Property Outline
I. Acquisition
A) First Possession
1. Discovery
2. Capture
B) Subsequent Possession
1. Find
2. Adverse Possession
II. System of Estates
A) Possessory Estates
1. Up from Feudalism
2. The Fee Simple
3. The Fee Tail
4. The Life Estate
5. Leasehold Estates
6. Defeasible Estates
B) Future Interests
1. Introduction
2. Future Interests in the Transferor
3. Future Interests in the Transferee
4. The Trust
5. Rules Furthering Marketability by Destroying Contingent Future Interests
a. Destructibility of Contingent Remainders
b. The Rule in Shelley’s Case
c. The Doctrine of Worthier Title
d. The Rule Against Perpetutities
i. The Common law Rule
ii. The Wait-and-See Doctrine
iii. Abolition of the Rule
C) Co-ownership and Marital Interest
1. Common Law Concurrent Interests
a. Types, Characteristics, Creation
b. Severance of joint tenancies
c. Joint Tenancy Bank Accounts
d. Relations among concurrent owners
2. Marital Interests
a. During Marriage (The Fiction that Husband and Wife are one)
b. Termination of Marriage by Divorce
c. Termination of Marriage by death of one spouse
III. Leaseholds: The Law of Landlord and Tenant
A) The Leasehold Estates
The Term of Years – where the length of time is definitely stated in the lease.
The Periodic Tenancy – where the lease states it will continue for reoccurring intervals.
The Tenancy at Will – a tenancy of no fixed period that continues as long as both the landlord and tenant so desire.
The Tenancy at Sufferance: Holdovers
B) The Lease
C) Delivery of Possession
D) Subleases and Assignments
E) The Tenant Who Defaults
The Tenant in Possession
The Tenant Who has Abandoned Possession
F) Duties, Rights and Remedies
Quiet Enjoyment and Constructive Eviction
The Implied Warranty of Habitability
IV. Nuisance
A) Introduction
B) Remedies
V. Law of Servitudes
A) Easements
Creation of Easements
Assignment of Easements
Scope of Easements
B) Covenants Running with the Land
Historical Background
Creation of Covenants
VI. Zoning
A) Historical Background
B) The Non-conforming Use
C) Achieving Flexibility in Zoning
VII. Eminent Domain/Takings
A) Introduction
B) “Public Use”
C) “Takings”
Two Categorical Rules
Rules Based on Measuring and Balancing
A Third Categorical Rule
I. Acquisition
A) First Possession
3. Discovery
a. “the sighting or ‘finding’ of hitherto unknown or uncharted territory”
b. First in Time Principle: the first one to acquire possession to property has a better claim of possession than anyone coming afterwards
c. Conquest: The conquering nation gains all property rights from the conquered nation.
d. Johnson v. M’Intosh: US recognizes the European understanding that discovery plus conquest equals sovereignty. Discoverers gained property rights from Indians either by conquest or by discovery.
e. Locke’s Labor Theory of Property: ownership comes through working or improving property. Indians don’t “work” the land, thus they don’t own the land.
f. Government and Property: Principle of Sovereignty
i. Without government there is no law.
ii. Without law there is no property ownership.
iii. The sovereign nation sets the rules of law regarding property ownership.
iv. In sum, property is powerful.
4. Capture
a. By capturing an animal, one gains possession of it. But what constitutes “capture”?
i. Pierson v. Post: capture equals restrict the animals freedom either by netting or wounding. This reasoning supports the public policy of peace and fewer arguments. Dissent argues that capture should mean reasonable chance of capture in order to support the public policy of capturing noxious foxes. B: The rule is adopted based on how one ranks the different values (see below).
ii. Ghen v. Rich: Court adopts local custom of whale industry that a harpooned and dead whale is owned by the harpooner. The rule is adopted to further the whaling industry, but does not take into account the effect on third parties.
iii. Keeble v. Hickeringill: Competing duck ponds. D disturbs P’s duck pond. The Court focuses on D’s wrong as opposed to P’s right and holds that one may not malicious interfere with another’s trade, though competition is not malicious interference.
iv. Rationale Soli: A possessor of land has ownership of wild animals on his land.
v. Public policy dictates property law
· reward productivity and foster efficiency
· creates simple, easy and enforceable rules
· create property rules that are consistent with societal habits and customs
· produce fairness in terms of prevailing cultural expectations of fairness
B) Subsequent Possession
5. Find
a. General Rule: The finder has a better right to title than anyone but the true owner, however, a distinction is drawn between mislaid items, items lost, and items abandoned.
i. Mislaid: A finder of property acquires no rights to mislaid items.
ii. Lost: Generally, a finder of lost property has ownership rights against everyone but the true owner. A finder has the obligation to return lost goods to the owner, if ascertainable. Statutes generally require the finder to publish notice and/or give the property to the police.
· If lost goods are found on land belonging to someone other than the finder, courts are in conflict as to whether the finder or the owners of the land is entitled to possession.
· Goods found under the soil are generally awarded to the landowner. However, a “treasure trove” is awarded to the finder.
· If the finder is a trespasser, the court nearly always awards possession to the landowner.
· When property is found by an employee while he is acting within the scope of his employment, possession is awarded to his employer if it is part of the employee’s assigned duties to turn such articles over.
· RATIONALE: Try to get the property back to the true owner.
iii. Abandoned: True owner no longer has p
nerally held requirement that the adverse possessor have intentional hostility.
iii. Still no adverse possession because the 15 inches didn’t amount to open and notorious, because they don’t want to put the burden of constantly surveying the land on the.
iv. Court and modern tendency: ease the plight of innocent improvers and require the true owner to convey the land or pay for the improvement.
f. Howard v. Kunto:
i. Facts: An early survey error in the area caused 50 ft. wide properties to be off by exactly 50 ft. (everyone was living on property deeded to their neighbor). The Kunto’s brought property for a summer home in 1959 with defective title, the Howards tried to gain possession of the Kunto’s property claiming that they had a valid deed (after rectifying the error on their own deed).
ii.The court held that the Kuntos had adversely possessed the land.
iii. Possession only in the summer months counts, because that the ordinary possession of places like this.
iv. Can tack together different owner’s possession to create continuous possession over the required time period. The requirement of privity is met by the reasonable connection between successive occupants in this case determined by the giving and receiving of deeds.
g. Tacking
i. Two types: tacking land, tacking time.
ii.Requires privity: when the successive possessor has taken the possessory interest of the prior possessor by transfer
· permitted when the prior and successor possessor are grantor and grantee, intestate and heir, or testator and devisee.
· In a few jurisdictions, tacking is permitted when there was an ouster or abandonment.
iii. A change in record ownership occurring during the period of adverse possession does not cause the period to begin again. Similarly, the holder of a future interest is not protected if the future interest was created during the time when another was in adverse possession.
iv. SEE PROBLEMS
h. Disabilities
i. Extend the statute of limitations
ii.Insanity, minority etc.
iii. Immaterial unless the disability existed at the time the cause of action accrued.
· Ex: If A goes into adverse possession against O when O is legally competent, O’s subsequent insanity will have no effect on the statutory period.
iv. Successive disabilities cannot be tacked
If A goes into adverse possession against O, the record title holder, when O is then fifteen years old, and O dies two years later, leaving
