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Property I
University of California, Hastings School of Law
Williams, Joan C.

Property // Williams // Spring 2012
Visions of property
A.    Finder’s Law
                                                  i.          First occupancy à first person to take occupancy of something owns it.
                                                 ii.          Explains how property rights evolved but does not adequately justify the existence of private property.
                                               iii.          Possession requires both intent to control the property and an act of control.
                                               iv.          Finder’s law attempts to:
a.        Restore property to the true owner
b.       Reward honest finders
c.        Deliver the reasonable expectations of landowners and
d.       Discourage trespassers and other wrongdoers.
                                                 v.          4 categories of found property
a.        Abandoned property à when the owner intentionally and voluntarily relinquishes all right title and interest in it.
b.       Lost property à when the owner unintentionally and involuntarily parts with it through neglect or inadvertence and does not know where it is. Finder has better title to it than anyone except the true owner.
c.        Mislaid property à when the owner voluntarily puts it in a particular place, intending to retain ownership, but then fails to reclaim it or forgets where it is.   Finder has better title to it than anyone except the true owner.
d.       Treasure trove à concealed by an unknown owner for safekeeping in a secret location in the distant past.
B.    Republican vision (Jefferson)
                                                  i.          Property as a stable stake in society
a.        The purpose of property is to give citizens independence so they will have the virtue to pursue the common good rather than their selfish interests.
b.       Jefferson wanted to give everyone land in order to increase the common welfare.
c.        Elitist à only citizens with property have the independence and therefore the virtue to pursue the common good.
d.       Egalitarian à widespread distribution of property is vital to give citizens the independence they need to have the virtue to pursue the common good.
                                                 ii.          Anders v. Allard
a.        Gov’t said that Ps couldn’t sell their property; Ps said that was unconstitutional because it violated their property rights.  – involved the migratory bird act
b.       A reduction in value is not considered a taking. The owners could still create revenue in other ways.
                                               iii.          PA Coal v. Mahon (takings case)
a.        Mahon did not want PA coal to mine under this house because it would fall into the ground, even though the coal company owned below the surface.
b.       Kohler act was held to be unconstitutional as a taking of D;s rights under a valid contract because it served to take away those valid rights without just and adequate compensation
c.         In order to protect themselves, Ds should have contracted to acquire more than surface rights.
d.       Firmly established the government action can constitute a taking
e.        Holmes Majority opinion
1.        The statute was a taking of the coal company’s property rights. The gov’t could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. If a regulation goes too far it will be recognized as a taking.
f.         Brandeis’s dissenting opinion
1.        A restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The statute merely prohibited a noxious use.
g.        Taking tests created:
1.        Diminution in value à financial analysis to assess what percentage of the value of its property the coal company lost as a result of the statute.
2.        Balancing test à weight public benefit with private loss
3.        Average reciprocity of advantage test à public benefit to the landowner against the detriment to the landowner.
4.        Why me? à Even if the public goal is important, why should I pay for it?
                                               iv.          Republicanism v. Liberalism
a.        Which comes first, property or society?
1.        Liberal – property
2.        Republican — society
b.       What is the core purpose of the property system?
1.        Republican – preserve the republic that is replacing the monarch.
2.        Liberal – economics.
c.        What is the basis human motivation that drives the good society?
1.        Republican – good of all.
2.        Liberal – self -interest
d.       What is the attitude toward private property?
1.        Republican – need equal distribution of private power, so all citizens’ work together for public good.
2.        Liberal – not concerned with private power. Worried about public power getting out of control.
e.        Is the focus on creation or distribution of property rights?
1.        Republican – distribution
2.        Liberal – creation.
f.         Why is the nature narrative effective?
1.        Republican – it’s not
2.        Liberal – focuses attention of creation. Natural to want to pursue self-interest.
C.    Liberal vision (Locke)
                                                  i.          Believes property comes first before society. Core of vision is economics
a.        Basis human motivation is self-interest.  Each individual has to pursue their own self interest and that will result in the good society.
b.       Unlike republicanism, liberalism is not afraid of abuse of private power.
c.        Focus is on the creation of wealth.
