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Property I
University of Tennessee School of Law
Plank, Thomas E.

Spring 2012
Introduction to Property
1.       Two Big Ideas
a.       The difference between form vs. the substance of the transaction
b.       The concept of property—you don’t really own property in the classic sense, you own rights that are subject to limits. It is the relationship of people to a thing or close to a thing.
2.       Property is not about winning cases but rather avoiding them.
Ø  Property; Understand rules to understand property
Ø  Personal property – movable objects
Ø  Real property – land and improvements
Ø  An essential element of property law is the right to exclude.
Ø  Legal Form v. Legal Substance.
·         Possession can be construed as an interest in property.
·         There is a difference between legal interest and equitable interest. [Ex: O can convey Blackacre to T and his heirs (T and heirs have legal fee simple), for the benefit/to the use of A. [T has to manage the property, but cannot sell [A has equitable fee simple].
Chapter 1- First Possession:
                Nemo Dot –
A.      Acquisition by Capture (pp.39-55)
1.       Externalities- effects of your decisions that affect others- LAW and ECONOMICS
a.       They are a function of transaction costs, and they encourage inefficient use of resources.
2.       Economic Efficiency v. free transferability. 
B.      Acquisition by Creation (pp.56-65) (88-96)
International News Service v. Associated Press. AP and INS were competitors. INS was taking AP news bulletins and selling them. Claims of unjust property use. News is not property. Claim that new is essentially abandoned when published in newspaper, free for taking, not supported by court. Judgment that news is quasi property.
Cheney Brothers v. Doris Silk Co; Learned Hand, silk maker case, competitors copying popular patterns of the season.“ a man’s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure.” INS does not cover this case, court rejects the general rule laid out in that case, only congress could impose the monopoly that would be created. The concept of exclusivity is tied to the idea of property. Smith v. Chanel, Inc. Perfume copy case of Chanel No.5, Chanel argues they have a trademark and that is violated. Court says not a violation because not saying that they’re selling Chanel no.5. People who copy original design serve the valuable public purpose of offering comparable goods at lower prices. [trademark law wont be on exam].
Jacque v. Steenberg Home: moving of mobile home case. D asked to move home across land, P said no, D did anyway, judgment for P. Nominal damages of $1, but putative $100k. Court held that cant award putative damages without nominal damages, but the right to exclude is important (in this case keep trailers off your land) so court allows finding for P. The right to include, the right to exclude.
State v. Shack : doctor and lawyer go on farm to treat/ meet two migrant workers. Farm owner wants them to leave. Theyre charged w/ trespass. Title to real property cannot include dominion over destiny of persons the owner permits to come upon his premises.
-property rights are not absolute, the right to exclude is not absolute.
Distinction between Steenberg and Shack; Shack involves criminal statute, Steenberg is a civil action. If Steenberg could show actual damage to his property, what result? Consider analysis in subsequent cases.
Chapter 2 – Subsequent Possession:
A.      Acquisition by find (pp.97-101) – person with actual property has some rights to property.
Armory v. Delamirie. Chimney sweep finds jewel, gets appraised, asks for jewel, not returned. Court found that one who finds has a superior interest in property second only to the rightful owner.
Question 2: suit in Trover [forced purchase], the court decided that value assigned to jewel should be of the greatest amount possible if the chattel is not produced, this is sound because it allows for the highest recovery. The fairmarket vaule of item minus probability of owner returning to claim property is the compensation finder will receive.
1.       Trover- common law action for the recovery of damages for the conversion of personal property, damages are measured in the value of the property
2.       Replevin- Action for the reposition of personal property wrongfully taken or detained by defendant, whereby P give security for and hold the property until the court decides who owns it.
–          Plank: Title and ownership can be relative, but they aren’t always.
B.      Acquisition by Adverse Possession (pp.116-41)
–          Adverse possession is a process through which a person who uses property for a statutorily determined period of time becomes the owner of the property and defeats all rights of its true and rightful owner, even if the latter had legal or record title.
–          Transfer of title from one to another, because the way the adverse possessor does it should have been stopped by the actual possessor.
–       The essence of the judicial rules that supplement the statutes of limitation at the core of adverse possession are:
[1] An entry that is
[2] Open and notorious,
[3] Continuous for the statutory period, and
[4] Adverse and under a claim of right.
–       the sort of entry and possession that will ripen into title by adverse possession is use of the property in the manner than an average true owner would use it under the circumstances, such that neighbors and other observers would regard the occupant as a person exercising exclusive dominion. But generalizations are dangerous.
