Property Outline - Fagundes PDF

Preview

Summary

Property Outline...

Description

Dion 1 Property. Fagundes. Spring 2020

Intro: What is property? ● Lawyer’s View on Property: Property is a legal relationship between individuals with respect to a thing

● Social Function:Optimal allocation of resources v. punishment Formal Entitlements under Ownership of Property: Right to ... ● Exclude: prevent others from coming onto your land ● Use: right to exploit the property ● ●

Transfer: right to sell or otherwise transfer interest Destroy: right to produce waste Remedies for Violation of Property Rights: ● Damages caused by violation (liability rules) ● Injunction against future violations (property rules) Arguments: 1. Normative: Not always necessary if blackletter law is clear. Require some kind of framework 2. Utilitarian: Cost-benefit analysis; social costs; harm principle 3. Nonconsequentialist: Rights; dignity; moral/ethical imperatives 4. Consider your audience: In particular biases and the rationality myth

__________________________________________________________________________________________________

First Possession: Converting an unowned resource into an individually owned piece of property Trespass: Intentional; Unpermitted; Physical invasion of another’s land. Variations: Wis: owner must show lack of necessity by trespasser; Tx: must show injury to recover damages; Rstmt: causing thing or 3rd person to trespass

Acquisition by Capture: Ferae Naturae (wild animals): Majority Rule: First in time, first in right: requires deprivation of liberty; and corporal possession (doesn’t require physical seizure or entrapment, enough to mortally injure them); rule encourages clarity in the law. ● Takes away the spirit of hunting, diminishes the cost/benefit analysis of hunting & may lead to over extraction Minority Rule: Hot pursuit; problems w/ certainty over who owns what. Constructive Possession (Ratione Soli): Wild animals on your land aren’t in your possession but can’t be poached by others. Declaring ownership by words isn’t sufficient, have to take affirmative action to make the ferae naturae your own → See above, physical entrapment/mortal wounding. ● Trespassers: no right to possession so as to discourage trespassing. ● What if someone is on your land and they capture a rabbit - ASK Fugitive Resources: resources that move around/don’t stay in one place. No slanting: drilling on a slant to access resources underneath another's property that isn’t yours. ● First Capture: If extract it first, it’s yours. But if the water is under ONLY property A, property B can’t drill into A’s groundwater - however if the water is underneath BOTH properties the common pool rule is ok. ○ Common Pool: under both properties, in a common pool between the two. ● Reasonable Use: Modern Approach. Use to the extent that doesn’t create some unreasonable harm to your neighbor i.e. a nuisance??- ASK ○ Nuisance: Generally can use property unless it unreasonably interferes with your neighbors use/enjoyment of their property ● Oil & Gas: First Capture rule applies, unless capture is by slant drilling (illegal) ● Water: ○ Groundwater: First Capture rule applied, but subject to reasonable use (no wasteful/harmful use to neighbors or using a lot out of spite) and no slant drilling. ■ Correlative Rights: scope of water rights equivalent to the size of the overlaying acreage (10% of land = ■

10% of water rights)→Difficult to calculate TX still uses First Capture

Dion 2 Property. Fagundes. Spring 2020 ○

Surface Water: Above ground water. Ex: rivers, lakes ■ Riparian Rights (Majority/Eastern): Riparian = someone whose property borders the water and thus has static entitlement for reasonable use (benefits v. harms). Can’t alter downstream flow - ASK negligence style you can affect downstream flow of neighbors, as long as it;s not harmful to them - benefits vs harms. ■ Prior Appropriation (Minority/Western): First capture by anyone, they get rights to it if they make beneficial use. ● Limits: lapse of use, beneficial use (CO rule), Only riparians only have rights; can divert water ■ Surface Diffuse: Belongs to landowner via ratione soli ■ Admin Law Overlay: most water rights are governed by admin law now ● First to file systems govern use rights ● Agency oversight of compliance and conflicts

