Property I
I. Acquisition (Fundamentals)
A. Property: Rights and relationships among people with regard to things
B. Ownership:
a. assumed, most of the time in society, based on possession until facts
&/or evidence obtained to the contrary
· most of the time acquired through voluntary transaction (i.e. – purchase, etc)
· also acquired (involuntarily) via war/conquest, discovery, finding (personal property), creation, inheritance/beneficiary, foreclosure, eminent domain
C. Possession
1) Actual versus Constructive Possession: “Pretend passion” based on policy reasons, you pretend the facts are different from what they are to get particular results from particular law. Actual knowledge is not necessary.
(If animal is just on your land, you have constructive possession of it. You don’t even need to know that the animals in there. Once it walks off your land to you neighbors, your neighbor has constructive possession of it.)
(1) First Possession (A person who become the first owner/possessor of some real) (if its privately owned and used, then usually land owner would win)
(a) Discovery (includes conquest: )
1. Definition:
a. Sighting or finding of unknown or uncharted territory;
b. Accompanied by a landing (actually going there); and
c. Symbolic taking of possession of land; and
d. Perfected by settling and cultivating within a reasonable time
i. Conquest: Taking possession of enemy territory by force, followed by formal annexation of defeated territory by conqueror
(b) Capture (moveable property)
(i) Landowners are regarded as the possessors of any wild animals on their land until the animal takes off. OR;
1. If its on your land…you own it (Constructive possession)
2. This is to discourage trespassing
(ii) First one to apply Deprivation of liberty to the movable property is the owner. (Post v. Persion)
1. mortal wound; OR
2. Trap an animal in a cage
3. If no intent to retrieve it, then party forfeits/abandons their right of possession (can differ based on custom…whale case)
a. Generally applies to all movable things
i. Oil or water discovered in your land and among neighbors land OK to pull from neighbors well as long as you have not trespassed onto their land.
*If you have the two above policy against each other, its just a matter of arguments.
(c) Creation
a. Just need to know that it covers a very broad rang of what can be covered in this are
b. If you create it, you generally have the property right in it.
c. Cyber-squatting
d. In Persona
Subsequent Possession (Some one who takes ownership after another)
A. By Find
1. Ways to Characterize Real Property
i. Public: Owner by the government and open to the public (park, post office)
a. Finding lost property here given u a better chance of keeping it then any of the others.
ii. Quasi Public (semi-public): A store or shop. These are privately owned but open to the public.
iii. Privet: Owned privately and NOT open to the public
2. Ways to characterize Person Property
i. Abandonment: (Act & intent) willingly/voluntarily left something some where and never intended to return for it. No Intention to retrieve.
-need to show by objective evidence that they didn’t intent to return. Better to not use self-serving evidence.
ii. Lost Property: Unknowingly, inadvertently, accidental separation of person property from the original owner.
-The finder is the owner of the property
-The finder will be the possessor of the property to the whole world except the original owner. The fact that this was found on property does not matter, the finder rule trumps the owner of property rule that states that all found on their property is theirs.
iii. Mislead: Knowingly, intentionally put something down and then forget to return to get it but intended to keep it.
-Much easier to find this again because you can trace your steps.
-court usually counts something on a counter as mislaid and on the floor as lost.
* This is a problem for umbrellas left on the floor.
-Let the shop keeper keep it to encourage them to have it available for the true owner
* If its quasi-property (shop) the owner would keep the p
s it is stated by a statute of that jurisdiction
2. This cuts down with the claims of adverse possession because a squatter is unlikely to pay taxes
· If all requirements are met, then the title moves to the adverse possessor by operation of law and the adverse possessor needs to go and file for a deed.
2. Mechanics
a. Quiet Title Action:
1. Asking the court to give a judgment saying you now own the property because of adverse possession. In order to get this, you need to serve the D (for personal jurisdiction by service of process) and prove the elements of adverse possession. If you win, you take the judgment to the country records office and record it. Then u own the prop. Just as if it was a deed.
b. Prescriptive easement:
1. which is like adverse possession except you don’t end up owning the property, you can just end up with a right to use it.
c. Color of Title: (this is a term of art, which means its understood as this everywhere)
· A Claim based on a defective document. (Like a fake deed)
· Its easier to prove adverse possession this way because certain requirements that show up from statutes such as: (inclusion and cultivation and payment of taxes.)
d. Constructive Adverse Possession: (facts are different from what they are to get what we want)
1. EX: If your document says you own 100 acres and you only occupy 20, you will probably still get all 100 because it was described in the deed. But this does not eliminate the exclusive possession requirement
e. Tacking:
1. Adding your possession onto the person before you to meet the Statutory (SOL) period for the continuous element.
It must be a voluntary transfer of property
