Property I Outline

PROPERTY OULTINE GILLIGAN SPRING 2012

I. PERSONAL PROPERTY – moveable property

A. possessing and owning assets

B. fixture – personal property permanently attached to real property (stays with it) – affixed to realty so that it is part of the real estate (hammered in) – in MD – fixtures go with the tenant)

1. 3 part test to determine whether personal property has become a fixture

a. whether the item has been annexed to the realty

b. whether the item is appropriately applied to the use or purpose of that part of the realty to which it is connected

c. whether the party making the annexation intended the item to be a permanent accession

C. classification of property – question of fact

1. ferae naturae and unappropriated (minerals) – belongs to the first individual that reduces it to possession (capture, cage, shoot) – nobody has a claim

2. treasure trove – money concealed by the owner – hidden for a length of time that the owner is probably dead (no intent to give up) – coins, currency, jewels – antiquity – finder has superior right

3. lost – owner unintentionally and involuntarily parts with its possession and does not know where it is (no intent to give up the property) – becomes property of the finder once there is no claim within the statutory period

4. mislaid – voluntarily put in a certain place by the owner and forgets where it is (no intent to give up) – finder has no rights – right of possession belongs to owner of premises in which property is found

5. abandoned – when owner no longer wants to posses it – voluntarily relinquish right, title, and interest in property (intent to give up) – belongs to the finder of the property – there is no intention to reclaim the item

D. locus in quo – place where the item is found

E. bailment – possessor holds the right for the title holder – created when the title holder gives custody of an item to another individual – object has to be accepted as bailment

1. one has the rightful possession of goods for the true owner (ex. dry cleaner, coat check, valet)

2. bailor – original title holder

3. bailee – individual taking custody

4. if bailment occurs and bailor wants property back and bailee loses it – the bailee is strictly liable for the lost property – bailee must return the item

5. if the item is damaged – there is a question of a duty of care on bailee – negligence standard (lost, mislaid, damaged)

6. if the item is misdelivered – strictly liable

F. license – permissive entry – can be revoked at any time – no duty owed or need to maintain

G. lease – exclusive right of possession of space (garage) belongs to person leasing it – duty not owed unless services should be provided (monthly parking space)

II. POSSESSION

A. law protects peaceable prior possessor has greater rights than all but the true owner – will be defended against all but the true owner – intent and control – intent to exclude others

B. balance rights between the possessor and the stranger to the title

1. possessor – intent and physical custody of the property

2. stranger to the title – trying to take the property

C. possessor has greater rights that stranger

D. title holder has greater rights than everyone

1. ejectment – title holder brings an action against possessor – based on title of person suing – good title must be proven before someone else can be removed – action by title holder to remove possessor from the property in order to regain possession

2. trespass – title holder brings an action against possessor OR possessor brings the action against a 3rd party – used to protect possession – intentional nonpermissive entry onto a property owned by another

E. taking possession – intent to exclude others and have dominion and control over the item (mixed question of fact and law)

F. inherited property – there is a rebuttable presumption that the heir also has possession

G. wild animals – ferae naturae – do not belong to anyone unless on private property – must be reduced to possession

III. REAL PROPERTY – attached to or part of the earth – dirt and ground and what is permanently attached

A. good faith improver – an owner must compensate a good faith improver to the extent that the land has been increased by such improvements or for the value of the labor and materials employed in making such improvements – whichever is less

1. enhanced value = value of land with improvements – value of land without improvements

2. cost of improvements usually exceeds the enhanced value of the land

3. cost is a determining value – limits improver’s recovery – recovery should not exceed unjust enrichment to the owner – the owner is not unjustly enriched more than the improver’s costs

4. where enhancement > cost – unjust enrichment = cost

B. conveyance – 1st party property is conveyed to has a superior right – transfer an interest of land – can be easement

C. prescriptive easement – right to use a property which one does not own (ex. walking on a sidewalk to and from the beach) – Warsaw v. Chicago Metallic Ceilings

1. easement arises out of a operation of law – it is limited by the use (for the entire period) that created it – property interest that would allow them to use not possess

2. same factors as adverse possession but not adverse possession – do not own – created by use of a designated area

3. must show the use of a property has been open, notorious, continuous, and uninterrupted

D. fee simple absolute/estate in land – determined by possession – own absolute title to property – there are no other claims to title – strongest interest one can have to real property – uses air, land

E. deed – express statement that creates an interest (indispensable instrument)

F. interpret an instrument to determine the intent of drafters – should say what it intended to say – INTERPRET AMBIGUITIES AGAINST DRAFTER

1. looking at the words themselves of document (granting clause (beginning) & habendum clause (end))

2. instrument as a whole

3. surrounding circumstances (parol evidence – explain intent of drafters)

IV. ADVERSE POSSESSION – use of property as your own will ripen into title against anything – once statute of limitations expires adverse possessor’s possession ripens into good title automatically by operation of law – original title holder will not longer be able to recover property – adverse possessor has superior right over all but original owner

(constructive adverse possession – the boundaries of the void deed delineate the area possessed)

A. statute of limitation begins when adverse possessor enters property

B. title holder must be on notice that possession is in dispute

C. adverse possessor acquires a title of the same quality as the true owner held at the time the adverse possessor took possession – through quiet title action

D. cannot adversely possess government or public lands; cannot adversely posses a future interest because future interest holder does not have title to property

E. permission at time of entry makes entry not adverse – permissive

F. color of title – have deed – it may be forged or mistaken – a deed or other instrument of conveyance that purports to convey title to the land in question

G. claim of right – without the true owner’s permission

H. 5 elements – intent (1) and control (actual taking possession for that type of land) (2-5) (each element has to last statutory period without interruption by title holder)

1. hostile – act like the owner against the owner’s consent (objective) or mistake – think you own it but do not (subjective)

a. objective – does not matter if mistake

b. subjective – no requisite intent of hostility if occupy by mistake

2. actual – actions typical of owner for that type of land

3. open, notorious, & visible – if community knows – presumed title owner knows