Reddit 2 Attack Outline PDF

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Property Friday May 1, 9am- Saturday May 2. Two sections, 1.5 hours each Section 1, issue spotter, short policy question from issue spotter Section 2- short answers, future interest problems possible Property is a human invention, so the right only exists to the extent that the law recognizes it 1. Theories of property a. First past the post- traditionally used when small amount of people owned property i. Positive- encourage competition, administrability ii. Negative- not fair to some with less ability that others b. Encourage labor John Locke- When a person mixes their labor with natural resources it becomes property i. Positive- maximize productivity of property, less arbitrary (have to earn it by work rather than be lucky and get there first) c. Utilitarian theory (maximize social happiness)- Recognize property to maximize the happiness of society i. Positive- maximize happiness through wealth ii. Negatives- not all have the same access to this happiness, ie silver soon d. Ensure democracy- property facilitates democracy i. History- In England only people with land were able to vote, sham votes ii. Positives- owning property separates your dependency from the government e. Personhood theory- Facilitate personal development strong emotional connection to property so much so that it becomes part of them i. Positives- looks at more than just economic value of property, people have feelings too ii. Negative- how do you qualify value of feelings

Bundle of sticks Real property- land and the building on it Personal property- all chattel, things that would move if land flipped upside down a. Pierson v post (kill fox) (first past the post) iii. Facts- Post was chasing fox, pierson caught it in net iv. Issue- who owns the fox v. Rule- Possession begins if in hand or when in pursuit with reasonable prospect b. White v Samsung vi. Facts- Samsung ran ad that ripped off wheel of fortune lady. vii. Issue- does a celebrity own their image? viii. Holding- yes ix. Rule- a celebrity can own their likeness because they put in the effort to obtain it x. Privacy likeness elements 1. Defendant used plaintiff’s identity 2. plaintiffs name or likeness to defendants’ advantage, commercially or otherwise 3. lack of consent 4. resulting in injury xi. theories 1. labor- celebrity worked to get that image 1

2. personhood- image is an extension of self 3. first come- she was first to create it 2. BUNDLE OF STICKS- (1) right to transfer, (2) exclude, (3) use, and (4) destroy a. Right to transfer- generally a person has a right to transfer their property i. Exception 1. Johnson v mintosh (Indians selling land twice) a. Facts- Indians sold land to one person while under control of England then again while under control of united states. b. Rule- land title transfers are only valid when made under the rule of the currently prevailing government c. Policy- Property rights only recognized in the extent which government grants them, not a divine right. Property and laws coexist, when government and laws fall so do property 2. More v regents of the university of California a. Facts- Moore in hospital, doctor knew he had special blood and took blood, doctor made 3 billion off research b. Rule- conversion can only be done to property. Court unwilling to expand conversion because Moore did not expect to retain control over blood once they left his body. c. Policy i. Protect patients to make informed decisions ii. Protect researchers who do not know where blood is coming from iii. Better suited for legislature iv. Stop innovation v. Whose labor do we value more, the patient who created or the doctor who did research b. Right to exclude- generally, a person has a broad right to exclude other from their property unless that exclusion hurts the interests of others. i. Jacque v steenberg homes (delivery of mobile home) 1. Facts- company had to deliver mobile home, only way was through Jacque’s yard, he said no, company did it anyways 2. Issue- was 100,000 excessive damages 3. Holding- no 4. Rule/Reasoning- damage is not that which was done to grass or dirt but rather that owner said no trespass and the company did it anyways. ii. State v shack (social worker tending to temporary workers) 1. Facts- social worker entered provate property to aid migrant workers, landowner told him to leave. 2. Rule- generally a person has a broad right to exclude other from their property unless that exclusion hurts the interests of others. The court will look to the interests of others and balance fairness and equity. When you invite some onto your land you lose some interest to exclude others c. Right to use- Generally a property owner has absolute right to use his property in any way he wished as long as it does not harm the rights of others to use their property i. Exception- spite fence 1. Sundowner inc v king (motel and giant sign) 2