__________________________________________________________________________________________________

Subsequent Possession: Converting what once belonged to someone else to your possession Acquisition by Find: Relativity of title where there is no “true owner,” but ownership is relative to the status of others. Generally A person who finds a piece of chattel has a PPI in the chattel that can be enforced against anyone except its prior valid possessor (See Armory). Finder Elements: Intent to acquire lost/found object and Physical possession/control of the lost/found object ● Location of Property: Irrelevant if public place, private place open to the public or non-resident owned-residence - ASK ● Found on Private Property: ○ Objects buried/embedded in property belong to the owner, See Elwes, S. Staffordshire ■ Embedment Theory: Property owner has right to it if it’s actually attached to the soil and not just laying on top of it - rings buried in a pond ○ Objects found on private property not open to the public and occupied by owner belong to the owner ○ Objects found on private property open to public belong to the finder, see Bridges ○ Objects found on non-owner-occupied private property belong to finder, see Hannah ○ Theories for Objects Found on Private Property: ■ Ratione soli: The justification for assigning property rights to landowners over resources found on their own land ■ Found in course of employment: An employee finds the object while in the course and scope of employment, in which case it belongs to the employer ■ Substantial Time: Property owner has lived on the property for a substantial time, as the owner of a home has the greatest right to things found on the property ● Found on Public Property: Need to determine the found object’s status. ○ Types of Found Objects: Evaluate in consideration of the owners mental state and nature of the separation from the chattel. ■ Lost: Intent was to remain the owner → inadvertently separation. ● Finder Rights: rights against all but prior valid possessor ■ Mislaid: Intent was to remain the owner → initially voluntarily separation ● Finder Rights: finder becomes constructive bailee (see below); no ownership rights vest ■ Abandoned: Intentional separation to relinquish ownership with no intent to reclaim; ● Finder’s rights: rights superior to immediately prior possessor ○ Bailments: rightful possession of goods by one who is not the owner. Bailor: Person who delivers the chattel; Bailee: Person that receives the chattel. 3 basic types: ■ Mutual benefit of bailor & bailee: Bailee has duty to take reasonable care ■ Primary benefit of the bailee: Bailee has duty to take extraordinary care ■ Primary benefit of the bailor: Bailee is liable only if the property is damaged bc of gross negligence or bad faith. ● Actual bailment: voluntary relinquishment of possession without actual transfer of title ● Constructive bailment: involuntary relinquishment of possession such as when an item is mislaid. ● Policy: Social costs, HBU (highest and best use), deterrence in stealing, finders aims

Acquisition by Find Principles: ●

In COA, defendant must produce the item or pay a sum equal to the value of the kind same item of highest quality

Dion 3 Property. Fagundes. Spring 2020 ●

● ●

Relativity of Title: The prior valid possessor has supreme rights, then any subsequent finders have rights in the order that they found the item → rights over everyone but the prior valid processor. ○ The prior valid processor doesn’t necessarily exist bc ownership is always relative to others’ status Concerned only w/ Present Parties: The prior valid processor doesn’t matter in acquisition by find, unless they’re a party to the case. Objective is to determine which of the parties has superior rights, first in find → first in right Length of Ownership: Length of ownership can sometimes matter e.g. adverse possession. Otherwise, it doesn’t - ASK

Acquisition by Gift: the immediate transfer of property rights from donor → donee w/out $ or consideration. ● ●

