Property Klein Spring 2018
Exam Advice
Basic Approach
IRAC is sufficient for Klein. But be careful with the “rule” portion. If there are multiple rules that could apply, say so. Then give a separate analysis and conclusion for each rule. Thus, your overall argument will look something like:
Issue
Rule 1
Analysis 1
Conclusion 1
Rule 2
Analysis 2
Conclusion 2
Rule 3
Analysis 3
Conclusion 3
Optional Main Conclusion (Choose either 1, 2, or 3 as the best answer).
“The better answer is _____ because _____.”
Issue Statements
Klein really likes issue statements. She gives a point for each “concise, one-sentence” issue statement. For Klein, these will most often be statements of claims, counterclaims, or defenses. Make sure include both the claim (usually from a rule) and the basis for the claim (usually from the facts).
Example 1: “Maria failed to pay John the rent due for three months, which entitles John to a claim of $3,300 in damages.”
Example 2: “Jackson was entitled to terminate the lease and relieved from his obligation to pay rent because Anabel constructively evicted Jackson by failing to provide adequate heating.
These are easy points! Always start with a clear issue statement.
Rules/Citing Cases
Klein likes having cases cited. You get a point for each relevant case. The best place to cite a case is after your rule statement.
Klein also wants a parenthetical after the cite explaining what the holding was in the case. The information in the parenthetical should be lifted straight from the case. For example:
Ownership of land does not confer unlimited ownership or control of the airspace above. See United States v. Causby. (holding that airspace apart from the immediate reaches above the land is part of the public domain and not subject to the underlying landowner’s right to exclude).
Thus, suggested parentheticals are provided for many cases in this outline.
Be careful with the parentheticals though. You get one extra point for each “concise, well-formulated parenthetical explaining the case.” In other words, whether you get a point for the parentheticals is dependent on whether Klein likes how the parenthetical is written. This makes parentheticals risky, especially when consider how they take to type out.
To put this in perspective, consider the practice exam she gave us right before spring break. The model essay contained 60 points. Out of those 60 points, a total of 3 points were given for parentheticals. Compare to this to the 4 points that were given for just mentioning the right case names in the appropriate places. In other words, you could have still gotten the majority of case points just by mentioning the case names; no parentheticals were necessary.
Simply put, parentheticals are a trap. They suck up time with little reward. So don’t worry about parentheticals while you write your essays. Instead, focus on clear issue statements, good analysis (mentioning every fact, as discussed below), and citing relevant cases. Only add parentheticals if you have extra time at the end of each essay.
Facts
Mention every single fact given to you. If the fact is relevant, apply law to it (either as an issue statement or in the analysis). If the fact is irrelevant, the briefly point that out in a short, one-sentence paragraph. But leave no fact untouched.
A good strategy is to literally cross out the facts as you mention them. You know you are done when every fact has been crossed out.
Also, point out gaps in the facts. If the facts are unclear regarding a big point, say so! On the practice exam, Klein gave a point for simply noting that more facts were required to reach a conclusion. Use the following script: “We would need to know more facts, such as _____, to determine _____. However, the facts provided suggest _____.” This is an easy point.
Analysis
This is where you make the case for your issue statement. Weave in as many facts here as possible.
Make sure your analysis is clear and logical. Don’t leave out any logical steps or make assumptions. Here’s an example of bad and good reasoning:
BAD: The taco cost $2, and Ben had $5 to spend. Therefore, Ben could afford to buy the taco.
GOOD: The taco cost $2, and Ben had $5 to spend. Because $5 is more than $2, Ben had more than enough money to buy a taco. Furthermore, when one has more money than is required to buy an item, that person can afford to buy that item. Therefore, Ben could afford to buy the taco.
Policy Argument
Klein is a big fan of policy arguments, but they can be time-consuming. So on a normal exam essay only use one if the situation (1) appears to be pointing out an injustice in the law or (2) is really easy to make (and thus costs you very little time.
But my guess is that we will see an explicitly policy-based essay on the exam. So be prepared for that.
For policy arguments use the following format: If X, then Y, because Z. X is a conclusion you could reach from legal analysis; Y is the outcome of that conclusion (either good or bad); and Z is the reason for that you believe Y will be the outcome of X. Example:
If the we let Tim come to the party (conclusion), then he will just keep pestering us in the future (outcome of conclusion), because we will be rewarding his bad behavior (reason for outcome).
Use the following for policy arguments (but not by name, just take the content):
The Occupation Theory – the simple fact of occupation or possession justifies legal protection of the possessor’s claim to the thing
The Labor Theory – a person has a moral right to ownership and control of things he produces or acquires through his or her labor
The Contract Theory – private property is the result of contract between individuals and the community
The Natural Rights theory – the natural law dictates the recognition of private property
The Social Utility Theory – the law should promote the maximum fulfillment of human needs and aspirations, and that legal protection of private property does promote such fulfillment.
Economic Theory – the legal protection of property rights has an important economic function: to create incentives to use resources efficiently
Equality Rights – the institution of private property really protected man’s natural equality of rights. Equality of rights means that every man has the right to grab. The institution pf property was an agreement among men legalizing what each had already grabbed.
