Property I Outline Seplowitz PDF

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PROPERTY I OUTLINE—SPRING 2009—THE CREW—PROFESSOR SEPLOWITZINTRODUCTION AND FIRST POSSESSIONI) Introduction and TheoriesA) Property is rights among people that concern things B) Property rights are defined by law 1. Under the laws of the United States, only the federal government holds title for con...

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PROPERTY I OUTLINE—SPRING 2009—THE CREW—

I NTRODUCTI ONANDFI R I)

Introduction and Theories A) Property is rights among people that concern thi B) Property rights are defined by law 1. Under the laws of the United States, only conveyance, while Native Americans me government can extinguish (Johnson v. M C) Property rights serve human values, to that exten D) Property as a “bundle of rights” 1. Right to exclude a. If O owns Blackacre O is general 2. Right to transfer a. The right to transfer the holder’s b. In a market economy it is import c. Some types of property are mark at all (organs) while others canno 3. Right to possess and use All l d i th U it d St t i

b. This included certain rights in the and groundwater) and the airspac 2. Personal property a. Chattels—items of tangible visib b. Even though organs and other bo are not extended property rights c. Rights in intangible invisible thin (stocks, bonds, patents, trademark G) First Occupancy or First Possession 1. Reflects the concept of first in time: the something owns it 2. Custom of first occupancy ripened into p 3. The first in time principle is still the basi competing title claims of real property H) Labor theory 1. People are entitled to the property that is 2. Property rights arise from mixing labor w first in time 3. Four steps a. Every person owns his body b Th h th l b

GILBERT: Where A adds labor to B’s ra product to the owner of the raw material its value to make it unfair to award the fi

I) Utilitarianism: Traditional view 1. Views property as a means to an end 2. Private property exists in order to maxim 3. Recognizing private property rights in la J) Utilitarianism: Law and Economics view 1. Usually assumes that happiness may be m 2. Private property exists in order to maxim 3. An efficient property law system must ha a. Universality—all property is own b. Exclusivity—the law recognizes members of society from the use c. Transferability—the property rig devoted to the most highly-value K) Liberty or Civic Republican Theory 1. The ownership of private property is nec 2. Homestead Act of 1862—transferred mo

Holding: In pursuit of an animal being hunted, if th ensnared so as to deprave them of their natural liber another intercepts the animal, kills, and takes it the a cause of action against the other who intercepted t Pierson was unkind, Post has not suffered any injury - Rule of Law: The mere pursuit, by a hunter, of an a The animal must be mortally wounded, captured, or - Policy Reason: (1) Both majority and the dissent ag population. Foxes are a nuisance to farmers and kill rule on capture than on pursuit and prospect of capt ***** Pierson v. Post promotes more action and that leads to p drilling -

Ghen v. Rich - Issue: Whether the libellant/plaintiff (Ghen) may le had sold and the libellant had not recovered. - Holding: Ellis had the duty to follow custom of not to the person who killed it and has vested title in it. - Rule of Law: When a hunter kills and catches an an vested title in the animal. - Policy Reason: This ensures the whaling business w a whale when it washed up on shore, no one would - Notes: Are Pierson and Ghen reconcilable? Pierson looked at custom to see who got ownership of whal the courts decide? Pierson deals with sport Ghen de

A landowner who captures a wild animal on another’s l against the landowner, even though the landowner neve animal. The landowner may have “constructive” posses Animus Revertendi – the habit of return [correlates to animus revertendi [Latin] The intention to return (to a in deciding whether animals, such as doves and bees, re wild animal that has no animus revertendi escapes, the c subject to capture by another. However, if the animal is be put on notice that the animal has escaped and some o hunter cannot capture the animal for himself. Factors of domestication - Inclination of Return - Identifying Marks (dog collar, tags, branding) - Is it indigenous to the environment or is it foreign (i - Training equals mark of domestication - Dependency for food and shelter - Tricks - Note: Court does not need all of them, and will loo Government Regulation The power to regulate does not equal the right to own. I government can still regulate how the capture of the ani sue the government because they do not own it, but they

I)

Acquisition by Find A) General Rule 1. An owner of property does not lose title 2. A finder has rights superior to everyone 3. Applies to both personal property and re **** What Constitutes possession? Physical contr it. B) Background 1. A finder of property acquires no rights in lost property against everyone except the property 2. A finder is the first person to take posses requires: a. An intent to control the property b. An act of control C) Three factors that dominate analysis of finders 1. The presumed intent of the original own property a. Abandoned property

