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Property I
University of Toledo School of Law
Cavalieri, Shelley

University of Toledo

Cavalieri, Property I, Fall 2011

a. Policy values of property

I. Themes

a. Liberty: Freedom to use your land counterbalanced by homeowners association rules.

b. Equality/redistribution: Fairness.

c. Efficiency: Best use of land and time

d. Access: Easements, etc.

e. Fairness/responsibility: Not polluting mixed use lands, etc.

f. Economy: Using judicial resources effectively.

g. Administrability: Ease of application rules so that cases need not be litigated.

II. The courts try to promote efficient uses of land and promote social justice.

III. The courts try to prevent people from taking the law into their own hands at all times (vigilante justice, self-help evictions, etc).

IV. You can do almost whatever you want with your property, as long it does not infringe on other rights or impact the public good negatively.

V. Trespass, even to get your own stuff back, is not permissible in most jurisdictions.

b. Possession of wild animals (Farae Naturae)

I. If on public land

1. Right of possession is not conferred by pursuit alone (Pierson)

2. First in possession means possession unless local custom says otherwise (finding a whale corpse but tradition is you report it to the whaler who harpooned it for a finders fee).

II. If on private land

1. Right of possession goes to landowner if they are pursuing the animal.

2. This right is accorded by Ratione Soli (right of landowners over resources found on their land.

III. Owner of a trap that catches the animal owns the animal.

IV. Local custom always dominates.

V. Relativity of property rights

1. O owns blackacre, T traps an animal, and T1 releases it. T sues T1 and T1 says T had no claim in the first place. Under relativity of property rights, O has ultimate claim but T has greater claim than T1 because he set the trap.

VI. Animus Revertendi (animals that return)

1. X owns a herd of deer that graze on private land but return every night. Y shoots one while its on public land. Y cannot keep it.

2. What if its branded? Then you cannot shoot it.

3. What if it looks feral? Then you might be able to claim ignorance.

VII. Constructive possession of animals

1. The government can own animals without being responsible for them. It can prevent you from shooting geese that destroy your crops without being responsible for your destroyed crops.

c. The strangeness of possession

I. Possession of intangibles

1. “Hot” news is a protectable commodity in that it is quasi property. The court is trying to protect the AP’s business model when it rules this (INS v. AP).

2. If something is not copyrightable, then it can be copied (like fabric patterns).

3. You can own a perfume, but not own rights to the smell. (Smith v. Chanel).

4. The four elements of the right to publicity (Parody is always permissible)

a. Name

b. Likeness

c. Signature

d. Voice

5. Possession of body parts in Moore: CA law was formulated to promote public policy interests over private property rights. If researchers had to verify the title of every cell line they worked on and pay royalties, it would be too cumbersome to do research.

d. Found Property

I. The relativity of property in order of prevalence

a. True owner

b. First finder (or trespasser)

c. Subsequent finder (or thief)

II. Trover vs. Replevin

a. Trover is return of the worth of the goods taken.

b. Replevin is return of the goods themselves.

III. A finds a broach in B’s house (B bought the house but never lived there). A gives it to police, who give it to B, who sells it. A seeks trover, does he get it? Yes. Why? Because B was not true owner, A was first finder and thus had a more significant claim to it. (Hannah v. Peel).

IV. Generally, possession of the land means possession of everything on it, including everything buried, if it true owner is unknown.

V. Lease of some your mineral rights does not mean lessee is entitled to everything else found on the land.

VI. Mislaid property

a. If mislaid goods are in public places, locus owner (owner of the property it is found on) is entitled to it.

b. If abandoned goods are in public places, finder is entitled to it.

c. If A find’s B’s property on C’s land, A has more of a claim to it than C does.

d. In any case, true owner always has superior claim over everyone.

VII. Treasure trove laws

a. Old British rule: Belonged to king.

b. New British rule: Proceeds of find are split between true owner and finder after it is sold to museum.

c. American Law: Finders-keepers.

d. Japanese Law: Really well run lost and found system and you can keep it if no one claims it.

e. Bailments

I. A bailment is the rightful possession of the property by someone other than the true owner.

II. Duty of the bailee (temporary possessor) to the bailor (true owner)

life, remainder to C. In 2010, B dies, having never entered Blackacre. Who owns Blackacre? A.

4. Tolling is the notion you can delay the running of the statutory clock for various legal reasons and then restart it where you left off.

a. Disability is a common reason for tolling.

-Disability is when your legally deemed incompetent to bring legal action on your own behalf.

II. States of mind: Some states are more willing to recognize adverse possession if it was innocent rather than malicious.

a. Good faith standard (Connecticut Standard)

b. Bad faith standard (Maine Doctrine)

c. Objective standard (Does not matter what your state of mind was)

III. Color of title

a. If A makes entry onto B’s land with improper documentation (a deed based on a faulty survey, a fraudulent deed, etc.), the statutory clock begins ticking.

b. There are generally lower standards for AP through color of title.

c. X and Y own lots 1 and 2. Z fraudulently sells them both to A and A occupies lot 1 for the statutory period of time. A then sues X and Y to quiet title to lots 1 and 2. A cannot claim lot 2 because he did not AP it.

d. Color of title does not excuse people from their due diligence at the title office.

IV. Neighbors and Property Lines

1. Accidentally building on your neighbors property

a. It may not be notorious enough to start the statute clock ticking if its only a matter of feet.

b. Courts often force people to buy or sell land to settle boundary disputes.

2. The doctrine of agreed boundaries states that oral agreements about property lines, if observed long enough, become binding.

3. The doctrine of acquiescence states that a long acquiesce to a property line evidences agreement.

4. Mistaken improvers

a. If A mistakenly improves the property of his neighbor (B), thinking it was his own, B may be forced to sell or convey to A the improved property.

b. This may encourage lying and bad faith boundary encroachment.