                                                 ii.          Pierson v. Post
a.        Issue: What is considered occupancy when chasing a wild animal?
b.       Post was in mere pursuit and had not reduced the fox to possession. (majority)
c.        Dissent  : better rule required only continued pursuit together with a reasonable prospect of taking the fox (probable capture standard)
d.       Property rights in wild animals
1.        Capture ruleà property rights in animals are obtained through physical possession.
                                               iii.          State v. Shack (liberal dignity vision)
a.        Issue: Can a property owner stand between migrant workers and those who want to aid them? No
b.       Property ownership cannot give you dominion over individuals.
c.        Property rights are not absolute
d.       Liberal dignity strain à property rights inherently strained. Property ownership cannot give you dominion over individuals.
                                               iv.          Posner à liberal economic view.
a.        Property = rights to the exclusive use of valuable resources.
b.       Efficient allocation of resources is one in which value is maximized.
c.        Central components:
1.        Universality – all property is owned by someone
2.        Exclusivity – that the law recognizes the absolute right of an owner to excuse all members of society from the use or enjoyment of the owned resource.
3.        Transferability – property rights are freely transferable, so that a resource can be devoted to the most highly valued use.
D.    Property and Personhood
                                                  i.          Person hood theory
a.        Justifies private property as essential to the full development of the individual.
b.       Doesn’t seek to justify the existence of fungible property
c.        Claim to an owned object grows stronger as over time the holder becomes bound up with object.
                                                 ii.          Moore v. Regents of University of California
a.        Can someone assert a conversion claim over cells taken from his body?
b.       P had no ownership interest in cells after they left his body.
c.        Majority assumes that Moore owned the cells before their removal; it is not clear how he lost ownership. Court had a reluctance to concede that property rights exist in human cells.
E.    Adverse Possession Theories
                                                  i.          One whose possession of a chattel is actual, adverse, hostile, exclusive, open and notorious and continuous for the appropriate statute of limitations period obtains title to it, subject to the qualifications.
                                                 ii.          Not consistent with the intuitive image of property
a.        Act-utilitarian à course of action is to maximize welfare right now
b.       Rule-utilitarian à maximize welfare in the long term.
c.        Personality à ownership grows stronger as over time the holder becomes bound up with the object.
                                               iii.          Barry Bonds Case: Popov v. Hayashi
a.        MLB intentionally abandoned the property
b.       Issue: whether Popov achieved possession or the right to possession as he attempted to catch the ball? Did he reduce it to possession?
c.        Split the value of the ball because both parties had a claim to the ball.
d.       Conversion à wrongful exercise of dominion over the personal property of another. There must be actual interference with the P’s dominion and the act must be intentionally done.
e.        Trespass to chattel à exists where personal property has been damaged or where the D has interfered with the P’s use of the property.
      II.            Estates in Land
A.    Definitions
                                                  i.          Fee simple or fee simple absolute à gives you present interest and ownership until the end of time.
                                                 ii.          Life estate à right to use the land for the duration of your life
                                               iii.          Reversion à future interest of grantor. Occurs automatically upon termination of the prior estate, as when a life tenant dies.
                                               iv.          Remainder à future interest arising in a 3rd person.  
                                                 v.          Executory interest à any future interest in a possessory estate created in a transferee other than a remainder.
                                               vi.          Conditional feesà will give land but under a certain condition
                                              vii.          Fee simple determinable à conditional fee with the future interest = possibility of reverter. (Future interest is always the grantor). Property reverts automatically if the condition is broken.
a.        “so long as” = conditional fee
                                            viii.          Fee simple on a condition subsequent à conditional fee where the future interest is a right of reentry.  Future interest owner must take a positive step toward taking the property back.
a.        “re enter” – possibility of reverter
b.       Provided that = conditional fee.
                                               ix.          Fee simple on an executory interest
a.        Conditional fee followed by a future interest in a 3rd party.
b.       “until” = conditional fee
                                                 x.          Vested remainderà remainder that is:
a.        Created in a living ascertainable person and
b.       Not subject to any condition precedent
c.        Freely alienable,
                                               xi.          Contingent remainder à not ready to become a possessory estate until the event occurs. remainder is contingent if it is:
a.        Subject to condition precedent
b.       Created in an unascertainable person.
c.        Could not be alienated, destroyed if it failed to vest before the termination of the prior estate, rule against perpetuities might make invalid.
                                              xii.          Defeasible fees à one that can be lost if certain conditions occur.
