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Property I
University of Oklahoma College of Law
Palomar, Joyce

Spring 2011
@ CL: not a property right unless it is an actual thing
è Thief v. Taker
o   Policy: keep social order w/a simple rule
o   Law: possession gives a property right against all but the true owner
è Trespasser v. Taker
o   Same as above
è Long Pursuit v. Interceptor
o   Policy: encourage competition to furnish the marketplace
o   Law: possession to give property right requires certain control
§  Must retain its liberty + possession
è Abandoned Property: voluntary/intentional
o   Policy: finders because no one is coming back to find it
è Lost Property: unintentional/inadvertent
o   Policy: chance someone will come back for it
è Regular: bailee acts as the insurer of bailed property
o   Only some JDs
è Gratuitous: not being paid to watch over goods
o   Duty: no gross negligence
è Mutual: bailment for mutual benefit (i.e. borrowing)
o   Duty: presumption of negligence
è Misdelivered Goods
o   Constitutes conversion, even w/out negligence
Prior Possession: property right sufficient enough to keep someone from taking it
è Protects taker/thief from all but the rightful owner
è Ex: O > F1 > F2 [O=owner, F=Finder]  
McGlynn v. Parking Authority
è McGlynn (∏) left convertible in Δ’s parking garage. Someone slashes top and takes cassettes and cassette player. ∏ sues Δ for theft of the property
è License: lease of space. No presumption of negligence for ∏, thus ∏ has to prove the operators negligence. BOP=∏
è Bailment: Kx to use space. proof of damge to bailed goods creates a presumption of negligence against Δ. BOP=Δ
è Standard of Care
o   Now based heavily on f/s w/in reason
o   Duty would vary between parking garages, but the exercise of reasonable care will depend on the totality of the circumstances
o   Policy: effect of the imposition of the risks and burdens of an activity are considerations here
è Limitation of Liability Clause: was on the ticket, but bailment is thought of as a Kx. Parking authority attys did not properly plead this.
è Held: new standard of care established through the totality of circumstances.
Statute of Limitations in Property
è Lose remedy
è Gives title/property right to finder/adverse possessor
Adverse Possession
è Adverse Possessor: person who stayed in possession during the time during which the rightful owner was allowed to bring a claim.
o   Possessor must act as if he owned the land.
è Elements (1st 4 CL/Statutory—5th isn’t)
o   Actual Entry + Exclusive Possession
o   Open + Notorious Possession
o   All elements continuously met for Statutory Period
o   Adverse + Under Claim of Right Title
§  Objective Test: no inquiry into possessor’s state of mind
·         Would a similar owner of similar property act in this way?
·         Looks at behavior of the rightful owner
§  Good Faith Test: mistake
·         ‘I thought I owned…’
·         Honest belief that the person who possessed believed they did so in good faith
§  Aggressive Trespasser Test: literal definition of adversity
·         Knowingly not owning, but intending to take the property
·         Policy Concerns: rewards the thief/ bad guy
§  Exception (Applies to All 3 Tests)
·         Can be satisfied through color of title
o   Payment of Taxes
è Policy: lets time clear up mistakes , and less litigation.
è Quiet Title: title is in possession of someone other than the person using the property
o   Action that can be brought by the rightful owner –OR—occupier
è Trespass: unauthorized use of land
è Ejectment: action, if victorious, results in authorities escorting/ejecting occupier from disputed property
è Condo Example
o   Houses built unsquarely on lots w/each house overlapping a little bit on the neighbors lot.
o   How do you solve this problem?
§  Problem Resolves itself through Adverse Possession when the SoL runs out
§  Real Policy Reason
Alaska Nat’l Bank v. Linck
è Original owner of disputed land conveyed said property to two people: Taylor (Δ through the estate) and Linck (∏ through inheritance)
o   Δ never used property but paid takes
o   ∏ and predecessors extensively used the land. Original deed useless, so claim based on Adverse Possession
è Color/Claim of Title: evidence that possessor believed they held the right title for the property
o   Reduces amount that possessor has to show to succeed
o   Gives constructive possession as to element #1
Howard v. Kunto
è Developer fucks up lots & houses; houses were on land adjacent to their deeds. ∏ discovers this. ∏ holds M’s deed, while M holds Δ’s deed. ∏ trades M for Δ’s deed, and moves for ejectment.
o   Δ has lived there less than a year, and statutory period for AP is 10 years.
