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

Property Outline
Professor: Reynolds
Fall 2012
Possession of Property
Possession is the 1) possession or intent to posses with 2) control or holding of the property
·         Right to Possess-TO has right to possess property and control property (use property)
o   Conversion-interference with another’s property and taking of control of property, converting it, and making it your own.
§  Moore V. California-doctor used patients cells w/o permission and created a cell line. P sued claiming it was his, judge cited the rule of conversion, claiming cell line was factually different.
o   TO owns everything above and below his property
§  Edwards v Sims-cave extended throughout both properties, court ruled that P had equal right to cave, even though he didn’t have access to it.
·         Right to Exclude-TO has right to exclude from property
o   Absolute ownership does bar entry deemed necessary and rights to aid cannot be contracted away
§  State v Shack-Court ruled that TO did not have right to exclude gov’t officials from supplying necessary aid to workers on land
§  “man should not use his property to injure others”
o   one cannot exclude based on race, color, religion or use the courts to uphold discrimination
§  Jones v Mayer Co.-D refused to sell house due to skin color, courts ruled 14th covered private transactions
§  Shelley v Kramer- area had white only contract, tried to use courts to enforce it. Court action is state action.
·         Right to Transfer- TO has right to transfer title
o   Those that do not have true title cannot transfer title
§  Principal of discovery-those that conquer land have superior title to land (Johnson v McIntosh)
Acquisition of Property by Find
·         Lost property is property that was unintentionally lost or unknowingly dropped
·         Mislaid property refers to items that were intentionally place and forgotten about
·         Abandoned property refers to items that were left behind with no intention of being re-claimed
·         Finder has superior rights to all but true owner (Amory v Delamirie)
·         Serves interest of TO since finders will be more likely to turn it in if they knew they could claim it later instead of just pocketing it themselves
o   Finder must acquire or show clear intent of physical control and have intent to control
§  Eads v Brazelton-X found shipwreck, marked it with intent to come back, Y came back first and took actual possession of the property, court ruled X did not take actual possession of property and not in the process of taking property.
§  One must only be in the act of acquiring though
§  Illegal acts that interfere with a person intent to control will not be tolerated or break the chain of possession
o   Possessor of property, with intent to exercise control over it by using rights to exclude has right to anything found on it.
§  Water Co. v. Sharman-A hired B to clean pool, B found item. Court ruled A was finder through constructive possession since B was there on limited access to property.
§  Owner of Property must have intent to exercise control over property
§  Hannah v Peel-court ruled that since owner had never stepped foot in house, he never had intent to exercise control over the objects found on it
§  Owner of property where item is found is said to be in constructive possession of the property
§  Helps prevent from trespass and conforms with societies values that the owner is controller of his property
o   Exception-when the object is found in a public part of the property, which sole purpose is for members of the public 
o   Objects that are immovable from the property will belong to the owner of the property, even if he is unaware of the item.
§  Goddard v Winchell-meteor fell from sky, court ruled it was natural process and awarded it to owner of property not finder
§  Immovable objects are items that came to being through natural process
§  Movable objects will be awarded to the finder
§  Fork: what is the purpose of the finder on the property? courts tend to disfavor certain reasons like trespass and will award to the owner
o   Gradual, natural additions to land will be accepted, however, sudden changes due to floods or other disasters will not
o   Mislaid property goes to owner of property
§  Mislaid property is property that was intentionally left somewhere and then forgotten about
§  McAvoy v Medina-court ruled that if property is mislaid, it serves the best interest of the TO to go to the place TO will likely go looking for it
o   Finder has superior title to all over abandon property
o   Employees are often considered agents of their employers and, therefore, acting on a limited basis when it comes to lost/abandoned property
o   However courts still tend to favor the employee in most cases
Acquisition by Adverse Possession
·         Adverse possession is 1) actual possession that is 2) open and notorious and 3) exclusive and hostile and 4) continuous for the required statutory period
o   Actual Possession-possession means the property is being used to the extent a reasonable person would belief they are the true owner
o   Visible-AP must be visible in order to serve notice to true owner that property is being claimed and give them time to serve Ejectment notices
o   Open and Notorious-similar to visible, the AP must be so open that it gives reasonable notice to the TO to defend property
§  Some courts don’t require the owner to actually know just that he should has been given reasonable reason to know if he were to decide to look into such matters.
o   Exclusive and hostile- AP must be in possession hostile—without owners consent—to the TO and not shared with any other person
§  Look out for relationship of the parties-neighbors? Could be implied permission due to nature of relationship as well as other aspects
o   Continuous-AP must adversely posses property at all times during the required period
§  AP does not need to remain on property 24/7 but rather, possession must be what a reasonable person would belief possession to be.