Abandoned

spot where it is found and thereafter forgot it. Owner voluntarily and intentionally relinquished ownership with intent to give up both title and possession.

room and forgets to pick it up. O throws his old watch into a garbage can because a new battery for it would cost too much.

o to F h w

Treasure trove: i. Consists of gold, silver, c unknown owner for safek 2. The identity of the competing claimants 3. The location where the item is found B) Rights of finder or owner 1. As a general rule, an owner retains title t 2. The law seeks to encourage the producti property, not reward a finder’s minimal e 3. The person who takes possession of aba against the world, including the prior ow 4. The finder of lost property obtains title s except the true owner 5. Relativity of title—the principle that title

D) Objects found in public places 1. A valuable object left in a public place is awarded to the owner or occupant of the 2. Based on the theory that mislaid property or occupant 3. As a bailee, the occupant of the property the property until the owner should call f ****If a property dispute between two or more people and one dterminative, but evidence of ownership, it will be for the other own to rebut the claim of ownership. HIERARCHY: True owner prevails over the possessor (finder o possessor -

EXAMPLE: F1 v. f2 v. f3; f1 will win. Between f2 and

**** In NY theres no difference between mislaid, abandoned, t meaning the finder has superior rights, would you want any exc • Shipwrecks • Graveyards • Finder must not be at fault **** Following about when a company is hired to clean and fin why? The person hired to do work in the house is an independe l df d th t th i d d t t t h dt k ti

iii. If a condition precedent m no immediate transfer has b. Delivery GENERAL RULE: Where a chat delivery is required. i. The donor must deliver th ii. There must be an actual d iii. Methods of delivery: A. Actual 1. Sometimes 2. The donor the donee 3. Main meth personal p B. Constructive 1. Occurs wh means of o most comm 2. All jurisdic impossible C. Symbolic 1. An object physically

B) A gift causa mortis 1. A present gift made between living perso imminent death; if the donor survives th 2. Best viewed as an emergency substitute 3. The donor may revoke the gift at any tim 4. If the donor does not die from the anticip matter of law 5. Requires all three elements of an inter vi imminent death 6. Lacks the formal safeguards that the law witnesses) 7. If it’s a gift causa mortis, its usually clea generally a preponderance **** The general rule is that gifts are not revocable. A check is prior to payment. Because it is revocable, its not considered a c completed **** The decedent died intestate. Meaning without a will. If yo person died intestate, the hairs inherit the stuff. They are design

B) The National Organ Transplant Act prohibits the for use in human transplantation C) There is no personal property interest in your ow 1. Utilitarian reasoning that a conversion li D) Genetic material as property 1. Three alternative approaches to genetic m a. Treating it as property b. Treating it as life c. Granting a middle state of specia **** Man died and left sperm for his second wife for artificial court let her keep the sperm because the court saw sperm as a p Men can sell their sperm to sperm banks. When you sell your blood to a blood bank, you are not se If blood was a sale of good, they would be backed by war of a service because if blood were a sale of good, you could bre the court treats blood and sperm as a service. Hair is viewed as a sale of good. The difference would be property damages rather than inf IV)

Adverse Possession A) Definitions

1. Exclusive Possession a. Exclusive of actual owner 2. Hostile (Adverse and Under a claim of r a. It must be hostile to the owners r the running of the statute of limit b. Objective View -- state of mind o view – easier to prove) c. Good Faith Standard (the innocen must have thought he owned the owned it”). d. Bad Faith Standard -- under whi the property but intends to make him to leave (“I know I did not o 3. Open and notorious a. Notice. Why? So the true owner rights. 4. Continuous possession for the statutory a. Only the degree of occupancy an particular type of property. b. Seasonal use is acceptable if the c. If an adverse possessor abandons possession is lost. d Uninterrupted by the actual

F) Claim of Title: 1. A claim of right that meets the hostility r G) Boundary Disputes:

**** A

i

1. Adverse possession cases often involve b open and notorious enough to give the tr encroachments the court will not presum knowledge of the encroachment. Manill 2. Courts also use the doctrines of agreed b cases of mistaken boundaries: 3. Where neighbors are uncertain about a b boundary will be enforceable if they acc 4. Similarly, a long period of acquiescence between the parties even if the period is 5. Under the doctrine of estoppel, if one ne conduct or representations of another ne neighbor will be estopped to deny that b 6. Where a person makes improvements on is to force a conveyance of the improvem generally be to the improver, but courts w buy the improvement. h th d th f b t

