Property
Milot
Fall 2015
1) Introduction: Defining Property and the Uncertain Right to Exclude:
a) Introducing Property’s instrumental role:
i) Pierson v. Post: Issue: How do you determine who owns an un-owned, wild animal?
(1) Basic rule: In order to have ownership of a wild animal, here, a fox, you must have occupancy over it.
(2) But how do we define occupancy?
(a) Is it killing or mortally wounding the animal and then taking possession? Or
(b) Is pursuit with the intent and ability to possess enough?
(3) Holding: must have either–
(a) Actual corporal possession or capture
(b) Mortal wounding + continued pursuit
(i) Continued pursuit= intent to possess, deprive animal of liberty, and ability to control.
(4) Here, the plaintiff did not deprive the fox of its liberty, so he did not achieve occupancy over the fox.
ii) Ghen v. Rich:
(1) Issue: Did the ship have prior rights to the whale after mortally wounding it, but then leaving it in the water to turn up on the beach?
(a) Holding: Despite lack of continued pursuit of the whale, the original ship has occupancy of the whale.
(b) The Court looked at the custom of the whaling industry. The industry has very efficient customs and this is very specific context for applying custom.
(i) Includes industry surrounding whaling & the effects of ruling agains the whalers
b) The Right to Exclude on Land Not Generally Open to the Public: right of possession generally affords the holder the right to exclude others from entering upon or in any way enjoying the property
i) Jaque v. Steenberg Homes: Steenberg wanted to cut across the land of Jaque to deliver a house, but Jaque affirmatively said no. Steenberg crosses the field either way and delivers the house.
(a) Jury awards Jaque nominal damages and punitive damages.
(i) Purpose of punitive damages for trespassing is deter future conduct. Trespassing really doesn’t cause damages but we still want to deter the conduct.
(b) There is a general rule against awarding punitive when there was no compensatory, but the Court rules trespassing should be an exception to this general rule.
ii) State v. Shack: (Exception for right to exclude) Migrant farmworker was injured and two gov. employees came on the farm to speak to the two migrant farm workers, but the owner of the farm wanted to be present for the discussion.
(a) Court rules the competing right of the migrant workers outweighs the right of the owner.
(i) The migrant workers are isolated. Because of the circumstances of the workers, certain people must be allowed on the property without these limitations.
c) Key Ideas from Chapter 1:
i) Property rights are a bundle of sticks but these sticks rights are not absolute. Property rights are relative: Rights of property owner v. rights of others.
(1) Right to exclude is a cornerstone right, but this right can be overridden by a stronger interest, like the First Amendment.
(2) Right to exclude can be enforced via injunctions, trespass actions.
(3) Right to use property, but can’t destroy (leasing).
(4) State law tells us what sticks are in the bundle, but there are constitutional limits to what rights the state can take away.
2) Categorizing Property:
a) The Taxonomy of Estates: “estate,” as used in property law, means “[t]he amount, degree, nature, and quality of a person’s interest in land or other property.
i) At common law two types of property:
(1) Real property (real estate)= property interests in land
(2) Personal property= interests in chattels.
ii) Second set of categories defines particular possessory estates, which identify individual rights to possess property based on the duration of the possessory interest.
(1) Two keys to estates:
(a) Estates can always be set up to terminate early (“defeasible estates”);
(b) Estates that terminate (either naturally or because of another estate divests them) must be accompanied by a description of who will take possession of the property when the estate ends.
iii) Present Possessory Estates- defines the possible estates held by one or more persons who have a right affords the holder of the estate the present right to possess the property..
(1) Freehold—freehold estates confer the present right of possession for an indefinite period of time or, at the very least, for the life of the holder, they are said to transfer seisin to the holder. 3 types
(a) Fee Simple: a perpetual estate with no natural termination.
(i) Fee simple absolute= a fee simple can never be divested.
(b) Life Estate: an estate that lasts for the life of a particular individual, usually the owner of the estate.