a. Facts- built motel next to another motel and erected a giant sign to block the other motel b. Rule- No man has right to use property to make a malicious use of his property not for the benefit of himself at the cost of his neighbor. c. Policy- Man does not have right to block out gods free air and sunshine from neighbor simply out of spite. The wanton infliction of damage may never be right. 2. Prah v maretti (solar panels and house blocking it) (modern spite fence) a. Facts- neighbor built house and it blocked another’s solar panels after they told him not to build the house there. b. Can a person sue for exception to right to use (nuisance law/spite fence) if someone blocked the sunlight for their solar panel c. Elements of nuisance law i. Intent ii. Non-trespassory iii. Substantial interference in the use and enjoyment of property iv. Unreasonable- causes more harm than good d. Changing policies to allow more exceptions to general rule i. Society has increasingly regulated the use of land for the general welfare ii. Access to sunlight has taken on a different meaning because of solar panels iii. Disfavoring private development is no longer harmful to society 1. When general absolute rule was made, we wanted unfettered economic use of land d. Right to destroy i. Eyerman v mercantile trust co (will said to destroy house upon death) 1. Facts- will said to destroy house, destroying would decrease the property value and damage neighbors house value 2. Rule- a well-tolerated society cannot tolerate destruction of property for no reason 3. Cannot destroy animals out of spite for no reason while dead or alive

Adverse Possession (case-AO) 3. Adverse possession- is automatic, no court filling necessary i. Policy considerations generally 1. Promote productive use of property ii. Actual use- use it is a reasonable way given the nature and character of property iii. Exclusive possession- not shared with owner or general public iv. Open and notorious- not hiding use, use openly, not in secret, others recognize it v. Adverse and hostile- without the true owner’s permission 1. Good faith 2. Bad faith a. Fulkerson v van buren (church) 3

i. Facts- church realized on land mistakenly, made their good faith into bad faith and satisified adverse possession ii. Restricts how often can make a claim becaue most of time people are mistaken (good faith) 3. State of mine irrelevant a. Tioga coal co v supermarkets general corps i. Facts- adversely possessed in bad faith but against the wrong person ii. Policy1. figuring out the state of mind is guesswork at best 2. Do not want to uproot someone who has put down roots vi. Continuous possession vii. For the statutory period- 7-40 years 1. Tacking years together a. Howard v kunto (beach house and both on wrong property) i. Rule- a purchaser may tack the adverse use of its predecessor in interest to that of his own where the land was intended to be included in the deed between them, but was mistakenly omitted from the description. ii. Policy 1. Too expensive to survey land 2. Adverse possession should not be used to uproot someone who has put down rots 3. Arbitrary not to allow tacking, true owner still did not notice or use land for statutory period

Acquiring Personal Property (face-G) 4. Capture a. State v shaw (fish in net) i. Facts- defendant came and took fish out of someone else’s net, fish could swim in and out ii. Rule- To have control of animals, pursuer must bring them into his power and control, and so to maintain his control and show that he does not intent to abandon them again into the world. Law does not require absolute security against escape only relative certainty that they will not escape b. Popov v hayashi (babe ruth baseball) i. Facts- babe rule home run ball went into defendants glove but before he gripped it people tackled him, alex picked up ball ii. Issue- who gained control of ball? iii. Holding- both, sell ball and split profits iv. Reasoning1. Baseball league owned ball, when it is hit it becomes abandoned property until someone controls it 2. Rule- when an actor takes significant but incomplete steps to achieve possession of abandoned property and the effort is interrupted by unlawful 4

