Property I Outline

Property Outline

Professor Michael Allen Wolf – Fall 2013

Topic I: First possession

I. Two broad categories of property

a. Real property – land and improvements attached to the land (e.g., buildings, fences, dams)

b. Personal property – all property other than real property (e.g., automobiles, books, tables)

i. Fixture – personal property permanently attached to real property.

II. Possession – controlling or holding of personal property with or without ownership

a. Elements

i. An intent to possess on the part of the possessor; and

ii. Actual controlling or holding the property

b. Capture test (Pierson case)

i. Communicate intention of appropriating the animal for individual use

ii. Deprive of animal’s natural liberty

1. Use of instruments

2. Wounding

iii. Bring the animal within his certain control

c. Constructive possession – possession that has the same effect in law as actual possession, although it is not actually possessed.

i. Owners of land with oil/gas beneath its surface. Although not in actual possession, they are said to be in constructive possession of the subsurface items. (Hammonds case)

III. Custom as basis for determining possession

a. Courts generally chose to ignore this basis

b. Custom of any group or industry should be recognized only under certain circumstances:

i. When its application is limited to the industry and limited to those working in it

ii. When the custom is recognized by the whole industry

iii. When the custom requires in the first taker the only act of appropriation that is possible

iv. When the custom is necessary to the survival of the industry, and

v. When the custom works well in practice

c. Ghen v. Rick – Whaling industry where harpooned whale would immediately sink to the bottom of the ocean. Once washed ashore, the finder would notify the harpoon owner and collect a finders’ fee.

IV. Rule of first-in-time, first-in-right

a. Priority of rights based on the time of acquiring the right in question.

b. If all else equal, chronological first possessor has the better title.

V. Feroe Naturoe – Wild animal (or mineral – ie oil/gas etc). Belongs to everyone

VI. Animus Revertendi – Animal that will return home after leaving

a. Under doctrine of animus revertendi, a person does not lose interest in an animal that has a habit of returning to its owner’s property.

VII. Ratione Soli – Common law right for one to take animals found on his own land

a. The person has the right to take, does not automatically imply ownership.

VIII. Cujusest Est Solum – Whoever owns the soil, owns all the way up to heaven and down to hell.

a. Absent regulation, this is still true. You can go as high as you want, and as low as you want (to the center of the earth).

IX. Cases

a. Pierson v. Post

i. Post was hunting on beach. While in pursuit of a fox, Pierson intervened, shot the chased fox and carried it away.

ii. Post sued Pierson, won in trial court. Pierson appealed. Appellate court reversed.

1. Appellate court said Post had intent to possess the animal, however, he never actually controlled the fox, as such; second element of possession was not met.

2. Mortal wounding would have given Post a right to possession of fox.

a. Mortal wounding would deprive the fox of its natural liberty, thus establishing constructive possession.

3. Constructive possession may also be established through other instruments like traps, nets, ect.

b. Hammonds v. Central Kentucky Natural Gas Co

i. Central Kentucky poured gas into a natural underground reservoir. A portion of the reservoir is under Hammonds’ property. Hammonds sued for trespass.

ii. Court ruled that gas, once returned to its natural state (by placing in natural reservoir) is analogous to feroe naturoe. It belongs to whoever’s property it’s under (Cujusest est Solum).

X. In present day, courts can find ways to divide up the gas under each person’s property (if a natural reservoir is shared).

a. Someone owns parcel of land, a plane flies over the property. Is that trespass?

i. According to Cujusest est Solum it is a trespass.

ii. Today it is not a trespass due to regulations (e.g., planes can fly over property at certain altitude).

b. What about cellphone waves that come across your property? Is it trespass?

i. No, there must be a physical invasion. Item must be corporeal (physical)

c. Energy companies extract natural gas miles and miles below surface, and does not get sued for trespass. Why?

1. They enter into agreement with surface owners to purchase mineral rights. Which makes it OK.

2. However, government may say (in the future) that it’s too dangerous, you cannot do it even with a mineral rights agreement.

