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Property I
University of Illinois School of Law
Reynolds, Laurie Jo

Property Outline – Reynolds – Fall 2011
A. What is property?
• Property is bundle of rights- set of rules that determine relationship between people and a thing
• Three criteria of property:
1. universality- all resources should be owned or ownable by someone
2. exclusivity- right to exclude others
a. just because you are owner doesn’t mean you can exclude everyone from your property (State v. Shack- court looked at nature of info being communicated, nature of groups info being communicated to, identity of group bringing info, etc.)
1. hypo- if nuclear physicists instead of migrant workers? Better educated, not isolated group
b. common law maxim- use your property so as not to injure rights of others; necessity may justify entry of another (courts decide what is necessity)
3. transferability- right to transfer to others
B. Traditional Objects & Classifications
1. Edwards v. Sims- old maxim: whoever owns surface also owns subsurface ad air rights, but not absolute- public or private necessity may justify entry onto land of another
a. court of equity has power to invade that right for purpose of ascertaining truth of a matter before it and determine whether owner is trespassing on neighbor’s property
b. dissent puts limits on dominion- as long as you can exploit resources you own it
C. Non-traditional Objects & Classifications
1. Moore v. Regents of UC- doctor’s use of excised cells for research not conversion
a. California statutory law drastically limits patient’s control over excised cells; also progress of science at stake here, more negative consequences than positive ones so court does not apply conversion here
D. Role of Property in Society
1. Johnson v. McIntosh- plaintiffs do not exhibit title which can be sustained in court of U.S. because title conveyed by Indians
a. doctrine of discovery said conquest gave Europeans title, so Indian title not respected; “conquest gives title which courts of conqueror cannot deny”- otherwise, we would deny our own legitimacy; Indian title subject only to U.S. government- state government and individuals are powerless
2. Shelley v. Kraemer- property always subject to constitution (state granting judicial enforcement of restrictive covenant violates 14th amendment)
a. yes, judicial action can equal state action; yes, this judicial action equals state action; yes, this state action violates constitution
A. General Rule
            1. Landowner owns things affixed to soil. Finder owns movables.
            -movable- something not of the earth
                                    -immovable- natural things of earth
a. Goddard v. Winchell- aerolite falls on owner’s land, finder takes it; aerolite made of earth-like material and came to earth through natural causes, more like fixed = landowner gets it
B. True Owner not Involved
1. Between finders: Eads v. Brazelton- finder1 puts buoy over abandoned boat and some markers on trees, finder2 finds it months later and pulls up boat;  merely having claim of right/ intent is not enough- need notice indicating other parties, ability to get thing, and actual attempts to get it
            -legal possession does not require manual possession
-however, court required finder to put boat overt wreck plus persistent effort to raise the stuff
-here finder just asserted claim of right and had intent- not enough
2. General rule: finder has rights against all but true owner
a. Armory- boy finds jewel, brings to appraisal shop, shop owner tries to keep it; dispute between finder and someone he entrusted property with for a purpose- finder gets it
C. Owner of Locus Involved
1. Public Place
a. Bridges v. Hawkesworth- finder finds money in shop owner’s store; notes found in public place = finder gets it (straight application of Armory)
1. but arguments for shopkeeper: found in his shop, long passage of time, he’s in better position to protect true owner
2. Private Owner
a. South Staffordshire- finder hired to clean landowner’s pool, finds ring buried in ground; possession of house/land (i.e. private place) with manifest intention to exercise control over it gives possession of thing found on it= landowner gets it
-here, finder was employee
-by hiring someone to work on pool, owner was manifesting intent to control pool
b. Hannah v. Peel- landowner rents to finder, finder finds broach; constructive possession not enough= finder gets it
-defendant owned house but never occupied it
-burden of owner to physically own property to exert possession of property
            3. Lost vs. Mislaid
a. General rule: if lost (true owner has no idea where he put it), finder gets it; if mislaid (true owner placed it there but forgot), property owner gets it
-is there really difference? can you really tell by location it was found? by nature of object? how we think it got there?
