Property I Outline

Property Law

Alfred Brophy

Fall 2012

PROPERTY OUTLINE

Acquisitions of Property

Some Basic Concepts

· The most fundamental rule of for determining ownership is that the first person to take possession of a thing owns it. (Rule of Capture)

· A corollary of this rule is that a prior possessor prevails over a subsequent possessor.

a. Constructive Possession occurs when the a person does not have actual possession, but has the power to control the asset. i.e. having the keys to a safe deposit box gives the possessor constructive possession over the safe deposit box.

b. Adverse Possession is a doctrine providing that possession will ripen into ownership if held long enough under certain conditions. The important issue of adverse possession relate to whether a possessor claiming ownership under this doctrine has satisfied all the requirements for adverse possession, . Different states have different requires for establishing adverse possession.

Johnson v. M’Intosh, US Supreme Ct. (1823)——————–>> RULE OF CAPTURE

Action for ejectment (lawsuit brought to remove a party from occupying real property) in State of Illinois. Plaintiff claimed purchase and conveyance from two Indian tribes made in 1773 & 1775, while the defendant claimed purchase and conveyance from federal government.

The Supreme Court ruled that the U.S. possessed the absolute title to American lands, and that Native Americans were merely occupants, who were incapable of transferring title of those lands. Consequently, title to lands by the plaintiffs obtained through purchase from Indians cannot be sustained, because title rest with federal government, which conveyed land to defendants.

· Marshall said that original title to U.S. lands rested with European nations who made acquisition by discovery. “Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.” Federal government acquired its title after the treaty that concluded American Revolution and the Great Britain relinquished its claim. Both U.S. and GB maintained title through conquest.

a. Discovery: the sighting or finding of unknown or uncharted territory, accompanied by a landing and a symbolic taking of possession.

i. Discovery was used because it was the precedent of the time. It was a consideration of utility merging with a consideration of time.

b. Conquest: the taking of possession of an enemy territory through force, followed by formal annexation of territory by the conqueror.

c. Property confers and rest upon power.

Village of Euclid v. Ambler Realty Co., US Supreme Ct. (1926)——————–>> ZONING

Village of Euclid was located in Ohio, and adopted an ordinance est. a comprehensive zoning plan for the regulation and restriction of trades, industries, apartment houses, etc. Zoning was divided into classes of use, building height, and area. Ambler owned tract of land within Village, and claimed ordinance was 14th Amendment violation depriving it of liberty and property w/o substantive due process and denies equal protection of law.

Court ruled that the ordinance could not be deemed unconstitutional, because it is within a states “policing powers” to authorize the regulation of property use by zoning laws and the power of local governments to enact such laws. The ordinance was also deemed valid in general scope.

o Ambler alleged a regulatory taking because they believed that the property use was being severely restricted by specified uses in zoning regulation. A regulatory taking refers to a situation where the government regulates a property to such a degree that the regulation effectively amounts to the government’s eminent domain power w/o actually divesting the property owner of title to the property.

o Zoning in a sense can be called a nuisance law in that declares in advance what uses are harmful and prohibited in various zones. Nuisances laws have the intent to regulate, which may also have the adverse effect of preventing things that may not be nuisances.

o Police Power: the legislative power a state has to regulate human affairs so as to promote health, safety, welfare, and morals.

Shelley v. Kraemer, US Supreme Ct. (1948)——————->>LIMITATIONS ON RESTRICTIVE COVENANTS

Property owners in St Louis neighborhood est. restrictive covenant barring occupancy as owners or tenants of Blacks and other racial minorities. One of the owners sells property to black family, which the defendant claims was a violation of the restrictive covenant. Shelley claimed violation of equal protection of the law under Constitution.

Court held that the judicial enforcement of the restrictive agreements of the covenant represented a state action to uphold racially discriminatory practice, and was therefore unconstitutional. Fourteenth Amendment protects the right to acquire, enjoy, own, and dispose of property.

o Covenants: a promise in written contract or deed for real property. A restrictive covenant is an agreement included in a deed to real property that the buyer (grantee) will be limited as to the future use of the property.

o Covenants often represent overlapping property interest.

o Federal Fair Housing Act, enacted as Title VIII of Civil Rights Act of 1968, 42 U.S.C.A. §§3601-3631, makes it unlawful to refuse to sell or rent or otherwise make unavailable a dwelling to any person because of race, color, religion, sex, national origin, familial status, or handicap.

Jacque v. Steenburg Homes Inc., Wisconsin Supreme Ct. (1997)——————>> RIGHT TO EXCLUDE

Steenburg Homes had to deliver mobile home, and the easiest route was across the land of Jacque. The only other route was inaccessible, and Jacque refused to grant Steenburg Homes permission to use land. Steenburg ignored decision and made a path for mobile home unit. Jacque asserts violation of property right and right to exclude alleging intentional trespass.

Court ruled that the US Supreme Ct. has recognized that the private landowner’s right to exclude others from his/her land is one of the most essential sticks in the bundle of rights that are commonly characterized as property. The right to exclude is the most fundamental right of property. Court also said that it is every person’s right to the exclusive enjoyment of his own property for any purpose which does not invade on the rights of another.

o The moral standards of property ownership are only as good as the courts ability to maintain the integrity of property rights. The right to exclude others is a facet of an owner’s right to exclusive possession. (has limitations, e.g. civil rights, mistaken improver, worker’s right to organize)

State v. Shack, New Jersey Supreme Ct. (1971)—————–>>LIMITATIONS ON RIGHT TO EXCLUDE

Defendants entered upon the private proper