Law School Property Outline PDF

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1L Property Outline for Law Students - includes basic principles of property law....

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I.

What is Property? a. Property is the right among people with the respect to things. b. Property and law are born together.

i. ii. iii. iv.

Without law, there would be no property Property is not an inalienable right Central authority is needed to enforce your claim to your rights. Central authority cannot be yourself. The state can defend your property for you. Organized society creates property

c. Property is a Bundle of Rights

i. ii. iii. iv. v.

Right to possess Right to transfer Right to leave it in will Right to lease or rent Right to exclude/include

d. Theory of Relativity

i. ii.

Starts with owner (who has control and dominion) The chart the Hunt is always drawing with owner at the top.

e. Types of Property

i. ii. II.

Real Property: property that cannot be moved. Real property usually consists of land, items attached to the land, and items that are associated with the land. Personal Property: property that is movable. Personal property usually consists of personal possessions and items that are not real.

Possession a. Elements:

i. ii.

Actual control and dominion Intent to exercise such control and dominion (implies knowledge)

b. What is possession?

i.

First in time, first in right.

ii.

HYPOTHETICAL: Two people accidently switch rain coats while in store. The other person walks out and gets stopped and drugs are found in the pocket. Is person guilty of possession of illegal drugs?

1. No, he is not because he did not intend to have control over what was in the pocket. He only intended to have control over the coat. And he had no knowledge of the drugs. c. Actual possession: Physical dominion and control over the property. Plus an intent to exercise such control and dominion. d. Physical possession: dominion and control over the property. You must have intent. You must intend to take the thing.

e. Constructive possession: here an individual has actual control over chattels or real property without actually having physical control of the same assets.

III. Acquisition by Capture a. Wild Animals

i.

Wild animals (ferae naturae) in their natural state are unowned. They become private property upon being reduced to possession.

ii.

The first person to exercise dominion and control over such an animal becomes, with possession, the owner of the animal.

iii.

Animals caught in a trap or net belong to the one who owns and has set the trap or net. By setting such a trap, one is said to constructively possess those animals snared.

1. Ferae Naturae: Animals in a state of nature; RESIST AND RESENTS CAPTURE; RESENTS POSSESSION; Wants to be free; this is by species NOT by animal. Wild by nature.

a. Ferae Naturae never loses its ferae naturae status! 2. Domitae Naturae: Naturally domesticated by nature.

a. Cows are an example of this. They will not try to escape if given the chance.

3. Ratione soli: if a wild animal runs across your land you have first right to possession

b. Pierson v. Post i. Issue: Whether by first seeing and starting and pursuing, one has a superior right over someone who knew of the pursuit but still killed and captured the animal? ii. Holding: No, the mere fact that Post was in pursuit of the animal does not give him a right to the wild animal.

iii. Rule: The mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; the animal must be deprived of his natural liberty. Mere pursuit is not enough to get priority over an animal ferae nature 1. Mere Pursuit: Mere pursuit does not constitute the exercise of dominion and control sufficient to give the hunter a property right in the animal. However, where an animal has been mortally wounded so that actual possession is practically inevitable, a vested property right in the animal accrues that cannot be divested by another’s act in intervening and killing the animal.

iv.

Dissent: Post was on the verge of seizing the fox. This is important because “mere pursuit” makes it seems as if he was just chasing it and was not close. Thinks that this case should have went to the arbitration of hunters.

1. It is custom among hunters to resolve disputes depending upon who was in hot pursuit. Post should have the fox because he was in hot pursuit. It is custom among hunters that whomever was in hot pursuit should get first right to animal.

2. If majority rule becomes law then saucy intruders will know of this and will just go out and wait until they see someone else pursuing an animal and jump out and kill/capture the animal. This will make hunters stop hunting.

a. WRONG: This will make hunters, hunt better. Capture technology is getting better equipment.

v.