b. McAvoy v. Medina- finder finds purse left on table in shop; Schley v. Couch- finder is employee of landowner, finds jar of money buried in ground; property owner gets mislaid property because better position should true owner come back for it
c. Bridges- lost property went to finder
Owner of Locus v. Finder
Aerolite is like earth
1st Finder v. 2nd Finder
Finder needs to indicate notice, ability, and actual attempt
Finder v. Taker
Finder has rights against all but true owner; taker clearly in wrong
Finder v. Owner of Locus
Lost property found in public area
South Staffordshire
Finder v. Owner of Locus
Property found in private place where owner intended to control
Finder v. Owner of Locus
Owner of locus never occupied; constructive possession not enough
McAvoy/ Schley
Finder v. Owner of Locus
Mislaid property to owner of locus
D. Rules
            1. True owner always prevails unless he abandons property
            2. Things like earth (immovable) belong to owner in locus
            3. Finder usually has rights against true owner, but must consider…
                        a. place where property is found
                                    1. public place- usually to finder
                                    2. private place- usually to owner in locus
                        b. how true owner parted with property
                                    1. abandoned/ lost- usually to finder
2. mislaid- usually to owner in locus (b/c he’s in better position to protect property)
A. General Rules
            1. No one can convey better title than he has- but BFP is the exception!
a. equitable estoppel- in some instances can convey better title than he has- found in common law doctrine
1. it’s about protecting ultimate purchaser from someone who would be found to have nothing to convey
2. estoppel facilitates transactions, better for society b/c gives stability to commercial world
                        b. statutory estoppel
B. Bona Fide Purchaser
            1. true ownerà intermediary (bad guy) à purchaser (BFP)
                        a. both true owner and BFP are innocent- one must take the hit
b. rationale: owner should suffer loss rather than BFP b/c he’s in better position to prevent the loss in the first place
            2. but to be a BFP, need to be a purchaser for value in good faith
3. Porter v. Wertz- P gave painting to V to buy, V sold to F; court said F not BFP b/c V is not merchant in the business of selling that kind of good and F did not bother to see that he was; BFP must 1) buy from someone in business

Brown v. Southall Realty- LL rents apartment w/ housing code violations, tenant refuses to pay rent, contract found to be void and excuse tenant from performance under it- here violation is contradicting the very goal of the rule
§  rule: lease of premises known to violate the housing code is an illegal agreement and thus landlord cannot enforce rent
§  LL’s argument- tenant knew of violations when she moved in, lowered price for rent, freedom to contract
§  tenant’s argument- legislative intent to provide safe housing,
a. court looks at whether intent of legislature was a prohibition (contract void) or penalty (doesn’t render contract void but remedy for violation)
            -if purpose was to protect tenant’s habitability- likely prohibition
            -if something minor- likely penalty
b. do all violations render lease void?
1. hypo: apartment does not have handicap access, violating code, but Brown is able-bodied- can she be excused from paying rent?
B. Access to Rental Market
1. Jancik v. HUD- LL violated Fair Housing Act by indicating preference to rent based on one of those categories in the ad
a. different standards court could have applied, in choosing court assesses which adheres most to legislative intent
1. court uses objective standard (asks how a reasonable, ordinary prospective reader would interpret the ad- this protects tenant)
a. however, this then raises question of who is the reasonable person? Is it reasonable reader, reasonable Norwegian-American, etc.
2. there’s also subjective standard (looks at LL and asks whether he actually intended to indicate a preference- this protects bad intents/ act of LL)
3. also per se violation (if you asked any question about race it’s automatic violation- least protective of LL)
C. Tenant’s Rights to Possession
1. English rule says LL must give actual (right to move in) and legal possession (right to sue)
            -if old tenant does not move out, new tenant can sue LL
-better represents true intention of parties since new tenant is really bargaining for use of property, not right to sue to use property
-LL is in better position to get old tenant out (cheaper and more efficient for LL to do it)
-LL is more familiar w/ eviction and lawsuit procedures
2. American rule says tenant only gets right to legal possession (whereas English rule says LL promises to give actual possession)
                        -LL should not be liable for acts of old tenant
a. Adrian v. Rabinowitz- previous tenant didn’t vacate when plaintiff’s lease starts but court says parties must have intended landlord was responsible for evicting the old tenant- thus express covenant of quiet enjoyment carries with it implied covenant to deliver possession
            -for tenant to stop paying rent if LL breaches covenant of QE:
                        1. tenant must show LL was source of interference
                        2. tenant must show unreasonable breach of QE
                        3. tenant must move out