I. Nemo Dotà one cannot give what they do not have
II. Two Aspects to Almost Every Transaction
a. Form of transaction v. substance of transaction
b. Distinguish the property “thing” (home, building, land, personal property (not real)), from property “interest” (possible for more than one person to have interest).
III. Analysis of Property
i. The item
ii. The Property Interest
iii. What are Risks associated with Interest
iv. Who actually has interest?
IV. Personal Propertyà many types of tangible property (car, house, land) and also intangible property (promise of debtor, contract rights)
Chapter 1- First Possession
I. Acquisition by Discovery – a discoverer of something also becomes the first owner.
i. Puts world on notice of your interest
ii. Excludes others from possession
i. Notice that you have title interest
ii. You cannot exclude others from possession
c. Possession v. Title
i. Finder/Thief Scenarioà Title wins
ii. Most other Scenariosà possession wins
d. Assumption of Risk analysis
i. Initial Owner (IO) owns relatively new lawnmower. Thief steals it and sells it to Buyer, who has no knowledge of theft. Thief takes money and escapes to Aruba. Who has superior interest in the lawnmower?
1. Buyer assumed risk that property was stolen and that he would not acquire proper title. Buyer did not bargain for good title.
2. Nemo Dotà one cannot give what one does not have.
a. Exceptions- extremely negotiable products (dollar bills)
ii. IO owns relatively new lawnmower. He loans it to neighbor. N sells it to Buyer. N uses money to pay mortgage and avoid foreclosure. Who has superior interest?
1. IO assumed some risk that neighbor would not return it. Buyer assumed some risk that the title was not good. Nemo Dotà one cannot give what they do not have.
iii. IO owns a relatively new lm. He takes it to Service Company, who mistakenly sells it to buyer. Who has superior interest?
1. Buyer did not assume substantial risk that title was bad, in fact, you acquire ownership rights if you buy something from merchant. By buying from merchant he bargained for good title
2. IO assumed some risk that he would not get mower back from service company.
iv. IO owns relatively new mower. On Feb 1, he agrees to sell it to B1 for 1000. On Feb 2, he agrees to sell it to B2 for 1200. Both K’s provide for delivery on Feb 5. Title to goods that have been sold does NOT pass to the buyer until the goods are delivered to the buyer unless the parties otherwise agree (UCC § 2-401).
1. Both K’s are silent on when title passes
a. On Feb 4, Who has superior interest in mower?
i. B1 & B2 have right to delivery
ii. B1 & B2 have right to remedy
iii. IO has title and possession
b. On Feb 5 Initial Owner delivers mower to B2. Who has superior interest in mower?
i. B2 has possession
ii. B2 has title
iii. B1 has no property interest in mower
iv. IO has no interest
2. The K with B1 provides that title to the lawnmower passed to B1 at the time of K. The K with buyer 2 is silent on when title passes.
a. On Feb 4, who has superior interest?
i. IO has possessory interest
ii. B1 has title interest and right to delivery
iii. B2 has only a right to delivery, no interest in mower.
b. On Feb 5, IO delivers mower to B2, Who has superior interest?
i. B2 has possessory interest
ii. B1 has title interest
iii. Possession interest usually wins out when one party has possession and another has title
iv. Alternative Analysisà risk assumption
1. B1 assumed risk by not getting possession when he got title
2. If you prioritize title over possession, you impose high cost to consumers, who should be able to assume possession gives you superior interest without researching a title.
f. Rules- First in Timeà the first person to take possession of a thing owns it
II. Acquisition by Capture- First in Time
a. Unowned property that is captured becomes the property of the person effecting the capture.
III. Acquisition by Creation
i. Is it property interest?
2. Provable value?
ii. Considerations of Free Competition
1. better product for consumer
2. stronger, efficient market
iii. Considerations of Judicial Efficiency
i. International News Serviceà AP accuses INS of stealing and copying articles. Can INS take articles from early editions and publish them as their own?
1. Issue: Does AP have property right over news articles?
2. A: Because the process of spreading news contains value (investment of time, resources), a competitor may not rip off that value and appropriate the stories.
3. Plank: If A owned land, and sowed, and then B stole crop, then B is wrong. But what if no one owns the land? Plank critical of this decision because he argues no one can own the news and prevent others from using it, even though they are competitors.
ii. Cheney- Cheney Brothers produced silk pattern
y found jeweled piece and took it to goldsmith for exam. Goldsmith has possession. Goldsmith’s apprentice took out the jewels and did not return them.
1. I: Does finding the piece make it property of the boy?
2. R: Finder will have property rights against all but rightful owner, and consequently may maintain piece.
3. A: Since boy found the piece, he has right to exclude the goldsmith from possession of any of its parts.
4. What is value of Boy’s interest? Value of jewelry – probability that true owner will show up
II. Acquisition by Adverse Possession
i. Van Valkenburgh
1. R: Occupation of Premises must be “under a claim of title” in other words, hostile, and when lacking will not operate to bar the legal title, no matter how long the occupation may have continued.
2. Why isn’t there a sufficient claim for title?
a. Lutz didn’t assert title in discussion with P over who owned the land
b. Lutz didn’t enclose property he wanted possession over
c. Garden and Garage over the property line not enough to show “improvements.”
d. No HOSTILE AND OPEN possession of property
ii. Mannilloà D maintains walkway on P’s land for 20 years. D claims adverse possession.
1. R: Subjective Viewà AP requires intentional taking of another’s land and NOT a mistake of fact regarding property boundaries (Maine Doctrine)
2. R: Objective Viewà Mistake of Fact Not Important (Conn. Doctrine)à any entrance onto land for 20 years creates AP (adopted by the court)
3. A: No presumption of knowledge arises from a minor encroachment along common boundary. (True owner may not be aware of AP of a sidewalk on their land).
4. A: The area in controversy was so small, that the law cannot expect landowners to account for it for purposes of AP.
1. Actual entry giving exclusive possession that is
2. Open and Notorious Possessionà gives notice
a. Tell owner you’re taking it
b. No License should be in place
4. Adverse (and under a claim of right- sometimes looked to)