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Property I
University of Oklahoma College of Law
Palomar, Joyce

PROPERTY

UNIT 1: WHAT IS PROPERTY AND HOW RIGHTS ARE ACQUIRED
1. Three main ways on acquires property
A. Conveyance – land owner conveys title to another by deed as sale or gift
B. Devise – landowner dies with a valid will that makes a gift of the land
C. Inherited – landowner dies intestate and land is passed to heirs
2. Capture – first person to take possession owns it
A. Law requires capture rather than pursuit
B. Captured property must be deprived of natural liberty and put under certain control
I. Pursuit does not vest any right whatsoever in the pursuer. (Pierson v. Post)
II. Malice interference is grounds for recovery for frightening animals off of someone else’s property if interferes w/ livelihood (Keeble v. Hickeringill)
C. Reasons
I. Society favors capture over pursuit and easier to rule when capture has occurred than pursuit
D. Constructive Possession:
I. A landowner has constructive possession of items on his land if he has the power to control the item
a. If a trespasser kills game on another’s land, he forfeits the title to the game in favor of the landowner
b. If animals wander off land but habitually return, title is not lost to the original captor as animals roam at large
i. If someone else then captures the animals, the second captor has possession until notified of the prior possession
E. Escape: If an animal escapes from its owner and resumes its natural liberty, the former owner loses his property right in it.
F. unless it is not native and would put hunter on notice it is escaped and has another owner
I. The animal is once again unowned, and the first person to capture it becomes the new owner
II. Most oil and gas law (w/ escape) is determined by statute
3. Creation – ideas
A. If there is no patent/copyright, the property right is limited to the actual chattel which embodies the invention, and this chattel may be copied or imitated
I. Publication for profit of news obtained from other news-gathering enterprises is a stealing property right (International News Service v. Ass. Press)
II. If a person cannot obtain a patent or copyright on its product, it cannot recover for the copying of it by others (Cheney Bros. v. Doris Silk Co.)
III.Mere similarities in creative works do not convey ownership (Nichols v. Universal Pictures)
IV.One who distribute a device w/ the object of allowing copyright infringements is liable (MGM v. Grokster)
4. Rights from Finding Property – owner does not loose title by losing (or mislaying) the property
A. Lost Property: Property is lost when the owner has accidentally and involuntarily parted with his possession and does not know where to find it
B. Mislaid Property: Property is mislaid when, judging from the place where it is found, it can reasonably determined that it was intentionally placed there, and thereafter forgotten
I. Misplaced goods are deemed to be in the bailment of the owner of the property on which they are found for the true owner (McAvoy v. Medina)
II. Policy is true owner likely to return to premises to retrieve.
C. Abandoned Property: Property is abandoned when the owner has voluntarily relinquished all ownership without reference to any particular person or purpose.
I. Intent to give up title and possession must be present.
D. Bailment – voluntary transfer and delivery by a possessor of property (bailor) to another (bailee) for safekeeping and w/ the expectation that the property would be returned.
a. Ex. dropping of film – you are bailor film developer is bailee
II. Bailee – when owner voluntarily delivers owners property to another with intention in returning
III.If bailee or finder sales the property the true owner has an action against the bailee/finder but not against the buyer since the buyer is a bona fide purchaser of value and under UCC no action can be brought against them
E. Who has rights to the property?
I. True owner has rights over all unless abandoned
II. Besides the true owner the finder’s rights are superior – True owner > Finder 1 > Finder 2
a. Exceptions
i. Finder is trespassing – landowner has right to find
ii. Item left in public place – if mislaid shop owner keeps for true owner; if lost finder keeps
iii. Employee has rights over employer unless “chambermaid exception” – people working in capacity that it is normal to have people loose items and employer helps them recover
(i) ex. Maid, janitor, Steve’s mom
iv. Tenant has right over Landlord b/c possession goes to one who controls land not owns
III.In Oklahoma, the obligations of a finder are:
a. Same as the obligations of a bailee for hire, and will be liable to the owner for any damage or use
b. For how long is a finder under these obligations?
i. “A finder may sell when the rightful owner cannot be found when the money spent on the property equals 2/3 of the property’s value.” If an item is sold before this point, the finder (or bailee) is liable in conversion to the owner. Example: finding a dog and spending a lot of money on food for it.
ii. Unless perishable food or other item that value would decrease quickly then can sell sooner
F. Replevin – Return of the actual lost/found chattel
G. Trover – Return of the monetary value of the lost/found chattel

Circumstances

Example

Finders Rights

Lost

Owner accidentally parted w/ possession and does not know where to find

O does not notice his wallet fell out of his pocket in the street

Finder has rights over all except true owner w/ above exceptions

Mislaid

Owner intentionally placed property in the spot where it is found and then forgot

O puts his wallet on the bar and forgets about it

Owner of premise has rights over all except true owner

Abandoned

Owner voluntarily & intentionally relinquished ownership w/ intent to give up both title & possesion

O throws his wallet in the trashcan b/c the leather ripped and he got a new one

Finder obtains both possession and title if they exercise control w/ intent to assert ownership

