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Property I
University of Oklahoma College of Law
Palomar, Joyce

Palomar Property I: Spring 2014

I. Possessing & Owning Property

Property: legal relations b/w persons w/ respect to objects so as to maintain social order, secure assistance from the law to carry out their wishes (share, not to share, etc)

· *Possession is 9/10 of the law

1. Rights & Duties of Possessors

· Possession gives right against all BUT the True Owner

o Policy: keep the peace w/ simple rule like this.

§ Otherwise, true owner would constantly have to defend ownership rights against 3rd parties

A. Relativity of Rights:

· (1) certain control

o (a) possession is sufficient to sustain action for conversion against any1, BUT true owner

§ conversion = intentional exercise of dominion or control over another’s chattel that is inconsistent w/ their right to it.

o (b) one in significant pursuit qualifies as having a pre-possessory interest that is protected against 3rd parties

§ ex: Barry bonds bro’s pre-possessory interest interfered w/ by 3rd party mob.

§ h/e, wild animals require “certain control”

· (2) True owner has “constructive possession” of everything on property (even stuff you don’t know about)

o policy: keeping the peace; avoid encouraging trespassing (ex. some1 w/ lots of land)

· (3) No Intellectual Property rights at CL

o Possession doesn’t give property rights in “idea” (except under Federal Patent & Copyright laws)

§ Policy: prevent monopolies; competition encourages economic growth

B. Finders of Property

Finders Keepers, UNLESS you’re trespassing

· Finders of Property subject to these Exceptions:

o (1) Abandoned Property: thrown away; voluntary forsaken by the owner; lost w/o hope of finding it again

§ Finder: Can keep, subject to superior claim of owner

ú Owner not likely to return, so just encourage reporting finds and getting use of stuff if no one claims.

o (2) Lost Property: owner has involuntarily lost; owner does not know it’s lost; and cannot ascertain where it is.

§ *Not lost UNLESS involuntarily lost & don’t know how to find it.*

ú Finder: can keep subject to superior claim of rightful owner.

· Not affected by location of discovery.

ú Owner unlikely to return (doesn’t know where it is)

· But, finder just reports find & keeps if no one claims

· SOL for each state dictates for how long

o (3) Mislaid Property: intentionally put into certain place & later forgotten

§ Location of discovery indicates whether lost or mislaid

ú Need to exhibit it was left unintentionally

§ Finder: NO OWNERSHIP RIGHTS; must turn it over to owner of premises where found

ú That owner has right of possession subject to rightful owner (bailee)

ú Owner has a duty to seek out true owner/keep safe

§ True Owner likely to return (knows where he put it)

ú Also, why owner has duty to keep it safe

o (4) Treasure Trove: gold; silver; found concealed hidden/buried/in house/private place

§ must be concealed, not just lying around

§ Finder: right to possession subject to rightful owner’s claim.

§ Ex: Terry- found box filled will 40k in ceiling of motel.

ú Mislaid: considerable value, manner of concealment indicate person left for purposes of security, w/ intention to reclaim.

· Causes of Action to be concerned w/:

o Replevin: True owner asks for property itself back.

§ If can’t return; or don’t want thing itself back:

o Trover & Conversion: sue for monetary value of item

· For all 3, need to look to state statutes to determine the SOL period one must wait before title transfers to finder

o Once SOL has run—TO has lost their remedy

II. Adverse Possession

Comes up in 3 types of la

of statute

§ Can’t “tack” on multiple disabilities

§ Toiled until disability is gone

o Ex: O = 2 yrs old in 1990 when A began AP

§ Wouldn’t run until O = 18.

III. Estates in Land

CL Estates: an estate is an interest in land that gives on the right to possess either in the present, future, or potentially in the future.

· Two General Categories: Present & Future

Presumptions: Rules of Construction

· (1) Presumption of fee simple subject to condition subsequent over fee simple determinable if ambiguous language and unsure which it is.

o Ct’s prefer b/c right of entry must be made first.

· (2) Presumption of Fee Simple Absolute over lesser estates.

· (3) Presumption to avoid forfeiture. If language does not show intent of forfeiture, will not find one.

· (4) You get no more than your grantor had-if had defeasible fee, get defeasible fee.

· (5) Prefer VESTED remainders over contingent, so if can construe condition is met, WILL, so it will be vested sooner.

A. Present Estates

Legal right to presently possess land

When ambiguities exist; look to future interests & apply Rules of Construction

· (1) Fee Simple Absolute: presumption of such if language is ambiguous

o (a) Duration: unlimited

o (b) Future estate: none (owner may create one)

o (c) Language: “O grants to A and his heirs”

§ A is getting estate and will descend to heirs upon death

§ *Modern day: “To A” (w/o limiting language assume fee absolute)*