Topic II: Adverse Possession

I. A person who is not the legal owner of property, and who in fact may have entered as a trespasser, who uses the property for enough years becomes the owner of the property and defeats all rights of the true or rightful owner.

a. If the true owner fails to bring action of ejectment against a trespasser within the statute of limitations, the trespasser will acquire the title.

b. Hybrid of statutory and common law

i. Statute of limitations is the statutory law element

II. Rationales for adverse possession

a. Encourages true owners to monitor their property

b. Rewards persons who uses, works on, or improves property for a long time.

c. Evidentiary tools. Evidence decays as time passes, and stale claims to property should be barred. Also to confirm lost grants or otherwise correct conveyancing mistakes and oversights.

d. Structural purpose. Facilitate the efficient transfer of property.

e. Preserves the status quo. When ejecting the adverse possessor would result in more of a loss than the true owner would gain, there is no longer any point in denying the adverse possessor title.

III. Two broad categories of adverse possession

a. Adverse possessor claims a parcel of land completely unrelated to any other land the adverse possessor owns or claims

b. Boundary disputes. The neighboring landowners dispute who has the right to a strip of land used by one party but included within the legal description of another

IV. Elements of adverse possession

a. In the US, all elements must be demonstrated by the adverse possessor

i. Actual – Be in actual possession of property

1. Depends on the nature of property. Adverse possessor does not have to reside on the property. They must perform the usual acts of ownership that a reasonable landowner would.

ii. Open and notorious – Use of property was must be so visible and apparent that gives notice to the true owner if he checked.

1. Did or should the owner know about the trespasser?

iii. Hostile (Claim of right) – Use the property without permission of the owner, and in such a way that it conveys the message that the adverse possessor is acting as the owner. (Objective standard)

1. State of mind of the adverse possessor is not relevant. It does not matter if the adverse possessor knows he is stealing the property. He just needs to act like he is the owner of the property.

2. A person entering property with true owner’s permission cannot claim adverse possession.

iv. Exclusive – Adverse possessor should occupy the land to the exclusion of the true owner.

1. Does not need to be the entire property. A person can successfully adversely possess a portion of the property as long as the possessor excludes the actual owner from that portion. In such a case, the adverse possession will succeed in transferring only the property that was actually possessed by the adverse possessor.

v. Continuous – Adverse possessor must use the land as a true owner would for the entire statutory period.

1. Does not necessarily need to be uninterrupted. Possessor must use the property as would a true owner under the circumstances.ß

vi. Statutory period – Length of time required for an adverse possessor to gain ownership.

b. **EXAM HINT – on final exam, only need to identify just one element that has not been fulfilled. No need to discuss more than one. Discuss statutory period if they meet all requirements.

i. Ouster will be on the final exam. Discussion question #5.

c. Adverse possession in England

i. Land owner owns the property but never goes there (sleeps on title)

ii. Series of trespassers goes to the property

iii. If land owner sleeps on title for sufficient period, land owner loses the title

iv. Whoever is on the land at the time gets the land

1. It could be the last of a series of trespassers

v. There is a statute of limitation for ejectment. Land owner must eject a trespasser within a period of time

d. In US adverse possession is more acquisitive (adverse possessor must demonstrate meeting all elements). In England, adverse possession is a way for owner to lose title.

V. Color of title (Ewing case)

a. A defective title. A person claims ownership pursuant to a written document, but the document is defective in some manner.

i. Forged document is not allowed

b. Benefits the adverse possessor

i. Many states reduce the statute of limitations period for people with color of title

ii. Constructive possession of the whole tract. The adverse possessor may claim the entire track of land described in the color of title by adversely possessing just a portion of it

1. Generally, the adverse possessor gains ownership of only so much of a track of property as the adverse possessor actually occupies

2. Exception to constructive ownership by color of title is when the true owner actually possesses of a part of the described land. The adverse possessor is limited to the land actually possessed in this scenario.

VI. Privity and tacking

a. Tacking – the adverse possessor may sell or give his interest to another person. The purchaser or donee succeeds to the adverse possessor’s attributes, including the time the first possessor occupied the property. Second possessor must meet all elements of adverse possession.

b. The relationship that allows tacking to occur is called privity.

i. Privity occurs by contract of sale, gift, will, or other inheritance (intestate succession)

VII. Disabilities and tolling the statute of limitations

a. Many states provide that the statute of limitations for an adverse possession claim will not run against a true owner who is under a legal disability when the adverse possession commences

i. Infants, m