Donor: person giving the gift Donee: person receiving the gift

Inter vivos (donative transfers): usually personal property that a living person gifts to another. Immediate, irrevocable and generally unconditional, with few exceptions for conditions subsequent. Elements: Donative Intent; Delivery; Acceptance; Sequential Order. ● Donative Intent: donor intends to make an immediate and irrevocable present transfer of ownership of the object to the donee. Can’t substitute or revoke later in the donors will, has no conditions precedent and few conditions subsequent. Remainder interest is still valid, Gruen - ASK WTF ■ Wedding Rings: Traditionally: M at fault, W keeps it. Modern: No fault, W must return ● Delivery: The property must be delivered to the donee, so that the donor parts with dominion and control. ○ Traditional Approach: Manual delivery, if feasible, needs to be a transfer/ something to it valid, but now isn’t seen as crucial if there’s other evidence of transfer. ■ Wrench of delivery: argument for manual delivery. Owner conceptualizes they’re giving something away. (saying someone can have your watch vs. giving it to them physically) ○ Rstmt Approach: considers delivery to be evidence of intent and subsumed into intent. ○ Variants on delivery manual; constructive; or symbolic delivery sufficient to divest donors of dominion. ■ Manual: Actual delivery, putting the car in their driveway. ■ Symbolic: Give something symbolic of giving the gift, usually needs to be a thing, not just words- a pic of the car ● Constructive: Generally a subset of symbolic. Give something that enables the donee to access the gift -car keys ● Acceptance: normally assumed, unless the donee has made otherwise abundantly clear. ○ Should happen within a reasonable amount of time - remember gifts are immediate Testamentary Gift: Effective only after the donor dies, usually made by a will. You’re giving someone a future interest (what’s left of interest in the item that is transferred upon death) in something and you can’t revoke bc gifts are irrevocable. Whereas with a will, you can change that will as much as you want up until you die. ASK ● Will: Attractive as opposed to inter vivos bc you can change your mind you can up until you die. Causa Mortis (in contemplation of imminent death): Subset of Inter Vivos, doesn’t need to be in writing. Gift must be made in apprehension of specific imminent cause of death e.g. usually acute illness or accident. ● Elements: ○ Made in contemplation of specific imminent death: If a donor doesn’t die during the period of time they fear immediate death or of the specific cause of death feared then the gift is revoked. ○ Donative Intent: clear intent ○ Delivery (where practical): more relaxed approach bc imminent and may not have realized going to die. ○ Acceptance (where practical): Assumed, unless revoked if imminent death is cured or donor doesn’t actually die. ■ Essentially a substitute for a will, so revocable at any time before death or if imminent peril of death ends. ● Revocable at any time before death. ● Contradictions with will: Gift > Will bc the will is based on the assumption that you have something at death, whereas gift is immediate and based on the fact that you have something. ● Slayer Rule: if you kill someone, you can’t get any of their stuff from their will.

__________________________________________________________________________________________________

Adverse Possession: Occupant obtains title to land they otherwise have no right to if possession is: actual, exclusive, open

Dion 4 Property. Fagundes. Spring 2020 and notorious, adverse and hostile, and continuous for the required period. Elements: Are considered in the character, nature and location of the land. ● Actual: Creates the COA, triggering the SOL and helps stake out what the adverse possessor might claim. The claimant must physically use the land as a reasonable owner would, given its character, location, and nature. ○ Improvements/work to the Land: must be physical not virtual, can’t just say you own it or reference owning it ○ Some States: Use for solely recreational purposes ≠ actual possession. ● Exclusive: Must be in the sole control of the adverse possessor, can’t be shared with the owner or the general public. ○ Exclusive from the og owner & the general public, if 3rd parties frequently enter should be at claimants permission. ■ Ex: can’t just be rando land that everyone uses ● Open and Notorious: Objectively puts the owner/public on notice that claimant took possession of the land/exercising the same dominion as an owner. ○ Must be visible and obvious, the owner would become aware of the adverse claim if made a reasonable inspection of the land. Objective test: Visible to a reasonable observer, i.e. the public is on notice. The owners subjective ignorance ≠ a defense. ○ Most cases meet this element bc if doing something on the land its usually visible, but there was a case with an underground cave - needs to be reasonable. ● Adverse and hostile: Possession authorized by the owner ≠ adverse & hostile. Idea is to assert rights that are hostile to the owner/public because it's clear the claimant is taking ownership of the land. 3 State of Mind (“Adverseness” or “Claim of Title”) Approaches: ○ Objective (majority): State of mind = irrelevant. Claimant only needs to be a trespasser to have a claim ○ Good Faith (minority - NY and CO): “I thot I owned it” (ex: boundary disputes, bad surveying). ■ Show claimant is trespassing and that it was in good-faith, ie. paying taxes, making repairs? ■ Consistent during the trespass, if at any point claimant becomes aware it’s not rightfully theirs, state of mind changes and is no longer in good faith. ASK so do they have to find out after the time period has passed? ○ Bad Faith (minority): Need to be consciously trespassing, acting in bad faith - dont worry about this. ● Continuous for Required Time Period: Possession must be as continuous as a reasonable owner’s, given the character, location, and nature of the land, for the statutory period (varies usually 5-40 yrs), if they abandon the property the clock starts again. ○ Don’t have to be there everyday, regular ongoing presence in the context of the land itself, rural land would usually be diff than a city condo

Texas Adverse Possession: ● ● ● ● ●

●

Actual Possession. Exclusive possession that isn’t interrupted by an adverse suit to recover property Open and Notorious Hostility: a claim of right that’s inconsistent w/ & hostile to another’s claim Continuous: Statutory periods: ○ Color of title: 3 yrs ○ Cultivate/use + tax + registered deed: 5 yrs ○ Mere cultivation/use: 10 yrs Principles: ○ Disability: Age of minority (18 under), unsounded mind, serving in US military during time of war. Outside limit for tolling due to disability = 25 yrs ○ Tacking: must be privity of estate between each holder and his successory ○ Adverse possession against state: not permitted

