PROPERTY
Salsich, Spring 2011 Saint Louis University
I. PROPERTY GENERALLY
A. Property – anything that can be owned or transferred.
B. Possession v. title
Possession: a person may generally be said to have possession of land or personal property if he has dominion and control over it.
Title: roughly synonymous with “ownership.”
Divided title: When title to a parcel of real estate is spread among numerous owners in different ways. See Estates Section.
D. Techniques for transfer: Sell, abandon, lose, give, take, lend
E. Terms
Quiet title: a lawsuit to establish a party's title to real property against anyone and everyone, and thus “quiet” any challenges or claims to the title.
Quit Claim: A real property deed which transfers (conveys) only that interest in the property in which the grantor has title. Salsich said, “A quitclaim deed is a simply a transfer of property. Makes no promises about the quality of deed. If I have nothing, then I transfer nothing to you. If I have entire bundle of sticks, then I transfer all the bundle of sticks.”
Accretion: in real estate, the increase of the actual land on a stream, lake or sea by the action of water which deposits soil upon the shoreline. Accretion is Mother Nature's little gift to a landowner.
Color of Title: the appearance of having title to personal or real property by some evidence, but in reality there is either no title or a vital defect in the title. One might show a title document to real property, but in reality he/she may have deeded the property to another.
Deed: one of the essential elements of a deed is a description of the property. There are no two pieces of property that are the same. You need an accurate legal description of the property.
II. RIGHTS OF POSSESSORS:
A. Possessing Property, Post
To possess property, a person must:
Deprive it of natural liberty
Actually take control
And manifest an intent to maintain control
i. A person that does this is entitled to that property
B. Discovering Land, Johnson
Facts/ Holding: Indians did not have the right to grant the land to anyone. When a country conquers a piece of land, the inhabitants have the right to remain on the land(?), but they do not have the right to grant the land to anyone. Only the conquering government can grant title to the land. At the time the land was granted, only Great Britain could grant title. Therefore, since Johnson’s possession of the land was invalid in the first place, he has no right to it.
Rule: if I’m the first to discover property, I should have right to property. But you have to do more than just to discover it – you have to occupy it. ****Discovery + possession = the right to continue to occupy the land.
Theories on who ought to be the “owner”
Labor theory – one who applies labor to a thing and transforms it deserves to be the owner
Social contract theory – the owner is the one who received title through the consent of humanity or society
Natural law theory – the identification of the owner is to be found in natural principles of human ordering
Utilitarianism – ownership is placed where it achieves the greatest aggregate good
C. Wild Animals: Once a person has gained possession of a wild animal, he has rights in that animal superior to those of the rest of the world.
What constitutes possession, per Post: The capture of a wild animal is sufficient to constitute possession. (If we’re talking about something that doesn’t move, then don’t apply capture theory.) In other cases, the line gets blurred:
Chasing: The mere fact that one has spotted and chased an animal is not sufficient to constitute possession. Mere pursuit gives P no legal right to the fox, and D had the right to interfere. Pierson v. Post
Trapping or wounding: One who mortally wounds or traps an animal or fish, so that capture is almost certain, is deemed to have possession.
Custom: In close cases, the court may look to the customs or usages prevailing in the activity or trade involved to decide who has possession.
If animal returns to natural state: If a wild animal is captured, and then escapes to return to its natural state, the finder’s ownership is extinguished, and the animal becomes the property of whoever recaptures it.
Natural gas: In Texas Energy, D tried to claim that Post applied to natural gas, but court held that it did not. Court found for P saying that the natural gas was considered still personal property. The gas hasn’t escaped the control of the gas company and it was not returned to its natural habitat. Further, the underground storage field is defined. D was trying to use the wild animal analogy, but the ruling narrowed the precedent value to only very similar facts.
Column theory, per Texas Energy: the owner of land owns a column of matter extends from the center of the earth to the heavens. If I own a piece of the surface, I own a column.
Water Notes: Water law varies by the form of water and among the states.
Correlative rights: allocates rights to underground water. Under this system, all surface owners above a common aquifer have a right to take water from the reservoir. Along with this right, however, are corresponding duties not to injure the reservoir, take an undue portion or waste the water that was taken.
Riparian rights: all surface owners adjacent to a flowing stream have a right to use the water. This right also carries with it a duty not to use the water in a way that would diminish the quantity or quality of water reaching downstream riparian owners.
Prior appropriation: the first person to put the water to beneficial use can continue to use the water. Limited by governmental permit.
D. Finders of Lost Articles
Rule: The finder of lost property holds it in trust for the benefit of the true owner, as a bailee. The finder has rights superior to those of everyone except the true owner.
