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Real Property
Temple University School of Law
Hollis, Duncan B.

PROPERTY OUTLINE
 
I. What type of Property is at Issue?
   
     A. Tangible Property- property that has physical form and characteristics
               
1. Real Property- land and anything growing on, attached to, or erected on it, excluding anything that may be served without injury to the land
-[real property can be either corporeal (soil and buildings) or incorporeal (easements)] -consists of a right in land (buildings, trees, land), rights under land (mineral rights, ground water rights), and above the land (air, space)
               
2. Chattels- movable or transferable property, esp. personal property (can transport it)
                                Ex: jewelry, livestock, coins
    
      B. Intangible Property- property that lacks a physical existence
Ex: bank accounts, stock options, business goodwill, licenses, patents, trademarks, debts
 
1.       News and the Law of Unfair Competition
-copyright- a property right in an original work of authorship (such as a literary, musical, artistic, photographic, or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work
        •there’s no copyright in an idea, only in the expression of an idea
•INS v. Associated Press- can’t control the dissemination/spreading of the facts but can control the expression of the facts; there’s no copyright in actual news, but there is copyright in the spreading of the news if it’s done for profit
-publication for profit of news obtained from other news-gathering enterprises is a misappropriation of a property right
                        -there is no property right for nonprofit communication of the news
-Common Law claim for misappropriation can be based on disseminating facts only where (NBA-Motorola Test):
                                        i) P generates or gathers info at a cost
                                        ii) the info is time-sensitive
                                        iii) D’s use of the info constitutes free riding on P’s efforts
iv) D is in direct competition with a product or service     offered by P
v) the ability of other parties to free-ride on the efforts of the P or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened
-exclusivity of design or idea is important; all things created, either tangible or intangible, belong to the creator
 
 
 
2.       Patents in Human Genes
-Moore v. Regents of the U of CA- a person does not have property interest in his cell tissue
-Should conversion law (tort that protects against interference with possessory and ownership interests in personal property; the act of depriving an owner of his property w/o permission) be extended to into the area of human cells? …NO
 
II. Acquisition of Property (How can you acquire property?)
 
-one can acquire property through (1) effort (“labor of genius”), (2) capture, (3) familial relationships, (4) possession (finding it), (5) gift, and (6) adverse possession
 
 
A.      Acquisition by Capture
 
1.       Johnson v. M’Intosh- the act of discovery gives the discovering sovereign the power to extinguish the native title of occupancy
-Doctrine of Discovery- discovery of territory by European nations extinguished Indian rights of occupancy (discovering country held title to the land)…US took over Great Britain’s claim to title by treaty, and thus, was the party with the authority to transfer title
 
2.   Gain title by force, maintain it by possession
-Since the absolute title cannot exist at the same time in different governments over the same land, the ct reasons that it would be inconsistent to vest absolute title in the Indians as a distinct nation and country
 
B.      Acquisition by Familial Relationship, Gift
 
1.       Marriage-
-Division of Property (Montana Equitable Distribution Statute; In Re Marriage of King- a division of material estate that favors one party over the other may be acceptable if there is reason for it):
a) apportionment- equitably apportion b/t the parties the property and assets belonging to either or both; factors to consider:
                                 •vocation, income, custodial provisions, etc.
b) property- contributions of other spouse to the marriage (i.e. nonmonetary- homemaker), property acquired during the marriage, etc.
 
2.       Gifts- transfer of property from one person to another w/o payment
-Law of gifts requires:
a) whether or not owner intended to give the gift with present intent (doesn’t mean that actual possession of the gift must be transferred to the donee)
-giving gift with condition precedent- “if you swear undying allegiance to the Blue Devils, I will give you lifetime season tickets”…NOT a gift
-condition subsequent- “here are the tickets, but if you don’t deliver this gift to my grandmother,

er- water diffused through the soil
i) free use approach- (absolute ownership) each surface owner is free to withdraw as much water has he likes from beneath the surface of his property w/o liability; even if it has the effect of withdrawing water from underneath his neighbor’s property
ii) reasonable use- each owner must accommodate the interests of neighboring owners
iii) correlative rights- allows each owner to withdraw a specified portion of the groundwater, perhaps in proportion to what percentage of the aquifer underlies their property
iv) prior appropriation- grants rights to the property owner that first invested in withdrawing the water
 
5. Finders
-Charrier v. Bell – P dug up two to two and a half tons of artifacts from land that was not his, and the ct ruled that the artifact were not his
-the Indians intended to leave the items there, so they were not abandoned
-even though the P had rights to the chattels through his labor, his rights didn’t outweigh the rights of the Indians or the person whose property he dug on
 
6. Categories of Property:
    a. abandoned property – intent to relinquish
i. finder obtains both possession and title if he exercises control over the property w/ intent to assert ownership
 
     b. mislaid property – intentionally left someplace and then lost it
i. owner of premises where property was found has rights against the world except the true owner
 
     c. lost property – no intent
i. finder entitled to possession against all in world except true owner (exceptions  finder is a trespasser, employee, guest, or licensee, or if prop is found in highly private locus or buried, owner of locus or buried, owner of locus gets possessory rights)
 
7. Parties trying to claim the property:
     a. finder
                 i. if prop is abandoned, then the finder has right over the true owner
ii. if it’s mislaid or lost, then the finder doesn’t have right over the true owner b/c the TO didn’t mean to lose it