Policy of Majority: For the sake of certainty, and preserving peace and order in society.

vi.

Policy of Minority: the greatest possible encouragement to the destruction of an animal, so ruthless and cunning in his career.

c. Hypothetical: 1. You see an elephant walking down Plymouth Court. Can you capture it and reduce it to possession?

a. No, you cannot capture it and reduce it to possession because it is not in its natural habitat. This elephant belongs to someone already. It clearly escaped.

b. Prior marks of possession: An animal IS in its natural habitat but it has been marked (with collar) by someone else. You still cannot capture it and reduce it to possession.

d. Escape

i.

If a wild animal, captured and held in private ownership, escapes and resumes its natural liberty, the former owner loses his property right in it. The animal once again is unowned, and the first person thereafter to capture it becomes the new owner.

e. Habit of Return

i.

If a wild animal escapes and, though wandering about without restraint, periodically returns to its owner’s home, or if, though endeavoring to escape, it is still pursued by the owner or is by other means liable to be recaptured by the owner, title is not lost.

f. Marked Animals

i.

When certain animals, such as furbearing animals, have been captured and reduced to private ownership, it is common for the owner to mark or brand them for purposes of identification. If the animal escapes and resumes its natural liberty, the question becomes whether title is lost. Normally, modern courts will allow title to be retained in the former possessor as long as the animal is marked and the owner exercises all possible effort to recapture the animal.

g. Fugitive Resources

i. ii. iii. iv. v.

Water, Gas, and Oil have a fugitive character. Fera naturae just as wild animals Have the power and tendency to escape without volition of the owner Possession of land ≠ possession of oil or gas. It is important to understand that oil and gas can be extracted and depleted from your land if you do not monitor it effectively. A neighbor can easily build a well, pooling it from a common pool beneath his and your land. The resources themselves could also naturally flow to another’s land.

IV. Acquisition by Find Finder: a person who rightly takes possession over the personal property of another, without that person's knowledge or consent. a. Lost Property

i. ii. iii.

No intent to part with possession because you did not know you lost it. Unintentionally parted with. No intent to reclaim because you don’t know where it is. It is awarded to finder, subject to reasonable efforts to find the owner.

▸ iv.

With the duty to use reasonable diligence to find the true owner

Other requirements:

1. Advertise 2. Police 3. For a reasonable amount of time.

v.

Example: A wristwatch found on the floor in a public place will likely be regarded as lost property. Judging from the place where found, it is reasonable to conclude that one would not intentionally place a wristwatch on the floor.

b. Misplaced or Mislaid Property

i. ii. iii.

Intent to part with possession because you placed it down. Intent to reclaim because you know where it is. Awarded to the owner of the locus in quo because that is the first place that the owner will look.

▸ iv.

With the duty to hold for the true owner’s return.

Other requirements:

1. If no return within reasonable time, then given to finder

v.

Example: A briefcase found on a desk, table, or counter will likely be regarded as mislaid property. Judging from the place where found, it is reasonable to conclude that the item was intentionally placed there and thereafter forgotten.

c. Abandoned

i.

Intent to part with possession because you purposely threw it out or laid it out.

ii. iii.

No intent to reclaim because you purposely threw it out or laid it out. Awarded to first to reduce it to possession. The person who has intent to have control and dominion.

▸ iv.

No duty. The finder is the new owner.

Other requirements:

1. Considered “Res Nullus” (nobody's property) v.

Example: Allowing refrigerators to remain in a building that the owner of the refrigerators knows will be destroyed is an act of abandonment.

d. Treasure Trove

i. ii. iii. iv. v. vi. vii.

Intent to part Intent to reclaim Must be hidden; or at least evidence of intent to hide. Must have objective valuable Significant passage of time. Awarded to Finder; if not a trespasser or other wrongdoer. Side note: If it has historic value then the state may come and take it.

e. Replevin: an action to recover the chattel itself

f.