What constitutes possession: To acquire possession, the finder must have 1)physical control over the goods (actual possession); and 2)intent to assume dominion over them.
i. Constructive possession: when a person does not have actual possession, but has the power to control an asset, he/she has constructive possession. Inferred, implied, made out of legal interpretation. Having the key to a safe deposit box, for example, gives one constructive possession.
Article lost by possessor: A possessor who loses the property after acquiring it may recover it from the third person who subsequently finds or takes it.
i. Lost article where possession derived from trespass: Even if the possessor has obtained his possession wrongfully, he has rights superior to all others besides the owner, and will be entitled to recover from a third person who interferes with his possession.
ii. Measure of damages: Most courts allow the possessor the right to recover the full value of the object from the third party who has taken it.
Status of property prior to “finding”:
Lost property = finder: The finder of lost property is entitled to possess the lost property against everyone but the true owner. Lost property is property the true owner has unintentionally dispossessed of the property.
Mislaid property = owner of site: The finder of mislaid property acquires rights in the property, and the owner of the site where the property is found has a right against all but the true owner. Mislaid property is property intentionally put in a certain place, to be retrieved at a later date, but which is subsequently forgotten.
Abandoned property = finder unqualified right: The finder has an unqualified right to abandoned property. Abandoned property is property an owner intends to relinquish all rights in the property and leaves it so that it may be appropriated by another
Treasure trove = finder as long as not trespasser: The finder of treasure trove is awarded rights to the treasure as long as he is not trespassing. Treasure trove is money, coins, gold, or silver hidden either under or above ground, which has been hidden for a length of time so that it is not reasonably possible to determine the true owner.
Exam Tips: In each of these situations, there’s going to be:
i. A true owner
ii. A finder/ discoverer
iii. The owner of the land on which the thing was
1. In some cases, two of the three might be the same. In others, might be three different people.
E. Bailments
Definition: A bailment is the rightful possession of a goods by one who is not their owner. Possession without ownership. The owner (bailor) has transferred possession to the possessor (bailee) for some period of time. This creates a relationship btwn the bailee and bailor. The bailee (the person holding the goods), by virtue of his possession, owes a duty of care to the bailor (
they drive the 5 elements of adverse possession: 1)Encourage productive use of the land and 2) Punish the lazy owner – interested in avoiding lawsuits. Lazy owner – “I might have allowed you to be on my land thirty years ago, but now I want my land back.” Sorry, but it’s too late to get back those lands. Too late to deal with it in our land title system.
III. RIGHTS OF OWNERS
A. Bundle of Rights/ Sticks: Ownership consists of a number of different rights, called a “bundle”: 1)the right to possess the object; 2)the right to use it; 3)the right to exclude others from possessing or using it, and 4)the right to transfer it. The same bundle of rights does not apply to every piece of property.
Splitting up rights: an “owner” of real or personal property can be found to have some of the bundle of rights/ sticks, but not all of them. Several different people can have different property interests in the same property at the same time.
Right to Transfer: The right to transfer has two distinct aspects: 1)the right to make a gift and 2)the right to sell.
Right to Exclude others: A property owner has the general right to exclude others.
Example: Socialist Workers: If property is not a public forum, then property owner can exclude political groups.
Exception to the right to exclude others: The right to exclude others is subject to limits imposed by society:
i. Example: State v. Shack – Property-owner has the right to farm without interference, the right to privacy, and the right to security. The farm workers have right to personal well being, to information, to privacy/ association. The court held that the owner may not use trespass statutes to keep out private citizens who are trying to furnish medical or legal services to migrant workers living on a farm. “Title to real property cannot include dominion over the destiny of person the owner permits to come upon the premises.” Shack is an example of how the court comprised the needs of the two parties.
B. Rights of Invitees
Must be invited: An individual does not have the general right to enter upon the private property of another.
Can’t exceed invitation: If invited for one purpose, the invitee has no recognized right to engage in another activity against the landowner’s wishes.
C. Ownership of bodily tissues and identity
Body parts, per Moore: When a person’s tissues are extracted as part of a medical procedure, the patient does not continue to “own” extracted materials, and cannot control how they are used for scientific and commercial purposes.
Identity, per Middler: The court said that Middler had a property interest in her identity. The court finds for Middler not just b/c Ford impersonates her voice, but because they profit off of impersonating her voice (which is an attribute of her identity). But the court limited the applicability of this holding to entertainers and public figures, not private citizens.
IV. ESTATES
A. General
Exam Tips
When going through the phrase, identify the present possessory interest, future interest, and words of purchase/ limitation
Question to Ask to determine the type of estate:
i. How long is a particular estate to last?
ii. How is the property to be inherited?
iii. When does possessory enjoyment of estate begin?
1. Present interests
2. Future interests
iv. Is the property right subject to contingencies?
