Property Outline- Spring, 2009
E&E Chapter 1:
Discussion of property rights in case of hunted animal (i.e. x); posting on land may affect outcome
Chapter 2: Personal Property and Possession:
Real property: Refers to land and the improvements attached to the land.
Personal property (personalty): all property other than real property. Tangible means it may be touched, intangible are things that have value but aren’t “physical” (i.e. stocks, bonds, patents, etc).
Possession is the controlling or holding of personal property- has 2 elements:
1. An intent to possess on the part of the possessor
2. His/her actual controlling/holding of the property. Ctrl is KEY.
Relativity of the title: idea that person may have a relatively better title or right to possession than another, while simultaneously having a right inferior to yet another person.
· One way of prioritizing this is “first-in-time, first-in-right” that establishes a priority of rights based on the time of acquiring the right tin question. Under this rule, all other things being equal, chronologically 1st possessor has the better title.
Pierson v. Post- Application of “first-in-time, first-in-right” b/c hunter who physically captures animal is declared possessor. Although this doesn’t seem fair (since the losing party had put the most effort into the capture), ct really only to assess where parties are at the “finish line”.
· Constructive Possession:
o Denotes possession that has the same effect in law as actual possession, although it isn’t actual possession in fact (means “established by construing the facts of a case so that the facts give rise to an inference of…possession.”)
o Pierson’s dissent argued that Post’s pursuit put him in constructive possession of the fox b/c it gave him a right to possession that wasn’t yet actual possession.
Chapter 3: Law of Finders and Prior Possessors:
Common law holds that a finder of lost property has greater rights to the found property than the entire world except the true owner; usually stated as “The title of the finder is good as against the whole world but the true owner”
Finder of lost property is a person who:
1. Takes ctrl of the lost property
2. Has the intent to maintain possession of the property.
Conversion, Replevin, and Trover:
Generally, a finder will return found property to the rightful owner if the rightful owner appears, but what happens if they refuse to give the property back?
Conversion:
· Happens when a person wrongfully exerts ctrl over an asset inconsistent w/ the true owner’s rights to the property.
· Is a common law axn for the tort of using another’s property as one’s own?
o Replevin: when true owner seeks to recover the asset itself
o Trover: when true owner seeks monetary compensation for conversion of personal property. A person who is compensated pursuant to a trover axn loses his rights to have the asset returned.
· Armory v. Delamire: Ct holds that “the finder of a jewel, though he doesn’t by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.
Lost Property, Mislaid Property, Abandoned Property, and Treasure Trove:
Several different outcomes for these:
· Lost property: property the true owner unintentionally/unknowingly drops or loses- belongs to the finder (unless/until TO is located).
· Mislaid property: property the TO intentionally placed in a given location and then left, or intentionally left intending to return for it later- belongs to the owner of the locus in quo (location in question; unless and until the TO is located). Idea is that the possessor of the real estate on which the property is found is in a better position to give the found property act to the TO if TO comes back looking for it.
· Abandoned property: Property TO intentionally and voluntarily relinquish with the intent no longer to own object and w/o xfer right to another person. 2 elements:
o Act of abandonment
o Intent to abandon
o Both elements must be proven- NOT presumed
· Treasure Trove: may be gold, silver, sometimes currency that has been intentionally concealed or underground, w/ indications it has been so long concealed that the true owner has long since died. In England, treasure goes back to the crown, in the U.S., it belongs to the finder.
Other Considerations:
Some jdxns find other factors to be important; remaining factors carve out exceptions to general rule that finder keeps found property. Exceptions favor employers and owners of the locus in quo.
· Cts disfavor trespassers; thus, a trespasser who finds one type of the above property will lose out to that landowner.
· Finder who is on premises for a limited purpose must relinquish any found property to landowner.
· Many cases have found that employees are acting for the benefit of their employers and therefore must give all found items to their employers (mislaid objects still go to the owner of locus in quo). Other cts require the employee to turn over the object to the employer only when the employee fond the object in a place no open to the public (i.e. hotel staff)
· Even visitors may lose out to owner of property; many judges will award even lost property (as well as mislaid property) to the owner of the premises if the object was found in a private place on the premises.
· Items found in a residence belong to owner/renter assuming owner or renter lives there.
o Hannah v. Peel- finder prevailed despite finding object in a residence b/c owner had never used the house as a residence and the tenant, quartered R.A.F. soldier, didn’t use house as a residence either.
· Another question: was the item buried in soil or on the surface of the property?
o Objects embedded in the soil belong to the property owner and not to the finder, even if object is foreign to the native soil.
o Objects found on the surface may stay w/ the finder subject to all other rules that award found property to owners of the premises or others.
o Some jdxns award treasure trove embedded in the soil to the landowner.
Chapter 4: Bailments:
Bailment: xfer and delivery by an owner or prior possessor (the bailor) of possession of personal property to another (the bailee):
1. Whose purpose in holding possession is often for safekeeping or for some other purpose more limited than dealing w/ the object or chat
mplished symbolically. For instance, if gift was a large chest, a picture could be delivered; if a series of items, written inventory of items could work.
· Generally, a sale deed or deed of gift could stand for the thing itself.
§ Delivery could be constructive, which would mean that property itself isn’t xferred, but something giving ctrl over object is (such as a key to an auto or safe deposit box) – key is that donee is given access.
· Donor giving instructions to finding lost chattel also works.
o 3) Donee must accept object:
§ Acceptance is generally presumed from the benefit received by the donee; not much reported litigation dealing w/ acceptance.
§ W/o evidence to show rejection, there is not rejection.
§ Presumption of acceptance is rebuttable; no one is required to “accept” a gift someone else thinks would be to the benefit of another.
· Thus, donor’s donative intent as well as physical delivery and acceptance are the 3 elements required for a valid gift.
Gifts Causa Mortis:
· Made when the donor has an apprehension or expectation of his/her own impending death and delivers the chattel w/ the intention that ctrl over the subject of the gift will take effect immediately but becomes absolute only upon donor’s death.
· Expectation of death is subjective; an objective/reasonable expectation isn’t required. Whether or not the expectation of death is present is a q of fact (illness/disease/peril prompting expectation must be present, but something like minor surgery/perilous voyage have been found insufficient).
· Donor must have a present intention to deliver absolute ownership of the property in the future at death; attempt by donor to reserve ctrl over the property until death invalidates this type of gift; presumption is rebuttable by proof of donor’s intention to part unconditionally w/ property given.
· Title of donee causa mortis isn’t absolute until donor is death; death must result from same illness, disease, peril producing the donor’s initial expectation.
· Donee is donor’s bailee; GCMs are revocable; in some jdxns, revocation is automatic if/when donor recovers from illness/etc that made death seem likely. Recovery is seen as a “determinable event” (this, or a condition subsequent, automatically terminates the donee’s ownership and returns title to the donor w/o any axn on donor’s part); if offer is revoked, it doesn’t revive automatically if donor suffers from same illness.
· GCM won’t be able to escape claims of creditors- they are subject to creditors if assets of donor are insufficient to repay the debts.
