PROPERTY OUTLINE
SHEPARD FALL 2014
I. Property: What, Why, and How?
Types of Property
A. Real Property – Property in land ( with pertinence) * almost always unique
B. Personal Property—Physical property (i.e. furniture, cars, clothing)
C. Intangible Property—Non-physical property (i.e. patents, copyrights, trademarks)
ii. Bundle of Rights
A. Ownership consists of a number different rights, including the right to:
1. Possess
2. Use
3. Exclude others
4. Transfer it
5. Alienate
6. Descend ( pass down to others)
II. Is Possession 9/10th of the Law?
Recovery in Property
A. Damages (Money). This is easier to use because it is enforceable.
B. Specific Performance ( Equity) [ Court Order to do something..ex. an injunction, declatory judgments, etc.] * Law of property is full of equity remedies.
1. Replevin- An action for the repossession of personal property wrongfully taken by the defendant
ii. ACQUISTION BY FIND
General Rule: An owner of property does not lose title by losing the property
1. The owner’s rights persist even though the article has been lost or mislaid
2. A finder has rights superior to everyone but the true owner
3. A prior possessor prevails over a subsequent possessor
iii. What constitutes acquisition?
1. A finder must do more than merely discover the property
2. He must take it into his possession
3. Have physical control over the goods
4. Intent to assume dominion over property
A. Finders of lost articles
1. The finder has rights superior to those of everyone except the true owner
2. The finder of lost property holds it, at least for a certain time, in trust for the benefit of the
true owner.
B. Lost Property vs. Mislaid Property pg.
1. Mislaid—An object has been “mislaid” rather than lot when it was intentionally put in a certain place, and then forgotten by its owner.
1a. Finders of mislaid property are entitled to possession against all the world except the true owner (because the owner might return to the place to look for the item)
2. Lost—Property that the owner accidentally and casually lost and does not know where to find property (Shep’s wallet falls out of his back-pocket as he is walking in downtown chicago)
2a. Finder is entitled to possession against all the world except the true owner.
C. Abandoned Property
1. Owner voluntarily and intentionally relinquished ownership with intent to give up both title and possession.
Example—A homerun being hit and Dodger’s stadium and the ball going into the crowd. Popov v. Hayashi (another example).
2. Finder obtains both possession and title if he exercises control over the property with intent to assert ownership.
D. Treasure Trove
1. Treasure trove consists of coins or currency concealed by its owner.
2. The property must have been hidden or concealed for such a length of time that
the owner is probably dead or undiscoverable.
3. Treasure trove belongs to the finder against all but the true owner.
III. Possession v. Ownership
A. Possession—A person may generally be said to have possession of land or personal property if he has dominion and control over it
1. Possession is proved by showing physical control and the intent to exclude others
B.Ownership— The title to the property Ex. A tentant in a residential apartment has possession of the apartment, but the landlord has title to it
A. Constructive Possessor
One who does not actually own, but acts as if they do.
IV. Bailments
The rightful possession of goods by one who is not the owner.
* Will never lead to true ownership
1. Bailee- Current possessor; The person in possession of the goods
2. Bailor- True Owner; The person on whose behalf the bailee holds the goods
STANDARD OF CARE
WHEN APPLIED
EXAMPLE
Slight care/ Liability only for Gross Negligence
Bailment is solely for the benefit of the bailor
X leaves her dog at her boyfriend’s house for the weekend
Ordinary Care/ Liability for Ordinary Negligence
Bailment is for the mutual benefit of bailor and bailee
X leaves her car with a mechanic for service
Extraordinary Care/ Liability for even Slight Negligence
Bailment is solely for the benefit of the bailee
X lends her best friend her new range rover to drive to Vegas
Strict Liability
Bailee fails to redeliver item (misdelivery )
X gives car keys to a valet. The employee drives off and never returns the car.
Shepard’s Thoughts on Bailments:
1. Who benefits from
dverse possessors, one after the other, may be
“tacked”.
a. Their periods of ownership can be added together for the purposes of meeting
the statutory period.
iii. Adverse Possession of Personal Property
1. A person can acquire title to chattels by adverse possession just as he can
acquire land.
2. Statute of limitations is shorter
3. AP of personal property is seldom open and notorious.
VII. Use Rights & Nuisance
A. Nuisance – an unprivileged interference with a person’s use and enjoyment of
his land.
i. Elements
1. Location
2. Character of neighborhood
3. Nature of complaint
4. Frequency
5. Effect of plaintiff’s enjoyment of their health & enjoyment of land
ii. Private Nuisance
i.- Conduct that causes a substantial interference with the private use of land and
is either:
1. Intentional and unreasonable, or
2. Unintentional but negligent; reckless or
3. Resulting from an abnormally dangerous activity
ii. Any intentional invasion of an interest in private use and enjoyment of land is
unreasonable.
1. It is a nuisance if the gravity of harm outweighs the utility of the actor’s
conduct
iii. Public Nuisance
Interference with a right common to the general public.
i.- Conduct that causes a substantial interference with the private use of land and
is either:
1. Intentional and unreasonable, or
2. Unintentional but negligent; reckless or
3. Resulting from an abnormally dangerous activity
iv. How courts determine Nuisance
1. Economic Harm
2. Physical Harm (genuine health hazards)
3. Reciprocity
A. Locality matters. Coming to the Nuisance
1. The character of the community determines things
2. Example- Buying a house in an area that is known to reek
of cows/ horses. (No Nuisance claim)
3. Invasion ( If there is no invasion it is psychological)