5. Adverse Possession (AP)
A. Elements of AP – must be maintained for statutory period of time (SoL)
I. Actual entry giving exclusive possession – prop has not been given to another “in a manner that reflects the possessor’s dominion and control over the land”
a. (W/o actual entry, true owner has no cause for removal or trespass)
b. Must actually posses the land not merely trespass on it
c. Must be in sole possession not share w/ owner or public
II. Open and notorious possession – holding of prop is not in secret “visible and not secret”
a. Owner must have notice that you are trespassing and should eject you. This element is determined from the perspective of a reasonably attentive owner.
b. If everybody in the community knows but the owner, this is evidence that owner is not reasonably attentive.
III.Continuous “w/o interruption”– only AP possesses land for SOL period (except tacking)
a. “Continuous” may depend on how the land would be used by the rightful owner.
i. Ex. Summer occupancy of a beach house may be deemed “continuous.”
b. Tacking – Adding the current adverse possessor’s time of possession onto his predecessor’s time. Predecessor and current AP must be in privity.
c. Statute of Limitations – Time runs from how long the AP has been there, not the owner. New buyers have an obligation to inspect land they buy.
d. Disability: If owner is legally disabled from accessing the courts, the time does not begin to run against him (underage, in jail, incompetent). But, disability is immaterial unless it existed in the owner at the time the AP began. You cannot tack disabilities, b/c of disadvantage to the AP
i. When disability ends in OK SOL is 10 years
ii. Whichever period is longer is used (the standard SOL or the end of disability + the added SOL)
IV.Possession is adverse (hostile) and under claim of right – possession not w/ consent and dominate owner “w/o true owner’s permission”
a. Different jurisdictions have different standards as to what is required for this.
i. Objective Test (OK and majority) – state of mind doesn’t matter; does not require taxes
ii. Good Faith Test – AP must think he rightfully owns the land
(i) Some places, payment of taxes is necessary to prove this test
iii. Aggressive Trespasser Test – AP must know he doesn’t own the land, and still intends to take it
B. Policy behind AP: To clear up dumbass mistakes from fencing, inaccurate survey’s, and keep land useable
C. Constructive AP – allows someone to take physical possession of only part of a parcel and still claim title by AP to the entire prop so long as they have taken possession under an instrument that establishes color of title to the entire parcel
D. Color of Title – a deed or other instrument of conveyance that purports to convey title to the land in question but the instrument itself is defective and fails to convey any property interest at all.
I. Most states do not require one to have land under color of title to AP it but in many states the SOL is shorter if one posses land in color o

ed statutes under which any attempt to create a fee tail results in the creation of a fee simple:
I. Characteristics:
a. Duration: As long as there are direct heirs of the tenant in tail
b. Future Estates: Reversion or Remainder
c. Language Creating: “To A and her bodily heirs” or “To A and her bodily heirs, then to B”
d. Transferability: By deed, BUT the transferee acquires an estate that ends at the transferor’s death in favor of the transferor heir’s bodily heirs
II. If a fee tail is attempted, the attempt will create:
a. A life estate in A with the remainder to A’s issue
b. A fee simple absolute; any remainder after A’s issue dies out is void
c. Fee simple; if A dies with issue at his death, it becomes a FSA and remainder fails; if A dies without issue, remaindermen take
3. Life Estate: Not terminable at any fixed time and last the duration of one or more people’s life. It may arise by operation of law or by an agreement between the parties
A. Characteristics:
I. Duration: For the life of the grantee
II. Future Estates: Reversion, Remainder
III.Language Creating: “To A for Life” “To A for life, and then B”
IV.Transferability: You can transfer the life estate but ends at your life not transferee’s
B. Life Estate by Marital Right: Such estates arise under dower and curtesy, the common law interests of a wife and husband, in real property of which the other spouse was seised during the marriage (including property acquired before marriage)
C. Rights and Duties of the Life Tenant:A tenant for life is entitled to all the ordinary uses and benefits of the land, but he cannot lawfully do anything that would injure the interests of the person who owns the remainder of the reversion. If he does, the future interest hold can sue for damages or an injunction
I. As a general rule, a life tenant may not consume or exploit natural resources on the property (timber, minerals, oil, etc) except in certain circumstances
D. Waste – generally the life T must deliver the property in a similar condition that they received it
I. Cannot pump oil out of land or tear down building
E. Permissive Waste: when the life tenant allows the land to fall into disrepair or fails to take reasonable measures to protect the land
I. Obligation to Repair
II. Obligation to Pay Interest on Encumbrances
III.Obligation to Pay Taxes
IV.Special Assessments for Public Improvements
V. No Obligation to Insure Premises
VI.No Liability for Third Party Torts
F. Ameliorative Waste:acts that economically benefit the property. Ameliorative waste occurs when the use of the property is substantially changed, but the change increases the value of the property

DEFEASIBLE ESTATES – estate is set up to expire or be divested
1. Fee Simple Determinable (FSD): Estate that automatically terminates at the happening of a specific event and goes back to the grantor.
A. Distinguishable from a Fee Simple Subject to Condition Subsequent, where the grantor must take affirmative steps to terminate the estate of the grantee if the stated event occurs. Only may be conveyed by the owner.
B. AP runs once condition occurs
I. Characteristics:
a. Duration: Until Stated Event Occurs
b. Language: “So long as” “until” “while” language connoting that the fee simple is only until the stated event occurs
c. Future Estate: Possibility of reverter, Executory Interest
d. Transferability: By deed, by will, by intestacy
2. Fee Simple Subject to Condition Subsequent (FSSCS): A fee simple subject to a condition subsequent is created when the grantor retains the power to terminate the estate of the grantee upon the happening of a specified event. Upon on this happening, the estate of the grantee continues until the grantor exercises her power of termination (right of entry) by bringing suit or making re-entry.
I. Characteristics:
a. Duration: Until O re-enters because the event has occurred