Lee_Property_Fall_2013
I. What is Property?
A. Land: Real Property
B. House
C. Mineral Rights
D. Intellectual Property
E. Automobile: Chattel
F. Business: Ownership of Legal Entity
G. Your Own Labor
H. You own yourself and labor is the expression or exertion of yourself.
1. EXCEPTION: You are the employee of someone else, pursuant to a contract they own fruits of your labor
II. What Can You Do With Property?
A. You can sell it.
B. You can control it.
C. You can be liable or responsible.
D. Keep and exclude others.
1. Ex: by building a fence
2. Ex: Keep others from “stealing” your intellectual property by downloading it.
E. You can bequeath it to heirs.
F. You can abandon it/throwaway.
G. You can donate/gift it.
H. You can alienate it.
1. Central right of property.
I. You can destroy it.
J. You can use it or consume it.
III. First Possession
A. Acquisition by Discovery
1. Rule of Discovery –
a. First-in-Time Principle: The first to claim dominion over land has exclusive title to property.
i. Locke’s Labor Theory: You own your labor as a matter of right and when you put your labor into discovering something you have a natural and God-given interest in that property to do with it as you please.
b. If you discover the land, you have the right to extinguish right to title from native occupants and deal with them anyway you wish.
i. Johnson v. McIntosh: Indians only have right to “occupy” land and only federal gov’t can engage in land dealings with Indians.
c. Policy: Rewards those who discover new land and those who will actually use the land.
2. Rule of Conquest
a. Conquered people will generally and eventually be absorbed by the conquering government and become subjects or citizens, and those citizens’ property rights will be honored.
B. Acquisition by Capture
1. Rule of Capture –
a. In order to claim title of a wild animal on public or free land, one must have occupancy of the animal.
i. Pierson v. Post: Mere pursuit is not enough to claim occupancy when hunter killed and took fox from other hunter chasing it.
ii. EXECPTION: If you own the land, you own all animals and things on it.
b. Policy: Rewards those who actually capture animal and keeps courts from hearing disputes of “who saw it first.”
2. Rule of Occupancy –
a. One has achieved occupancy when they deprive the animal of its natural liberty or when escape is rendered impossible.
b. Ways to Achieve Occupancy:
i. Actual, Physical Possession (Best)
ii. Constructive Possession (Sometimes enough, sometimes not enough)
o Mortal Wounding
o Continued Pursuit
C. Acquisition by Creation
1. Intellectual Property
a. You own your own authored or recorded works.
i. The work must be in actual form and not a mere thought or idea for future work;
ii. The work must be original and new and not a reworked version of something old; and
iii. The work must be “fixed” in a tangible medium of expression for a significant period of time.
iv. note: not all un-trademarked property is protected (ex: fashion)
b. Copyright laws usually include the owner’s lifetime plus 70 years.
c. Common Law Rule
i. The common law provided no protection for intellectual property. The inventor owned the chattel that embodied the invention, but not the design of the invention. Today, exceptions have largely swallowed the common law rule.
d. Copyrights
i. Federal copyright law protects rights in original books, articles, songs, paintings, and related artistic creations that are original and “fixed” in tangible, physical form. New works receive copyright protection for the author’s life, plus 70 years after her death. However, there are a number of exceptions to the scope of copyright protection.
e. Patents
i. Exclusive property rights in certain types of inventions may be secured under a federal patent. A person who invents or discovers any new and useful process, machine, or other invention and meets other statutory requirements can receive a patent which is effective for 20 years from the application date.
f. Trademarks
i. A trademark is a word, name, symbol, or device used to identify and distinguish the products of a particular manufacturer or retailer.
ii. Statutory trademark protection is obtained by registering the mark with a federal agency and using the mark in interstate commerce.
g. Rights of Publicity
i. In most jurisdictions, a celebrity has a property right to the exclusive use of his name and likeness for financial gain.
2. Property in One’s Persona
a. Based on tort of “invasion of privacy.”
b. You own the rights to your own publicity.
i. White v. Samsung: Vanna White robot violated her right to publicity by evoking her image to sell Samsung products.
c. EXCEPTION: Parody of famous people.
3. Property in One’s Own Body
a. There is no property interest in one’s body or body parts.
i. Moore v. Regents: Man has s
bailee’s duty of care for the chattel is governed by the ordinary negligence standard. However, a bailee who delivers the chattel to the wrong person is usually held strictly liable.
B. Adverse Possession
1. ELEMENTS:
2. Entry that is:
a. Requires initial possession, being there on the property.
i. The adverse possessor must take actual possession of the land.
ii. Under the majority view, this means that the claimant must physically use the particular parcel of land in the same manner that a reasonable owner would, given its nature, character, and location.
b. Look for:
i. Cultivated and improved land; and/or
ii. Protected by a substantial enclosure
c. Policy: Rewards use of land.
3. Open and Notorious
a. Open: “Not Hidden”
b. The claimant’s acts of possession must be open and notorious—so visible and obvious that a reasonable owner who inspects the land will receive notice of an adverse title claim.
c. Notorious: Known to the community
d. Must be enough to put the owner on constructive notice
e. For small encroachments, you must give actual notice
f. Policy: Gives notice to the owner.
4. Continuous for a Statutory Period
a. Depends on the jurisdiction
i. Assume between 10-15 years.
ii. “Numbers Game”
iii. Pay attention to years on exam questions
iv. If you see years in a question, think AP trigger!
b. The requirement of continuous possession means that the claimant’s acts of possession must be as continuous as those of a reasonable owner, given the nature, location, and character of the land.
c. However, successive periods of adverse possession by persons in privity can be combined to satisfy the statutory duration requirement; this process is known as tacking.
d. Has to be continuously used, considering nature of the land (summer home)
e. Tacking is allowed to add on from past possessor’s ownership to fulfill statute of limitations
i. Requires privity (voluntary succession and a shared interest in the property)
