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Property I
St. Johns University School of Law
Varadarajan, Deepa

Outline  Deepa Varadarajan Fall 2011. Property 7th edition.
September-25-11
2:25 PM

Real property= fixed land objects
Personal property= movable objects

Property rights really are the result of power struggles (keep this in mind) 

·         Property is best understood as a “bundle of rights,” or “bundle of sticks,” each stick representing an interest in property, including:
·         The right to exclude
o    Not absolute
·         State v shack. (owner tried to bar helpers for migrant workers from property)
·         The right to occupy
·         The right to use
·         The right to alienate or transfer
o    Note: the concept of “market inalienability”- you can give it away but you can't sell it (body parts, babies, etc)


·         Theories of property law
·         John Lockes Labor theory
·         Utalitarian theory





·         Possession (Find/First Possession/AP)

·         Keep this is mind-
·         Importance of the concept of “first possession” to properly law
·         “First possession” is a malleable and instrumental concept
·         Property rights are often a function of pragmatic concerns and power relationships (Europeans had the power to take possession of the land and use it the way they like, Indians didn't have much of a choice Johnson v. McIntosh)

·         General Rule of Capture:
o    Mere pursuit is insufficient for possession of wild animal; need “certain control” (Pierson- fox case)
·         Exception: Where “certain control” is impossible or impracticable, possession may be determined by reference to custom (Ghen – whale hunting)
·         On private grounds, the doctrine of ratione soli applies: the owner of the property has constructive possession of animals upon it. 

Fugitive resources are treated the same as wild animals (ex. Gas, water), same with baseballs

Finders
·         True owner>>>>Finder 1>>>>Finder 2 
o    True owner has superior title over subsequent finders. Finder 1 has superior title to all but true owner.
·         A landowner does not necessarily possess that which is unattached to his land
·         Landowner possesses everything attached to or under his land
§  (Hannah v. Peel- Soldier finds brooch behind curtains)

Acquisition by find
Lost property-  The finder of lost property has a title superior to all but the true owner and prior possessors (Armory- Boy finds jewel in chimney)
o    Lost property=unintentionally dropped or parted with
·         Mislaid property- A finder of mislaid property acquires no rights to that property (McAvoy- finds wallet on barber counter)
o    Mislaid property= Deliberately placed and unintentionally left behind
·         Abandoned property- finder generally entitled to possession of abandoned property
o    Abandoned property= voluntarily parted with
·         Property in persons
§  Human body parts are not property such that they may be converted (Regents California- cells used for research)
·         Market inalienability- you can give it away but you can't sell it (ex. organ donors, adoption)
·         Policy: affect certain people more (e.g poor people, selling organs for money)

·         Exceptions to the general rules favoring finders of lost (and abandoned) property.
o    These exceptions can favor employers and owners of the property where the item is found.
·         For example:
§  Finder who is a trespasser will lose to the landowner.
§  Finder who is on premises for a limited purpose (landowner has invited somebody to do something on their land) will lose to the landowner.
§  Finder who finds an object embedded in the soil will lose to the landowner.
§  Finder who finds Items inside a residence where the owner is currently living will lose to the landowner.
§  Employee who finds something in the course of working will likely lose to their employer

Adverse possession
·         Rationales for adverse possession
o    Sleeping theory
·         Slothful owners who ignore people using their land in brazen violation of their legal right deserve to be punished
o    Earning theory
·         People who use land productively and beneficially for a long time ought to be rewarded
o    Stability theory
·         Adverse possession enables disputes or doubts about land titles to be cleared expeditiously by delivering title to the person who has occupied the land as if she were the owner for a long time without objection

Two types of adverse possession cases
·         Unrelated parcel of land
·         Boundary dispute

5 elements of adverse possession
Actual entry and possession
Starts the statute of limitations
Has to use the land the way a reasonable owner would be expected to (What would average owner do?)
Open and notorious possession
Must be of the type that its visible and apparent such that it puts a reasonably attentive owner on notice
“Constructive notice” to owner (something that a reasonably attentive owner should be aware of)
·         Exception- Possession need not be knowingly and intentionally hostile, but it must be notorious enough to give true owner actual or constructive notice of the encroachment (Manilo v. Gorski- property owners steps encroached 15 inches, survey required to know so not notorious enough, require actual notice in minor encroachment cases)
·         Continuous for statutory period
o    How would the average owner use the land?
·         If there is an interruption the statute of limitations stops
o    Tacking on successive possessions of property is permitted for purposes of establishing adver

ief that the seller is a true owner), the bfp acquires good title.
o    Entrustment- if she entrusts goods to a merchant who she trusts, and they sell it to a good faith purchaser, she is out of luck even if the statute of limitation hasn't run yet
Gifts
2 types
·         Intervivos- during owners lifetime
·         Gift causa mortis-  contemplation of donors imminent death

·         Elements of a gift
·         Intention (can be shown by oral statement)
o    Present donative intent (an intent to presently relinquish title to something)
·         Delivery (requires an act of some kind). 3 types:
o    Actual
o    Constructive
o    Symbolic- when physical delivery is impossible or impractical deliver can be accomplished by delivering some object that is symbolic of possession
·         Symbolic delivery of a gift is not effective, constructive delivery is allowed only when it is impractical to deliver actual possession. Exceptions in some jurisdiction when gift is too cumbersome to deliver, note aka symbol would be sufficient. (Newman v Bost- furniture given, life insurance in dresser)
§  Reasoning: Symbolic delivery isn't allowed to prevent fraud, constructive delivery in this case was confusing because it was not clear whether he wanted to just give her the dresser or if he also wanted to give her the policy inside)
o    Rationale
·         Making abstraction a reality
§  “actions speak louder than words”
·         Objective evidence of intent
§  Acts as a secondary check on intent
·         Objective evidence of acceptance
§  Delivery is presumptive evidence of acceptance by donee
·         Acceptance
o    Considered accepted when item is delivered
Land Transaction
2 key dates
i.            Sales K
ii.            Closing


·         Overview “Executory period” (happens after contract period)
·         Arrange for financing
·         Obtain inspection
·         Title search
Overview: Closing (happens after executory period)
·         Buyer pays, seller transfers the property to purchaser by deed
·         Disputes that can arise before closing occurs
o    Whether the contract is enforcable