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Property I
University of Toledo School of Law
Chapman, Douglas K.



FALL 2010

PART I: Introductory material

Public Property

· Owned by government

Private Property

· Owned by 1 or more private persons or businesses

Property cases usually sue for specific performance.

1. What is property?

Property is a bundle of rights rather than things. The rights are:

1) Right to Transfer – sometimes limited for public policy reasons. The law regulates what can be transferred, how transfers are made, and who can transfer or obtain property.

2) Right to Exclude – law protects an owner’s right to exclude others from their property, subject to privileges (exceptions) such as consent and necessity, some jurisdictions have more exceptions

3) Right to Use – as the owner wishes as long as not injuring the rights of others. (The spite fence and nuisance doctrines here)

4) Right to Destroy – law might intervene when an owner is trying to destroy something of substantial value to society

– property rights are relative, not absolute

– Professor’s description:

The word is commonly used to describe ……….

capable of ownership…..

real or corporeal or not

Tangible or not

visible or not

personal or not

Everything that has a …. Value

2. What is Ownership?

– It has been the problem in property do describe what ownership is


· Possession is 9/10 of the law

· Possession is the first thing we had to establish ownership – it’s the foundation of ownership

· It doesn’t work very well in modern world

· Possession is critically important

· It gives you the right to possess, use and enjoy

3. Two stages of title to property:

· Original title – things you create, land through conquest, exploration, discovery, etc…

– Whoever had the thing first – no one came before them

– most of the things we now create are intangible, inventions, copyrightable idea, patent, intellectual property; b/c almost everything is owned already

Original title was difficult to establish

– Copyrights are a derived title for the original item like a book

– but the original title was a derived title before it became original… (????);

· Derived title – comes from sale (purchase), gift, inheritance, finding it (property is not yours originally but it’s yours now; you may have to struggle with it, but it will give you the derived title),

– Comes from sale or gift

– Title can be traced back through history as to who owned it and transferred it to you

PART II: Owning Personal Property

4. Real property and personal property, sometimes referred to as “personalty” – there is a really fine line between the two

Real property is the land and those things which are permanently affixed to that land (all fixtures that you added and became a part of the house).

– Long-term lease is treated as real property

– The rights can be treated as real property

– Air space can be treated as real property

– Mobile homes can be treated as real property (in many states they are, in some they aren’t)

– It is called real, because

– In England the king always owned the land, he’d give it to the knights, but could always take It back, it always belonged to the king

– In US you don’t really own the land – you have the deed, etc…, but if you die and don’t have any heirs, the land goes to the state; the truth is you only have the loan…,

– Ownership in land evolved, but the truth is it still belongs to the “king”

Personal Property– things that are not permanently affixed to the land (if you shook the world, everything that would fall off is the personal property J)

Real – immovable; personal – movable

5. Tangible / Intangible personal property

Tangible – physical, you can see and touch it

Intangible – cannot be touched or seen but have value (stock, bonds, patents, copyrights, etc…)

6. POSSESSION – Controlling or holding of personal property with or without a claim of ownership

– P. is basic to law of personal property

– we rely on possession as a surrogate for ownership and title

7. Elements of possession (both must be present to acquire rights of the possessor):

1. Intent – an intent to possess the property on part of the possessor (you need to have intended to get the item)

§ Intent to exclude others (it is yours and yours alone)

2. Control of item

§ Court says person who gets the actual corporeal possession is the one who gets the fox (Pierson v. Post)

§ If an animal is mortally wounded, then the control is established…

8. Wild animals:

· Intent to catch it

· Actual control

· Mortally wounded – constructive possession and you get it

· If a wild animal escapes, it is considered wild again and free for grabs. But if the animal is in unusual habitat or domesticated, you should expect it to belong to sb

· Custom: custom of the industry is controlling (Whales vs. fox)

9. Custom should be recognized only under certain circumstances:

· When its application is limited to the industry and limited to those working in it

· When the custom is recognized by the whole industry

· When the custom requires in the first taker the only act of appropriation possible (e.g. The whale once harpooned and dead, quickly sinks to the bottom of the ocean)

· When the custom is necessary to the survival of the industry, and

· The custom works well in practice.

10. Surface owner also owns the minerals underneath, such as gold or coal. Drilling/pulling any natural resources from under one’s surface is not a trespass. First owner to tap and produce from his own property acquires rights.

11. Why do we favor possession?

· we don’t want chaos on the streets

· Possession serves as a starting point for property.

· Bailment

12. How do we get possession?

· Capture

· Create

· Find

· Adversely posses

– Nowadays, you usually buy it.

When do you get the possession?

13. Historically…

· What do you charge in a court?

a. Trespass – cause of action that resulted when someone was interfering with your property; eventually separated into two types of trespass

1. Trespass of personalty

2. Trespass on realty (actual land/property)

– Both required what we now call a “wrongful entry” they didn’t require harm. – (i.e. you’re just standing on someone’s land; unlawful entry), but did require intent on the part of the D (not just negligence or recklessness)

3. Trespass on the case Negligent trespass.

It was not a cause of action for trespass; it was developed later.