(i) When the measuring life is held by someone other than the person serving as the measuring life, the estate is called a life estate pur autre vie.
(c) Fee Tail: an estate that passes from the holder to his issue, which includes children and all further lineal descendants.
(i) However, this type of estate is only recognized in a limited number of jxn.
(2) Non-Freehold: estates are the various leasehold interests: the estate for years/term of years/leasehold etc. These estates are not “freehold” estates, because they are all of finite duration
(a) Lease hold or Term of Years= an estate that lasts for a defined period of time.
(3) Rights Afforded by Present Possession:
(a) The notion of possession is said to afford the possessor certain rights. These rights are subject only to (1) restrictions found in the law or (2) valid encumbrances or other interests in the property arising in favor of others. Those rights are:
(i) Right to Use: Generally, the right of present possession affords the holder the right to use the property however she sees fit
(ii) Right to Transfer/ Alienate: The right of possession generally affords the holder the right to transfer possession—that is, to “alienate” her rights
(iii) Right to Exclude: The right of possession generally affords the holder the right to exclude others from entering upon or in any way enjoying the property
iv) Estate and Future Interest Terminology
(1) Future Interest—defines the interests of one or more person who will, or may potentially, obtain the right to possess certain property. Two types:
(a) Vested—the holder (or his estate) will definitely come to possess the property in question.
(b) Contingent—certain conditions must happen before the interest can become possessory.
(2) Inter vivos transfer—a conveyance or transfer of property that occurs while the grantor is still alive.
(3) By Devise or Testamentary—a conveyance or transfer of a property interest upon the death of the grantor.
b) Present Possessory Estates
i) Language Used to Create and Convey Estates
ases the value of the property.
(a) Courts use sliding scale & look at:
(i) The significance of he changes
(ii) The likely length of time before the the present possessory estate ends
(iii) More extinctive change + shorter time = more likely to be waste
c) Defeasible Estates:
i) Defeasing Clauses
(1) The law permits deeds to include clauses that will divest, i.e., end, a present possessory estate before its natural termination.
(2) Three categories of defeasing clause
(a) Determinable= “estate that will automatically end and revert to the grantor if some specified event occurs.”.
(i) Ex.: “O to A so long as he land is use for school purposes.”
(ii) The condition is placed in the same clause that grants the present possessory estate.
1. Corresponding future interest = possibility of reverter is Occurs the instant the specified event occurs, the holder assumes fee simple absolute. ownership, without the need for any further action on her part.
a. Key: Is Automatic reversion If the condition is satisfied, the possessory interest automatically transfers by operation of law to the holder of the possibility of reverter future interestà Automatically divested.
(iii) Key Language: use of language connoting a temporal limitation. that is, language indicating that the conveyance is only good:
1. “until” a specific event takes place, or
2. “while”or “so long as” a certain state of affairs persists, or
3. “during” the persistence of a certain state of affairs
(b) Subject to Condition Subsequent: The fee simple subject to a condition subsequent is “[a]n estate subject to the grantor’s power to end the estate if some specified event happens.”.
(i) Ex.: “O to A, but if the land is no longer used for school purposes.”
(ii) The condition is placed in a clause that is subsequent to the granting clause.
1. Corresponding Interest future interest = Right of Entry/Power of Termination: defining the estate that becomes possessory if the subject to condition subsequent’s condition is satisfied must be retained by the grantor
a. Only the grantor may hold a right of entry/power of termination. (If a third party holds a similar interest, the interest is an executory interest.
i. holder of the right of entry does not automatically assume ownership of the property when the stated event occurs. MUST take some affirmative action to assume ownership, such as by filing eviction proceedings.
ii. Until she does, the fee simple subject to a condition subsequent remains intact, and its holder retains lawful possession.
iii. Once the holder of the power of termination exercises it, the power of termination will transmute into a fee simple estate, usually fee simple absolute
