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Property I
Rutgers University, Newark School of Law
Oren, Craig N.

Property
I. Personal Property
A. Possession
1. physical control and intent to exclude others
2. or conclusion by a court that person is in possession, ought to be treated as possessor
3. Distinguished from ownership – owner has “title,” usually proved by document signed by previous owner or 1st possessor transferring title to present owner.
4. Constructive Possession – law treats person as possessor though he is not, or is unaware that he is.
B. Wild Animals
1. Possession – must deprive the animal of its natural liberty
a. Corporeal possession
i. Capture must be virtually complete, slight possibility of escape allowed
ii. Must use reasonable precaution against escape
b. Mortal wounding
i. Mere pursuit is not enough – Pierson v Post.
ii. Subject to trade custom – Ghen v Rich
2. Forms of action for getting property back
a. Trespass on case – indirect interference with property
b. Trover – some one else has “found” your property, action for damages
c. Trespass – direct interference with property
d. Replevin – action for getting back what’s been taken
3. Trespasser’s title – inferior to that of the owner of the land
4. Interference by non-competitor – not allowed – “malicious interference is actionable,” Keeble v Hickeringill
5. Escape
a. Finder’s ownership is extinguished when wild animal escapes
b. If animal is domestic or not native, then ownership is not extinguished
c. If animal has marking, ownership is not extinguished
6. Capture Rule for Natural Resources – rule varies depending on appropriate policy decisions
a. Water – only a right to reasonable use (except if it’s a desert, then you have a prior appropriation rule to encourage water use)
b. Solid Minerals – no capture rule, they belong to owner of the land
c. Liquid and Gaseous Minerals – original rule was capture, let’s get this stuff out. Now, there are limits as to how much each party can take (assuming some oil in one plot of land and some in the adjoining plot)
C. Finder’s Rights
1. finder has the right to keep the property against all but the rightful owner
a. Armorie v Delamirie – finder hands jewel over to jeweler for appraisal, jeweler refuses to return. Finder has action in trover or replevin.
b. Relativity of title – if finder subsequently loses item, his title remains superior to the next finder.
2. Unconscious Ownership
a. A person may unconsciously possess an item if it is located on his property
b. Applies to items underneath the surface, but often not to “loose” items on the surface. Finders can often keep such items. Hannah v Peel (but must have consent to be on the land)
c. Finder is employee – some courts rule employee is “acting for” employer – doesn’t get to keep the item.
d. Object found in private home – object goes to owner if he is in “possession” of home.
e. Object found in public place
i. If lost, goes to finder – Bridges v Hawkesworth
ii. If “mislaid” goes to owner of the premises – McAvoy v Medina
D. Bailments – the lawful possession of another’s property
1. Bailee has duty to care for goods and deliver them to owner.
2. Requirements
a. Possession by bailor
b. Delivery to bailee pursuant to contract or agreement
c. Acceptance by bailee
3. Creation
a. Bailment is created when bailee assumes physical control with intent to possess
b. Modern courts are liberal concerning “actual physical control”
c. “intent” may be implied by actions
d. bailee must be aware of the object, for bailment, but does not have to know its value – duty for bailee to ask.
4. Constructive, or Involuntary Bailments (duty of care higher if labeled “constructive)
a. No intent – bailment is thrust upon bailee
5. Rights and duties of bailee
a. Entitled to full damages based on wrongdoing by third party, but may be liable for same amount to bailor.
b. Held to ordinary care – duty is placed on bailee to prove ordinary care was given
i. Higher standard if there is a benefit to the bailee
ii. If involuntary, may be no duty to take affirmative actions.
iii. Duty to Deliver – bailee is held to strict liability when it comes to redelivery
c. Can contract for more/less bailee responsibility
E. Gifts
1. Definition: voluntary transfers w/o any consideration. Donor must 1) intend to make a gift, and 2) deliver the gift to the donee, who must 3) accept the gift.
a. inter-vivos – a gift made during the donors life when the donor is not under any threat of impending death
i. once made, it is irrevocable. If not, it violates the Statute of Wills. Ways to get around this:
(a) testamentary (make a will)
(b) gifts causa mortis
(c) make a present irrevocable grant of a future interest – Gruen v Gruen – retain for yourself a life interest, future interest doesn’t become possessory until you die.
