Kordesh
Property
Spring 2014
THE CONCEPT OF PROPERTY
· Legal Positivism Theory = Property exists only to the extent that it is recognized by the government
· Capture
o One acquires property rights in a wild animal [or something sufficiently analogous to a wild animal] if one captures, traps, or mortally wounds the animal (principle of first-in-time respected)
o Pierson v. Post (pgs. 1-15)
· Right to Transfer (“alienability”)
o Transfer rights, not the physical property
o Moore v. Regents of the Univ. of Calif. (pgs. 36-47)
· Right to Exclude
o “Every person has a constitutional right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another person.”
o Jacque v. Steenberg Homes, Inc. (pgs. 47-57)
§ In the case of an intentional trespass to land, a nominal damages award may support a punitive damages award
· Right to Use
o Cannot use your property in a way that would cause a nuisance.
o Prah v. Maretti (pgs. 73-81)
§ Must balance Maretti’s right to develop his property with Prah’s interest in access to sunlight
ADVERSE POSSESSION
· Four justifications for AP:
o Preventing frivolous claims
§ Adverse possession is a kind of statute of limitations
§ Encourages productive use of land through security of title
§ Preventing frivolous claims against the adverse owner
o Correcting the defects
§ Mistakes often occur in the process of conveying title to land
§ Lengthy possession is proof of title
o Encouraging development
§ Reallocates title from the idle owner to the industrious squatter
§ Promotes the productive use of land through giving the more productive user title
o Protecting 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” – Holmes
· Elements:
o Actual
§ Physically use the land
o Exclusive
§ Cannot be shared with anyone else, including the owner
o Open and Notorious
§ Must be visible and obvious
o Adverse and Hostile
§ Good faith
· Adverse possessor thought the land was theirs
§ Bad faith
· Adverse possessor was actively trying to deprive the rightful owner of their property
· Tioga Coal Co. v. Supermarkets Gen’l Corp. (pgs. 120-124)
§ Objective state of mind (“No Faith”)
· The state of mind is irrelevant
· Satisfying the other elements satisfies the adverse and hostility requirement
· Gurwit v. Kannatzer (pgs. 99-105)
o Continuous
§ As continuous as a reasonable landowner
o For the statutory period
§ Most common are 10, 15, 20 years
§ Tacking
· The adverse possession of two or more successive occupants may be added together to meet the statutory period requirement if privity (a contractual or mutual relationship between the two parties) exists.
· Howard v. Kunto (pgs. 126-130)
· Procedurally
o Adverse possessor can bring a quiet title action to confirm his title (Claim of title – Gurwit)
o Adverse possessor can claim adverse possession as a defense to an owner’s lawsuit to recover possession (Claim of right)
FINDERS
· Generally: if an owner has lost or mislaid property, he does not lose title to it unless he abandons his ownership rights.
· Lost
o Property that results from an unintentional separation.
o Finders Keepers (second to prior possessor)
o Armory v. Delamerie (pgs. 173-175)
o Hannah v. Peel (pgs. 175-182)
§ “The finder of a lost article is entitled to it as against all persons except the real owner”
· Mislaid
o Property that results from an intentional placement, but then unintentional separation.
o Landowner (locus in quo) gains title and must use ordinary care in protecting the item (second to prior possessor)
o McAvoy v. Medina (pgs. 183-185)
· Abandoned
o Property that the owner knowingly leaves behind and relinquishes all property rights.
o Finders Keepers
o Haslem v. Lockwood (pgs. 185-188)
· Bailment
o If for benefit of bailor (reasonable care)
o If for benefit of bailee (higher standard of care)
GIFTS
· Inter Vivos (gift made while living – irrevocable)
o Elements
§ Present Donative Intent
· The donor must have the present intent to make a gratuitous transfer.
· Must be immediate!
· Can be inferred from:
o Donors act of giving possession of the item to the done
o The nature and value of the item
o The relationship between the parties
o “Registering a car under both spouses names constitutes intent” (Brackin)
§ Delivery
· The property must be delivered to the donee.
· The delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit that allow the donor to part with dominion and control. Gruen v. Gruen (pgs. 209-219).
· Types of delivery
o Manual (actual)
§ The donor physically transferred possession of the item to the donee.
§ E.g. handing it to the donee.
o Constructive
§ When manual delivery is difficult, the donor can “symbolically deliver” it.
§ E.g. handing over a key to gain access.
§ E.g. telling donee where buried coins are.
§ E.g. donor rebranding cattle with the donee’s brand.
o Symbolic
§ When manual delivery is impractical or impossible, the donor can “constructively deliver” it.
§ E.g. giving a hood ornament to a donee for a car
§ E.g. giving a letter/memo stating intent to grant
§ Acceptance
· The donee must accept the property.
· Typically presumed when unconditional and valuable to the donee.
o Conditional Gifts
§ MAJORITY (“no fault”): the gift of an engagement ring is subject to an implied condition that the marriage occurs. The gift does not become absolute until the marriage ceremony.
§ MINORITY (“traditional”): the gift of an engagement ring is unconditional, completed gift upon acceptance; unless th
not a condition
· Examples:
o O conveys: “To A for life, then to B for life, then to C and her heirs.”
§ A has a life estate
§ B has a vested remainder in life estate
§ C has a vested remainder in fee simple
o O conveys: “To A for life, then to B for life, then to C and her heirs if C survives A and B.”
§ A has a life estate
§ B has a vested remainder in life estate
· Going to third party, so it’s not a reversion
§ C has a contingent remainder in fee simple
· There are preconditions (and multiple scenarios)
· It’s what’s left over
o O conveys: “To A for life, and in the event of A’s death to B and her heirs.”
§ A has a life estate
§ B has a vested remainder in fee simple
· Vested because there is one situation (no preconditions)
o O conveys: “To A for life, then to A’s children who reach 21”
§ A has a life estate
§ If no kids turn 21
· O has a reversion in fee simple
o Possibility the contingency will not vest
o O conveys: “To A for life, then to B and her heirs”
§ A has a life estate
§ B has a vested remainder in fee simple
o O conveys: “To A for life, then to B and her heirs if B attains the age of 21 before A dies” (B is 15 y/o)
§ A has a life estate
§ B has a contingent remainder in fee simple
§ O has a reversion in fee simple (if the contingency is not met – just in case)
o O conveys: “To A for 20 years”
§ A has fee simple for term of years
§ O has reversion after term of years
o O conveys: “To A for life, then to B for life”
§ A has a life estate
§ B has a vested remainder in life estate
§ O has a reversion in fee simple
§ Then, T: “All O’s property to C”
· C has a reversion in fee simple
o Then, A and B die:
§ C has a vested reversion in fee simple
o O conveys: “To E for life, then to F’s children and their heirs”
§ E has a life estate
§ F has [nothing?]
§ F’s children have a contingent remainder in fee simple
· F never has children
o O has a reversion in fee simple
o O conveys: “To A and her heirs, but if B reaches 30, then to O”
§ Subject to condition subsequent: an estate whose natural duration may be cut short by the happening of a particular event or condition allowing the grantor to retake the property.
§ The event is described as part of another party’s future interest rather than as part of the estate it may cut short.
