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St. Thomas University, Florida School of Law
Zeiner, Carol L.

Property I- Zeiner


Real property- Land and improvements affixed to the land (ex: the land and this building/tree_
Personal property- Everything else, if moveable (ex: chop down tree)

Tangible personal property- you can touch it (ex: a car, books, dog, cat)
Intangible personal property- (stocks, bonds, bank accounts, cash, bc treated as spending power)

<copyrights/patents = intellectual property, bc it’s in the interest of the ideas>

Consumable personal property- (ex: good, perfume, firewood, oil)
Nonconsumable personal property- (ex: shoes, a painting)

Constructive possession- I own land so I own animals, animal ferae naturae, on land only while they’re on my property (not actual, physical possession)

– of lost property: When one who had actual possession no longer has actual possession but still
intends to exercise control over it, the person has constructive possession over it.

Actual possession-

I. First Possession

A. Acquisition of Property by Discovery
– “Discovery”- citing to finding a hitherto unknown for uncharted territory frequently…
– “Conquest”- symbolic taking of possession and subsequently… p.10
– “Quiet title case”- getting rid of contesting claims, deciding which title is the valid one
– First in time, first in right vs. rule of conquering
– “Chain of title” in the U.S.- Rule: all land titles originate in U.S. or a grant from an earlier colonial power which the U.S. recognizes
1. Rule 1: Exclusive right to purchase land from Indians rested in the US govt only
2. Rule 2: First in time/right granted to Europeans
3. Rule 3: Title originates in U.S.

B. Acquisition of Property by Capture
– constructive possession

C. Acquisition of Property by Creation
– Intellectual Property
– “A bundle of rights”-the right 2 possess, the right 2 use, the right 2 exclude, the right 2 transfer
– Common property and quasi property
– Copyrights

II. Subsequent Possession

A. Acquisition of Property by Find
– “True owner”- a true person who has actual possession
– “Custody”- physical control over an object that is in no way inconsistent with the interest of one with superior rights; “Bailee”- someone who has custody, but not possession (Ex: valet driver)
1. Lost property- personal property with which the owner has involuntarily departed with and does not know where to find it
2. Abandoned Property- property that the owner throws away or leaves with the specific intent of permanently giving it up.
– Depends on what it is and where it is (facts and circumstances).
– If it is lost property and the owner gives up all intention and effort to find it, it becomes abandoned property, and the finder then owns the abandoned property
3. Mislaid Property- that which was intentionally placed/put in a particular place
and failed to reclaim it

B. Acquisition of Property by Adverse Possession
– A way for someone who doesn’t have title to get title, or for someone who’
1. Actual and exclusive
2. Open and notorious
3. Adverse/hostile claim of right
4. Continuous for S/L

Adverse possession: a way for someone who doesn’t have title to land to get title, or for someone whose title is defective to perfect their title.
1) Applies to real property as well as chattels
2) If the true owner, within the statutory period, fails to take action to eject a possessor who claims possession adverse to the owner, the true owner is thereafter barred from bringing a suit to eject the trespasser.
3) Once this happened, not only does the true owner lose the right to eject the trespasser, but title vests in the “trespasser”, and the title refers back to when cause of act first accrued.

HYPO: 20-year statute of limitations in jurisdiction is twenty years, 1/1/01 adverse possessor moves onto land, as of 1/1/21, adverse possessor becomes true owner of land and his title relates back to 1/1/01, and he is treated as if he was the actual owner having started then.

HYPO: same setup as above, but on 3/8/04 another adverse possessor comes along and tries to possess the land, he CAN kick her out because from date of adverse possession (1/1/01) until the statute of limitations expires, his rights are superior to the entire world other than the true owner or anyone who derives their ownership rights from the true owner.

RULE OF LAW: Fromµ date of adverse possession until date that statute of limitations expires, adverse possessor has ownership rights superior to any and all people except the rightful owner and anyone who derives their ownership rights from the rightful owner (heirs, buyers).

Elements of Adverse Possession:

1) Possession must be open and notorious-
a. The land must be used for the types of use that would be usual for the owner of that specific type of land,
b. Use must be sufficiently visible and apparent for the true owner and community to take notice that a trespass is occurring. This knowledge must occur so that a statute of limitations can start to run.
2) Actual and Exclusive
a. Adverse possessor went into possession of the property (actual)
b. Possession via an agent of oneself still qualifies as actual possession.
c. However much is actually possessed is the extent to which adverse possession can be claimed.
d. Exclusive in that one cannot share property with a true owner and claim adverse possession, if cohabited with true owner it is presumed that cohabitation was allowed by owner.
e. 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.
i. With color of title, an adverse possessor doesn’t just get what he actually possesses, he gets true ownership to the entire property described in the document, the part the adverse possessor occupies is of reasonable proportion to the entire tract of land that it serves notice to the true owner.
ii. Has to be title to a unitary tract of land, such as a subdivision parcel, boundaries only extend to the edges of the unitary tract, even if the defective title states otherwise.
3) Hostile/Adverse Claim of Right
– adverse to the true interest of the owner
– if possessor has permission, the adverse possessor must communicate that they are now claiming hostily. writing, orally, by acts/conduct
– if a tena

3.) Aggressive Trespass Standard- an intruder entering to hold the land for himself entering to gain a title conscious that he is a wrongdoer, will accomplish his object, if the owner does not enter to prosecute his claim within the prescribed period.
-Color of title:
(you get color of title by something in writing like a will, deed, or judgment. Refers to a claim to title which
appears valid, but it is legally defective. Color of title may arise when there is evidence, such as a writing,
suggesting valid legal title.)
-Refers to the claim founded on a written instrument (a deed or will) or a judgment or decree that is for some reason defective and invalid (as when the grantor does not own the land conveyed by deed or is incompetent to convey, or the deed is improperly executed).
-Not a prerequisite for AP in most states, but it has advantages for the adverse possessor.
-In some states, a shorter statute of limitations is applicable to adverse possessors with color of title, than those without.
-The advantage that a person might from constructive possession is that the activities relied upon to establish AP reach not only the part of the premises actually occupied, but the entire premises described in a deed to a claimant.

– Tacking- (The adding of the possession period of different adverse possessors to reach the years needed for the S/L. current adverse possessor gets title. If, and only if there is privity among the adverse possessors!).
– The joining of consecutive periods of possession by different persons to treat the periods as one continuous period; esp., the adding of one’s own period of land possession to that of a prior possessor to establish continuous adverse possession for the statutory period.
– Privity- ( There is a consensual relationship btwn adverse possessors like a deed, will, dissent (heirs), ease, oral transfer. A voluntary transfer from one adverse possessor to another. The whole estate is transferred).
– The connection or relationship btwn two parties, each having a legally recognized interest in the same subject matter (such as transaction, proceeding, or piece of property; mutuality of interest.
Privity of estate- A mutual or successive relationship to the same right in property, as btwn grantor and
grantee or landlord and tenant.
* The requirement of privity had its roots in the notion that a succession of trespasses, even though there was no appreciable interval btwn them, should not, in equity, be allowed to defeat the record title.

C. Acquisition of Property by Gift