Property Outline- Spring 2012 Osofsky
· Ownership in the US of real property described in terms of a bundle of rights
possess it, exclude others from possessing it, and the power to transfer it (title to transfer -sell) – all three (owning the whole bundle) it is called fee, fee simple, or fee simple absolute
III. Family Ties
A. Wills and Inheritance
a. Property is transferred by will or if w/out a will by the terms of state law: INTESTACY STATUTE
b. INTESTACY STATUE- allows individuals to determine who owns property by writing a will, it limits ability to completely disinherit a spouse/ heirs
c. laws in every state grant surviving spouse some portion of the property
d. Wills prove mechanism to transfer property upon death, but are constrained by state (statutory forced share statutes, community property, etc)
B. Marriage
i. Separate: (Majority)
1. Spouses own property separately, except to extent they choose to share it
2. Each spouse owns whatever property possessed before marriage and is individually liable for prior debts
3. Spouses have a legal duty to support each other, and this duty may require a sharing of property earned during the marriage
ii. Separate Divorce
1. Statutes that provide for EQUITABLE DISTRIBUTION (fair) of property subject to factors: economic, contribution of parties
2. Current policy- aims at financial independence for the parties
iii. Community: (Minority-9 states)
1. Property (including earnings) acquired during marriage owned equally by h/w unless they signed a premarital agreement to the contrary
2. Property prior to marriage is separate property
iv. Community Divorce
1. Adopt EQUITABLE DISTRIBTUTION
2. May agree to treat community prop as separate prop and vice versa
v. Separate better protects autonomy and community property better protects equity, but in practice, property division outcomes are fairly similar b/c of the way equitable principles are used
vi. Case: In Re Marriage of King – allows for unequal division of martial property
1. Heavy focus on interest of the children in being able to stay in the home and profession of husband (Non 50-50 split was OK)
vii. Case: O’Brien v. O’Brien- treats medical license as martial property
1. The support while getting license makes it a joint undertaking
2. NOTE: all most all states reject this. Value of a degree is NOT divisible on divorce.
viii. Case: Watts v. Watts-
1. Unmarried couple lived together 13 yrs 2 cts
2. P overcame public policy exceptions to contract law protection and as making as case for unjust enrichment or partition- gave up job, contributions and his work
3. Some states would have considered this a common law marriage
II. Possession
a. Possession: physical control over an item AND intent to control or exclude others form it
b. Actual possession (physical occupation or control over property) of a contested resource often creates a presumption of a right to possess that may be rebutted only by evidence of a superior claim.
c. Wild Animals: Case Pierson v. Post
i. Post was chasing fox, Pierson knew fox was being hunted, caught and killed fox
ii. Rule: in order to obtain title to wild animal person must take possession of it
iii. Pursuit alone vests no property right
iv. Why does the ct grant property interest in fox to Pierson?
1. Pierson captured the fox first (BUT didn’t put in as much work as Post in capture)
2. Post engaged in the labor that society should encourage
3. PP-fairness but also societal good, law values certainty (actual possession)
d. Baseball: Popov v. Hayashi
i. Popov caught ball in glove, not clear if secure, b/c of crowd lost ball, H picked up ball kept it
ii. Popov sued for conversionà wrongful possession of personal property rightfully owned or possessed by another
iii. Rule: pre-possessory interestà when actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property
1. Would have to assume he would or wouldn’t have caught ball and the other guy was innocent therefore both men have equal and undivided interest
e. Oil and Gas: Elliff v. Texodon Drill Co.
i. P owned surface and certain royalty interests in well, drilling occurred, well blew out, caught fire, two water wells on P’s also blew out; negligently destroying others chance to use it so they have to reimburse despite law of capture
ii. Rule: LAW OF CAPTUREà minerals belong exclusively to the one that produces them so owner gets title to oil/gas which he produces form wells on his land even if migrated from adjoining lands
iii. Ct simultaneously maintains that owns can drain as much oil and gas as they want form a common pool but have a duty to refrain from negligent waste:
1. No liability for REASONABLE and LEGITIMATE drainage from the common pool b/c neighbor has the same right through drainage not in conflict w/ ABSOLUTE ownershipà an exclusive title to the land; excludes others not compatible; but limited to legitimate operations to obtain ownership
f. Ground Water
i. Minority: free to withdraw as much so long as not wasting it.
ii. American reasonable use rule: may withdraw water only if its put to reasonable use on overlying tracts
1. Some states do NOT impose the on-tract limitation
g. Surface water:
i. Riparian Doctrine: allocates water rights to owners of land bordering on a surface water source. Rights are subject to the reasonable use rule. (states along Miss. Riv & East)
ii. Prior Appropriation: allocates water based on parties putting water to beneficial use (irrigation, industrial uses, drinking water and instream flows). Allocates according to temporal priority. (West states) note: some have a mixed system
Actual owner beats >wrongful possessor> beats other intruders
A. Personal Property and Stolen Goods
a. Lost, Mislaid, Abandoned Property
i. Focus on intentionality
ii. Lost-owner accidentally misplaced it
1. Finder does NOT acquire title against true owner but generally has the right to prevail over everyone else
iii. Mislaid- Owner INTENTIONALLY left it somewhere and forgets
iv. True owner- right to recover lost property from finder unless there is abandonment (owner forms an INTENT to relinquish all rights in the property)
v. Finder entitled to keep property if challenged by a third party but must turn it over if challenged by true owner
vi. Actual owner beats
ng property owned by someone else and must intend to oust the true owner
ii. If thinks true owner then does not apply
2) Good faith
i. Only possessors who innocently mistakenly occupy property owned by another may acquire ownership through AP
4. Talk about all 3 and say depending on what is recognized by the jurisdiction
f. 6) STATUTORY PERIOD
i. Time period varies in different states
ii. Tolling- many statues will TOLL the statute of limitation if the true owner is under a disability (infancy, insanity, incompetence) either providing that the statute begins running only after the disability ends
· When met-transferring all property rights in the land from the prior owner to the adverse possessor
e. What are the policy considerations weighing in favor of and against adverse possession?
i. Favor: continuity, efficiency, maximal use of the land, reliance
ii. Against: encourages people to obtain property by asserting rights on other people’s property
· Adverse possession claims cannot prevail against government property
· Standard or Review for showing AP:
o Majority- clear and convincing evidence
o Minority- preponderance of the evidence
Typical Cases:
B. Border Disputes: Brown v. Gobble
i. Chooses higher standard of review (clear and convincing) in order to protect the property rights of titled owners
b. Tacking:
i. Gobbles don’t have enough years to meet statutory limitation w/out tacking
ii. Maybe don’t need to tack. Appears that there was enough to establish AP by previous owners and that title was properly passed to Gobbles. (privity)
c. Most disputes are border disputesà fence, driveway shrubbery a short distance over line occupying neighbor’s property
C. Color of Title: Romero v. Garcia
a. P purchased 13 acres, D claims void deed, action to quiet titleà is a lawsuit filed to establish ownership of real property
b. Procedurally defective in the way the title is passed and if that happened long enough ago the adverse possession doctrine helps complete the title
c. COLOR OF TITLE- individual acquires color of title when a written conveyance appears to pass title but does not do so, either from want of title in the person making it, or the defective mode of conveyance à adverse possession used to complete the title
i. Ex: lack signature, contain mistaken descriptions of land, faulty procedure
ii. When it exists-ct may use description in title as conclusive evidence of the land area that is adversely possessed
iii. Functions as fences to help determine boundaries of land
iv. Shorter statute of limitations when it exists
