Property
Carmella
Spring 2013
ACQUISITION OF PROPERTY BY FIND
1. Finders – deals w/ personal property (v. real property, land and buildings).
2. Title is relative. The true owner always has superior rights of possession, but the finder has superior title to all others and to subsequent possessors (sort of the “relative true owner”). The meaning of true owner depends upon who the other claimants are. B can have title as against C but not as against A.
3. Bailment – rightful possession of goods by a bailee, who is not the owner (bailor). To create a bailment there must be intent to possess.
a. Voluntary bailment – owner/bailor gives possession to the bailee with the intention of getting them back. Ex – give cars to valley parking; loan a book.
i. Bailment is for sole benefit of bailee (loan to bailee): he must exercise extraordinary care.
ii. …mutual benefit of both (commercial relationships): reasonable care.
i. …sole benefit of bailor (as a favor to bailor): bailee only liable for gross negligence.
b. Involuntary bailment – Involuntary from point of view of owner, but not from the finder who has intent to possess and in so doing takes on the responsibilities of a bailee (finder chose to take possession). Relationship between finder and true owner (prior owner). Ex – Armory case.
i. By taking possession, finder assumes the obligations of the bailee.
1. Standard of reasonable care (modern view), standard of great care; or standard of minimal care, dep. on circ.
ii. Protection of finder’s right: (revised Armory rule) Finder can keep property against anyone but the true owner and any prior possessor.
1. Prior possessor prevails over subsequent possessor (Hanna v. Peel).
c. If both F1 and F2 are wrongful possessors, Prior Possession Rule still applies. F1 would have a replevin case against F2 (Anderson). Possession has to be lawful only as against the person who deprived you of it.
d. Wrongful possession by F1 à rightful possession by F2: cts often ignore the Prior Poss. Rule and side with the rightful possessor.
e. If F2 already paid full damages to F1 (bailee), the TO (bailor) does not have a case against F2 (Winkfield).
f. It is sufficient to maintain an action in trover for the finder to prevent the endless stream of transfers (if you found something and the finder’s right is not protected, anyone could take it). Also, finder’s protection increases the chances of TO finding the item.
Finder of property framework:
(1) Lost/ mislaid/ abandoned/ treasure trove? (2) Apply rules in each category.
4. Found objects fall into three categories:
a. Mislaid property – intentionally/voluntarily placed somewhere and then accidentally left there or forgotten. Finder acquires no right. The property goes to the locus owner (even if discovered by another) b/c he is the best position to find the true owner.
i. Owner of the place where property was mislaid retains it, which creates a bailment that the owner of the place retains for true owner (McAvoy v. Medina).
ii. Courts less likely to characterize item as mislaid if it does not promote the item getting back to the real owner, such as in Hannah (cts. will say it was lost to reward meritous behavior).
b. Lost property – unintentional placement of property; accidentally dropped somewhere. Finder retains it against everyone except true owner and prior possessors. Where a locus owner has only constructive possession of the premises and has no knowledge of the lost article, the finder is entitled to it as against all persons except the real owner (Hanna* v. Peel).
i. Owner of the land possessed it long enough to know about the contents of it;
1. Also, factor: owner occupied the property (here he did not)
2. Factor: knowledge of the owner about the item; (not determinative)
a. Unaware à finder should keep it.
b. Do not have to physically take possession of the item to make it yours, but if owner wants to retain all personal property, he must retain control over it and know what’s on his property.
ii. Item must be not attached to the property.
iii. If attached/embedded in soil, property owner keeps it if: (Sharman)
1. He has actual possession of house/land and
2. Has a manifest intention to exercise control over it.
iv. Is it in public or private place?
1. Public à finder can retain it according to the modified Armory rule (Bridges).
2. Private àthe property owner retains it. These are not definite – factors.
v. Argument: if you are legally on a property (like Peel), the purpose of you being there should be considered. Hannah was just supposed to be quartered there, and had no other outside rights; Peel did not give away any possessory right as to the content of the house.
c. Abandoned property – intentionally and voluntarily relinquished with no intention to reclaim. The finder has an absolute right over all others.
d. Treasure Trove: Any gold, silver, or paper representative thereof found concealed, the owner of which is unknown. At C/L the treasure belonged to the finder, even if a trespasser, by absolute right. However, under modern statutes it is either treated like any lost property or it goes (fully or partially) to the state.
e. Trespassers may not acquire possessory rights; right of possession goes to locus owner.
f. Employees and agents: If an employee or agent finds an article by virtue of an act specifically directed by the employer, the employer should acquire the rights of possession to the article. Courts will look at what exactly the employee was doing and where exactly he was. Employee must return mislaid property to employer, but not abandoned property.
g. Highly Private Locus: Where a chattel is found in a highly private locus, the locus owner will have possessory rights, not the finder. However, if the place of discovery is open to the public, the finder is entitled to the article. The mere fact that the place of discovery is privately owned is not sufficient to render it a highly private locus.