acts of others, the actor has a legal pre-possessory interest in the property. This possession can support a claim of conversion. 3. Do not loose rights in property because the unfair actions of others 4. Pre-possessory right- have some kind of protection or ability to make claim in future 5. Found a. Classifications of chattel (MALT) i. lost- property is lost when the true owner unintentionally and involuntarily parts with it, unaware they lost it ii. mislaid- Property is mislaid when the owner voluntarily and knowingly places it somewhere, but then unintentionally forgets it. iii. abandoned property- owner knowingly relinquishes all right, title, and interest to it iv. treasure trove- owner concealed it in a hidden location long ago. Usually limited to gold, silver, and coins b. armory v delamire (chimney sweep) (lost) i. facts- boy found ring in chimney, took to jewler, jewler took diamond out and gave back to boy ii. issue- does boy own diamond that he found iii. holding- yes iv. rule- Property rights are relative - finder of jewel does not have absolute property but property to keep it against all others other than a prior possessor (people in middle, true owner). v. Policy- Promotes fairness, economic use of property, easy to administer, stops endless litigation. c. Hannah v peel (mislaid) (good faith) i. Facts- soldier stationed at his house, found jewelry in the corner of a windowsill. Gave jewel to boss and police. ii. Issue- does a property owner own everything in their house, even if they do not know about it? iii. Holding- no iv. Reasoning- Mislaid property is not subject to the rule that a finder of lost property has a valid claim to the property against everyone except the true owner. d. Mcavoy v medina (barbor find wallet) (mislaid) i. Rule- it is the shop-owner's duty to use reasonable care to keep the property safe until the true owner returns. 1. Policye. Benjamin v linder (cocaine in plane) i. Facts- bank owned plane, ben inspected plane and found money wrapped in side panel, ii. Holding- money was mislaid, money belongs to owner of plane so that true owner can eventually come back to it and know who to go to 6. Embedded property (in dirt) a. Elwes v briggs i. Facts- gas company had right to minerals, found boat underground ii. Rule- man possesses everything that is attached or under his property 7. Adverse possession of chattel a. Reynolds v bagwekk (violen) 5

i. Facts- defendant purchased violen from store in good faith, violen had been stolen from person, they asked for it back ii. Rule- the statute of limitations as to personal property, though stolen when held in good faith for value, open and notoriously, runs in favor of such adverse possession so as to bar a recovery by the true owner after the expired 2 years. iii. Open and notorious- used violen for intended purpose did not conceal 1. Policy for adverse possession of chattela. transfer chattel more often than real property b. confidence in market b. O’Keeffee v Snyder (paintings stolen) i. Facts- plaintiff’s paintings were stolen, another galley bought them in good faith, 1. Open and notorious discovery rule for chattel- a cause of action will not accrue until injured party discovers or by reasonable exercise of diligence should have known facts which give rise to cause of action. As long as true owner is still taking reasonable steps the statutory time will not begin to toll a. Policy- switches burden to true owner, 8. Gift- the immediate transfer of property rights from the donor to the donee, without any payment or compensation a. Inter vivos gifts- gift giving of a living person generally cannot be revoked i. Elements 1. Donative intent- did they intend to make the transfer 2. Deliverya. Manual (preferred)b. Constructive delivery- give keys to car, because cannot deliver car i. Symbolic delivery- letter saying its yours 3. Acceptance assume unless it says otherwise ii. Gruen v gruen (father gave painting) 1. Facts- dad said was going to give gift to son in letter, died before he gave it to him 2. Issue- is it a valid inter vivos gift 3. Holding- yes 4. Reasoninga. Donative intent i. The three letters together are sufficient to prove he had donative intent ii. A life estate and remainder can be created in a chattel or a fund the same as in real property iii. Rule- Once the gift is made it is irrevocable and the donor is limited to the rights of a life tenant not an owner. (baseball case) b. Conditional gifts- giving gift but something else has to happen to - engagement rings. In anticipation and if condition does not happen then have to give gift back c. Gift causa mortis (wil substitute, disfavored)- A gift causa mortis is a gift of personal property made by a living person in contemplation of death. (wil substitute) i. Difference between will- will can change up to minute you die, gift causa mortis conveys gift imedienly but take back if you live 1. Policy why courts do not like gift causa mortisa. Why not just do it in a will 6

b. Inefficient c. Potential for fraud because can be oral 2. Elements a. Made in contemplation of death b. Has to die to thing which you fear when gave gift 3. Brind v international trust co a. Facts- mother feared death of cancer, gave gift causa mortis, died from surgery not cancer b. Rule- a person must die of thing feared for it to be a valid gift causa mortis

