1
Q
What is property?
A
Property is a bundle of rights among people concerning things
2
Q
What are the four aspects of property according to the rights approach?
A
- Legal positivism - property is only valuable if the government recognizes it
- Rights are relative
- Rights are divisible
- Property rights evolve as the law changes
3
Q
What are the theories of property?
A
- Utilitarianism - Maximize social happiness (Bentham)
- Utilitarianism Law & Economics - Market will find a price (Coase theory)
- Labor theory - Labor+Resources = rights (Locke)
- Personhood - attachment confers a right, necessary for development
- First in time - Traditional way of sorting out the owner
- Civic Republican Theory - property ownership necessary for political freedom (Jefferson)
4
Q
What did John Locke believe about the beginning of America?
A
“In the beginning there was America…”
America was a wasteland that was ready to be owned and labored over
5
Q
What does animus revertendi mean?
A
An animal who has a habit of return may provide an ownership claim to the owner of the land where they return
6
Q
What does partus sequitur ventrem mean?
A
The offspring follows the condition of the mother.
7
Q
What is rationale soli?
A
By reason of soil, belonging to whoever owns the land.
8
Q
What are the framing standards of control?
A
- Control - Is there clear or absolute control? What constitutes control?
- Relativity of title - there can be multiple valid claims of ownership, who has the most valid claim?
- Constructive Ownership - Court will act as if something is even if it isn’t technically the case
- Custom - is there an element of custom that is relevant to this property claim?
9
Q
What are the facts/holding of Pierson v. Post?
A
Post (plaintiff) was hunting a fox and Pierson (defendant), seeing this, captured and killed the same fox. Post brought a trespass suit claiming that he had legal possession of the fox. The lower court found in favor of Post. Pierson appealed.
Property in wild animals is acquired by occupancy, meaning at least mortally wounding or capturing from a distance, and at most physical possession
10
Q
How does the law feel about alienability?
A
The law favors free alienation because it supports efficient markets
Transferability may be limited by needs of public policy
11
Q
What is the holding from Johnson v. M’Intosh?
A
(Doct. of Discovery) A sovereign may take possession of land through conquest or purchase and, once they have, the title can only be transferred to the sovereign from the people operating under an “aboriginal” land title.
12
Q
What is the holding from Moore v. Regents of CA?
A
A conversion claim can only be sustained if the owner has actual possession or ownership title to the property. This plaintiff had neither.
13
Q
What is the takeaway from Whiteness as property?
A
Whiteness = Status Property - property linked to identity (Personhood theory)
Evolved as: Identity-> Status->Property (then jumped from Identity to Property)
14
Q
What is the takeaway from “This Land”?
A
Chain of title was not broken by Congressional order so the land retained its status as a reservation which influenced jurisdiction.
Property as a sheet cake:
- The surface is the frosting
- The cake are the mineral rights
15
Q
What is the chain of title that lead to the US ownership of the Louisiana Purchase?
A
Discovery (Spain)
Conquest (France)
Purchase (U.S.)
16
Q
What is the right of exclusion?
A
Any property owner has the unqualified right to exclude except for consent and necessity (necessary to maximize economic value)
“One of the most important sticks in the bundle.” Kaiser Aetna v. US
17
Q
What are the elements of trespass?
A
- Intentional
- entering of land
- possessed by the other or causing a third person or thing to do so
- regardless of if any harm was caused
18
Q
What was the enclosure movement?
A
Period during the 1500’s in England where the open use land was fenced and converted to parcels owned by individual owners.
19
Q
Does every trespass cause damage?
A
According to Blackstone, yes. It is further elucidated by Jacque v. Steenberg.
20
Q
What kind of liability does trespass carry and why is it important?
A
Strict liability
Justifications for trespass:
- limit interference w/ land use
- limit risk of adverse possession
- limit self-help remedies
- limit who a land owner is liable for
21
Q
What are the elements of private nuisance?
A
- Intentional
- Non-trespassory
- Unreasonable
- Substantial interference with
- The use and enjoyment of the land of another
22
Q
What is the holding from Jacque v. Steinberg?
A
Every trespass carries actual harm which can result in monetary damages
23
Q
What is the holding from State v. Shack?
A
The ownership of real property does not include the right to refuse access to individuals providing government services to workers who are housed on the property.
24
Q
What is the holding from Thomson v. Greve?
A
(Q) Intentionally interfering with others’ use and enjoyment of their home by subjecting them to odor and smoke is a nuisance.
A nuisance becomes intentional once the actor knows that it is a nuisance and continues acting. Such an act may be enjoined where the harm is more than the benefit.
(Chimney case)
25
What is the holding from Prah Maretti?
Private nuisance law is applicable in disputes over access to sunlight.
26
What is the core component of the use of property?
No one can use their property to harm another - “Property rights are human rights”
Sic utere tuo ut alienum non laedas - use your own property in a manner that does not injure another person's property
27
What are the elements of a spite structure?
1. An otherwise useless structure
| 2. Whose sole purpose was to harm another
28
What is the doctrine of prior appropriation?
The party who uses natural resources first acquires a right to them
29
What is the gravity of harm test?
§ 826
An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if… the gravity of the harm outweighs the utility of the actor’s conduct…
30
What are the considerations of the harm under the gravity of the harm test?
§ 827
1. The extent of the harm involved
2. The character of the harm involved
3. The social value that the law attaches to the type of use or enjoyment invaded
4. The suitability of the particular use or enjoyment invaded to the character of the locality; and
5. The burden on the person harmed of avoiding the harm
31
What are the considerations of the utility under the gravity of the harm test?
§ 828
1. The social value the law attaches to the primary purpose of the conduct
2. The suitability of the conduct to the character of the locality; and
3. The impracticability of preventing or avoiding the invasion
32
What was the holding from Boomer v. Atlantic?
Permanent damages, rather than an injunction, are appropriate when the damages resulting from a nuisance are significantly less than the economic benefit derived from the party causing the harm.
(Cement company)
33
What was the holding from Sundowner v. King?
Under common law, no property owner has the right to erect and maintain a structure, not for any purpose useful to himself, but for the sole purpose of damaging a neighbor.
34
What was the holding from Eyerman v. Mercantile Co.?
When a landowner attempts to compel his successor in interest to do to the land something against public policy, a court may deem the condition void.
(House destruction)
35
What is the qualified right to destroy?
Strahilevitz - a rational person’s decision to destroy should be assumed to be in service of “further expressive objectives”.
This places the burden on the party objecting to the destruction to prove that the destruction has no reason
36
What is a privity?
A connection or relationship between two parties, each having a simultaneous or successive interest (such as a landlord tenant)
37
What is a horizontal privity?
Relationship between the two original parties to the promise that made the covenant
38
What is a vertical privity?
Vertical privity is between the people who made the covenants and the people to whom they are transferring the property.
39
What are the elements of adverse possession?
1. Open
2. Continuous
3. Exclusive
4. Actual
5. Nonpermissive/Hostile
40
What kind of faith can affect the claim of adverse possession?
Good faith requirement: the possessor must believe they have actual claim
Bad faith requirement: the possessor must know they do not own the land and be intent on wrestling title away from the rightful owner
No faith requirement: in most states, it doesn’t matter
41
What are the reasons for adverse possession?
1. Prevent frivolous claims - Viewed as a statute of limitations for recovering possession of land, it bars lawsuits based on stale, unreliable evidence.
2. Correct title defects - It corrects technical mistakes that occur in the process of conveying title, such as errors in deed descriptions.
3. Encourage development - It reallocates title from the idle owner to the industrious squatter, thus promoting productive land use.
4. Protect personhood - “A thing which you have enjoyed and used as your own for a long time…takes root in your being and cannot be torn away without your resenting the act.” Oliver Wendell Holmes, Jr.
42
What was the holding from Gurwit v. Kannatzer?
Under Missouri law, a person whose possession of a property is hostile, actual, open and notorious, exclusive, and continuous for the statutory period of 10 years may gain title to that property by adverse possession.
(Tract of land)
43
What was the holding from VanValkenburgh v. Lutz?
A party takes adverse possession of a property owned by another when he takes actual possession of it, encloses it and/or makes improvements to it, for the statutory period of years.
44
What was the holding from Tioga Coal Co. v. Supermarkets General Corp.?
Subjective hostility is not required to establish adverse possession.
(Driveway)
45
What was the holding from Howard v. Kunto?
Adverse possession occurs when a person takes actual possession of property that is uninterrupted, open and notorious, hostile and exclusive, under a claim of right for a statutorily specified period of time.
(Vacation house)
46
What was the holding from Fulkerson v. Van Buren?
Under Arkansas law, a person who does not demonstrate a clear, distinct, and unequivocal intention to hold a property adversely for the length of the statutory period cannot take title by adverse possession.
(Church)
47
What is the rule of capture?
To acquire property, pursuer must bring into his power + control + maintain control to show no intention to abandon them
48
What are the standards of possession?
1. Control - is it absolute? Is it certain?
2. Relativity of title - Who has the stronger claim?
3. Constructive ownership - has a claim of ownership been created?
4. Custom - What is the custom of the area? This can be persuasive.
49
What is the rule from State v. Shaw?
Stealing fish safely secured and confined can be larceny, even if it was not absolutely impossible for the fish to escape.
(Defendants took fish out of a net set by others and argued the fish weren’t actually trapped because they could still escape)
50
What is the rule from Popov. v. Hayashi?
When a person completes a significant portion of the steps to achieve possession of an item, but is thwarted due to the unlawful conduct of another, that person is entitled to a pre-possessory interest of the item.
The home run record-breaking ball was bobbled by Popov and ended up in Hayashi’s hands
51
What kind of right does a finder of property acquire?
A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner (and prior finders), and is entitled to keep abandoned property
52
What are the different kind of lost chattels?
1. Lost Property
2. Mislaid property
3. Abandoned property
4. Treasure trove
53
What is lost property?
Property is lost when the owner unintentionally and involuntarily parts with it
Hannah v. Peel
Armory v. Delamirie
54
What is the rule from Hanna v. Peel?
A finder of lost chattel on another’s property has rights to that chattel superior to the rights of the property owner.
Hannah found a locket stashed in the wall while living in Peel’s residence
55
What is the rule from Armory v. Delamirie?
A person who finds a piece of chattel has a possessory property interest in the chattel, which may be enforced against anyone except the true owner of the chattel.
A chimney sweep found a gem, took it to be valued, but the store owner wouldn’t give it back
56
What kind of presumption does possession create?
Possession creates an assumption of ownership, but it is rebuttable
57
What is mislaid property?
Property is mislaid when the owner voluntarily and knowingly places it somewhere, but then unintentionally forget it. It can become abandoned property if the owner chooses not to go back for it. (you set your phone down and forget it)
McAvoy v. Medina
Benjamin v. Lindner Aviation
58
What is the rule from McAvoy v. Medina?
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.
A pocketbook was left, a patron picked it up and turned it in, then wanted to claim it when the rightful owner was not found.
59
What is the rule from Benjamin v. Lindner Aviation?
Under the common law, property is mislaid when it is intentionally placed or concealed by an owner and later forgotten, and the property belongs to the owner of the premises where the property is found.
mechanic found money stuffed behind a panel of an airplane
60
Who has superior rights to mislaid property?
Owner of the land on which the property is found has superior rights to the finder because it is easier for the owner to retrieve the property
61
What is abandoned property?
When the owner knowingly relinquishes all right, title, and interest to it (free mattress on the side of the road)
62
What is treasure trove?
When the owner concealed it in a hidden location long ago. The treasure trove is usually limited to gold, silver, coins, or currency (Fenn’s treasure)
63
What are the finders and salvage laws that relate to treasure trove?
Salvage law - provides the finders of treasure with a reward
Finders law - gives the finder the ownership of the discovery
64
What is the Winkfield doctrine?
A bailee can recover against a wrongdoer for trespass or damage to chattels even if the bailee is not liable to the bailor for the trespass or damage.
65
Does it matter if lost chattels were obtained by theft?
Generally it does not matter if the property was obtained by theft, the rights of the thief will be respected against other thieves.
66
What is the locus in quo?
Latin for “the place in which”, it refers to the location where the cause of action arose.
67
What are the finder's obligations?
Keep the chattel safe
Return it to the prior possessor on demand
68
What is a bailee?
One to whom Personal Property is entrusted for a particular purpose by another, the bailor, according to the terms of an express or implied agreement.
69
What is a bailor?
The person who delivers the chattel to the bailee
70
What is a bailment?
A delivery of possession of personal property to another person without conveying title.
71
What are the three types of bailments?
Mutual benefit of the bailor and bailee - Customer hands his keys to the valet (bailee has a duty to take reasonable care of the property)
Primary benefit of the bailee - Farmer borrows a tractor (extraordinary care is required)
Primary benefit of the bailor - Homeowner leaves her dog with a friend (bailee is only liable if property is damaged because of gross negligence or bad faith)
72
What is an inter vivos gift?
Immediate transfer of property rights from the donor to the donee
73
What are the elements of an inter vivos gift?
1. Donative intent
2. Delivery
3. Acceptance
74
What is donative intent?
Donor must have intended to give the gift
This is a question of fact
75
What is delivery?
The donor must make a physical delivery in which the donor gives up dominion and control over the property
This is a question of law
76
What are the three types of delivery?
1. Manual
2. Constructive
3. Symbolic
77
What is manual delivery?
- Physical or actual transfer of gifted items to donee
- Traditionally required if practicable
- An agent can transfer the gift on your behalf
78
What is constructive delivery?
Physical transfer to the donee of an object that provides access to the gifted item
Such as a key
79
What is symbolic delivery?
Physical transfer to donee of an object that symbolizes or represents the gifted item (usually a written item)
- Such as the letters Victor wrote to Michael
- Real property is also given symbolically through transfer of a deed
- Future interests must be given symbolically
80
What is acceptance?
The donor must accept the gift
Gifts of value are always assumed to be accepted
81
What is a future interest?
Property rights can be divided in time, like a landlord giving a property to a leasee for a period of time of time or when an end point is established where the property will transfer
One person may have a possessory estate - current rights
Another may have a future interest - future rights
82
What is the rule from Gruen v. Gruen?
To make a valid inter vivos gift, the donor must intend to make a present transfer, either actual or constructive delivery of the gift must occur, and the donee must accept the gift.
Via letter, dad passed painting to son but retained a life estate
83
What is a life estate?
The future interest following a life estate is either:
```
A reversion (in the grantor)
A remainder (in a third party)
```
84
What is a testamentary gift?
Only made after the donor dies, usually made by a will
85
What is a gift causa mortis?
A gift of personal property made by a living person in contemplation of death. A GCM is immediately effective when it is made however it is revocable. The donor may revoke it any time before their death and in most states it is automatically revoked if the donor does not die.
86
What are the elements of a gift causa mortis?
1. Donative intent
2. Delivery
3. Acceptance
4. Donor’s anticipation of imminent death
87
What is the majority view on gift causa mortis?
The majority view invalidates the gift if the cause of death was not the cause identified in the gift causa mortis, however some allow for an exemption if:
The death occurs in the same approximate time frame
The cause of death is related to the anticipated peril
88
What is the rule from Brind v. International Trust Co?
There is no gift causa mortis if the donor dies not of the illness or peril that she feared when making the gift, but of some other illness or peril.
A woman conditioned a gift on her death from surgery, she survived the surgery but died of complications from the illness the surgery sought to treat.
