Outline – Property
Property – Product of one’s labor (John Locke), extension of one’s will (Georg W. F. Hegel), product of a person’s settled expectations (Jeremy Bentham)
Property – The study of tenures – the study of the many ways in which property can be possessed or held.
Roadmap for Property
Personal Property
Common Law Estates and Concurrent Interests
Landlord and Tenant
Real Estate Transactions
Easements and Covenants
Public Land Use Regulation
Personal Property or Personalty – Is moveable – All property other than real property, including autos, books, stocks, bonds, etc.
Real Property or Realty – Land and improvements to land, including buildings, fences, etc.
Personal Property
Introduction
i. Definitions
1. Tangible Personal Property – Autos, books, paintings, etc. Personal Property you can see and touch
2. Intangible Personal Property – Property often represented by writings – patents, stock, or note receivable – also rights of privacy and publicity
ii. Possession – Controlling or holding of personal property, with or without claim of ownership – Because proving ownership is difficult and burdensome, we rely on possession as a surrogate (your wristwatch) – There are two elements to possession –
1. An intent to possess on the part of the possessor
2. His or her actually controlling or holding of the property
iii. Relativity of Title – The idea that a person can have a relatively better title or right to possession than another, while simultaneously having an inferior right to another person
iv. First In Time – First In Time, First in Right is a rule for establishing a priority of rights based upon the time of acquiring the right in question. Other things being equal, the chronologically first possessor has better title.
Capture – Set of rules used to determine ownership of wild animals
i. Mini Brief – Pierson v Post
1. Facts – Post hunting on beach, chasing fox, Pierson intervenes, shoots fox, carries it off. Post wins initial trial, loses appeal.
2. Rule – To gain title to wild animal, you must possess it also
3. Issue – Is mere pursuit enough for the acquisition of title for a wild animal?
4. Holding – No
5. Reasoning –
a. Ferae naturae: only obtain title to these animals through “occupancy”. Mere pursuit is not enough.
b. Mortal wounding: or trapping of the animal would have given possession.
c. Floodgates of litigation: to allow possession based on mere sight or pursuit would produce large numbers of cases
6. Judgment – Pierson wins appeal
7. Dissent – Death of Foxes in public interest – you should encourage it.
8. Comment – Although Post had the first element of possession (Intent), he did not have the second element, actually controlling or holding the animal (occupancy).
ii. This is a First In Time, First In Right case
iii. Mortal Wounding – In close pursuit gives a hunter a superior claim to possession than an intervening hunter. Definition of Mortal Wounding –
1. Likely to prove fatal to the animal
2. Shows a manifestation to seize the animal, not just chase it
iv. Constructive Possession – Possession that has the same effect as Actual Possession.
1. The facts of this case limited this. It was not on private land. (Whoever owns the surface owns the depths of the earth)
v. Customs– Hunters can roam unposted land by custom or statute – normally are local specific
1. Ghen v. Rich – Whaling Industry Custom – Customs should be recognized…
a. When its application is limited to an industry and limited to those working in it
b. When custom is recognized by whole industry
c. When custom requires “first taker the only act of appropriation possible”
d. When custom is necessary for survival of industry
e. When custom works well in practice
2. Courts suspicious of customs
a. Custom of industry formulated to benefit industry, not society
b. Custom might be dangerous to those employed in it
c. Custom can be wasteful of resources
d. Custom can lead to over-investment in technology
3. Custom of Giving Access – Common right of giving access to certain types of real property. It must be
a. Long continued AND
b. Uninterrupted AND
c. Reasonably asserted as a right
Finding – “The title of the finder is good as against the whole world but the true owner”
i. The finder of lost property is a person who
1. First takes control of the lost property AND
2. With an intent to maintain possession of the property
ii. Conversion – When a person wrongfully exerts control over an asset inconsistent with the true owner’s rights to the property.
1. Common law action for the tort of using another’s property
2. Replevin – Recovery of item
3. Trover – Monetary compensation for the property – a forced sale.
4. The decision of replevin versus trover lies with the true owner or rightful possessor, not present possessor.
iii. Four types of Finding
1. Lost Property – Property the true owner unintentionally or unknowingly drops or loses – belongs to finder (unless true owner located).
2. Mislaid
rols the car
3. Safe Deposit Boxes – Box under bank’s control – is a bailment
x. Misdelivery of Bailed Property
1. Strict Liability and Negligence
2. Burden of proof on Bailee to show he did not act negligently. Assigned to Bailee for 5 reasons
a. Bailee knows history of bailment
b. Bailee has right to sue thieves and coverters
c. Bailee in best position to secure and recover chattel
d. Risk of Misdelivery can be borne by Bailee and spread amongst his customers
e. Prevent Bailee from acting fraudulently
3. What must be redelivered?
a. Deposit of money in bank – same bills are not expected – no bailment – debtor/creditor relationship
b. Deposit of grain in silo – similar grain but not exact grain – bailment issue uncertain
c. Herd of cattle – Herd as a whole is subject to bailment, but not individual cows (attrition)
d. Seeds – If farmer expects mature crop – this is not a bailment – a basic change in chattel is not a bailment.
xi. When Bailed Property is Lost or Damaged
1. Standard of Care
a. Benefit to Bailee slight – Bailee liable for only gross negligence – this would be a gratuitous bailment – taking care of friends property or mistaken bailment.
b. Benefit to Bailee and Bailor equal – Duty of reasonable care
c. Benefit to Bailee greater – merest neglect of damage to object make Bailee liable – transport companies, repair shops
Adverse Possession
i. The process through which a person who uses property for a statutorily determined period of time becomes the owner of the property and defeats all rights of the person with legal or record title.
ii. Statute of Limitations Period (Limitations Period) – The number of years the adverse possessor must use the property
iii. Color of title – A faulty or defective deed
iv. Core principles about how court will rule on adverse possession cases:
1. Seeks to penalize true owner for sitting on property to long without using it productively