ESTATES AND FUTURE INTERESTS 9. Types of estates a. Fee simple absolute- forever all bundle of sticks no future interests in property i. Cole v steinlauf 1. Rule- do not need to say and to his heirs to create fee simple absolute, it is default 2. Policy- marketability of land b. Life estate- limited duration by the life of the person i. Grantor retains a reversion ii. White v brown 1. If language is ambiguous will default life estate to fee simple iii. Rights when you have a life estate 1. Woodrick v wood a. Rule- when have life estate, not allowed voluntary and permissive waste, but can change the property to improve it. b. Facts- barn on land was rotting, person who had life estate tore it down c. mahrenholz v board of school i. rule- If there is Ambiguity in language default to "fee simple subject to subsequent condition" d. definitions i. Term of years- set years ii. DEVISES- in will (person dead) iii. Conveys- while alive iv. por autre vie- for the life of another 10. Concurrent ownership a. Tenants in common- undivided fractional interest in the property, no matter how much percentage you own, have right to use and possess entire property. i. Alienable (transfer) (other person cannot stop transfer), devisable (can leave in will), descendible (if die without will goes to kids) ii. Percentage owned is not how much you can sue, but how much you get when you sell it b. Joints tenants with right of survivorship (specific Language)- tenants in common but with right of survivorship. Whoever survives longer, gets the deceased percentage automatically i. If transfer or sell it severs right of survivorship and turns into tenants in common ii. To create need 1. “joint tenancy with right of survivorship” 2. Time- all interest given at same time 3. Title- must acquire in same instrument 4. Interest- must have equal shares 5. Possession- have equal right to possess, use, and enjoy the entire property 7

c. Joint Tenancy in its entirety (25 states recognize) i. Protects against creditors ii. Only to married couples iii. Cannot be severed, sold, or transferred unilaterally by a joint tenant iv. Can only be severed by death or agreement by both parties v. Sawada v Endo 1. Debtors cannot go after property owned by married couples for the wrongdoing of a single party. 2. Policy- not to displace innocent parties, rooted in traditional understanding of family and marriage, how society works, stability and consistency d. James v. Taylor (clear language and default) i. Rule- When language is ambiguous can look to extrinsic evidence but do not have to, courts prefer to look to 4 corners of deed or assume default. ii. Clear language- to children as joint tenants or to my kids jointly with right of survivorship iii. Policy- want property to be alienable, divisible, descendible because productive use of land. e. Tenhet v boswell (severance) i. Facts- Joint tenancy with right of survivorship between A and B. A lease it for 10 years to c. B dies, and A want to exercise full ownership and kick out C. ii. Rule- lease does not sever joint tenancy, in order to Sever joint tenancy, it has to be express and unambiguous (I sever joint tenancy, sell property). When leasor dies, lease ends iii. Policy- 2 innocent parties, joint tenants should get together and figure this out. What is the point of ownership if you cannot do with it what you want f. Ark Land CO v Harper (coal company) i. Partition in kind- Split land in percentage owned 1. Default 2. Policy- Want people to hold things they held before- first past the post, not forcing people into unwanted sales, baseball case, value is not in the sale for people ii. Petition in sale- Sell land and split profit based on percentage owned 1. When one party does not want to sell meet factors in order to sell a. Property cannot be conveniently partitioned in kind b. The interest of one or more of the parties will be promoted by the sale c. Interest of others will not be preadjusted by sale 2. If company cannot buy 100% of land, made mistake. But not can force court to make the people sell and buy it. 3. Policy- personhood theory- economic value and profit is important but will also look at sentimental and emotional 11. Cotenant rights and duties tenancy in common a. Esteves v. Esteves i. Facts- parents and son both bought house, son renovated and paid taxes. Is he entitled to rent for parents living there while son was away? ii. Rule- no rent is owed to a cotenant who is not in possession because both own full rights to use and possess entire property 8

1. exception- ousted, when one cotenant denies access to other cotenants- changing the locks, then all bets are off many have to pay rent. 2. Even if leave, still responsible for proportional share of operating expensive/maintence (taxes, mortgage, insurance) a. Improvements are not responsible for- utilities if not in house, putting in solar panels i. Does not gave to pay improvement costs, but does not get the financial benefit when house is sold of that improvement if they do not split the cost in the beginning. 12. Marital Property- common law men owned everything (marriage) a. 2 modern systems i. Separate property system- During marriage property is separately owned by spouse that acquires it. If there is a divorce require equitable distribution of property. Courts put everything in a pool and decide who gets what. Property owned before marriage is not part of divorce. 1. At death- forced share. Only person you cannot disinherit is spouse. If do not put spouse in wil, they can take forced share. 15-50 percent ii. Community property system (minority)- all assets that come in during the marriage is owned equally between spouse during marriage. Acknowledgement that marriage is unity. Property acquired before marriage is individual. Ad divorce, all community property is divided equally...