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Property I
University of Oregon School of Law
Hildreth, Richard G.

▼ ❑ Types of Property
▼ ❑ Open access
• ❑ Res nullius- nobody owns it
• ❑ Tragedy of the commons problem
▼ ❑ Communal
• ❑ might include tribal property
▼ ❑ Private
▼ ❑ Historical Theories of Private Property
▼ ❑ Occupation theory (Blackstone)
• ❑ people who occupy land or possess things should be protected by the law and rewarded through private property rights
▼ ❑ Labor Theory (Locke)
• ❑ those who labor and add value to things should be protected
▼ ❑ Positivism (Hobbes)
• ❑ law is what the sovereign says it is
▼ ❑ Utilitarian
▼ ❑ want to set up the system to maximize efficiency
• ❑ when people maximize their utility in a self-interested way it will necessarily raise the utility of others
▼ ❑ Government
▼ ❑ Sagebrush Rebellion (1970’s)
▼ ❑ wanted the federally owned land in the west to be put into private hands
• ❑ didnt think that the BLM was the best at running the lands
▼ ❑ Right to Use One’s Property
▼ ❑ Right to Exclude
▼ ❑ Not an absolute right
• ❑ Eminent domain and regulatory takings apply
▼ ❑ Adverse Possession
▼ ❑ When the statute of limitations under which an owner of property can sue to recover from one who has wrongfully entered the property has run
Oregon -10 years
• ❑ until the statute of limitations period has passed, the AP is a trespasser
• ❑ usually cant adversely possess government owned land
• ❑ AP must use the property as a true owner would
• ❑ once AP becomes owner, subsequent purchasers get the AP’s rights
▼ ❑ 2 types of AP disputes
• ❑ AP claims a parcel of land completely unrelated to any other land they have
• ❑ boundary dispute
▼ ❑ Policy reason for AP
▼ ❑ Prevent stale claims
• ❑ penalize true owners who sit on their rights for too long
• ❑ Land should be used effectively
• ❑ Use AP as evidentiary tools to prove lost grants or otherwise correct conveyancing oversights
▼ ❑ structural purpose- facilitates the efficient transfer of property
• ❑ quiets title and allo transferability of land
▼ ❑ Cause of action is called ejectment
▼ ❑ Ways for homeowner to protect himself
• ❑ Hire surveyor to mark property lines
• ❑ Check every 9 years for encroachment
• ❑ Walk the property
▼ ❑ Elements of AP
▼ ❑ Actual Possession
• ❑ must be using a reasonable percentage of the property
▼ ❑ dont need to be there 24/7
• ❑ can have a tenant
• ❑ payment of taxes may prove this element
• ❑ Purpose: give notice to the legal owner that AP is using the property
• ❑ AP can only get as much property as he actually possesses
▼ ❑ Open and Notorious
• ❑ could the owner reasonably have been expected to know that another person had entered the property and was asserting a claim to it?
• ❑ if the possessor can show that the owner had actual notice of that the AP was asserting a claim to the land, then the requirement is met
▼ ❑ Way to measure this: show the AP is using the land in a manner similar to how a typical owner would
• ❑ Nature of the land will be taken into account
• ❑ Effect of a fence or other enclosure
• ❑ Acts toward the outside world
▼ ❑ Exclusive Possession
▼ ❑ doesnt have to be absolute
• ❑ cant share the property with the true owner
• ❑ not a requirement for prescriptive easements
▼ ❑ when multiple AP people, the 1st one there can oust the later ones unless one has color of title
• ❑ the person with color of title can oust the others
▼ ❑ Continuous
• ❑ statute of limitations period ranges from 5-40 years
majority and OR use 10 years
▼ ❑ the continuous use should be the same as customarily used by the real owners
• ❑ intermittent is ok if that is how the true owner would use it
ex: hunting cabin only used during hunting season
• ❑ if the AP abandons the land and then returns, the SOL starts over
• ❑ if the owner reenters the land in order to regain possession, it is an interruption of the SOL and must start over
▼ ❑ Tacking
▼ ❑ A person who has adversely possessed for less than the SOL does not have title to it, but does have a possessory interest
▼ ❑ possessory interest can be transferred to another
▼ ❑ SOL for new AP continues from original SOL when:
• ❑ there is privity
• ❑ not when the 2nd AP gets the property because original AP was oustered or abandoned
▼ ❑ Tacking on the owner’s side
• ❑ the time of possession against the 1st owner gets added to the time against the 2nd owner when the previous owner conveys it
▼ ❑ Adverse and Hostile and Under Claim of Title
• ❑ Owner’s state of mind: owner cannot be consenting to it
▼ ❑ Possessor’s state of mind: 4 approaches
▼ ❑ Objective test- the state of t

is subjective -question of fact
• ❑ illness or peril prompting expectation of death must be objectively present
▼ ❑ Requirements
• ❑ donor must have a present intention to deliver absolute ownership of the property in the future
• ❑ if donor ties to keep control of the property before death invalidates the gift
▼ ❑ Deeds
▼ ❑ Giving property by sale or gift while grantor is still alive (intervivos transfer)
• ❑ between 2 living people
▼ ❑ 2 Types of Deeds
▼ ❑ Quick Claim deed
▼ ❑ buyer beware
• ❑ The grantor makes no covenant that his title is good
▼ ❑ Warranty Deed
• ❑ The grantor makes one or more promises about the state of the title
▼ ❑ Requirements
▼ ❑ Statute of Frauds
• ❑ The deed must name/identify the parties
• ❑ Should contain a description of the property
Courts are lenient on this
• ❑ A word or words of conveyance indicating the present passing of an interest
Must also show present intent
• ❑ Signature in writing of the grantor
The grantee doesnt have to sign
▼ ❑ Delivery Requirement
▼ ❑ Physical delivery not necessarily required
• ❑ Can be satisfied by words or conduct of the grantor which evidences his intention to make his deed presently operative so as to vest title in the grantee and surrender his own control over title
• ❑ All states require delivery, but what counts as delivery mostly ambiguous
• ❑ Gifts require physical delivery
▼ ❑ Delivery to 3rd Parties -Escrow
• ❑ Can pay a professional escrow company to handle the documents and the money and set up the conditions for the transfer
▼ ❑ Escrow agent doesnt deliver the deed to the buyer until the agent has the purchase price
▼ ❑ After money received (or stated conditions/event are met), the deed can be delivered to the buyer
• ❑ Normally the grantor cant make delivery to the grantee subject to some kind of condition