Property I Outline

Mertens Property Spring 2013

PROPERTY IN GENERAL

I. Five Theories

I. Protect first possession

a. First come, first serve

II. Encourage/Reward Labor

a. Acquisition through labor

III. Societal Happiness/Utilitarian Approach

a. Maximize societal wealth

IV. Ensure Democracy

V. Personal Development

II. Occupancy/Possession

1. Deprivation of natural liberty

2. Unequivocal intention of appropriation

3. Control

a. Examples:

i. Pierson v. Post

1. Pierson had intention of appropriation but didn’t deprive of natural liberty or have full control, therefore Post gets fox

2. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest

ii. Poppov v. Hayashi

1. Pre-possessory interests

2. Conversion is the wrongful possession of personal property rightfully owned or possessed by another.

WHAT IS PROPERTY?

· Not a thing just an interest

· Changes over time

· Chain of title: think of each owner as a different link

I. Bundle of Sticks

· Right to transfer

· Right to exclude

· Right to use

II. Limits on Property Rights

· Defined by government

· Not absolute- can generally transfer but there are limitations

o Exceptions

§ Moore v. Regents

· Public policy: don’t want to discourage scientific research

· Can’t sell parts that don’t regenerate

· Can be divided

· Evolves as law changes

III. Right to Exclude- Very Important Stick

I. Property right serve human values so human rights come before property rights

a. Employer can require visitor to ID self or state purpose

i. BUT can’t deny access if employee lives there

1. Representatives from government agencies may enter premises

2. But competitors can be denied access

IV. Right to Use

I. Private Nuisance

a. Intentional

b. Non-trespassory

c. Unreasonable

d. Substantial interference

e. Use and enjoyment of plaintiff’s land

ADVERSE POSSESSION

NOTE: THIS CAN BE TESTED IN THREE WAYS: SQUATTERS (CAN BE TRIGGERED BY OUSTER), PRESCRIPTION OF EASEMENT, TERMINATION OF EASEMENT

I. Policy Reasons

a. Efficiency- prevents frivolous claims

b. Correcting title defects

c. Encouraging development

i. Promotes productive use of land

d. Protecting personhood

II. Clear and Convincing Evidence

a. The standard of proof in most jurisdictions for Adverse Possession is clear and convincing evidence

III. Five Elements

Note: All elements must exist for the entirety of the statutory period

a. Actual Possession

i. Color of title

1. Invalid written instrument, defective deed

2. With a color of title you get the entirety of the land not just the part that you cultivated, which is what you would get if you had no title or fake title, etc.

3. Physically occupy some portion of the land

b. Exclusive Possession

i. Exclusive dominion and control

ii. Reasonable owner standard

1. Did the adverse possessor use land as the true owner would have

c. Open and Notorious

i. If the true owner had inspected would it have revealed the possessor on the property

ii. “Hung the flag for all to see”

d. Adverse and Hostile—no permission

i. Vanvalkenberg v. Lutz

1. Filed for easement had permission to use the land, admitted he wasn’t the rightful owner

ii. 3 Types

1. Bad faith

a. Know it isn’t yours and act as it is

2. Good faith

a. Genuinely think you have a claim, but are mistaken

3. Objective

a. If objective look at the other elements because mindset doesn’t really matter

b. Majority rule

e. Continuous

i. All elements (a-d) must be continuous

ii. Tacking and privity

1. Tacking requires privity

2. If the adverse possession of the successive occupants are in privity

3. Privity

a. Established by showing special relationship between consecutive owners by transferring of deed or title or color of title

iii. Example:

1. Howard v. Kunto

a. Summer occupancy rule, requires such possession as an ordinary owner would use

Tolling the Statute of Limitations

a. Minor

b. Mentally incapable from the start of possession

i. Nielsen v. Gibson

1. Court couldn’t prove Nielsen was insane at time adverse possession started so defendant gets quiet title

c. Active duty

i. Statutory based not always there

ESTATES

I. Estates Defined

a. A temporal slice of ownership rights in relation to a parcel of land

b. Think of estates along a timeline

i. Who can use now?

ii. Who can use later?

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