Johanson, Property, Spring 2015
Personal Property
· Property is either real property (land and fixtures) or personal property (all other). Anything attached to soil (any fixture), becomes owners property. [Goddard]
o A fixture has been permanently attached to real property, but could be removed. Ex.- A gas stove or a aerolite imbedded in the ground.
o Occupancy – Establishing control over a thing.
o Accretion – Natural slow course of shuffling things, gives new possesion. Vs. Avulsion – Sudden and does not establish possession.
Lost but Found
· The title of the finder is good against the whole world except the true owner. [Armorie]. The finder must have physical control, and the intent to assume dominion over it.
· If the object is found in a shop or bank etc.: If it is a place where the public has access then it should go to the finder, otherwise to the owner of the area (because he has constructive possession). If it is on some ones land then the person cannot be trespassing, or there only for a limited purpose. (Owner has manifest intent to control because it is in their soil and part of the owners land).
o In [South] the defendant found rings cleaning a pool. The pool owner got the rings because the pool was under his control. Detinue – For object or value, up to defendant.
o In [Hannah] the defendant owned the house that the brooch was found in, but the court said he wasn’t in control of it (it had been in use by the government). Usually if private property, it goes to the owner of the premises.
· Abandoned Property – True owner is the finder. Intent of owner to abandon must be proved.
· Lost property goes to the finder, and mislaid to the owner of premises. If there is a dispute look to if owner had constructive possession.
Bailment
· A bailment is a transfer of property for a limited purpose and requires a bailee to redeliver the property. Failure to do so makes the bailee strictly liable (there is a presumption of negligence).
o Even if the value of the object is undisclosed, there is a bailment for the value of the item.
· Creation – Actual physical control w/ intent to possess. Delivery(constructive or actual), acceptance by bailee (could be finding), intent to possess (car as opposed to 1mil in trunk).
o Burden of proof is on the bailee to show no negligence. Strict liability unless involuntary by bailee, then negligence.
o What is expected back? Depends on the situation. A grain silo wouldn’t be expected to return the exact same grain because it is fundable (all mixed together).
o If the “bailee” never established dominion or agrees to, then there is no bailment, real or implied. If the item is thrust upon the defendant though and they agree (mistakenly like in the bank case), then they must take reasonable steps to get it back to the owner. (Involuntary bailee in this case).
§ Leaving a purse in a hotel doesn’t create a bailment, but if the hotel picks it up they assume care.
Adverse Possession
Adverse possession rewards a person who makes economic use of and improves land. It also corrects conveyance mistakes and oversights.
· Elements of Adverse Possession – 1) Actual 2) Open and notorious 3) Exclusive 4) Hostile or adverse 5) Continuous
o [Chapin v. Freeland] – The SOL claim to counters transferred to the buyer. Adverse Possession transfers. [Kunto] – Tacking SOL.
o Continuous doesn’t have to mean used all year (grazing). Degree of occupancy average owner would use for.
o Actual – Exclusive use of the property, not shared. Could be a piece of it if color of title.
o O + N – The possession is only open and notorious if the person who owned the land had knowledge of the adverse possession or should have known. [Marengo cave] – The owner did not know until a survey was done that he owned part of the cave. At that point SOL starts to run.
o Hostile is objective in most states. If there is permission it isn’t hostile.
o SOL doesn’t run against the government. Nollum tempus occurrit regit.
o Tacking – A first adverse possessor’s time can transfer to a buyer. O
official until death. Revocable. [Foster] – Intent is not enough, need transfer. Trumps a will if transfer. The donor must be competent.
Freehold Estates
· Fee Simple Absolute – Belongs to the person forever. His to sell or pass on in a will or through heirs. If no one can inherit – goes to state. Fee-tail can only be passed to heirs.
o “To A and his heirs” – Means Fee simple. Heirs part not necessary now usually.
o “To A or his heirs” is not a fee simple. They are sharing?
o A Fee simple is transferred unless the express intent was less. Life estates are no longer the default. Intent is surmised from rules of construction.
o [Lewis] – Saying she had it for life until she got married, but court interpreted the intent to say she had a F/S. F/S unless clearly limiting language.
· Seisin –Possession of land by title.
· Life estates and Remainders: “To A for life, remainder to B” – A has a life estate, B has a remainder. When it passes to B he has it forever. If O doesn’t stipulate what happens after A dies and his life estate is up, then it reverts back to O.
o “For Life” – Is a term of limitation.
o Life estate pur autre vie – Life estate measured by the life of another. Can be inheritable.
o Someone holding a life estate cant mine the land or cause “waste”. They have a duty to keep it in repair, pay taxes, pay interest on mortgages etc. Must pay property taxes.
o A life tenant is a trustee and cant commit waste active or passive. (Open Mine doctrine though says you can use a mine etc. there but not open a new one).
· Nonfreehold estate – An apartment rental.