(d) Make a trotten trust – a revocable trust of personal property that doesn’t violate SOW
b. Causa mortis – made in contemplation of immediately approaching death – revoked if donor does not die from the expected cause, or from another cause soon after.
i. Contemplation of immediately approaching death
(a) Must be reasonable apprehension of death (not I’m going to Harold’s)
(b) Donor must die of contemplated peril (or perhaps soon after of something different)
ii. 2 conditions revoke gift
(a) recovery of donor
(b) death of donee – causa mortis gifts are personal – doctrine of lapse
iii. Gift may be revoked by donor (questionable as to whether it is revoked by a contradicting will)
2. Intent – donor must intend to pass title presently (not just possession). Promise to give a gift in the future is not enforceable.
3. Delivery
a. Purpose: ritual (impresses grantor with legal significance and finality), evidentiary (objective evidence of intent), protective (against improvident oral statements)
b. 3 types of delivery
i. manual – physical transfer
ii. symbolic – where manual delivery is impractical (deed or something close)
iii. constructive – where manual delivery is impractical, you hand over the means of access.
(a) Handing over a key to safety deposit box, if delivery is impractical and
(b) The owner does not keep a key for himself as well, donee must have sole access
c. Does not have to be actual transfer
i. Delivery through third parties – law treats third party as agent of donee. As soon as donor hands it over, donor is disallowed from revoking. If agent is definitely the agent of the donor (attorney) then the gift does not take place until given to donee.
ii. Irrevocable transfer of future interest. Gruen v Gruen – vested remainder
4. Acceptance – if gift is beneficial, court will presume acceptance on the part of the donee.
F. Bona Fide Purchasers
1. Definition: One who does not know that the seller’s possession is wrongful, but has a good faith belief in the seller’s title, and pays valuable consideration for the item.
a. General Rule: seller can transfer no better title than he has. This is evoked when goods are 1) stolen or 2) found
b. Exception: certain situations dealing with BFPs.
2. Exceptions in favor of BFP’s over original owners
a. Seller has a voidable rather than void title – seller procured item through fraud, misrepresentation, duress (but not outright theft). Owner is in better position to have prevented the harm.
b. Estoppel
i. Owner of goods, by words or conduct, has expressly or impliedly represented that the possessor of the goods is the owner of them, or has authority to sell.
ii. Must induce reliance on the part of the purchaser
iii. 3 requirements
(a) Person who is to be estopped must make representation (can be implied)
(b) Reliance – BFP must rely
(c) There must be a change of position
iv. Conditional Sales – buyer has possession but no title until price has been paid in full. Meanwhile, sells to BFP. No estoppel, BFP should have checked. Shearer v Gillete
v. Recording System – if you O fails to record, he is estopped against BFP
vi. Entrusting goods to merchants
(a) At common law, some additional conduct was needed by the original owner for a BFP to evoke estoppel when sold goods by a merchant.
(b) With UCC, good faith purchaser is protected
c. Factor Acts
i. A factor is an agent in possession of goods with authority to sell them
ii. If there are limitations against BFP that he is not informed of, it doesn’t matter, rule in favor of BFP.
iii. Doctrine of Apparent Authority
(a) Appearances are reality.
(b) Duty falls on O for the appearance to reflect his rights
d. Pre-existing Debt
i. Old rule: if goods were meant in exchange for pre-existing debt, there was no estoppel – no change of position.
ii. Current UCC: this does satisfy the change of position requirement – a horse is better than a law suit for damages.
II. Adverse Possession of Real Property
A. Doctrine: obligates title holder of land to eject, within a statutorily described period, a wrongful possessor of land. If owner fails to do so, his estate in land is terminated, and the adverse possessor receives a new title in estate.
1. treats trespass as one continuous wrong
2. very separate from normal statutes of limitation – it bars recovery for the current violation of the law.
B. Requirements of Adverse Possession: to establish title by adverse possession the squatter must show 1) an actual entry giving exclusive possession that is 2) open and notorious, 3) adverse & under claim of right, and 4) continuous for the statutory period.
