Select Page

Property I
University of Kansas School of Law
DeLaTorre, Phillip E.

Property I – DLT
Fall 2007

Property is a bundle of rights. Among these rights:
Right to Exclude
Right to Transfer
Right to Use and Possess

Real property: land and anything attached to the land (buildings, trees, fences)
Personal property: chattels: tangible personal property (jewelry, livestock, cars)
intangible personal property: (stocks, patents, debts, contract rights)

Escheat: when no heirs and no will, property escheats to the state

mesne profits: reasonable rental profits

I. Is the property a wild animal?
A. General rule: No one owns wild animals in their natural habitats.
1. Capture Rule: First person to kill or capture a wild animal gains title to it.
a. Physical possession required.
b. If it later escapes, owner loses title.
i. EXCEPT: If a wild animal has been tamed so that it returns to its captor (honeybees), it is still owned.
ii. EXCEPT: Commercialization defeats wild element.
2. Landowner Rule: English law says landowner has constructive possession of all wild animals on his land. American courts reject this view.
II. Is this found property?
A. Factors to consider:
1. What was the intent of the original owner?
2. Who are the competing claimants?
a. Majority rule: Trespassers as finders yield to landowners.
3. Where was the item found?
B. Possession requires
1. actual taking
a. the more difficult the “taking,” the more lax the standard
b. generally will require best reasonable efforts at taking
2. with intent to reduce to possession
3. possession of a container is not necessarily possession of contents
a. EXCEPT where contents reasonably obvious based on contents: wallet, for example
C. Rights of finder
1. General rule: The finder has rights against all but the true owner.
2. Earlier finders have superior title to later finders.
3. Thieves’ right superior to uninvolved third parties’.
4. You can always choose NOT to become a finder.
D. Rights of landowner
1. General rule: any immoveable thing belongs to landowner.
2. General rule: anything embedded belongs to landowner.
3. General rule: landowner may have constructive possession of everything on his property.
a. BUT must have established possession first.
E. As a finder, duties:
1. Must make reasonable efforts to locate owner
2. Must make reasonable efforts to maintain item (both condition and possession)
III. Abandoned
A. Owner intentionally and voluntarily relinquishes all right, title, and interest in it.
B. Finder has right superior to owner.
IV. Lost
A. Owner unintentionally and involuntarily parts with it through neglect and does not know where it is.
B. Finder has rights against all but the true owner.
1. EXCEPT if found within a house or embedded in the soil belong to the landowner.
a. BUT a long-term tenant may be able to prevail over landowner.
b. BUT if a valuable object in a public place, goes to the finder.
i. Safe deposit rooms in banks are private.
ii. VIP lounge is public.
V. Mislaid
A. Owner voluntarily puts it in a particular place, intending to reclaim ownership, but fails to reclaim it or forgets where it is.
B. Mislaid property generally reverts to the landowner.
C. Shopkeeper under duty to use reasonable care for safekeeping until true owner returns to reclaim it.
VI. Treasure trove
A. Gold, silver, currency, or like, intentionally concealed long ago by an unknown owner.
1. Traditional: goes to finder.
2. Modern: goes to landowner. (?)
VII. Subsurface rights

I. A bailment is the rightful possession of a chattel by som

position of the goods have been such as to be larcenous under the criminal law.
V. BFP caselaw:
A. O gives possession
B. indicia of title

I. Against real property
A. Actual possession: use the land in the same manner a reasonable owner would given its nature, character, and location
B. Exclusive possession
C. Open and notorious possession: so visible and obvious that a reasonable owner who inspects the land will receive notice of an adverse title claim
D. Adverse or hostile possession:
1. most states: any use without permission
2. some states: must have good faith belief of ownership
3. Joiner v. Janssen:
1. subjective: hostility = internal motives, including conquest (AP impossible by mistake)
2. objective behavior: hostility = what are your activities?
a. this test favored by most states
E. Continuous possession
1. Tacking allowed, if privity
F. Statutory period
1. Period may be tolled if true owner is unable to protect his rights due to disability such as infancy, mental illness, or sometimes imprisonment
G. In some states, must pay taxes.
H. May not AP against federal gov’t and some state gov’ts
I. Some states allow shorter period if color of title.
II. DLT’s simplification:
A. Act like an owner
B. in a way that provides reasonable notice to true owner
III. Constructive possession: possessing more than you physically possess
A. Nature of land dictates: