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Property I
Elon University School of Law
Kinsler, Jeffrey S.

Property 1
Jeffrey Kinsler
Fall 2009

Class 1

First Set of Legal Principles:
· The law of lost, mislaid and abandoned property

Types of Property: Real, Personal, Intangible

Aquiring Personal Property: Purchase, theft, gift, inheritance, prize or award, adverse possession, finding

Classification of Found Property: Lost Property – accidental (no rational location). Mislaid Property – Intentionally and mislead. Abandoned Property – voluntary relinquished.

Right to Found Property: Lost Property – finder has superior title to everyone except owner. Mislaid Property – Opposite of lost, owner has superior title, and owner of premises has superior over finder except true owner. Owner can easily find it if looked for. Abandoned – finder superior to everyone.

Problem – umbrella found in library. Type? Mislaid or Lost. Lost or Mislaid – true owner is superior. Abandonded (broken) – finder superior.
Problem – 1. Found watch on floor in bus station. Bus station owner thinks its hers. Lost property, finder wins. 2. Found in sink – mislaid – bus station owner has better title. 3. Ed works for bus station owner, finds in floor – employer has superior title. 4. True owner looks for 3 hours, but gives up and says lets forget about it. Started as mislaid (bus station owner would win), now it’s abandoned, Ed wins. 5. Two weeks later true owner demands it. Only way owner loses is if it’s abandonded. He wins everywhere else.
Problem – Bob found necklace on Janet’s floor that was lost at party. They both want it. Couldn’t find owner. Lost – exception applies – highly private location (home, personal private business/office, car). Banquet party? Lost – Bob wins.
Problem – Ben places chair on street for garbage pickup. Joan picks it up, Ben says he changes his mind. Joan wins, chair abandoned. If 50 feet from curb, abandoned? No.
Problem – End of lease, tenant leaves. Few pieces of furniture left. Tenant demands furniture from landlord. After 10 days it’s abandonment. Mislaid at first.
Problem – Walmart, A drops basement, B finds. B places it on sink and forgets it. Walmart employee, C, finds on sink. Who wins between C and Walmart? Walmart. 2. Between B and Walmart? Mislaid, B wins. 3. A wants it? A wins unless B can show abandonment.

Class 2

Second Set of Legal Principles: law of gifts and personal property. Inter Vivos gift, between people.
Elements of a Gift –
o Donative Intent – present intent to immediately and gratuitously (not in exchange for something) transfer property to the donee. A lifetime gift. Present donative intent.
o Delivery – Actual, Constructive (donor gives donee something that represent the gift, key to safe), Symbolic (by written instrument, written statement saying your making the gift).
o Acceptance – it’s presumed, if property is valuable.

Problem – Decendent, on death bed, says to Paul “I wants you to have my locked desk and money in it.” Paul left without taking it. Decendent died next day. What is Paul entitled to under traditional common law principles? There is present donative intent. There was no delivery. Paul is entitled to nothing. Problem – M tells S, come by tomorrow and I will give you $. Later that day, M dies. S shows up the next day. There was no present donative intent or delivery. Problem – Few months before death, H purchased a CD and put it in name of H & W. H places CD in trunk instead of bank. W never had possession of CD and was unaware of it’s existent. H dies and W finds CD. H’s executor demands W return CD to H’s estate. W alleged H made a gift of the CD to W. Is W correct? There was no evidence he intended to give the gift right now, no present intent. No delivery, possession without knowledge is not delivery. Problem – B owns mustang, on C’s bday he hands C keys and promises to give her the car in 5 years. Who owns the mustang? B, No present intent, maybe constructive delivery, no gift though. Problem – D buys B cup, and says “this is yours.” B gives it back to him to tell him to get it engraved. All 3 elements present. Problem – A has two children, gives 2 coins to daughter tells her to give him one coin. She takes, before she could deliver, A dies. In will, A left all property to X. If donor dies, and there is agencey and agent dies, agency terminates. Death came first before delivery. There is present donative intent, but no delivery. Agencey with daughter terminated upon A’s death.

Class 3

Acquiring personal property – Theft – only gets void title, cannot pass title to good faith purchaser. UCC – Void Title – (theft) you can only transfer what you have. If you have void, that’s all you can transfer. Owner gets title back. Voidable Title – bad in the hands of the person who caused it to be voidable, can be made good in the hands of someone else. Has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase, the purchaser has such power (to transfer good title). Problem – T steals As watch. T sells to B (b was unaware of theft). B sells to J two years later. A sees J’s watch and demands J to return it. Must he? T had void title, B had void title, J had void title. Person w/ void title loses to true owner. Problem – A sells watch to T for $5K, Check is insufficient, T sells watch to B for fair value. B sells to J two years later. A saw J’s watch demands it. Must J return it? T had void title, B & J had voidable title. A is a fault here. A could have prevented this. Does A have any remedies? Would only against thief. A would have contract remedy against T. Problem – A loans laptop to T, T sells computer to B, B unaware, A sees B using it. A demands B return, must he? Void title – A didn’t sell, just rented it. Problem – T bought golf cart from W who got it from questionable means on credit by false identity from C – voidable title – acquisition through form of fraud. W had voidable title. T had good. Problem – W stole cart, C has best interest. Void title, void is void forever, original owner can get it back. Problem – W got cart from test drive, and never comes back. Seller didn’t intend at that time to transfer possession. It was a loan. No transactional purchase, Void title. Who has best interest? UCC – Any entrusting of possession of good to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business. Problem – A takes watch to Jeweler(J) for repair, J mistakenly sold watch to B. Must B return to A? No. Don’t want people to go into a business thinking they don’t own the things. If not, does A have remedies? Yes, J is bailee, is reliable for money damages. Problem – same facts, J is lawyer. No entrustment, J is not a merchant of goods of this kind. This is void title. No transaction of sale. Kahr V Marklan – Kahr mistakenly donates silver to Goodwill, Goodwill sells to Markland. Kahr brought suit for replevin. Before entrustment can be applied, delivery is required. Kahr unknowingly leaving silver is not equivalent to a voluntary transfer and didn’t transfer ownership. Adverse Possession – Someone holds property so long that they’re declared owner, real owner waited too long to bring replevin action(wanted thing back) against them. To get adverse possession – Hostile(without permission) and under a claim of right(saying its yours), actual, open and notorious(public sees it), exclusive (only one with possession), continuous for the limitations period. Problem – 1960, S steals painting from art museum, S sells to B(bonafide purchaser) in 1965, 1970, B sells to another art museum who displayed it. In 2000 other museum learned of this, 2002 demands it back. Other museum refused claiming adverse possession. Statute of limitations is 3 years. Who prevails? In 1970, it was displayed in public (open and notorious). Art museum wins. In some jurisdictions, For adverse possession, reasonable person should have known it was open to public, other art museum should have known they had it. In other jurisdictions it is when reasonable person discovers (2002). Problem – privately contracted janitor finds wallet in Drs office, nurse takes it and put it ins the break room. Receptionist finds it and puts it in her purse. Who has superior title? Dr does. Problem – A finds watch in floor of Wal-Mart, would have to give to Wal-Mart if he found while passing through unpermitted section not open to public.

Class 4 – Personal Property, Bailment and Fixtures

· I. Personal Property
· A. Acquisition/Ownership
· B. Custody and Care
· C. Personal/Real Property (Fixtures)
· II. Real Property—Possession/Ownership
· A. Present Estates and Future Interests
· B. Concurrent Estates
· C. Leaseholds
· III. Real Property—Use
· A. Easements, Covenants, Servitudes, and Licenses
· B. Nuisance and Trespass
· C. Zoning Laws and the Takings Clause
· D. Support Easements and Water Rights
· IV. Real Property—Acquisition
· A. Real Estate Transactions
· B. Adverse Possession

· Definition: A situation in which the personal property (no real property) of one person (the bailor) is entrusted to another person (the bailee), who is obligated to return the bailed property to the bailor or dispose of it as directed b

om theft.
· b. Under the generally applicable rules, Spender can establish a prima facie case of Big Mart’s liability for the coat merely by pleading and proving that the clerk took possession of the coat and failed to return it, subject to rebuttal evidence by Big Mart. ( presumption of negligence, creates the prima facia case, up to bigmart to prove not negligent).
· c. Both of the above. Yes
· d. The bailment was gratuitous. Therefore, in some states Big Mart would only be held liable if the loss was caused by its gross negligence.

Problem – Lucy parked her car in the “A-OK” parking lot. She kept the car keys. When she returned to the spot she had parked her car, there was a big dent in the fender. Lucy wants to sue A-OK….Parking her car isn’t a bailment, it’s a lease. IF was bailment, bailee has to take care of property.
· a. This was a bailment, so there is a presumption that A-OK was negligent
· b. This was a bailment, so there is no presumption that A-OK was negligent
· c. This was not a bailment, so there is a presumption that A-OK was negligent
· d. This was not a bailment, so there is no presumption that A-OK was negligent . Yes.

· Fixtures: items of personal property that have been attached to real property in a more or less permanent manner so as to become real property. Ex. Lumber. Real (living), personal (cut and on property), real (put in house).
· Test: Did the annexor intend for the personal property to be permanently affixed to real property?
· Factors:
· (1) Express or implied agreement regarding intent
· (2) Relationship of parties (buyer/seller, landlord/tenant (less likely to be fixture), mortgagor/mortgagee
· (3) Character of annexation (i.e., will severance substantially damage real property or chattel itself?)
· (4) Nature and purpose of annexation (e.g., trade, farming)

Problem – Absent an agreement, which of the following is most likely a fixture?
· 1. A portable window air conditioner
· 2. A traditional washing machine
· 3. A traditional refrigerator
· 4. A traditional furnace. Yes

· 1. Landlord-Tenant
· 2. Vendor-Vendee (buyer, seller)
· 3. Mortgagor-Mortgagee

Problem – O operates a sports bar in a building located in downtown City. Two years ago, O installed a new large screen TV. To install the TV, O had to cut a large hole in two walls and small holes in the ceiling. The TV is bolted to the cement floor of the building. If the TV were removed, two walls and a part of the ceiling would have to be replaced. Is the TV a fixture if:
· 1. O is leasing the building from L and O’s lease has just expired. The lease is silent as to fixtures. Tenant as to leave someday. Unclear.
· 2. O owns the building and recently entered into a contract to sell the building to B. The contract is silent as to fixtures. Permanent.
3. O owns the building. Three years ago, O borrowed $50,000 from Bank and gave Bank a mortgage on the building. The mortgage is silent as to fixtures. O has defaulted on the mortgage, and Bank has started foreclosure proceedings. Intended it to be permanent.

Problem – L leases Blackacre to T for three years under a written lease that is silent as to fixtures. Six months into the lease, T erects a storage building on the premises. Although the building is designed to be permanent, it can be removed, but removal will cause moderate damage to Blackacre. May T remove the storage building at the end of the lease if
· A. The lease is commercial. Presumed to be removable.
· B. The lease is agricultural. Presumed to be removable.
· C. The lease is residential. Less likely, didn’t need to do it, it was your choice to install it.