Real Property Outline
Spring 2013
Professor Bauer
Introduction to Property
Two Characteristics of Ownership
· Title: refers to ownership of an
– Johnson v. M’Intosh: Dispute over land transferred by Native Americans. Since Native Americans only had possession but not title, they could not convey the land to anyone
· Possession: refers to physical control of an object and the intent to exclude others
We want ownership of items to be clear
· Property hates waste, this is enshrined in old and new laws
o Ex: who owns offspring of a pregnant cow?
§ Offspring goes to the owner of the mother; if we preserve lost owner’s possession of the item, we create waste, which property hates
· Property hates self help
· Property is unique
o ALL property is considered to be unique
§ Ex: Barry Bonds baseball hypo; couldn’t split a baseball in half, so it was sold and the proceeds were split in half between the contested owners
Getting Property: The Law of Acquisitions
Acquisition by Capture (and Discovery)
· Wild animals captured belong to the captor
o Capture is required; chasing the animal in question is not enough
§ EX: A is pursuing a fox, B shoots and kills the fox. The fox now belongs to B, because he was the one who captured it
§ Pierson v. Post- Cause of action for trespass; Post was hunting a pursuing a fox and Pierson came in and killed the fox himself
· Rule: The one who gets a property right to wild animals is the one who captures or kills it, bringing it into the control of hunter (Control gives you ownership)
o Society does not reward pursuer only the captor
§ Rewarding capture is easier to do than protecting the pursuit
· If an animal is mortally wounded, it is considered to be captured
· Person who discovers mislaid property becomes the owner
o Has superior rights to everyone but the true owner
§ Prior possessors of personal and real property win over subsequent possessors
§ Possession: to become prior possessor, finder must acquire physical control and have an intent to assume dominion over the object.
· Owner of a premises has constructive possession of an object on the premises even if he is unaware it exists
· Treasure Troves:
o Intentionally concealed by owner with the intent of returning to claim it
§ Common Law: finder wins against everyone but the true owner
§ Modern courts are split, many apply the rules of lost property
o Objects found in public places
§ Lost property goes to finder; mislaid goes to the owner or the owner of the premises
· Abandoned Property
o Title is awarded to the first person who exercises dominion and control with an intent to assert ownership over the object
Acquisition by Creation
· Intellectual Property
o Ownership of an idea
o America’s success is 100% related to the ownership and protection of ideas
o Copyright
§ Recognized ownership of an original work
· Music, art, pictures, books, movies
§ Way to own an idea, your life +75 years
§ Intent to copyright just as good as done
o Patent
§ Patent is a process
· Ex: Model T not patented, assembly line was
· Process you have thought of but no one has ever thought of before
· Patent can be more valuable than a copyright because it is certified by the US Government
o Trademark
§ Word, phrase, logo, graphic used to distinguish a product
§ Registered with the US Patent Office
· General Ideas of Intellectual Property
o International News Service v. Associated Press
§ Quasi property interest by an agency against other news collection agencies. It is unfair business competition for a news collection agency to distribute news collected by another news agency
o Cheney Brothers v. Doris Silk Co.
§ In the absence of some recognized right at common law or statute, a man’s property is limited only to the actual chattels that embody his invention
· If something is not copyrighted, it is not protected and competition is actually good and encouraged under laws of economics
o Smith v. Chanel, Inc.
§ There is a strong public interest in allowing competition; offering comparable goods at lower prices is in the best interest of the public
· Spending money is not enough to make something yours
o White v. Samsung Electronics America, Inc.
§ Television and other media create marketable celebrity identity value. The law protects celebrity’s sole right to exploit this value whether the celebrity has achieved fame out of ability, dumb luck
Acquisition by Find
· Finder wins except against true owner
o Owner of property does not lose title by losing the property. The owner’s rights persist even though the article has been lost or mislaid
§ Armory v. Delamairie: prior possessor has a superior property right
· The finder of a jewel does not acquire absolute ownership of it. He maintains ownership of it so that he may keep it from everyone but the rightful owner.
· Owner of a house generally owns everything in it and under it
o PROPERTY OWNER OWNS EVERYTHING ATTACHED TO, OR UNDER HIS LAND
o PROPERTY OWNER DOES NOT NECESSARILY OWN A THING WHICH IS LYING UNATTACHED TO THE SURFACE OF THE LAND, EVEN IF IT IS NOT OWNED BY SOMEONE ELSE
§ Hannah v.
dity of his or her statements or acts
· Howard v. Kunto: To constitute adverse possession, there must be actual possession that is uninterrupted, open and notorious, hostile and exclusive and under a claim of right made in good faith for the statutory period. Summer possession can constitute continuous possession if such possession is similar to the conduct of surrounding owners. Tacking of adverse possession is permitted if the successive occupants are in privity, if there is a reasonable connection between the predecessors and the successive occupants.
· O’Keefe v. Snyder: Statute of limitations for replevin begins when the owner of the chattel should have, through due diligence, known that the item in question was missing. In this case, the question was remanded to the trial court to decide if O’Keefe used due diligence when she discovered the items were stolen
o Thieves cannot acquire good title, and cannot transfer this title to others regardless of their good faith or ignorance of the theft
Acquisition by Gift
· Elements of Gift Inter Vivos:
§ Intent
· Intent to make a present gift
o Cannot account for future gifts
§ Delivery
· If a gift CAN be delivered, it MUST be delivered
o Constructive Delivery
§ No reasonable person could deliver it; keys to a car
§ Donor must surrender as much control as possible
· Symbolic Delivery
o Typically disfavored
§ If gift can be handed over it must be
o Gruen v. Gruen: A party may give a future interest in chattels as a gift while reserving a life estate in himself
§ Acceptance
· Acceptance is presumed when gift is beneficial
· Gifts Causa Mortis:
o Made in completion of, and in expectation of immediate approaching death (sub for will)
§ Must have present mental capacity to gift
§ May only gift personal property
§ Delivery and Acceptance must occur
o Newman v. Bost: Symbolic delivery of a gift is not effective. Constructive delivery is allowed only when it is impractical to deliver actual possession
o Recognizes the imminence of death, but fear of abstract future death is not acceptable as gift causa mortis