Adverse Possession Principles: ●

Justifications: ○ Pro: Encourages efficient use of land (HBU), punished lazy landowners, settles claims and maintains clear titles, discourages social and wealth hierarchies where rich can sit on the land ○ Cons: Rewards trespassing; diminished property rights rationale of choosing not to use property; creates opportunity for conflict (spillover effects on third parties); fundamental right to own property isn’t qualified by the duty to use it;

Dion 5 Property. Fagundes. Spring 2020

● ●

●

●

● ● ● ● ●

Endowment Theory - ppl feel the loss of an asset as more significantly than foregoing the opportunity to realize an apparently equivalent gain. Tacking: Adverse possession periods of diff adverse possessors can be “tacked” together if: There’s privity among adverse possessors; OR “Reasonable connection” related to property; AND Possession is consecutive. Disability: if the landowner is a minor, mentally disabled, or imprisoned, then generally the statutory period doesn’t run until the disability is cured. Disability must have existed at the time the adverse possession began. Death cures disability. ○ Qualifying disability: must have existed at the time of adverse possession; AND can’t tack successive disabilities ○ Dukeminier’s Law: Adverse possession period (whichever is longer) = (Adverse entry + 25 yrs) OR (Cure of disability + 10 yrs) ○ Whether there is a disability at issue - did the owner of the land have a disability at the time of adverse possession the “clock” starts when the disability is cured Adverse Possession against Gov Entities: Majority doesn’t allow adverse possession where the owner is a state actor (fed, state, local) ○ Exception: Where state looks like private land owner, treated like one - see powerpoint ○ Gov can engage in adverse possession as a claimant, but whether they have to pay isn't clear. If not acquired through adverse possession gov has to pay as per the USC- eminent domain Color of Title: Claim found on a written instrument that is actually defective or invalid through no fault of the possessor ASK. Implication: actual entry on a portion less than all described in the deed gives rise to ownership of entire amt described in deed by constructive adverse possession - if occupied by another rightful landowner, then the color of title is reduced by what the other owns. Pertains to the physical piece of paper ○ Actual entry diff in color of title bc you get what the deed says/what you thought you were acquiring ○ Most sympathetic of adverse possessors - they have a legit doc that just happens to be wrong ○ All other elements are the same as adverse possession (besides time (maybe) and entry element) Quiet title action: Lawsuit brought to establish the plaintiff’s title to land. Typically, the period for adverse possession is established by a statute, A handful of jurisdictions (western states) also require that the occupant pay the taxes assessed against the land. If the possessor is only using a part of the land (i.e. 40 acres of an 80 plot), then only have a valid adverse possession claim on only the part of the land used Claim can be broken is the owner uses the land - possessor starts from 0

__________________________________________________________________________________________________

Present Possessory Interest: Present vested interest that is currently possessed. Vocab: ● ● ● ● ●

Alienable: Can be sold or given away during the owner’s lifetime. Devisable: Can be transferred by will at death Descendible: Can pass by the laws of intestate succession if the owner dies w/ no will Title: what grantor gives grantee, grant of ownership Deed: piece of paper documenting the title - creates interest in grantee(s.)

Estates in Land: present possessory interest. Present Estates: what roles you can currently/presently possess in real property, may possess land as an: Owner - “Freehold Estates”; Tenant - “nonfreehold estates”; Guest - “licensees” Fee Simple Absolute (“FSA”): “To A and his heirs” theoretically infinite ownership. Presumed form of ownership in ambiguous cases. Devisable, Descendible and Alienable. Alienation restraints are generally void: ● Disabling restraint: any transfer attempts are void ● Forfeiture: if you try to transfer it, another designated person gets it ● Promissory: recipient promises not to alienate - Cts more permissive bc like K. Fee Tail: “To A and the heirs of his body” if bloodline ends it reverts back to grantor. Majority juris disregard it and presume FSA. Exists in a minority of juris, otherwise dissolved. Alienable and Descendible. Life Estate: “To A for life '' conveys interest measured by a currently living human’s life. ● To Coeli, for life: Coeli has ...