“Impose liability on the cheapest cost avoider.” This is the party that could have most easily avoided the mess.
Multiple Choice and Short Answer
We will see some estates and future interests questions in this format. For those questions, don’t apply the rule against perpetuities or destructibility doctrine unless explicitly told to.
Some questions will require two answers. This will especially be the case with “O,” which could have a reverter and one other interest.
Good Terms to Use for Exam
Severing the Parcel: Separating the estate. For example, selling off the mineral rights between specified depths or the air rights up to a specified altitude.
Trespass: An action for damages for wrongful interference with possessory rights to land
Ejectment: An action to recover possession of land wrongfully withheld
Fugitive Resources: Things that move under their own force (such as wild animals). Before capture, they are unowned and generally under the control of the state. Natural resources (water, oil, natural gas) are sometimes treated like fugitive resources, although they move under the force of gravity and not their own force.
Rule of Capture: The first person that captures a fugitive resource can become the owner.
Conversion: An intentional and wrongful exercise of dominion over the chattels of another, giving rise to an action for damages (usually measured by the value of the property).
Trover: An action for damages against one who has wrongfully interfered with the possessory rights of another, or who gas wrongfully converted goods to his or her own use.
Replevin: An action for the recovery of possession of chattels wrongfully taken or detained.
Self-help: Protecting or recovering property with your own force or actions. For example, “stealing” back property that was stolen from you. Self-help is disfavored in the law.
Paramount Title: The best title (compared to all other claims to title)
Devisee: A person who inherits the property of another though a will.
Heir: A person who inherits the property of another by inheritance and NOT through a will.
Testator: A male person who leaves a will.
Testatrix: A female person who leaves a will.
Tragedy of the Commons: is a term that describes a situation in a shared-resource system where individual users acting independently according to their own self-interest behave contrary to the common good of all users by depleting or spoiling that resource through their collective action.
Trust: A fiduciary relationship calling for a trustee to hold the title to assets for the benefit of the beneficiary.
Public Property: Property owned by a government.
Commons Property: Property co-owned and shared by many people. This generally does not include state property.
Introduction to Property
Basics
Property is a “a set of rights and duties among people with respect to things.” What should be recognized as a property right depends on considerations of Fairness and Economi
very, and (3) acceptance by the recipient.
Intent: The donor must intend to make a present, irrevocable, and absolute transfer of an interest in property.
Present effect: The property right must vest immediately, although the done might not be entitled to possession until some future time.
Future effect: In contrast, transfers made by will are not inter vivos gifts because they do not take effect until the death of the testator, and remain revocable until that time.
Conditional gifts: As an exception to the requirement of a present and irrevocable transfer, the law recognizes conditional gifts in some circumstances. For example, gifts causa mortis are conditional gifts made in contemplation of the donor's imminent death. See Scherer v. Hyland. Such gifts are generally revocable during the donor's lifetime, but they become irrevocable upon the donor's death if the donor dies from the anticipated cause, and if the donor is survived by the donee.
Delivery
Manual delivery: The donor turns over dominion and control of the property to the donee. This is the preferred method of delivery, unless manual delivery is unreasonable due to the nature of the property or other circumstances
Constructive delivery: The donor must transfer something that gives the done access to the property and control over it. Examples: a key to a locked drawer or the key to a car.
Symbolic delivery: The donor must transfer something that represents the property, such as a written instrument. Examples: a deed to real property or a cashable check.
Acceptance: Although donees could refused a gift, this element is usually presumed if the property is valuable or beneficial to the donee.
Rules/Cases
Relaxed Delivery: The determination of whether the element of delivery may be relaxed when there is clear, concrete, undisputed evidence of a donative intent and steps were taken by the donor that the donor believed would be sufficient to transfer the property. See Scherer v. Hyland (holding that the law should effectuate the decedent’s donative intent rather than indulge in nice distinctions that would thwart her purpose).
Contingent Gifts: A gift given in contemplation of future action or circumstances may be a conditional gift. See Heiman v. Parrish (holding that engagement rights should be considered conditional gifts given in contemplation of marriage). See also Scherer v. Hyland (extending conditional gift causa mortis to te case of impending suicide).
Finders
The ultimate goal of finders’ law is to reunite property with the true owner. So the law often seeks policies that further that goal.
Bailments: A bailment is the rightful possession of goods by one who is not the true owner, as when a person (the bailor) delivers clothing to a dry-cleaning establishment (the bailee) for laundering. The bailee owes a duty of care to the bailor (and holds the property in truest for the benefit of the true ownder). Finders (and owners of the places where property is found) are involuntary bailees of the true owner.
Lost property: Lost property is that which the true owner parts with unintentionally and involuntarily, such as a necklace that comes unclasped and falls off unnoticed. The finder has a better right to the property than all but the true owner. See Armory v. Delamirie (holding that the finder of a jewel did not have absolute ownership, but had better title to the ring against all but the rightful owner); see also Benjamin v. Lindner Aviation, Inc. (explaining that property is lost when the owner unintentionally or involuntarily parts with its possession and does not know where it is).
EXAM NOTE: An easy trigger for an exam for someone to find stolen property (that they had no part in stealing). This counts as lost property.
