Property – Spring 2013
Professor Meredith Render
1)
Acquisition of Property Rights
I) Acquisition by Discovery
A) Johnson v. M’Intosh – Scotsman stole Indian land
1) The Indian occupation of the land was insufficient “possession” to confer title. They didn’t improve the land, or establish ownership in the European sense. They were therefore not capable of transferring the title.
B) Two ways of looking at property rights:
1) Inherent rights that precede the state (Natural Law) – Government exists to protect property rights
(a) Declaration of Independence (Inalienable rights)
2) Rights are a creature of the state (Legal Positivism) – The state is grantor of property rights
(a) Positive law is the foundation of law – an initial decision and subsequent decisions, statutes, etc.
(b) Rights are what the state declares them to be (Constitution – enumerated rights)
C) Principles that guide or justify property distributions
1) Possession (First in time)
2) Ownership evidenced or earned by labor (Lockean view)
3) Most efficient distribution (Utilitarianism)
4) Distribution that maximizes fairness or equality (distributive justice)
II) Acquisition by Capture
A) Pierson v. Post – 2 men fight over a fox that jumped in a well.
1) What constitutes occupation of an animal ferae nature?
(a) Majority – Actual control over/possession of the animal – first one to kill it has the right
(i) Increases certainty in title and decreases conflict among hunstmen – prevents litigation
(ii) Increases incentives to eradicate foxes
(b) Dissent favors pursuit with a reasonable prospect of taking
B) Ghen v. Rich – Whale hunters
1) Issue: Should the whalers’ custom or the rule of capture prevail?
(a) The whalers’ custom prevails
(i) Encourages whaling (productive activity)
(ii) Increases certainty in title
C) Keeble v. Hickeringill – Duck decoy pond
1) The interference was an interference in trade.
III) The Law of Finders
A) Minerals Ferae Naturae – 3 possible allocations of gas, oil, water, and such “fugitive resources”
1) Rule of Capture (first in time)
(a) This is the common law rule
(b) Creates inefficient use of resources, because it incentives people to take as much as possible
2) Government regulation (so many wells at specific intervals)
3) Limited Cooperative – Common Ownership (More efficient)
B) Lost, Mislaid, and Abandoned Property
1) Lost Property:
(a) Finder against all but True Owner
(b) Exceptions:
(i) Finder is an agent, licensee, or employee of the LO
(ii) Finder is a trespasser
(iii) Chattel is attached to or buried in the ground (boat) – if it’s deemed part of the real property, Locus owner will prevail
(iv) Object is found in a very private place
2) Mislaid Property:
(a) Locus owner against all others but true owner – rationale is to reunite with true owner
3) Abandoned property:
(a) Finder against all others
(b) Exceptions:
(i) Finder is a trespasser
(ii) Object is found in a very private place
4) Which category does lost property go to? Look to the circumstances in which it was found
C) Armory v. Delamirie – Chimney Sweep finds jewel – he had title against all others save the true owner
1) Rationales for protecting possession of finder:
(a) Rewards use
(b) Decreases resort to self help, which is dangerous and costly
(c) Prevents possessor from over-protecting the valued resource (building a fence, etc.)
(d) Increases certainty of title
D) Hannah v. Peel – WWII soldier finds brooch in house
1) For property to be abandoned, TO has to intend to abandon it. Court determined this was lost, not abandoned.
2) Does the property go to finder or property owner?
(a) Bridges v. Hawkesworth – Bank notes found in shop were “manifestly lost,” – location within irrelevant
(b) South Staffordshire Water Co. – Finder is an agent of the locus owner; finds on behalf of the locus owner.
(c) Elwes – lessee found a boat embedded in soil. If the thing found is chattel, the title vests in finder. If it’s a mineral (and part of the real property), title goes to owner.
3) Rule: Locus owner possesses everything attached to or under his real property (Not unattached chattel)
E) McAvoy v. Medina – Customer found a pocket book in a barber shop
1) The court draws a distinction between lost property and mislaid property
2) Locus owner gets it, because he’s in a better position to reunite the property with the owner.
IV) Acquisition by Gifts (Re-arrange this section)
A) Newman v. Bost – Dying man gave Julia all possessions in his house
1) The court said that in order to perfect the gift in causa mortis, he had to effect some kind of delivery. This only took place for the furniture which was opened by the keys he gave her.
2) The court said he should have used a will
B) Rule: Gifts Causa Mortis are more strictly construed than gifts inter vivos to prevent fraud
C) Three kinds of Delivery:
1) Symbolic: Something delivered in the stead of the chattel to be given. Under the common law, only permitted when manual delivery is impracticable
2) Constructive: A key or other means of access to the donated chattel. Under the common law, only permitted when manual delivery is impracticable.
3) Manual: The chattel is literally handed over to the donee; donor experiences the “wrench of delivery.” This is the preferred method under the common law.
D) Gifts Inter vivos
1) Requirements to perfect a gift inter vivos:
(a) Donative intent
(b) Delivery
(i) Constructive or symbolic delivery generally allowed only where manual delivery is impracticable
(ii) If property is already in donee’s possession, no redelivery is required
(c) Acceptance
2) Irrevocable once perfected
E) Gifts Causa Mortis
1) Requirements:
(a) Contemplating immediate death
(b) Donative intent
(c) Delivery (can be constructive if actual is impossible)
(i) Constructive Delivery allowed for causa mortis where:
¨ intent is clear and
¨ manual delivery is not possible (due to absence or size of the chattel)
2) Automatically revoked if donor recovers (majority rule). Revocable upon recovery in all jurisdictions.
