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Property I
University of Iowa School of Law
Kurtz, Sheldon F.

Kurtz Property
Fall 2016

Kurtz Property Wisdom to Live By
Ownership is difficult to prove so prior possession is the next best way to show it
Possession is 9/10 of the law
Finders should be rewarded
Always respect the law (on exam answers)
Never sue a party who can’t pay the judgment
Heirs don’t get anything unless the grantor is dead

Acquisition of Property Rights (Ch 1)
What is Property?

Personal vs. Real Property
Real property is immovable

Real: land and all of its improvements and fixtures (everything above and below it too)
Tangible Personal: everything personally owned and tangible
Intangible Personal: claims, debts, stocks, mortgage, cash, credit

Note on the Economic Theory of Property via Posner: Economic Analysis
Without property rights, no incentive to produce goods because no assurance of reward for a transaction
Market efficiency requires a mechanism to transfer land or other goods
Conclusion: Property rights are economically efficient

Acquisition of Property by Capture

If a thing is capable of ownership, but is not currently owned, it belongs to the person who has the intent of ownership and acquires 'dominion and control' over it

Wild Animal: (1) Pursuing the wild animal does not give you a vested interest in possessing it.
(2) However, if you mortally wound it so that possession is basically a given, it is then said that you have a vested interest in possession.  If you are only pursuing, someone can legally swoop in and take it from you.
(3) if it escapes back to natural habitat, lost possession
If you are trespassing, ownership goes to the land owner

Abandoned: Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the failure to continue the effort is interrupted by the unlawful acts of others, the actor has a pre-possessory interest in the property. This pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion – Popov v. Hiyashi
Pre-possessory interest: intent to take coupled with an act of significant undertaking

Acquisition of Property by Creation

Bodies: no property right in an individual’s body or remains of another

Human Embryos: In storage, can be property or human life. Courts tend to see it as quasi-prop.

Acquisition of Property by Find


Nuggets of Truth
O sues F = O wins
F sues T = F wins
T’s attorney should implead to bring in O to make it F v. T & O, so F loses to O
Thief 1 sues Thief 2 = Thief 1 wins due to prior possession

Why? Assumptions Made
Owner has best claim to title out of anyone ever
Finder has next best claim to title but for the Owner
Possession is the most efficient way to show ownership
Thief 1 had prior possession and would lose against F if he stole it from F

Rules on Finding Property
Personal property found on the land of another goes to the finder
Assuming its LOST and you are not trespassing
Mislaid property goes to the owner of the locus in quo
Even if the finder isn’t trespassing

Lost Property: unintentionally and involuntarily parted
Mislaid Property: voluntarily put in a certain place by owner who overlooks or forgets it and we
have to assume that they intentionally put it there
Kurtz: Courts came up with ‘mislaid’ property so that finders would lose

Ownership for Finders
Owner of the locus in quo gets all items associated with their property whether they know about it or not
Finder has title but for the true owner
Awarding mislaid property to owner of LiQ is based on the principle that the original owner knows where it is and will come back for it so it best protects the rights of the true

perty by Gift

Gift: A transfer during life of property of one person to another (not in consideration like in a contract) as a gratuity

Transfer (Intent): must be a present, irrevocable transfer of ownership
Future Interest: right to possess is postponed for the future
Delivery: What constitutes delivery depends on the circumstances
If donor->3rd party->donee, the 3rd party has to be donor’s trustee, not donee’s agent
It has to be appropriate for what is being gifted
Ie: If its husband to wife and the piano is in the house, you don't have to move it out and move it back in
Constructive Delivery = in lieu of subject matter, give something that gives access to gift like keys to a car
Symbolic Delivery = given tangible thing but is a symbol of the subject matter of gift like letters, email, text
Acceptance: this is presumed if gift will benefit donee but it is rebuttable

not needed unless the gift is promised for the future

Inter Vivos Gift Rules – Must all be true for valid gift – Gruen v. Gruen
Transferor (donor) must intend to transfer the subject matter of the gift to the recipient (donee)
The subject matter of the gift must be delivered to the donee
The donee must accept the gift
Acceptance is presumed but it is a rebuttable presumption
**it’s up to the donee to prove these elements**
Issue: can you get a gift if the owner reserved a life estate on it and recipient never had possession
of the chattel? Yes. Constructive transfer = the letters