Trover: action to recover the value of the chattel along with damages for dispossession

g. Rationale Soli: Anything in on and under the soil belongs to the owner of the locus in quo

h. Finder is Employee: Cannot keep the item because they were contracted to do the work by the employer.

V.

Bailment

The rightful possession of personaty (goods) of another by someone who is not the owner a. Bailor: person who gives b. Bailee: person who takes (involuntary bailee b/c he just found it) (a finder is a bailee)

c. Elements: i. Bailor has an intent to deliver ii. Bailee has Intent to exercise control and dominion and they actually exercise control and dominion iii. Intent of doing something with it and to return it 1. Intent is based on contract theory. Expressed and implied. 2. Custody: when the bailor retains control and dominion with no intent to relinquish this control and dominion.

iv. Bailee has duty of care

1. Slight negligence: The bailee owes a duty only of slight negligence when the bailment is solely for the benefit of the bailee.

2. Gross negligence: The bailee owes a duty of gross negligence when the bailment is solely for the benefit of the bailor.

3. Ordinary negligence: ordinary care is due when there is a mutual benefit for both the bailor and the bailee in the situation.

d. Types of Bailment

i. ii.

Voluntary Involuntary

VI. Acquisition by Adverse Possession Adverse Possession: the occupation of land to which another person has title with the intention of possessing it as one's own. Also thought of as “property by larceny.” You occupy someone else’s land without that person’s knowledge. 

It is in the nature of man's mind that the thing that you enjoyed for a long time is rightfully yours. You become attached to it. You feel that it should not be taken away from you.

 IMPORTANT: You cannot abandon title to land; you cannot disavow. No matter what happens. You can only relinquish title if you sell it, give it away, it is taken away. a. ELEMENTS: i. Actual Entry ii. Exclusive

1. The only one claiming title, not necessarily the only one there 2. No title greater or equal to mine. 3. You can have more than one person on the land, as long as their claim is subordinate to yours.

iii. Open and notorious

1. Not hiding; you are visibly on the land; known iv. Adverse and Hostile

1. Under a claim of right: ousting other trespassers, protecting the land

2. Make permanent improvements to the land; You are there to take the title; you are there doing things to take the title; you are adverse to the true owners' title; you claim to be the owner

v.

Continuous for statutory period

1. Consistent with how neighbors are using their land. If people are farming, then you're farming. If it's other summer house, then it's you summer house.

2. Common law: 20 years 3. Modern law: varies—3 years, 6 years, 20 years. Depends on state.

b. STATE OF MIND i. Of Adverse Possessor: 1. Objective: "don't ask me what I thought" "don't ask what I intended" Look at what I did. You knew it wasn’t yours but you took it anyway. Majority rule a. Example: You take 1 acre out of a 10 acre parcel. In the end you will only get the 1 acre. 2. Subjective: did you think it was yours? Did you have a reasonable basis to think it was yours? You thought it was yours. Bonafide, good faith belief that they have title to land; mere squatters are out. Minority rule a. Example: If you take the 1 acre, then in the end you get constructive possession over the entire 10 acres

ii. Of Owner:

1. The owner needs constructive knowledge meaning, you knew or should have known. An owner cannot say that I did not know the person was taking over my land. The owner does not have to have actual knowledge.

c. Legal Policy:

i. ii.

To punish sleeping owners and reward diligent trespassers To quiet the competing claims of ownership.

d. NOTES:

i.

Real property is not presumed to be absolute, but subordinate to the legal title and not adverse to it. The burden of proof to prove ownership is on the adverse possessor. Standard: preponderance of evidence (more likely than not: 51%)

ii.

If you're adverse, you have to perform true acts and they must be use it in the same fashion as everyone else in the area.

iii.

You cannot adversely possess the government; sovereign immunity; some states allow it but the statute is very long

e. Adverse Possessor

i.

Adverse possessors are considered de-seizers. They are trying to take the land from those who have seized the land.

