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Property I
University of Denver School of Law
Ziegler, Edward H.




1. Definition:

a. A state created legally enforceable interest

i. Includes intangible things

1. Eg copyright or someone borrows a dollar the borrowee owns intangible debt as property

ii. There are external objects that no one owns

1. A wild animal

iii. Property rights are created by the state/ government

iv. There are valuable things that are not property

1. Body organs that we cannot sell–rain

v. Property that has no value

1. Own a toxic waste dump

vi. concerns legal relations among people with regard to things (how they control/ disposition it)

vii. Ownership includes a bundle of rights

1. Rights can be unbundled

b. Characteristics of property ownership

i. Right to exclusive possession

ii. Right to exclusive use

1. Doesn’t matter if it is productive use or not

iii. Right to transferability

1. Can give it away, sell it, will it, destroy it

2. Historically you could own but could not transfer property

c. Competing ideas

i. Stability and predictability vs. flexibility and change

1. rights based approach: fairness and equity

2. utilitarian approach–comparing costs and benefits of differing property entitlements

a. maximize well being of the greatest amount of people

3. social relations approach–legal rules structure the contours of social relationships–how does property affect that?

4. Progressive –occupy wall street

5. Libertarianism– less government regulation

2. Types of interests

a. Real property= land, fixtures, and thing on or under the land

i. Fixture could be in ground tennis court–more or less permanently fixed to the land

1. Can take personal property like lumber and cement it to land and it becomes real property

2. Corn growing would be a fixture but if it is harvested then it is personal property

ii. Fee simple interest: greatest interest recognized in real property

b. Personal property = everything else

i. Two types:

1. Tangible

2. Intangible

a. Includes paper money

ii. True ownership interest: Greatest interest possible in personal property

3. Possession

a. Personal property gifts: the intervivos (while alive), voluntary and gratuitous transfer of a property interest from the owner (donor) to another (donee) (irrevocable)

i. Elements:

1. Intent to make present gift

a. Must be a preset intention–a future intent is not sufficient

i. Cannot say I will give you a gift tomorrow but there can be a future interest that can be given with a present intention

1. Eg: guy owns a private jet true ownership but his son has a 1 year lease–he transfers his true ownership as a gift (future interest) to someone else

2. Delivery to donee (actual, constructive, symbolic)

a. Actual = hand a watch to someone

b. Constructive = put the watch down on the table instead of handing it to them

i. Or a owner of a lock box gives the key

c. Symbolic = a writing rather than a physical delivery

3. Acceptance by donee (presumed if gift beneficial)

b. Testamentary gift–a gift intended to be effective at the owner’s death must satisfy the relevant state law’s statute of wills

c. Gift causa mortis– a valid present intervivos gift but made by the owner in contemplation of impending death due to present illness or injury (must meet the 3 elements of a gift)

i. These are revocable if:

1. the donor recovers from the present illness or injury

2. Any affirmative act by donor clearly indicating gift is revoked

3. Donee dies before donor

d. Wrongful conversion

i. Wrongful converter= someone who took your interest

ii. Wrongful conversion of personal property does not convey title

1. It does convey simple interest good against the world but not against the true owner

a. Exceptions:

i. Money and negotiable instruments

ii. Entrusting doctrine = if watch given to a watch shop that sells watches all the time and they accidently sell it the good faith purchaser obtained true ownership

1. Under UCC doctrine does not cover pawn shops

iii. Voidable title doctrine – fraud in inducement

e. Capture

i. Actual possession–reach down and pick up the fox

ii. Constructive possession–an implied possession

1. Not the real thing, but what the hell good enough considering the purpose of the law

iii. Test:

1. To gain title of a wild animal one must deprive it of its natural liberty

a. Must be corporeal possession but this can be implied if the animal was wounded but not yet captured

2. Exceptions:

a. ratione soli–if an animal is killed by a trespasser the animal is owned by the land owner

i. This prevents trespassing

ii. If someone shot an elk and was in hot pursuit but it ran unto someone’s property and then died–the hunter had constructive possession before it entered the property–would have a right to retrieve the animal

b. Outlaws–if taking possession of an animal violates state law, hunting outside of season, then they do not have possession

c. Escape–if animal escapes the title is lost

i. Exceptions:

1. Hot pursuit–they regained their liberty but protection is given to the owner in hot pursuit

2. Marking–someone branded the animal

3. Habit of return–animal typically comes back to you

4. Not regained its “natural habitat”–a zoo animal escapes but not in its natural habitat

f. Bailment–when bailor temporarily transfers exclusive possession and control to (and accepted by) bailee pursuant to express or implied “K” or by operation

i. Example: give coat to a restaurant employee and he puts it in a coat room

1. You give coat to an employee who just brings it to some back room without a receipt for you–still a bailment

2. Can be an implied bailment–if you set your coat down in a store and an employee takes it–you didn’t give it to them but they are expected to return it

ii. 3 types of bailment:

1. For sole benefit of the bailee

a. A borrows B’s car

2. For the sole benefit for the bailor

a. A stores B’s stereo during the summer as a favor

3. For the mutual benefit of bailor and bailee

a. Deposit of an item to shop for repair

iii. Container/ ordinary contents rule: bailment exists for known contents and unknown ordinary contents but not for unknown extraordinary contents

iv. Duty to redeliver undamaged: if breached, burden on bailee to show exercise of due care (not negligence)

1. This rule allows the owner to allocate risk–and if it unknown and extraordinary then it is unfair to hold the bailee liable

g. Abandoned–given nature of property and circumstances where found its clear True Owner relinquished all interest in the property

i. Legal finder/ actual finder–get true ownership

ii. a finder of abandoned property does not need manual possession but only constructive possession of the property as its nature and situation permit. Popov

iii. when an actor takes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. Popov

h. Lost–owner involuntarily parts with possession

i. Legal finder (SPI)–simple possessory interest in the actual finder–there is still a true owner

1. Good against everyone except true owner

a. This is a bailment relationship with the true owner–

i. ie the finder has a duty to take care of it–a reasonable care under the circumstances

1. There are usually lost/ mislaid SoL typically 2 years

1. Simply possessory interest ripens into true ownership after SoL runs

2. Things like rare items like a painting SoL wouldn’t start to run until the true owner is notified as to where it is

b. Also a duty to make reasonable attempts to find the true owner

i. If you don’t then you are a wrongful converter

ii. Exceptions:

1. Highly private locus–owner of locus has SPI

2. Buried property–

ave an absolute right to subjacent support for their land.

a. Owners of subsurface mineral rights have a duty to preserve support for the surface

i. This includes withdrawing oil or water if it affects surface support

d. Ejectment

i. someone in wrongful possession of your land–you can sue for remedy of ejectment

e. Surface water runoff

i. If damage caused by water run off–owner has right to no reasonable damages by water run off

f. Trespass

i. intentional (volitional) interference with an owner’s right to exclusive possession (physical invasion of an owner of possessory interest)

1. Ie: the trespasser volitionally entered the property they did not need to know it was someone else’s / mistake is not a defense

a. Exceptions:

i. Shared use: if sharing with another may lose some rights to exclusion

1. Eg: couldn’t exclude a doctor visiting the person you share with

ii. Consent

iii. Estoppel

1. If to grant relief to a tresspassed P would be inequitable the charges can be estopped

iv. Necessity

1. Non-owners are entitled to enter property to save lives, property, or to avert a serious harm

1. Must show that:

1. Faced with a choice of evils and they chose lesser

2. Acted to prevent imminent harm

3. Reasonably anticipated a direct causal relationship between their conduct and the harm to be averted

4. They had no legal alternatives to violating the law

v. Prescription

1. Open possessors may have a claim to adverse possession

2. Using another property for a road may ripen into prescriptive easement

2. An owner in common law has exclusive possession to the depth of hell to the heights of heaven

a. There is an affirmative easement for common aircraft

3. Surface intrusion–walking on grass, backing up car, insecticide on roses

4. Remedies:

a. Nominal damages

b. Actual damages

c. Punitive damages

d. Permanent damages –paid fair market value of the encroachment area

i. Ie: house encroachment–trespass

ii. Other possibility is that owner could sue for ejectment if there is bad faith–court may have part of encroachment to be torn down

1. Eg part of a home built unto someone’s property

e. Injunctive relief

5. Superadjacent areas

a. Eg: stick (if waiving a stick over boundary it is trespass), bullet, trees, roof

6. Subadjacent interest:

a. Someone digs down and over into neighbors property = trespass

g. Light and air

i. Fontainbleau rule: Owners are free to build in ways that interfere with their neighbors interest in light and air

1. Exception: many courts will issue injunction preventing building a “spite fence”

a. A fence purposely blocking a neighbors window

2. Some courts do not apply the rule

9. Remedies in property

a. Nominal damages

b. Actual damages

c. Punitive damages

d. Permanent damages –paid fair market value of the encroachment area

i. Ie: house encroachment–trespass

ii. Other possibility is that owner could sue for injection if there is bad faith–court may have part of encroachment to be torn down

1. Eg part of a home built unto someone’s property

e. Injunctive relief