4. Adverse possessor acquires title only to I) Disabilities 1. In every state the statute of limitations is the time when the cause of action accrue bring such action within 10 years after su 2. Disabilities include minority, unsound m 3. Only focus on disability of owner on the 4. Death removes the disability. 5. Disabled owners get either (whichever is 6. Statute of limitations; or 7. The date of the disability removed plus t **** We do not tack successive disabilities ( if you go to jail an possession starts when the first disability ends. Ex. If Boykin ta and then in jail he becomes retarded when Jim gets out of jail B have to wait for him to recover from his retardation. J) Adverse Possession of Chattels 1. If the owner of stolen chattels, upon disc locate and recover the chattels the statute 2. Discovery Rule: a cause of action will no i f bl dili di t

2. The original owner of the chattel almost bad faith 3. If title is awarded to the improver, he or for the value of the chattel in unimprove 4. Comes from Locke’s theoryif one mix of nature to produce a new item, it is ow 5. One branch of the doctrine involves addi a. As a general rule, one who in goo acquires the title to the resulting i. Transforms the original it ii. Greatly increases the valu 6. The other branch of the doctrine involve chattel a. When materials owned by two di faith, the owner of the principle m B) Bailments 1. 2. 3. 4. 5.

A bailment is the rightful possession of c Bailee—person holding the possession o Bailor—the owner of the item Examples: car valet, dry cleaner, library, A bailment arises when the bailee has rig

4. An exception is goods purchased under f not void, but merely voidable if and whe then the buyer can transfer valid title to a 5. The bona fide purchaser of money or neg promissory notes, and the like) prevails o 6. Bona fide means good faith 7. It implies that you bought the item at a p suspicions. Level of expectation and reli 8. UCC promotes commercial transactions 9. Critical to determine if the item is stolen 10. Good title: you own it and can convey it 11. Void title: theft; only a thief can have vo 12. Voidable title: Title which remains valid

D) Intellectual Property 1. Absent a special common law right or st which embody his invention 2. Law attempts to balance two competing a. Providing an incentive to invest t new goods b. Encouraging competition to redu 3 C i ht

*In patent original means that no one else claimed it Copyright: protect the original expression of an idea in An idea is what you create whereas a fact is out there for A person cannot copyright an idea but can copyright the The test is “substantial similarity” in deciding whether a copyrighted idea. Copyright term is life plus 70yrs A trademark gives you assurance of quality; it guarantee Federally registered trademarks: with respect to goods o Copyright law does not protect designs or patterns Design patents: cant sell a remake pattern as the origina Utility patents: 20yrs from application; protects someth Trade Secrets: as opposed to patents are state law and c

HI STORYOFESTATESI NT

I)

Background A) Present estate (possessory estate)—a legal intere possession of real or personal property

A) Free tenures—could be held only by the upper c B) Unfree tenures—held by the peasants or villains C) Each tenant owed the lord: 1. Service a. Knight service—required them to knights to the king for 40 days of b. Socage tenure—addressed the su specified money amount, a fixed defined labor c. Frankalmoign tenure—a grant of accompanied by the service of pr d. Serjeanty tenure—ceremonial or 2. Incidents a. Homage—ceremony by which th b. Fealty—the oath by which the ten c. Aids—the tenant’s duty to provid occasions d. Forfeiture—the return of land to perform the required service D) At the tenant’s death… 1. If the tenant died without heirs, the lande th t th l d t th bl

2. 3. 4.

5. 6. 7.

b. Collaterals – all persons related b descendants nor ancestors (ex. sib Corresponds to the lay person’s understa Fee simple is a freehold estate whose du OA and his heirs a. “to A” are words of purchase, the b. “and his heirs” are words of limit If O dies intestate (without a will) and le American law assumes that the owner no than a lesser estate Provides the owner with the maximum a a. Entitled to use forever b. Fee use within the bounds of the c. Sole possession d. Can transfer rights

B) Fee Simple Absolute: 1. A fee simple absolute is absolute owners 2. It is of potentially infinite duration with be divested or end on the happening of a 3. Creation: a. Common Law – by the words “an b. Modern Law – “and his heirs” ha C) Fee Simple Determinable:

D) Accompanying future interests arise: 1. In the lineal descendants of A for as long 2. O will become possessory when A’s bloo E) Rights are restricted in a fee tail 1. Entitled to use and enjoy the land, but ca 2. Limited right of transfer 3. Life estate a. Duration is measured by the lives b. OA for A’s life c. The holder of the life estate is cal d. May be measured by the life of a i. OA for the life of B ii. Estate pur autre vie e. The life estate is considered the s f. Accompanying future interest i. Future interest always ari ii. Reversion A. O’s resulting right iii. Remainder A. If O creates a futu g. Limited rights i. Cannot commit waste ii Has a limited right of tran

C) land must always be seised in somewaysomeo D) a certain type of right to possession E) whoever owns the right to presently possess has 1. ex: whoever owns the life estate 2. exception: in the landlord/tenant situatio seisin a. historical from feudal b. not a freehold relationship c. someone who owns possession fr seisin V)

Absolute vs. Defeasible A) Absolute 1. Most estates are absolute 2. The estate’s duration is restricted only by category of estate a. Fee simple is defined as an estate B) Defeasible 1. Rarely created today 2. Sometimes used to secure economic goa 3. Restatement provides that restrictions re

ii. Accompanied by a future called a right of entry iii. The hallmark of this estat the triggering condition h A. Presents only the r B. Once the condition to take affirmative C. If the holder fails iv. Othe City, but if the lan the premises v. Characterized by words o vi. No automatic forfeiture, p back and claim vii. Is preferred over determin ****** Subject to executory limitation = subject to divestment c. Fee simple subject to an execut i. A fee simple estate that au but gives the right of poss

VI)

Restrictions on transfer

C) Restraints on life estates 1. Forfeiture and promissory restraints on a **** Covenants like “can’t sell to white people” are invalid du Amendment **** OA, remainder to B. If A and B want to sell, they don’t the principle and the interest is divided, and is gauged by a scal VII)

Waste A) The waste doctrine restrains the present estate o injures the affected land and thus reduces the va B) Types of waste 1. Affirmative (or voluntary) a. Occurs when the voluntary acts o the value of the property b. Open mines doctrine i. If an open mine existed o 2. Permissive a. Stems from inaction b. The failure of the possessor to ex

C) A future interest does not entitle its owner to pre that may become possessory in the future D) A remainder is a future interest that waits politel possessory estate, at which time the remainder m E) A remainder is a future interest that is capable o estate F) Although life estates can no longer end for breac classifying reminders, the law has continued to a of the life tenant

II)

Interests retained by the transferor A) Reversion 1. Earliest future interest to develop 2. The interest left in an owner when he car provide who is to take the property when 3. Reversion is transferable during life and B) Possibility of reverter 1. Arises when an owner carves out of his e C) Right of entry

c. Subject to open: remainder that i O to A for life then to B and her s are capable of having more child children then B will have to share **** NO WEVERSION IN VESTED REMAINDERS B) Contingent remainder 1. Permits the transferor to let future events 2. A remainder is contingent if: a. It is given to an unascertained pe b. It is subject to a condition preced ****Always a WEVERSION **** Contingent remainders to not accelerate but vested do NOTE: Whether a remainder is vested or contingen *If the conditional element is incorporated into the then the remainder is contingent *If after words giving a vested interest, a clause is a C) Executory interest 1. A future interest in the transferee that mu

b. Also created a remainder in fee s c. The estate and remainder were ei 4. Under the doctrine of merger, the examp would merge into the large interest (rema 5. This rule has been abolished in all jurisd 6. Elements: a. One instrument b. Creates a life estate in land A, an c. Purports to create a remainder in A’s body), and d. The life estate and remainder are remainder in fee simple in A.

B) Doctrine of Worthier Titles 1. An owner retains a reversion and the “he a. An owner devised or conveyed re b. By the same instrument devised o executory interest to the owner’s 2. An owner can transfer property rights to descent (intestate succession) not by mea 3. Originated to prevent landowners from a t tt t tf li ti

3. 4. 5. 6. 7. 8. 9.

c. If there is any possibility (howev contingent after the perpetuities p Applies to legal or equitable interests cre The only facts considered are those exist Do not wait and see if a particular intere perpetuities period To validate a covered interest, it must be at the onset that the interests will comply An interest that violates the Rule is null Designe...