1. Adverse Possessors are ACE-HOles. Actual, Continuous, Hostile, Open, and Notorious, with a claim of right.
2. Actual entry giving exclusive possession
a. Entry requirement – entry must trigger the cause of action
b. Exclusive Possession – adverse possessor can’t be sharing property with owner or public
3. Open and notorious possession
a. Must use reasonable percent of claimed land
b. Must use land in typical manner of typical owners of such land
c. Use must be sufficient to put true owner or community on notice of possession
i. Minerals – adverse possession includes mineral rights unless mineral rights have been severed from land by sale prior to entry. In that case,

s NOT alienable (but may be passed to heirs through intestacy)
v. Interaction with adverse possession
(a) If condition is not met, the once-possessor is now trespassing on the original owner’s property – a cause of action.
(b) If O does nothing and the SL runs, the once-possessor can get a fee simple through adverse possession
b. Fee Simple Subject to a Condition Subsequent
i. Definition: a fee simple that does not automatically end, but which may be cut short at the grantor’s election when/if stated condition occurs.
(a) Difference between FS determinable is based on construction
(b) Here, the condition comes in a separate clause: the language grants the right, then says when it can be taken away
ii. Creation: “to A and heirs, but if used as a merkin factory, O or is heirs shall have a right of re-entry.”
(a) “but if,” “upon condition,” “provided, however,” – words of condition
(b) owner retains a right of reentry for condition broken / power of termination
iii. Duration: interest survives until grantor enters and terminates estate; violation of condition does not lead to automatic forfeiture of property
iv. Alienability: freely alienable, but subject to the original limitation
(a) Right of entry can be exercised by grantor or his heirs (but not freely alienable?)
(b) Heirs may sign quitclaim to surrender right to reenter
v. If courts have the choice, they prefer FS subject to condition subsequent to FS determinable
vi. Interaction with adverse possession
(a) Until O takes action to reenter, SL does not accrue
(b) O’s right of action is subject to condition precedent.
c. Fee Simple Subject to an Executory Limitation
i. Definition: upon happening of stated event, title automatically passes to third party
ii. Example: O to A but if used as a dental dam factory, to B and heirs.
(a) B’s future interest is an executory interest
(b) Void at early common law, then allowed by statute of uses
iii. Death without issue – often confused with fee tail.
(a) “but if A dies without issue surviving him . . .”
(b) refers to definite failure of issue, not an eventual end of the line
C. Fee Tail
1. Nature of estate
a. Lasts as long as grantee or any of his descendants survive
i. Property is to pass only to the issue of each tenant in tail
ii. Inheritable only by grantee’s descendants
2. Creation: to A and the heirs of his body
3. Duration: grantee receives estate for life which passes on to his first heir at his death
4. Alienability: grantee can’t transfer an estate that exceeded his lifetime.
5. Possible future interests – if A dies w/o descendants
a. reversion – to A and the heirs of her body
b. remainder – to A and the heirs of her body, remainder to B and his heirs
6. Special types – fee tail male (only to male descendants); fee tail female (only to female); fee tail special (only by issue of grantee and a specific spouse)
7. Grant to A “and his children”
a. Used to be a fee tale – rule in Wild’s Case
i. Now, rule has been abolished, A takes a life estate, and any children ultimately born receive remainders.
b. If A did have children, they all took concurrent interests as joint tenants for life
i. Now they would all be tenants in common with fee simples.
ii. This is because the rule has been abolished
8. Modern View
a. Only Delaware, Maine, Mass, RI still allow
i. But creditors can still get to the property – just like fee simple – no teeth
b. Most courts have abolished or emasculated it into
i. Fee simple
ii. Life estate followed by fee simple in issue
iii. Fee tail for one generation
9. Construction problems – meaning of “death without issue”
a. Could mean C takes only when B’s entire line runs out – indefinite failure of issue
i. B has a fee tail and C takes whenever the whole line of B’s descendants run out
ii. Would violate RAP
b. Could mean C takes if and only if B dies without any surviving issue – definite failure of issue
i. B has a fee simple subject to executory interest in C
ii. C takes only if B dies without surviving issue