3) The requirement of manual delivery is strictly applied. Constructive delivery only allowed where manual delivery is impossible.
4) Redelivery is required for property already in donee’s possession.
F) Gruen v. Gruen – Father gifted a painting to his son.
1) Manual delivery was possible here, but unnecessary: gift wasn’t painting, but right to future possession
2) The son was legally entitled to it on his father’s death, so he could prevent his dad from selling it or sell his future interest in the painting. This is the difference from simply promising to give the painting in the future.
V) The Right to Exclude
A) Enforcing the Right to Exclude
1) Jacque v. Steenberg Homes, Inc. – Company used someone’s land to deliver a mobile home.
(a) SCOTUS held that punitive damages award can be sustained in a trespass action
(b) They reasoned that the right to exclude means nothing if it cannot be enforced.
B) Limitations on the Right to Exclude – Aid workers claimed right to enter to provide aid to migrant workers.
1) Court said the New Jersey right to exclude isn’t absolute – especially when it conflicts with others’ rights
2) Owner can’t isolate those living on his land – must accommodate their right to information and medical care.
VI) Adverse Possession
A) Adverse possession transfers property rights without consent.
1) It tries to encourage the most effective use of the land. It rewards the USE of real property, not trespassers.
B) Elements of Adverse Possession:
1) Actual Entry: You must physically go on the land and occupy in a way to put the True Owner on notice.
(a) Different types of actions qualify for different types of property. The key is the “adverse possessor using the property in a way that’s consistent with how the TO would, such that it puts him on notice.”
2) Open and Notorious: Designed to put a reasonably attentive TO on notice. It can’t be so subtle and subterranean as to escape the notice of a diligent TO.
(a) TO’s actual knowledge of the adverse possessor’s claim satisfies this requirement
3) Adverse (Hostile) and Under a Claim of Right: Must be hostile to TO (can’t enter with TO’s permission). The key to this is that the adverse possessor is acting in a
fter the theft.
(a) 2 Possible Rules:
(i) Discovery Rule (Majority): SOL begins to run when TO discovers identity of possessor so long as TO has exercised due diligence in trying to recover the chattel.
(ii) New York Rule: SOL begins to run when TO discovers identity of possessor and demands its return
2)
The System of Estates: Possessory (Present), Future, and Concurrent Interests
· Splits the bundle of rights by time
· Inheritance:
o 1) Issue – children, grandchildren
o 2) Ancestors
o 3) Collaterals
§ a) Siblings
§ b) Everyone else (aunts, cousins)
o 4) Escheat (the state)
VII) Fee Simple and Life Estate
A) 2 Types of Present Estates:
1) Fee Simple Absolute
(a) Largest Possible estate in our system – the whole bundle of sticks. Fully alienable
(b) No limits on time, use, or transfer
(c) Creation: “To A” or “To A and his heirs”
(d) No corresponding future interest because the duration is potentially forever
2) Life Estate
(a) Present possessory interest – The duration is always measured by the life of grantee, even if he sells it
(i) You can’t give more than what you have
(ii) You can grant 10 years, but it ends if you die before then
B) Restraints on Alienation
1) Disfavored for many reasons:
(a) Lessens marketability
(b) Concentrates wealth
(c) Discourages improvement on land
(d) Unfair to creditors
2) Types:
(a) Disabling restraint – does not allow transfers
(b) Forfeiture restraint – a restraint in defeasible fee language
(c) Promissory restraint – promise by grantee not to transfer the property
3) Fee simple: Absolute restraints on alienation are void in the context of a fee simple
(a) Partial restraints are allowed in most jurisdictions, but may be permitted in some if they’re reasonable in purpose, effect, and duration
4) White v. Brown – The restraint in the will was a disabling restraint. You lose the power of selling. Fee simple is incompatible with that.
5) Baker v. Weedon – Surviving wife needs to sell land for money, children don’t want to.
(a) The court adopts a “necessary for the best interest of all parties” test for determining whether the court can use its equitable power to order a sale over the objection of the remainder men.
(b) They use an economic waste rationale in saying it shouldn’t be sold – it will appreciate so much that it would be waste to sell it now.
C) Restraints on Life Tenant
1) Alienation
(a) Disabling restraints are generally invalid
(b) Forfeiture are generally valid
2) Use
(a) Permissive or affirmative waste
(b) Why do we not recognize ameliorative waste as actionable
VIII) Defeasible Estates – these estates could go on forever, but they might not
A) Overview
1) Any type of estate can be defeasible
2) A defeasible estate is created by words of conveyance
3) Every conveyance of a defeasible estate also conveys a future interest
4) Defeasible Conveyance
(a) Every defeasible conveyance contains:
(i) Words of purchase (identifying grantees)
(ii) Words of limitation (identifying the special limitation/triggering condition)
(iii) The creation of a future interest (if grantee is not identified then the future interest is retained by grantor)