Van Valkenburgh v. Lutz:
Lutz moved into neighborhood and started hobo farm on three corner lots he didn’t own, ~30 years later a new neighbor he was having a disagreement with bought the lots. Lutz claimed a right of way but conceded ownership. Then he claimed ownership through adverse possession based on hobo gardening, complaint denied.
Dissent: hobo gardening works for AP (in this case).
A “claim of title” is simply one way of expressing the requirement of hostility or claim of right on the part of an adverse possessor.
Mannillo v. Gorski:
Gorski built stairs that encroached on P’s lot, claimed AP. Judgment for P, case deals with intentional component of AP. Plank: this case discards the intent requirement for adverse possession, but also says thank a tiny encroachment won’t support AP
Two issues: [1] is the trespasser’s state of mind relevant? In this case, no. objective test, actions matter, not thoughts [2] notoriety, does it matter?
C.      Acquisition by Gift (pp. 164-81)
–          Law has long required that for a gift of personal property must transfer possession with manifested intention to make a gift.
Newman v. Bost – Case where old guy gives all his possessions to his servant. Question of validity of symbolic gift giving. Delivering keys to box holing live insurance policy, is not sufficient proof that policy is gift.
Gruen v. Gruen – Painting gift case. Donativite intent considered. Test is to be whether the maker intended the gift to have no effect until after the maker’s death, or whether he intended it to transfer some present interest. Judgement affirmed for plaintiff (son who received painting)
Chapter 3. Possesory Estates: hierarchy goes fee simple > fee tail > life estate > leaseholder
A.      Up from Feudalism [pp 183-91] 1.       Estate- type or right a person has in land or real property
2.       Interest in land- description of relationship a person has with others who also own an interest in land; divided in future or present interests.
3.       Property Ownership Types:
a.       Fee simple- best type; really no difference betwee

– no fixed period so long as both tenant and landlord desire. One side has unilateral power to terminate without notice.
4.       Tenancy at sufferance- holdovers- when a tenant remains in possession of a property after termination of the tenancy. IN CL, landlord has two options: eviction(plus damages) or consent to the creation of a new tenancy. Complication likely.
Nonfreehold estates, principle leaseholds are in term of years, the periodic tenancy, and the tenancy at will. A term of years is an estate that lasts for some fixed period of time. A periodic tenancy is a lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination. A tenancy at will is a tenancy of no fixed period that endures so long as both landlord and tenant desire.
Problems [p.422] – these answers are wrong, need to correct.
[1] a]no notice is necessary from T. b]T is in the wrong, should have given notice in april, c]need 30 day notice, T in the wrong.  
[2] L might be able to recover for 15 days lost rent, I doubt any more.
Garner v. Gerrish – L rent to T Gerrish, L dies, T wants to stay. Court holds life tenancy, quitable by T, not L.  Rule: there is no reason why a lease granting tenant alone the right to terminate at will should be converted to a tenancy at will by either party.
Plank: think about who paid the taxes, it can help with showing the owner. Also, who’s making improvements?  Who ever is seized of the land has the obligations of the land.
Problems [p.426] [2] A periodic tenancy, but there are several possibilities as to how to classify. Restatement, this is a fee simple determinable. According to Garner, this is a life estate. Courts will follow modern rule, considers intentions of parties. If L can terminate at will, T can terminate at will. If only T has terminate at will, the courts will not automatically assume L can terminate at will.  
[3] A periodic tenancy
B.      The Lease, pp. 428-31
Is a lease a conveyance or a contract? [both] When considering Leasor/Leaseholder relationship, consider who will be the one paying taxes. In a life estate the tenant pays the taxes. In a lease, barring a K, the landowner will pay the taxes.
C.      Delivery of Possesion, pp. 438-42:
Whose responsibility is it to clear out a prior tenant?
Hannan v. Dusch:
Issue is whether landlords have duty to make premises open for an leasor at the beginning of a lease. [aka deliver possession]. American rule is no, the leasor cant be held liable for others actions that he has no control over.
 Notes 1-3 [p.441].
1-       Conflict in case law between American and british rule.
2-       Under the American rule the tenant’s remedies are against the adverse possessor. Under the British rule the landlord and adverse possessor are contributarily liable.
3-       Both rules are default rules, meaning landloard/tenant can make provisions that modify it.
Problem 2 [p.442]         2-    L keeps rent paid and T is under no further obligation.
D.      Subleases and Assignments, pp.442-459: