Property Outline
Fall 2014: Professor Shephard
I. Property: What, Why & How?
A. Property: Set of foundational law that makes things works and provides individuals with a sense of ownership. It defines relationship between people and stuff.
B. Three Ways of Property Ownership
1.) Private Property: Freely owned
2.) Gov’t Owned Property: Gov’t makes rules about the property.
Ex: The Park closes at 10pm.
3.) Public Property/Commons: No individuals or gov’t makes rules about who can use the commons or when. Works when you have NO property rules or in an area you don’t need property.
C. Three Types of Property
1.) Real: land
2.) Personal: money/moveable
3.) Intangible: intellectual property
D. Attributes of Property
1.) Possess: right to possess the property
2.) Use: right to use property
3.) Exclude others: right to exclude others
4.) Alienate: can sell/transfer/gift the property
5.) Descend: pass it along to natural descendants or to others
* Divisibility: can split up the property and sell as you wish
i. Can sell attributes of property ownership
ii. Ex: A farm on top of shale. Can sell an Easement that gives someone else a use right or a Profit that allows people to take what they collect
E. Efficiency (Goal) v. Justice Arguments (Defense of Goal)
1.) Argument must have both parts (explains premise and what is proposed gets premises asserted)
F. Two Types of Recovery: Damages v. Specific Performance
1.) Damages: recovery at law – damages/guilt – money
2.) Specific Performance: remedy in equity- a declaration/court declares something- you do this thing (defendant for plaintiff) – Ex: court orders defendant to rebuild plaintiff’s house.
* Money damages are easier for the court and they are wary of specific performance judgments
* Law of property full of equitable remedies: real property (in particular) is unique and you want your own stuff back
II. Is Possession 9/10ths of the Law?
A. Possession is NOT 9/10ths of the law. Possession is not equal to ownership.
B. State of Nature: when possession declares ownership?
1.) Abandoned Property: Ex: A dead animal
2.) Property that has never been owned: Ex: North American colonization
C. Popov v. Hayashi (Baseball case) —Conversion—
1.) Popov and Hayashi both claimed the ball was theirs. Hayashi had first possession and control over it. Ball was abandoned property (MLB custom).
2.) Dominion and Control/ Exclusive Possession
*First party to have demonstrable possession and control has ownership
D. Possession v. Ownership
*constructive possession/real possession v. ownership
1.) Where possession immediately equates to complete ownership…
i. Must have complete possession (dominion and control)
2.) Where possession may equate to ownership…
ii. Ganter v. Kapiloff
a.) Kapiloff brothers didn’t intend to sell the stamps that were in the dresser they sold. Ganter has a limited property interest in the stamps.
b.) Black-letter Law: Finder of lost property is the true owner against all of the world Except the True owner.
c.) Laws of Incorporation: Incorporate all of British law up to a certain date- common law- used as precedent
E. Replevin, Conversion and Subrogation
1.) Replevin: action in equity designed to obtain possession of personal property that is wrongfully detained. (What you want if you want the stuff back)
2.) Conversion: This term applies to taking another person’s property without any cause or permission. It is an unlawful action.
3.) Subrogation: The substitution of one thing for another, or of one person into the place of another with respect to rights, claims, or securities. Subrogation denotes the putting a third person who has paid a debt in the place of the creditor to whom he has paid it, so as that he may exercise against the debtor all subrogation
F. Types of Property (Law of Finds is line underneath each type)
1.) Lost (property has been lost or misplaced due to carelessness)
-Goes to finder unless the true owner claims it
2.) Mislaid (property left somewhere and forgotten about)
-Goes to true owner- place where it is found holds onto it
3.) Abandoned (property that the owner has given up all claim to)
-Goes to the finder
* Treasure Trove
G. Black letter Law
“Finder of lost property is the true owner against everyone in the world except the true owner”
H. Laws of Incorporation
1.) Incorporate all of British law up to a certain date/ common law
III. Ownership v. Possession (Continued from II)
A. Supreme Court says lost property statute doesn’t apply to mislaid property-
No finder’s fee (Benjamin v. Linder Aviation)
B. Statutory v. Common Law —-Statutory always wins
IV. Could you hold this for me? Duties of Possessors
A. Bailments: possession granted by true owner, but may never lead to true ownership
*Ex: UPS— You (the bailor) have a package sent out by UPS (the bailee) who takes possessio
That they were the only person acting as the true owner i.e only one possessing the property
F. Continuous
1.) Have to use land continuously for certain amount of time
*Statute of Limitations is normally 10 years
1.) Must Fully reach period of Statute of Limitations
2.) Statute of limitations is separate and does not depend on continuity; Austin lived there the whole time. Then say the statute would come in to play if all the elements were met, they had to have been met for X years depending on the state
3.) If run out clock, your land. If not and true owner returns…
1. Booted
2. Lose her time
3. She can never attempt to claim any property she has added
*All or nothing game
G. First Rule of Property
*A property owner may not convey any interest greater than the owners interest (Can’t give anything bigger than what you have)
H. The clock begins the moment adverse possession begins
1. It continues on even if Jock dies and Bobby inherits (doesn’t reset)
2. A party with an interest in a property may give all of that interest
3. You can sell your “clock” – Sue Ellen Voluntarily sells her interest and as a result Edward gets 5 years left on clock when he buys it
4. Tacking- Free and agreed transaction between the non-coerced people (contract/gift)—can voluntarily pass the “clock”
5. Edward claims the land by force without consent-his clock restarts
6. The clock can be sold, but it can’t be taken without consent
I. Rules/Reasons for Adverse Possession
1. Civil and criminal behavior come along with them statutes of limitations (choices in actions)
2. You can’t claim adverse possession over government land
J. In Adverse Possession, after statute of limitations- Sue Ellen gets a brand new title
K. Black letter Rule:
*”Time can’t run against the king” (No statute of limitations on the government)
L. Color of Title= actually has title
M. Adverse possession affects the land- new owner can’t produce title (difficulty in selling). Identification of abandonment