5. Transferring property
a. Inter vivos transfer – transfer from a living person to a living person. Transfer of land requires a gift deed.
i. Need to have Intent (donor must want to pass title to done); Acceptance (none receives with intent to retain); and Delivery (Manual, Constructive see below, or Symbolic).
b. Testamentary transfer – occurring upon/ after the death of the giver (by action of a will or by intestacy statute in the absence of a will).
6. Constructive Possession – Handing over something that gives access to the object of the gift. Used where manual delivery is impractical or impossible (keys to a car, safe deposit box). A person does not have actual possession, but has the power to control an asset.
a. Constructive Trust – if finder sells the item he found, the money still belongs to the true owner: finder places a constructive trust on the item. Finder/borrower is a trustee on the original owner’s account, and the true owner is the beneficiary entitled to the item or its value. Ex – If you sold the book that you borrowed, once the book is sold, the money is placed in constructive trust – you hold it in trust for the original owner. If the book was sold for much less, original owner still entitled to reasonable value of the book. à Constructive trust is a legal fiction.
b. Tort of Conversion – person converts to his own use some property owned or possessed by the π.
7. Requisition – taking a “leasehold” interest in the property and compensating the property owner (like in Hannah v. Peel).
8. Remedy:
a. Trover – legal remedy; common law action for mo
d. Relativity of title: RO > AP-or > subsequent trespassers
e. AP-or who acquires the title to property must then pay back taxes that were owed by RO on the property.
3. Elements of AP (C/L):
a. (1) Actual entry and possession (Only get what you are occupying, contra Constructive AP infra)
i. Use it in the way that the actual owner would use it
ii. Factors (Lutz): improvement – permanent structures increasing value of property;enclosure (in Lutz, logs not a fence).
b. (2) Open and notorious (visible) conduct/possession
i. AP-or must give proper notice to the RO that he is using the property. Notice can be actual or constructive. Visible (put a sign up, put a fence up, show your presence, hang outside). Objective standard: reasonably attentive RO/ordinary person would notice that someone is using the property (as opp. to sleeping principle – owner “sleeping” upon his rights).
ii. In case of minor encroachments, the RO must have actual knowledge/ notice in order for the AP-or to satisfy the notoriety requirement. (Mannillo).
c. (3) Exclusive possession (not shared with the RO)
d. (4) Continuous for the statutory period (for the entire duration of the S/L)
i. AP-or permitted to come and go in the ordinary course. The use need only be consistent with the nature of the land (Howard v. Kunto – beach summer house only occupied in the summer is OK).
ii. Must be uninterrupted (Howard). If interrupted, the SOL starts all over.
1.
If partially occupied by AP-or, remaining part of property falls under the same SOL (Lutz).
If AP-or abandons the property with no intention to return before SOL has run, SOL stops. AP-or is not allowed to tack on the time if he reenters later; new SOL starts. RO must show that there was clear relinquishment of any intent to return by the AP-or.
2. When AP-or is temporarily absent, or when there is an interruption by a third party (not RO), and the AP-or has no intention of relinquishment, and the AP-or has complete intention to return or returns à “Tolling” of statute: SOL is suspended during the absence, but that time is added on in the end. The 3rd party is viewed as a trespasser, and if the AP-or ejects him, the AP-or will get the benefit of the time of occupation before the interruption for purposes of the S/L.
e. (5) Hostility/Adversity/Claim of right or title (adverse to the rights of the RO; without permission). State of mind may be considered. 3 views:
i. Objective standard: state of mind is irrelevant (majority view, Mannillo, Lutz dissent, “Connecticut doctrine”).
ii. Subjective standard: a good faith, mistaken belief of ownership. “I thought I owned it” (minority view; in Howard v. Kunto which was later overruled, and not adopted in Mannillo – “Maine doctrine”).
Aggressive trespass standard: “I thought I didn’t own it, but I intended to