è Privity
o   Majority: mutual/ successive interest in land
§  Creates relationship between parties of rights and duties
o   Minority: privity by deed
§  Had to be the land described in their deed
Gilardi v. Hallam
è ∏’s, while improving their lot, mistakenly improved 15’ stretch of the vacant lot of Δ’s next to them
è Cali’s AP SoL is 5 yrs and Cts. use the good faith test
o   Tr. Ct. found for Δ because possession wasn’t adverse
è Held: recognition of a potential claim would make possession non-diverse, but no recognition equals adverse possession
Shanks v. Collins
è ∏ brings quiet title claim against Δ for property that was willed to him.
o   Δ contends AP through continual use (pastured cattle) for 20 years. He knew another owned it, and ∏ payed the taxes.
o   OKLAHOMA: uses the objective test
è Held: denied on grounds that possession wasn’t continuous due to no knowledge of some kids who grew pot on the property
è Licensed Use: permission negates adversity in AP
o   Unless an express statement from possessor to owner informing him of plans to claim title
Naftzger Case
è ∏ (museum) had coins stolen from them sold to Δ. Δ sues seeking declaratory relief and quiet title to the coins.
o   Ct. delineates the SoL ran when the ∏’s found discovery of the stolen coins
è Rule: Tolling of SoL does not commence w/ stolen personal property until rightful owner finds the possessor
o   Must act w/ reasonable diligence from discovery until possessor is found
è In general, under 18 years of age or of unsound mind.
è Subsequent disabilities may befall the party entitled to enforce the claim, and in so far as this situation, the SoL is interrupted for the period of the disability
o   Ex: O is 2 years old in 1990 when A goes into AP (Part I)
§  In OKLAHOMA: If using disability statute (2 years after disability ended), then 2008
§  If not, then 2005 (CL Rule of 18 yrs)
o   What if O becomes insane in 2000 at the age of 12? (Part II)
§  Still would be 2008 when using the disability statute
o   O was 21 in ’90 when AP began, but insane and died in 2050. O’s heir, H, is 2 yrs in 2050. (Part III)
§  Death Ends Disability
§  2052, can’t tack on heirs. If action brought, it would have to be by the estate.
o   Same Facts as Part I, but O dies in ’94.
§  Disability Statute: 1996
§  General SoL: 1995
§  Here O’s lawyer would want to do the latter since the SoL time is longer
è Can’t tack disabilities to add more time for SoL
è Every State formula is different, so computing the SoL will be too
è Exam: Read the disability statute similar to Note 3 and analyze facts through this formulaic principle
è When a temporary user of property leaves fixtures to the property behind when he ceases use
è Majority/OKLAHOMA: when a person affixe

May 15, 2013
2.       Period of Tenancy: specific rollover tenancies, such as month to month
                                                              i.      Notice to terminate must be given w/in 30 days in writing (OK)
1.       CL-@ end of the term
                                                            ii.      Biggest difference between this and term of years is how they are terminated
                                                          iii.      Ex: Ll-T month to month
3.       Tenancy at Will
4.       Tenancy at Sufferance
è Any nonfreehold estate can be determinable/subject to condition/interest
o   Ex: Ll-my friend John for 3 yrs or as long as he is in law school
§  Term of Years Determinable
o   Ex: Ll-to T for 1 year w/ a caveat that Ll can terminate if Ll gets a buyer
§  Term of Years Subject to Condition Subsequent
è Characteristics of Present Estates
o   Duration: time of property use
o   Future Estate: this is indicated
o   Language Creating: what language the Grantor used
o   Transferability: able to transfer
è FSA Through Characteristics
o   Duration: forever/unlimited
§  No heirs: property goes to the estate
§  No will: property goes to intestate
§  Most Cts. use familial lineage to determine heirs
o   Future Estate: none
o   Language Creating: ‘to X & her heirs’
§  Adding ‘and her heirs’ allows granting of this to be sufficient at CL
§  Now just ‘to X’
o   Transferability: freely transfer by deed, will or intestacy
è FT Through Characteristics
o   Duration: so long as the original tenant in fee tail or any lineal descendent therof is alive
o   Future Estate: Reversion in Grantor, Remainder in Grantee
o   Language Creating: ‘to X and the heirs of his body’
§  This limits to lineal descendants only
o   Transferability: by deed. Not by will or intestacy
è LE Through Characteristics
o   Duration: life of the grantee
o   Future Estate: Reversion in Grantor, Remainder in Grantee
o   Language Creating: ‘to X for life’
o   Transferability: by deed. Not by will or intestacy
è FSD Through Characteristics
o   Duration: until the stated event occurs
o   Future Estate: Possibility of Reverter in Grantor
o   Language Creating: ‘for so long as’; ‘while’; ‘until’…words of duration
o   Transferability: by deed, will or intestacy so long as the stated event doesn’t occur
è FSS Through Characteristics
o   Duration: until Grantor makes an entry according to the condition
o   Future Estate: Right of Entry/Power of Termination
o   Language Creating: ‘upon the condition that’; ‘provided that’
o   Transferability: by deed, will or intestacy so long as the stated event doesn’t occur
è FSE Through Characteristics
o   Duration: Either FSD or FSS
o   Future Estate: in 3rd Party (type depends on if it is FSD or FSS)
o   Language Creating: same as FSD or FSS
è Transferability: same as above
FUTURE ESTATES: right to possess in the future
A.      Interest Left in Grantor who grants less than he holds
1.       Reversion