land but only actually occupied 10 acres, person would now have construction possession over all 100 acres. (just doesn’t satisfy the exclusivity element)
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Color of Title- Constructive Possession
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P has burden of proof- must use the chattel as original (new) owner- Guggenheim Rule: if you know who stole the property you must go ask for it back & if they say no →you have course of action & the statute of limitations begins. Encourages owners to report their losses so they can show that they were in search of their stolen property
**(had due diligence and failed to locate goods-Due diligence Rule) |
Adverse Possession of Chattels
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seller can transfer no better title than they have, if the seller doesn’t own the object or lawfully represent the owner →buyer doesn’t get the title. If bona fide purchaser doesn’t know of the sellers wrongful possession but has a good faith that the seller has title AND pays valuable consideration →bona fide purchaser is protected. Must have NO notice of the sellers wrongful title. Voidable title-good until proven rejected.
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Bona Fide Purchasers of stolen goods
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1. Trover
2. Replevin 3. Defense- Jus tertii |
Remedies of a Possessor
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a suit to recover the value of the plaintiff’s chattel that D converted—P is entitled to full value of the chattel at the time the conversion took place—P waives the right to the return of the chattel and insists that D be subjected to a forced purchase.
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1. Trover
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P could bring an action for replevin if he wanted to recover possession—P could bring replevin to recover possession of a chattel D had wrongfully taken
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2- Replevin
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Defense that a third party is the owner and only the true owner can bring the lawsuit- defense not available in replevin
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3- Defense- Jus tertii
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the rightful possession of goods by one who is not the owner—Bailor is the true owner—Bailee is the person in possession—the bailee has the duty to care for the goods and deliver them to the owner as agreed
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Bailments
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voluntary transfer of property without any consideration- Requires:
1-the donor must intend to transfer title and make a gift NOT just transfer possession 2-the donor must deliver the gift (best form is actual physical possession) 3-there must be acceptance by donee (presumed by delivery/presumption strongest when gift is of benefit to donee. If donor delivers to an agent of the donee then the delivery is complete. |
8- Gifts
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a- Actual- directly handing over-this is required if possible
b- Constructive- an item that stands for something else- where actual delivery is impractical, constructive delivery is permitted. It is handing over the means of obtaining possession and control or in some other way relinquishing(handing over) dominion(control) of the property- c- Symbolic- writing that represents an object- where actual manual delivery is impractical because the chattel is too large or the situation of the parties will not permit it, symbolic delivery is permitted. (written document) |
Delivery- (must say all 3)
actual, constructive or symbolic transfer of title |
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made during the donor’s life when the donor is not under any threat of impending death. Gift between 2 living people-not revocable
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Inter Vivos Gifts
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a gift made in contemplation of death- sometimes used in place of will-revocable if the donor recovers from being near death- or if they die from a different cause- courts are suspicious of this type of gift because it requires only 1 witness and want to make sure the deceased’s wishes are accurately carried out
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Causa Mortis
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Testate-dying with a will
Intestate- dying without a will Heirs- people who inherit real property from a decedent who dies without a will—because heirs are determined at the time of death, living people have no hairs only heirs apparent. (blood relatives or spouses) Devisee- person receiving real property passed by will; beneficiaries under a will Bequeath- to pass personal property by will; the property itself is called a “bequest” Issue- a persons lineal descendents (children, grandchildren,etc) Collaterals- all blood relatives other than issue or ancestors (siblings, cousins, aunts, uncles, nieces & nephews) Escheat- if a decedent has no heirs or devises, the interest in the land passes to the state Seisin- freeholder’s right of the possession and enjoyment of the estate--- there are no gaps in seisin & someone always has the present right to possess |
9- System of Estates
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a- Fee Simple- Absolute ownership- nothing divests or terminates fee simple- owner can keep the land forever, sell it, give it to someone else or devise it to someone else. Can be inherited by whoever is heir of the owner.
b- Fee Tail- Keeps the land in the family- has been changed to a life estate in most jurisdictions- Ex: O→A and the heirs of her body c- Life Estate- Possessory estate that expires on the death of owner- only have right to possess in their lifetime- cannot sell, give or devise the land during/after their death- always followed by a reversion or a remainder- Per autre vie- life estate that last for the duration of the life of another- will end naturally- Ex: O→A for life d- Term of years- commonly known as a lease- non-freehold estate- owner promises to let someone use the land for a set period & when the time is up the lessor’s right to use land also is. Will end naturally- |
Possessory- Estates in Land
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- Added Limitations-
1-No added Limitation: a- Fee Simple- add “absolute” b- Life estate or term of years- add no term 2- Added limitation on the duration of the estate- a- Determinable i- placed within the description of the possessory estate itself ii- uses terms lie : until, so long as, while or during iii- will end automatically upon the happening of the limiting event- Ex: O→A until A’s youngest child reaches 25 then back to O. The estate was only conveyed to A until A’s youngest child reached 25. b- Subject to a condition subsequent- i- added condition is placed in the description of the next interest ii- uses terms like: but if, provided that, on condition that, or however iii- next future interest is held by grantor iv- will not end automatically upon the happening of a limiting event; grantor will have to take some action to reclaim the property. Ex: O→A, but if A sells liquor on the property then back to O--- upon the occurrence of A selling liquor on the property, O’ |
Limitations
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limitations on fee simple estates by conditions- if breached, property goes back to the owner- O gets possibility of reverter- can restrict use
Make sure its not a restraint on alienation- determinable clause with a restriction on alienation=VOID- make property unmarketable- hard to sell so no one can profit- no one will make improvements- make it hard for creditor to reach property No restraint on selling- grantor can say that he wants the property used for a church, but he cant say that he wants the property sold to someone that will use it as a church Restraint to will- “to live in and not be sold”- so struck as surplus so but rules of construction resolved to fee simple so we will assume life estate- |
Defeasible Estate
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will to son that he only go the house if he didn’t leave his sister in
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Malicious restraint
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fee simple is conveyed with a condition that if the event occurs, the estate automatically reverts to grantor
Ex: O→A as long as property is used for school purposes- Key words are durational (as long as, during, until |
Fee Simple Determinable
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default- fee simple that does not automatically terminate but maybe cut short or divested at the transferor’s election when stated condition occurs.
Ex: O→A but if A stops using property for school purposes, I can reenter the property- Key words are but if, provided that,etc |
Fee Simple Subject to Condition Subsequent
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a future interest that cuts short another future interest- fee simple is conveyed with a condition that if the event occurs, the estate transfers to a third party- Must have someone vested before these can divest- Ex: O→A but if A dies without any children then to B.
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Fee Simple Subject to Executory Limitation
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vested transferees whos group can be diluted- above 21 year olds in this group, B having more kids that would dilute the group as they turn 21, go from EL to PEL
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Subject to partial executory limitation
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transferees with contingent remainders, that will dilute an executory interest when they vest, --divest all if you get your JD by 35
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Subject to executory limitation
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- 2 step process—1- until A has kids is executory interest. 2- if kid dies under 21 it is a contingent remainder
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Executory interest in a contingent remainder
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if a condition can happen prior to vesting that will take away all interes- kids unter 21, if die before 21, B divests
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Subject to complete divestment
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