Future interest
Future interest
Created in transferor
Created in transferee
Fee simple absolute
Fee simple determinable
Possibility of reverter
Fee simple subject to condition subsequent
Right of entry
Life estate absolute
Defeasible life estate
Remainder or executory interest
Fee tail
B.    Roberts v. Rhodes
                                                  i.          Issue: Did the deed make a provision for reverter or terminate on the occurrence of any stated events?
a.        Said “for school purposes” but did not contain reverter language.
                                                 ii.          In the absence of intent to limit the title shown in the conveyance, either expressly or by necessary implication the grantors passed all the interest they owned in the property.
                                               iii.          Mere expression of what the property was to be used for did not in and of itself suffice to turn the fee simple into a determinable fee.
                                               iv.          The language is merely preparatory. Need to make it very clear that you want a conditional fee.
C.    Marhenho

t could give rise to a lien on the property.
                                                 v.          A cotenant that pays for repairs or improvements to the common property is not entitled to contribution from other cotenants, absent a prior agreement.
                                               vi.          Partition à any cotenant who cannot agree with another can permanently end their relationship.
a.        Created for efficient use of property
b.       Partition in kind – (preferred) physical division of property into separate parcels.
c.        Partition in sale – property is sold and the sales are divided among the cotenants according to their respective shares.
                                              vii.          Owelty à payment of money between cotenants to equalize the division of unequal shares.
                                            viii.          Allotment  à allows cotenants desiring to retain their interests to set apart or allot their portions form the property prior to the remainder begin sold.
E.    Harris v. Crowder
                                                  i.          Couple in joint tenancy and husband’s creditor wanted to partition the land.
                                                 ii.          Issue: Can do a partition of sale if the other owner’s interest would not be prejudiced.
                                               iii.          Would the wife’s interest be prejudiced if her family home was sold? Court said yes.
a.        Judge remands and says that a creditor can go after a business property but not family home.
    IV.            Marital Property
A.    Traditional common law system
                                                  i.          Gender bias – the husband and wife are one person in law, aka the legal existence of the woman is suspended during the marriage.
                                                 ii.          Husband obtained a life estate in all freehold lands that his wife held at the time of marriage or acquired later.
                                               iii.          Rights upon divorce – property was divided between spouses according to who held title.
B.    Modern Common Law System
                                                  i.          Married women’s property acts
a.        Coverture was abolished; women were allowed to retain control of their property after marriage.
b.       A spouse was not liable to creditors for non-marital debts incurred by the other spouse.
c.        Property is owned by the spouse who acquires it.
                                                 ii.          Rights upon divorce: equitable distribution
a.        Divorce court distributes property between wife and husband based on equitable principles after considering a variety of criteria relating to each spouse’s needs, abilities and circumstances.
b.       There is a clear trend toward equal distribution
C.    Marital property defined
                                                  i.          All property owned by the parties, acquired during marriage, or only income during the marriage.
                                                 ii.          Educational degrees
a.        Majority – not marital property
1.        Degree had no exchange value, was personal to the holder – it was simply an intellectual achievement.
b.       NY approach = marital property
1.        Court must consider among other things the contribution of a spouse to the career or career potential of the other party.
2.        Also considers the contributions made to the acquisition of marital property by the spouse not holding title to it, including expenditures, contributions and services as a spouse, parent or homemaker.
c.        Alternative – reimbursement alimony.
1.        Usually only out of pocket contributions to educational expenses such as tuition can be recovered.
2.        If the wife used her wages to for school, that can be recovered. Non-monetary contributions will be ignored.
D.    Community property system
                                                  i.          Views marriage as an economic partnership between husband and wife
                                                 ii.          The earnings of either spouse during marriage and all property acquired with those earnings are deemed community property. Each spouse owns ½ of all community property.
                                               iii.          Property acquired before the marriage or during the marriage as a gift, is deemed separate property.
                                               iv.          During marriage spouses have an equal right to use, manage and otherwise control community property.
                                                 v.          Upon divorce, community property is divided between the spouses and separate property is retained by the owner spouse.
                                               vi.          Joint tenancy v. community property with right of survivorship
a.        Difference with creditor’s rights – in community property creditor can only take the whole property.
b.       Community property can’t sell the rights and create a tenancy in common.
c.        Community property is more stable.
d.       Can’t sell community property without both owners’ signatures. Can sell your own portion in joint tenancy.