·         Howard v Kunto-court ruled that to require a person to stay in a summer house all year would take away from the meaning of the property and that occupying the land during the summer for the required length was good enough.
§  AP’s may “tack” as long as there is Privity-AP voluntarily transferred estate to new AP
·         An AP’er cannot oust an AP and claim tacking rights there must have been a voluntary transfer between the two parties in order for their to be a tacking right
o   AP must be aware of possession in order to qualify for AP
§  Can’t not satisfy the hostile requirement if both are unaware of the AP
§  Fork: some courts apply the objective test and therefore the AP would not have to actually know about the possession in order to qualify for AP as long as all of other aspects of AP are there
o   Color of title-possession of property under a written claim that was in defect, possessor does not need to be in adverse possession to claim property
o   Look out for ability of TO to bring a lawsuit to oust the AP
§  Minors, unsound mind, and imprisonment are usually exceptions to AP
Acquisition by Gift
·         A Gift must have 1) clear present intent to be a gift 2) delivery of the gift and 3) acceptance of gift
o   The gift must have present intent
o   Legitimate excuses delaying the delivery do not void the gift
§  In Re Cohn-Husband gave stocks to his wife on birthday but died before he could transfer them over. Court ruled that as long as intent was clear and legit reasons not to delay, gift was valid
o   Acceptance is assumed if gift is of value to person
o   One may retain life estate even if they give property as gift and Symbolic Delivery is sufficient form of delivery
§  Gruen v Gruen-dad gave son painting, but held onto it until he died. Court ruled that actual delivery is not necessary, as long as there is symbolic delivery such as delivery of title
o   A gift cannot be revoked
o   Delivery can occur through a third person, even if final party never receives gif

gal possession is required
·         Reasons in favor of LL: consistent with the American belief that people cannot be held accountable for the actions of third parties, consistent with the treatment of trespassers after the T has moved in, provide a disincentive
§  Legal-right to rent out
§  Actual-tenant must have ability to take control of the property
§  Exception-only on first day of lease, after that, Tenant has duty to protect from trespassers
§  Express clause could void giving actual possession
·         During Tenancy
o   Tenant has duty to pay rent, first and foremost
§  Tenant may withhold rent if dependant covenants are breached depending on the jurisdiction for which covenants are dependant
o   Covenant of Quiet Enjoyment states that a LL cannot interfere with tenants lawful possession of property
§  Covenant is implied in all leases unless there is an express clause against it
§  Either actual or constructive eviction can breach this covenant
·         Actual-if T is actually removed or prevented from entering premises
o   T has no more legal duty after this
·         Constructive-when actions of the LL render the property unfit
o   CE must be 1)intentional acts of the LL that breach a duty owed to the T and 2) directly cause interference with the T’s right to enjoyment, forcing the T to 3) vacate the premise within a 4) reasonable time
§  Intentional acts of LL means: LL did himself, Successors/ Agents of LL or superior title holders to the LL
§  Objectionable (criminal) conduct happening in the premise may suffice
·         LL must have ability to fix problems in order to claim CE and been given time to fix it and failed to do so
·         one does not need to be evicted to breach QE, it’s just easier to show
o   Warranty of Habitability states that a LL must maintain the property in a condition that safe, decent, and livable premises MODERN LAW APPROACH
§  Cannot be agreed out of
§  LL must have 1) notice of condition 2) defect must be substantial and 3) LL must be given a reasonable amount of time to fix it and not done so
·         FORK: some jurisdictions only require it if it is a violation of the cod or if it makes the place unfit for human occupancy
§  T may withhold rent until fixed, sue to collect damages, fix himself and deduct from rent, or breach lease
§  Common law-old common law required T to deliver property back to LL exactly how it was given, with duty to repair placed solely on the T
·         Mostly overruled, even if provisions in lease state T duty to repair, since LL has superior bargaining power, more likely to financial resources to deal with repairs, etc
o   Tenant has duty not to commit waste whether intentional or neglectful
§  Tenant will be responsible for those repairs and cannot claim any violation of implied covenants
o   Duty of Continuous Operation states that a tenant may not vacate the premise for more than 30 days at a time
§  Not an implied covenant, must be stated in the lease with vagueness being construed against the drafter
·         Piggly Wiggly v Heard-company stopped occupying building but continued to pay rent, was sued for CO. court ruled lease was too vague and would be construed against the drafters.