1. There is now considered a new title. There is no deed or title to give adverse possessors the land.

2. Adverse possessors don't do anything. 3. Adverse possession is an off-record claim. There is no record of title to people adversely possess land.

f. Interrupting Adverse Possession

i.

Best way to interrupt: owner walks up to deseisor and gives them permission to stay there. This takes away the deseisors hostility and continuity.

ii.

What happens if the adverse possessor is discovered before statutory limits?

1. They lose adverse possession. Losses hostility and continuity. g. Van Valkenburg v. Lutz

i.

Issue: Whether plaintiff's use of the property and the building of structures constitutes sufficient actual occupation to satisfy a claim of adverse possession?

ii. iii.

Holding: No. Rationale: the standard of review; the rule is that it must be clear and convincing. (1) land has been protected by a substantial closure and (2) land has been cultivated

iv.

NOTES:

1. Court ruled incorrectly. Lutz actually met the elements of adverse possession. He cultivated the land. The rule against him because he was of lower class.

2. Lutz wanted an easement over the path he made. An easement is an admission of not possessing. Under the standard rule of objective standard, his subjective view is not sufficient.

a. Easement: the right to cross the land of another. You cannot have an easement over your own land.

3. Uncle Charlie’s rights were derivative of Lutz. If Lutz has no rights, then neither does Charlie. Charlie rights were subordinate because his brother's rights were. h. Mannillo v. Gorski (steps extending onto other’s property)

i.

Issue: Whether a minor encroachment and a mistaken belief of encroachment is adverse?

ii.

Rationale: Connecticut Doctrine. They go with this doctrine because the Maine rule rewards a bad faith taker.

iii.

NOTES:

1. Maine Doctrine: Mistake prevents the existence of the required claim of right. There must be an intentional taking of land. It cannot be a mistake.

2. Connecticut Doctrine: Mistake is of no importance in gaining adverse possession. An objective standard: you just look at the acts themselves, and ignore the subjective position/state of mind of the actors themselves.

a. What this means is that the adverse possessor has to have occupied the land without the permission of the true owner, or in opposition to the true owner. (We thus don’t look at the state of mind of the adverse possessor.)

iv.

Encroachment: intrusion onto one's property rights.

1. Defenses to Encroachments a. Agreed boundaries: you agree upon what land belongs to who

b. Acquiescent: you see me using this land and you say/do nothing to stop me.

c. Estoppel: You cannot claim what the other person had no right to do what they did (i.e intrude onto your land) i. Promise or the failure to promise where you have a duty to act. ii. Reasonably foreseeable that the other guy will rely on what you said you would do. iii. The person relies on what you said you would do.

iv.

To their detriment

d. Common grantor: you have to stay within the boundaries that the common grantor directed you to. i. Howard v. Kunto (Deed is wrong) i. Issue: Whether a possessor of land by deed can maintain action for adverse possession where (1) the erroneous deed should describes the

parcel but describes the parcel adjacent; and (2) the possessor has only been possession for one year but the predecessor in title had possession for 10 years ;and (3) the possessor has only used the parcel for summer occupancy?

ii. iii.

Technical approach: Tacking is not permitted when the deed is wrong. Liberal approach: Tacking should be more liberally construed. It should require some reasonable connection/ relationship between the parties.

1. A mere squatter or an aggressive trespasser cannot claim tacking.

iv.

Policy: early certainty of landownership.

j. COLOR OF TITLE A document that is fine on its face but it has a defect, that is not clear on the face.

i.

Examples of defects:

1. Signature was forged 2. The person that signed was a minor 3. This is where the subjective standpoint comes in. "I thought it was mine" k. PRIVITY

i.

the legal term for a close, mutual, or successive relationship to the same right of property or the power to enforce a promise or warranty. Close, mutual, or successive relationship between two parties who have a legally recognized interest to the same right of ...