PROPERTY
HALL
FALL 2013
§1 Acquisition and Types of Property
· Landowner acquires all things under or affixed to soil.
· Finder holds title to property (after true owner).
·
· Acquisition of property by:
o First possession (occupancy, capture).
· First in time, first in rights.
· Lost vs. Mislaid:
· Lost: Original owner unintentionally left property in location now unknown to original owner.
· Mislaid: Original owner intentionally left property with intent to retain ownership but failed or forgot to reclaim.
· Abandoned: Original owner leaves it.
· Original Owner Wins:
o Unless property abandoned.
§ Finder owns abandoned property.
o Landowner wins over finder….generally.
o Finder wins over third party.
· Gift: Voluntary immediate transfer of property, without compensation, from donor to recipient.
o Not a sale or devise.
· Elements of a Gift (GDA):
· Intent:
o Why? Intent to transfer ownership.
o Otherwise mere possession prevails.
o Immediate transfer.
o Not a future transfer.
· Delivery:
o Why?
§ To demonstrate a transfer of ownership.
§ Words alone insufficient to ensure intent.
§ A safeguard.
o Manual: Actual physical delivery.
o Constructive: The reasonably exclusive means of obtaining.
o Symbolic: Documentation.
o Is Actual Physical Delivery Required?
o NO!!
§ Impossibility
· Size, tangibility, or location.
§ Generally relaxation of delivery requirement.
· When?
o If intent is unquestionably established.
· Acceptance:
o Usually Presumed.
· Gift Causa Mortis:
o In order to have:
§ First – normal elements of gift.
· Next – is reasonable anticipation of donor’s imminent death, NEED TO SHOW INTENT.
· Rules of Adverse possession:
o The possession must be actual.
o The possession must be visible.
o The possession must be open and notorious.
o The possession must be exclusive.
· Six elements of adverse possession:
o Actual Possession
o Open and notorious
o Hostile (without permission)
o Exclusive
o Continuous
o For required period of time (statutory period – varies by jurisdiction).
· Common Law BFP (Bonafide Purchaser):
o Original owner gave possession to seller and clothed seller indicia of ownership
· More than mere possession.
· Evidence of ownership.
· Example: Documentation only owner would have.
o Purchaser buys from seller believing, in good faith, that the seller holds title
· Actual knowledge.
· Anything purchaser should have known.
o Including reasonable suspicions.
· Purchaser prevails (if both are true).
· If voidable title exists, do not use.
· UCC Entrustment Rule
o Original owner entrusts property to a merchant who deals in good of that kind.
o Purchaser buys from merchant in good faith.
§ Believes merchant owns property.
§ In normal course of business.
§ If voidable title exists, don’t use.
· UCC Voidable Title Rule (small window/act quickly):
o Use: For transaction in property owned through title.
§ Vehicles, land, housed.
o Seller obtains/possesses a voidable title.
· A title obtained though fraud that the original owner could void, but has not yet.
o Purchaser buys from that seller in good faith.
· Purchaser prevails if these two.
· Discovery Doctrine:
o Statutory period for personal property does not begin to run while original owner conducts reasonably diligent search.
§ Favorable to original owner.
· But imposes duty of investigation.
· Demand & Refusal Rule:
o Statutory for personal property begins to run when possessor receives & refuses the original owner’s reasonably prompt demand (following discovery of location of property) for the return of the property.
§ Very favorable to true owner.
· Ownership of an Idea:
o Original/novel/unique vs. common/obvious
o Commercial/concrete embodiment.
§ Product
§ Process
· Droit Moral = Property rights to art:
o Right to create.
o Right to prevent alteration.
o Right to publish & withdraw from publication.
o Right to creative credit.
§ 2 Landlord—Tenant
· Factors to determine lease vs. license
o Specificity of area
o Extent of control
o Language of the agreement
· Illegal Lease Doctrine (Used defensively and usually nor for commercial leases):
o Lease void if:
§ Significant illegal condition present (violation of housing code or other laws)
§ Evident before lease
o Exception:
§ Readily remediable problems & obligation to correct on lease.
· Covenant of Quiet Enjoyment
o Implied promise by land
ase
o Wrongful partial eviction:
§ Traditional rule
· TT obligation to pay rent ceases
§ Trend
· Rent abatement
· Self-Help Eviction
o LL enters property and removes or bars TT
§ Changes locks, removes possessions
o Trend
§ Prohibit self-help
· Judicial Eviction:
o Ejectment Action:
§ Lawsuit for possession
§ Traditional civil suit/all defenses available
o Summary Process:
§ Expedited litigation
§ Begins with notice to TT
§ TT has opportunity to cure
§ TT sometimes has limited opportunity to raise defenses.
· Constructive Eviction:
o Definition: Wrongful conduct by the LL that substantially interferes with the TT’s use and enjoyment of the property.
o Traditional Remedy:
§ TT to claim non-payment of rent
§ LL conduct must render property uninhabitable
o Modern Remedy:
§ Flexible about whether/when TT must vacate
§ More remedies allowed
· Vacate, terminate, cease paying rent, seek damages for cover, continue lease and seek damages.
o Notice:
§ TT must inform LL of problem and allow reasonable time for LL to cure
o Omissions:
§ When does LL’s failure to act rise to level of constructive eviction?
· Usually only if LL under a duty to act
o Statutory or contractual duty to repair
o Conduct of third Party:
§ When is LL responsible for problem created by another?
· Usually only if LL responsible/under duty to control third party
o Retaliatory Eviction:
§ LL may not in reaction to decision of TT to exercise rights:
· Increase rent
· Refuse to renew lease
· Give notice of termination
· Initiate eviction
§ Proof?
· Actual/direct proof of retaliatory
Implied Warranty of Habitability (offensively by TT):
§ Definition: LL must deliver & maintain premises in habitable condition.
o Standard for Habitability:
§ Housing Code:
