1) Chapter 1
a) First Possession: Acquisition of Property by Discovery, Capture and Creation
i) Acquisition by Discovery
(1) “the sighting or finding of hitherto unknown or uncharted territory”
(2) Occupancy theory – “I’m first, I possess it, therefore I should own it.”
(a) Closely related to “first in time, first in right”
(3) Labor theory – once a person has added value to the land through labor, their right to the land is greater
ii) Acquisition by Capture
(1) Property must be in possession
(a) i.e. hunting – first seeing, starting or pursing an animal does not constitute possession; animal must be “deprived of their natural liberty” in some way (seriously wounded, caught in net, etc)
(2) “Industry norms” also considered
(a) i.e. whaling – not practical to have “physical possession”
(3) wild animals on personal property are considered in possession of the property owner
(4) elements of “possession” that give ownership:
(a) an act = physical control PLUS
(b) state of mind = intent to control or exclude possession by others
iii) Acquisition by Creation
(1) Property in One’s Ideas and Expressions: General Principles of Intellectual Property
(a) Patents
(i) Protects a process or a product
(ii) The process or product has to be 1) novel, 2) useful, and 3) non-obvious
(iii)Patents last for 20 years from the date of the original application
(iv)Is there a way someone could copy the process or product during this 20 years without paying royalties to the patent owner? No, no exceptions.
(v) After 20 years, the process or product enters the public domain and anyone can use it.
1. i.e. generic drugs
(b) Copyrights
(i) Protects expressions of ideas but not the ideas themselves (particularly literary, musical or artistic works)
(ii) Copyright begins when the work is set down in a tangible medium and ends 70 years after the death of the creator.
(iii)Are there any exceptions that someone can use the copyrighted material in the copyright period?
1. “Fair use” exception – small snippets of the material.
(c) Trademarks
(i) Protects words or symbols that indicate the source of a product or service
(ii) Trademark protection lasts forever until it is “abandoned” or it becomes generic (loses its consumer association with that particular producer)
(iii)Courts will determine when a brand becomes generic; when there is infringement on the trademark and a case it taken to trial
(2) Property in One’s Person
2) Chapter 2
a) Subsequent Possession: Acquisition of Property by Find and Gift
i) Acquisition by Find
(1) Law of finders:
(a) Lost property
(b) Mislaid property
(c) Abandoned property
(i) Determined by the state of mind of the original owner of the property
(ii) Circumstantial evidence used to prove the state of mind of someone that is not there
(iii) Other factors
1. conduct by the finder
2. private or public locus (was the finder a trespasser?)
(2) Policy concerns:
(a) Protect the rights of true owner
(i) If property is abandoned the true owner is not considered
(b) Protect the expectations of
(i) Finders (don’t want to encourage trespassing by giving ownership of items trespassers find on other people’s land) and
(ii) Owner of the site
(c) Encourage honesty by finders
(3) True owner
(a) A prior possessor prevails over a subsequent possessor
(b) “The title of finder is good as against the whole world but [the prior finder] and the true owner…”
(4) Mislaid versus Lost property
(a) Mislaid – the true owner intended to put the property where it was found, forgot they put it there and will eventually remember they left it and will come back for it
(b) Finder has a duty to hold mislaid property until the true owner returns for it. Finder of lost property has acquired the rights to the property.
(c) Distinction between mislaid and lost property is muddy
(5) Rights to lost/abandoned property
(a) Finder does not always have property rights [except for true owner], owner of land on which the property was found may also have property rights
(b) Factors to consider
(i) Property found in private or public-accessible locus?
(ii) Status/conduct of the finder?
(iii) Was the property under, attached to, or lying on the surface (of the land)?
(6) If presented with a question regarding found property
(a) First, characterize it: mislaid, lost, or abandoned
(i) Make arguments for how the finder and the owner of the locus characterize property
(b) Then, determine ownership based on the characterization issue
(i) Analyze all possible characterizations and the corresponding rights and duties of the property owner
ii) Acquisition by Gift
(1) Elements of a gift of personal property
(a) Donative intent to make a present
(i) Not in the future; “I give you” not “I will give you”
(ii) Irrevocable transfer of a property interest
1. Not “I give you this, but if this happens I want it back…”
(iii)Not necessarily the entire piece of property
1. Could be fractural interest
(b) Irrevocable delivery of the property interest transferred to the donee
(i) i.e. a safety deposit box – donor has a set of keys and donee has a set of keys; donors says “I give you the contents of the safety deposit box”
(2) Elements for a gift of real property
(a) Donative intent
(b) Delivery can only be made by the delivery of a written deed executed in compliance with the Statue of Frauds
(i) Cannot transfer property by giving the donee the keys
(3) Donative Intent and Gifts of Future Interests
(a) Both personal and r
tatute
1. 3603(a) – general rule
2. 3603(b) – exceptions
a. Everyone is always subject to subsection C [re: discrimination in print, etc]
b. 3604 shall not apply (other than subsection C) to:
i. Any single family house sold or rented by an owner provided the individual owner does not own more than three such single-family houses at any one time; they don’t use a realtor to lease the property; they don’t use print advertising
ii. Rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence
3. 3604 – no discrimination based on race, color, religion, sex, familial status (children under the age of 18 living with you) or national origin
a. Cannot refuse to rent or sell based on above specifications
b. Cannot discriminate in terms, conditions, or privileges
c. Cannot make, print, or publish an indication of preference
i. Includes oral statements
ii. “indication of preference” based on the standard of the ordinary listener or reader
d. Cannot say a dwelling is not available if it is
e. Cannot, for profit, induce a person to sell/rent a dwelling by representations regarding the entry or prospective entry into the neighborhood
i. Example: Landlord tells the leasing agent they get a “bonus” (a side additional payment from the landlord) if the leasing agent agrees only to show the property to prospective white tenants, or actually leases the property to a white tenant.
f. Cannot discriminate in sale or rental to a handicap person*; cannot discriminate in terms, conditions, or privileges to a handicap person; discrimination includes refusing handicap person to modify the building at their expense and refusal of reasonable accommodations
i. *handicap person: a physical or mental impairment which substantially limits one or more for the handicapped person’s major life activities, a record of having such an impairment, or being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance
(ii) FHA Claims Analysis Example
