Real Property

Front 1

POSSESSION

Back 1

the right to exclude others

Front 2

Constructive Possession

Back 2

ownership/possession w/o physical presence

Front 3

Seisin

Back 3

a right to possession + a legal claim

Front 4

Deseized

Back 4

when a trespasser replaces the person with seisin

Front 5

WILD ANIMALS (sometimes including bees but not domestic animals)

Back 5

RES NULLIUS
ANIMUS REVERTENDI
RATIONE SOLI

Front 6

RES NULLIUS

Back 6

π must show OCCUPANCY; “a thing belonging to no one” (e.g., a wild animal), as opposed to terra nullius “land belonging to no one”--also applies to Oil Law
1. Brought within control -- must have physical control, trapped, or mortally wounded; pursuit is insufficient
2. Intended to appropriate
3. Deprived of natural liberty

Front 7

ANIMUS REVERTENDI

Back 7

is when an animal reverts to the wild/natural habitat (not non-natural setting), the right to claim Occupancy ends.
Some kind of notice is given of occupancy over the animal (e.g., fox in foothills v. fox in city)

Front 8

RATIONE SOLI

Back 8

the owner of the land has first right to an animal on their land, but the right ends if animal leaves their land

Front 9

CAUSES OF ACTION

Back 9

Personal Property- modernly:
Trespass to Chattel on the Case
Detinue
Trover
Replevin
Real Property
Trespass
Ejectment
Quiet Title
SLANDER TO TITLE
Nuisance

Front 10

Personal Property- modernly:

Back 10

these are all “CONVERSION” w/ remedy of money damages

Front 11

Trespass to Chattel/on the Case

Back 11

is the wrongful taking of chattel.
remedy: money damages, then later detinue and trover

Front 12

Detinue

Back 12

Δ had lawful initial possession then unlawful conversion; requires Δ’s possession of the goods. Defense: Δ’s lacking possession
remedy: Δ’s choice of money damages (at time of taking) or return of chattel--so if value increased since taking, value-at-taking usually opted for.

Front 13

Trover

Back 13

Δ had lawful initial possession then unlawful conversion, and Δ refuses to return to TO. NO defense for lacking possession.
remedy: money damages only.

Front 14

Replevin

Back 14

is the wrongful seizure of property--where some may be okay, but not to the extent seized.
remedy: π’s choice of return of chattel or money damages. Before trial, π could reclaim immediately if bond of 2x property’s value posted.

Front 15

Real Property
Trespass

Back 15

is a c/a seeking recovery of possession for a violation of one’s possessory right in the land.
remedy: nominal money damages always available; injunction; return of property

Front 16

Ejectment

Back 16

is a c/a seeking recovery of possession of the land.
remedy: originally only money damages, later included return of possession.

Front 17

Quiet Title

Back 17

is a c/a seeking clear title to the land.
remedy: declaratory relief by court of who has real title

Front 18

Quiet Title
SLANDER TO TITLE

Back 18

claim of clear title to a piece of property where someone has engaged in conduct that makes it appear owner does not have title; usually when ability to sell/transfer title is hampered by someone.

Front 19

Nuisance

Back 19

violation of one’s use and enjoyment of property; not possessory interest.
remedy: money damages, injunction.

Front 20

FINDER’S LAW

Back 20

FINDER’S LAW
Actual Lost Property
Misplaced Property
Abandoned Property
Treasure Trove
Jus Tertii

Front 21

FINDER’S LAW

Back 21

One who acquires and knows of his possession, including physical control and intent to control
Courts will impose an involuntary bailment: finder must return when asked by TO, or duty to return if knows TO, or if TO can somehow be discovered.

Front 22

Actual Lost Property

Back 22

is property lost involuntarily, accidentally, or unconsciously; finder has superior claim over all but TO (including landowner).

Front 23

Misplaced Property

Back 23

is property intentionally placed and unintentionally left, or forgotten; landowner has superior claim over all but TO (inc finder).

Front 24

Abandoned Property

Back 24

is property given up w/ intent to abandon claim, finder has superior claim over all

Front 25

Treasure Trove

Back 25

is coin or money in the earth, ocean, or other private place, typically with intent to retrieve

Front 26

Treasure Trove
SPLIT JURISDICTION:
Common Law &
Modernly

Back 26

C/L: belongs to Crown/Gov’t;
modernly: many statutes give to finder if no claim by TO after held by police for a period of time.
Where property is found attached to or under the land, the property owner has superior right to all but TO.
Where property is NOT attached to the land, finder has superior rights to all but TO

Front 27

Jus Tertii

Back 27

is an INVALID affirmative defense except where Δ is an Agent for the TO, where Agent must prove his rights are superior to all but TO.
rights of a TP, protects the right to possession (maybe not title), especially for property difficult to possess
(A has property. B takes poss’n. A sues B. B says property is unknown TO’s, not A’s. B must prove B’s claims are superior to A’s--even just by being prior possessor--not that B’s are superior to anyone else’s. ex: A finds watch. C tells B that C has lost watch. B takes watch from A (claiming superior rights). A sues B to recover. B/C wins)

Front 28

GIFTS

Back 28

voluntary and gratuitous transfer of interest in a piece of personal property to another
IV & GCM (INTER VIVOS & CAUSA MORTIS)

Front 29

GIFTS
ELEMENTS

Back 29

the party claiming the gift must prove through clear and convincing evidence.

Front 30

GIFTS
ELEMENTS
Inter vivos

Back 30

gift made during life which is irrevocable with proof (if not close relative) of:
1. DONATIVE INTENT
2. DELIVERY
• Actual
• Constructive
• Symbolic
3. ACCEPTANCE

Front 31

GIFTS
Inter vivos
1. DONATIVE INTENT

Back 31

is the intent to give

Front 32

GIFTS
Inter vivos
2. DELIVERY
• Actual

Back 32

is physical delivery of the gift and may be through an agent (incomplete if given to donor’s agent; complete when rec’d by donee’s agent; completion through indy agent depends on agreement between donor and agent and whether donor has dominion and control--ability to recall the gift)

Front 33

GIFTS
Inter vivos
2. DELIVERY
• Constructive

Back 33

is delivery of a gift by giving access or dominion/control over it (or information req’d to access); tangible or intangible

Front 34

GIFTS
Inter vivos
2. DELIVERY
• Symbolic

Back 34

is delivery through a symbolic representation of a gift, usually through a writing

Front 35

GIFTS
Inter vivos
3. ACCEPTANCE

Back 35

is often presumed where gift is beneficial

Front 36

GIFTS
Gift Causa Mortis

Back 36

requires one witness who is not the donee
1. DONATIVE INTENT
2. DELIVERY
3. ACCEPTANCE

Front 37

GIFTS
Gift Causa Mortis
1. DONATIVE INTENT

Back 37

is the intent to give in light of impending death

Front 38

GIFTS
Gift Causa Mortis
2. DELIVERY

Back 38

is only through Actual delivery, but may be through an agent (incomplete if given to donor’s agent ; complete when received by donee’s agent; completion through indy agent (ex: trustee) depends on agreement between donor and agent & whether donor has dominion and control--ability to recall the gift)

Front 39

GIFTS
REVOCABILITY
Inter vivos

Back 39

is irrevocable

Front 40

GIFTS
REVOCABILITY
Causa mortis

Back 40

is revocable IF:
• donor doesn’t die from the illness or peril;
• revoked before death;
• donee dies before donor (CA: Uniform Simultaneous Death Act deeming some deaths simultaneous though actually at separate times).

Front 41

GIFTS
FUTURE INTERESTS

Back 41

are gifts presently passed to someone but delivered in the future; donor now only has a LE while donee has an FI

Front 42

GIFTS
FUTURE INTERESTS
Life Estate

Back 42

donor’s present interest in a gift that is given in the present but to be delivered in future.

Front 43

GIFTS
FUTURE INTERESTS
Remainder

Back 43

donee’s FI in the gift upon future delivery; donee now has a c/a for “waste” if donor damages/destroys gift before delivery

Front 44

GIFTS
FUTURE INTERESTS
Gift in futuro

Back 44

is a promise of a future gift, but it is not an enforceable gift (just a “promise” of one)

Front 45

GIFTS
TRUST THEORY

Back 45

trust of a res (thing)

Front 46

GIFTS
TRUST THEORY
Trustor:

Back 46

person who owns the thing (title), giving possession to Trustee with instructions to hold for the benefit Beneficiary (TP), w/ no right to recall it.

Front 47

GIFTS
TRUST THEORY
Living Will/Living Trust

Back 47

‘Me1’ is trustor, ‘Me2’ is trustee, ‘Me3 et al’ are beneficiaries.
May be orally declared, writing not required: “I declare myself trustee of this ring for the benefit of X” can get around a lack of delivery for gift.

Front 48

ADVERSE POSSESSION
FOR TEST: USE TIMELINES TO KEEP TRACK OF s.o.l. TO DETERMINE IF AND WHEN BREACH OCCURRED

Back 48

is a claim that the s.o.l. has run on the owner’s c/a; this is a legal ability to steal someone else’s property
Not a c/a in itself but an affirmative defense by APor OR used offensively by APor to prove rights to property
APor possesses only the interest held by O at the time the AP began

Front 49

ADVERSE POSSESSION
Split Jurisdiction
Majority & Minority

Back 49

majority: APor will receive title automatically when s.o.l. has run
minority: APor must file a quiet title action (offense)

Front 50

ADVERSE POSSESSION
Prescription

Back 50

attaches only to uses of the land not poss’n (right of way, easement, etc), giving a prescriptive right

Front 51

ADVERSE POSSESSION
ELEMENTS:

Back 51

The APor must show that ALL elements of Adverse Possession (HACEO) were satisfied for entire duration of the s.o.l.
1. Hostile
2. Actual
3. Continuous
4. Exclusive
5. Open and Notorious

Front 52

ADVERSE POSSESSION
ELEMENTS:
1. Hostile

Back 52

APor used land as if true owner and contrary to TO’s legal rights; not under “color of title” or “claim of title,” and not with TO’s permission

Front 53

ADVERSE POSSESSION
ELEMENTS:
1. Hostile
STATE OF MIND
SPLIT JURISDICTION(1+2)
majority:

Back 53

APor’s state of mind is irrelevant (only needs to be hostile to TO’s rights)

Front 54

ADVERSE POSSESSION
ELEMENTS:
1. Hostile
STATE OF MIND
SPLIT JURISDICTION(1+2)
2 minorities:

Back 54

APor’s state-of-mind matters
• APor must show he knew the property belonged to another, so acted in bad faith
• APor mistakenly believed the property belonged to them, so acted in good faith

Front 55

ADVERSE POSSESSION
ELEMENTS:
2. Actual

Back 55

APor had physical possession, usually limited to that property which APor actually used

Front 56

ADVERSE POSSESSION
ELEMENTS:
3. Continuous

Back 56

APor had unbroken possession, using it as his own, consistent w/ nature and character of the property (ex: vacation house used off-and-on)

Front 57

ADVERSE POSSESSION
ELEMENTS:
4. Exclusive

Back 57

the land was not open to the general public or repeated entrances by TO--may defeat exclusivity, but minor incursions by others will not

Front 58

ADVERSE POSSESSION
ELEMENTS:
5. Open and Notorious

Back 58

AP was visible and open to a common observer or vigilant TO (s.o.l. begins when TO knew-or-should-have-known)

Front 59

ADVERSE POSSESSION
s.o.l.
SPLIT JURISDICTION

Back 59

C/L = 20yrs; CA = 5yrs
other jurisdictions: 3-30 years, beginning when TO knew or should-have-known of the AP

Front 60

ADVERSE POSSESSION
s.o.l.
Tacking

Back 60

APor may add the time of prior APors to satisfy s.o.l. if privity exists (oral, written, or operation of law) BUT each APor must satisfy the rest of HACEO

Front 61

ADVERSE POSSESSION:
DISABILITY

Back 61

is an affirmative defense by the TO, granting additional time to file a c/a if that disability existed when the c/a accrued (underage, imprisoned, or insane). SPLIT JURISDICTION

Front 62

ADVERSE POSSESSION:
DISABILITY
Period In Gross (Pig) Jurisdiction

Back 62

give a disabled TO a Period-In-Gross of 10yrs after removal of disability to bring action. [ex: c/a accrues in 1980: •20yr s.o.l. w/ disability removed 1985(+10=1995) PIG has no effect as s.o.l. → 2000. •10yr s.o.l. w/ disability removed 1995(+10=2005) and s.o.l.→ 1990  use PIG. •10yr s.o.l. w/ disability removed 2010(+10=2020) and s.o.l. → 1990  use PIG]

Front 63

ADVERSE POSSESSION:
DISABILITY
Tolling Jurisdiction/CA:

Back 63

tolls (pauses) the s.o.l. for a disabled owner until the disability is removed. (ex: c/a accrues in 1980 and 5yr s.o.l.; but s.o.l. pauses until disability is removed.)

Front 64

ADVERSE POSSESSION:
ADDITIONAL STATUTORY REQUIREMENTS

Back 64

Some jurisdictions require: • payment of taxes; • improve and/or enclose the property; • a written instrument/color-of-title

Front 65

ADVERSE POSSESSION:
ADDITIONAL STATUTORY REQUIREMENTS - SPLIT JURISDICTION
majority:

Back 65

if APor has color of title, AP of a portion of the property is deemed AP of the whole

Front 66

ADDITIONAL STATUTORY REQUIREMENTS - SPLIT JURISDICTION
minority / CA:

Back 66

w/o a writing, APor must: 1. enclose land, 2. improve land, and 3. pay taxes

Front 67

ADVERSE POSSESSION:
ADDITIONAL STATUTORY REQUIREMENTS - Color Of Title

Back 67

a claim to property founded on a written instrument discovered to be defective or invalid, and sometimes shortens the s.o.l.

Front 68

ADVERSE POSSESSION:
ADDITIONAL STATUTORY REQUIREMENTS - Claim Of Title

Back 68

expresses element of hostility or claim by APor

Front 69

ADVERSE POSSESSION:
AP AGAINST THE GOV’T - SPLIT JURISDICTION
4 minorities:

Back 69

• No s.o.l. & State may always recover;
• Same s.o.l.;
• Longer s.o.l.;
• Only against lands held in proprietary (not gov’tal/public land)

Front 70

DOCTRINE OF AGREED BOUNDARIES
USED WHEN AP CANNOT BE USED (ex: no taxes paid in CA), where asserting party (π or Δ) must prove:

Back 70

1. Dispute/Uncertainty as to the true boundary
2. Agreement existed between neighbors on a boundary line
3. Agreed boundary was recognized by parties for the s.o.l. (CA = 5 yrs)

Front 71

DOCTRINE OF AGREED BOUNDARIES
CA:

Back 71

requires proof of every element and there is no presumption that a fence or hedge is the actual boundary. Where the land was more recently surveyed, the boundary is more likely to be upheld; the older the boundary, the less likely it would be upheld as it is difficult to prove original uncertainty and agreement.

Front 72

AP OF CHATTELS
SPLIT JURISDICTION
s.o.l.

Back 72

s.o.l.= 3-10 yrs.
CA: s.o.l. = 3yrs; uses Discovery Rule, but cts interpret it as Demand Rule

Front 73

AP OF CHATTELS
SPLIT JURISDICTION
C/L

Back 73

s.o.l. begins when elements of AP are met regardless of discovery or time of theft

Front 74

AP OF CHATTELS
SPLIT JURISDICTION
Discovery Rule

Back 74

s.o.l. accrues when TO discovers or should-have-discovered AP of the chattel.

Front 75

AP OF CHATTELS
SPLIT JURISDICTION
Demand Rule (NY)

Back 75

c/a accrues when TO demands chattels return and possessor refuses.

Front 76

ADVERSE POSSESSION:
FORCED SALE

Back 76

If the encroachment is large and expensive, the court may fashion a remedy to avoid hardship and great expense, where the TO is forced to sell and the APor pays full value.

Front 77

ADVERSE POSSESSION:
GOOD FAITH IMPROVEMENT STATUTES

Back 77

are alternatives to Forced Sales and are based on unjust enrichment, where a TO who wants the property back can compensate the innocent improver, provided:
• usually a substantial improvement; • improver must show they acted in good faith; • generally it is the value of the improvement, not the cost