Interference with someone’s property even when the trespass was not intentional; It became a basis of the body of law we have today. this is the basis of torts (largest part of torts is negligence)

b. Causes of action for Trespass

a) Trover – was a cause of action to collect money damages for interference with your property or for conversion. (some states still use it) . In effect, trover is a forced sale.

b) Replevin – (similar to above, but different damages) someone had your property wrongfully (stole it) and you wanted your property back;

c) Detinue – when sb had unlawfully detained your prop. Sb borrowed it and didn’t give back (Gave your car to auto repair shop and they won’t give it back); damages mean you want your property back

– Most states don’t follow these anymore!

14. The law of Finders

· Lost Property – owner unintentionally and involuntarily parts with it; FINDER gets the lost property

· Mislaid – owner voluntarily and knowingly places it somewhere, but then unintentionally forgets it. OWNER OF PLACE gets mislaid prop.

· Abandoned – Owner knowingly (& voluntarily) relinquishes all right, title and interest to it. FINDER gets abandoned prop

· Treasure Trove – owner concealed it in a hidden location long ago. Usually limited to gold, silver, coins, or currency. Indication that it has been so long concealed that the true owner died looooong ago. LANDOWNER gets it in majority. Minority – finders get it as lost property.

– Lost and misplaced property does have a rightful owner; abandoned property does not have a rightful owner anymore.

– When you have possession you have a title for it above anyone else, except from the rightful owner, pre-possessor. Abandoned prop has no rightful owner.

– Finder is a person who (1) takes control of the lost property and (2)has the intent to maintain the possession of the property

– Trespassers will not keep the property found on other’s land.

– Employee if acting in scope of employment, need to return to employer/ Some cts hold that only is it was found in a place not open to public.

– Tenants will keep the prop if they actually reside there.

15. Jus tertii defense – the cts don’t accept a third party defense, e.g. – you can’t say you’re not liable for stealing bc the party you stole it from was not a true owner, i.e.: you can’t use the owner’s rights (third party) as a defense to your action, you have to litigate only on yours or the party in the suit with you rights.

· (jus tertii does not apply to den

or, or to the rightful owner (jus tertii does not apply to deny true owner his rights, it only applies if sb tries to use it as defense.)

4) You established the prima facie case now – burden of proof shifts to D

5) Defendant can establish his case by saying:

· I never accepted it, or

· He was not responsible;

He did not violate the standard of care.

He exercised the standard of care, but…. something else happened, liability goes to the insurance, or something else;

Or the thing you gave me was in condition that would not hold to the treatment…

6) Damages:

a. For misdelivery – STRICT liability for misdelivery (unless there is a statute exempting them from SL.)

b. Lost or Damaged property – see above (depends on the standard of care)

c. The bailee is responsible for standard things that could be found there…

25. Hypos:

· If you leave a coat and there is something valuable in the coat, that a reasonable person would not expect to find, then the bailee is not responsible for it – they did not accept the thing inside the coat, they only accept things that would reasonably be found in the coat. But if you told them there is something valuable in it and they accepted it, then they are responsible.

· E.g. Travelling jewelry dealer/designer made jewelry with loose stone; ring dropped off at hotel but never made it to jeweler

– Was there a bailment with the hotel? Yes

– Was there a misdelivery? Yes – she never got her ring back

– She got money back from the hotel for her ring because of failure to complete bailment.

· Valeting your car is a bailment; responsible for your car being lost/stolen/damaged

26. Gifts

Gift is a noncontractual, gratuitous transfer of property, made without legal consideration. If there is consideration, the law of gifts does not apply (K instead).

Transfer of property by will after death is not a gift.

27. Inter Vivos Gift – between living persons

28. Need 3 things to have a gift (Inter Vivos):

1. You need to have a donor (or transferor) with donative intent

§ Must have intended to make the property a gift

§ Intent can be demonstrated by words, acts, or circumstantial evidence (e.g. Wrapping it in gift wrap and put it under a tree in December)

§ Recipient has a burden of proof on intent – cts are suspicious and will scrutinize the facts.

2. Must have actual or substitute delivery of gift

§ physical (manual) delivery – actual delivery is not usually a problem with tangible personal property;

§ Symbolic delivery: a piece of paper, document that symbols it, photo, key, (e.g. The deed to land, the title to a house, etc.)

§ Constructive delivery: Delivering devices or tools, whatever will give you access/control to it (e.g. Car keys instead of actual car; safety deposit keys to get contents of actual safety deposit box; combination to a safe, etc.) because actual delivery is hard or impossible

· Telling you where sth is so you can go and get it is constr. Del.

3. Acceptance – although that is usually implied when the gift is valuable. Acceptance is presumed if you’re silent, but you’re allowed to turn down a gift. Without evidence to show rejection, there is no rejection.

– cannot demand gift back after delivering and acceptance

– no conditions precedent on a gift (you might state a condition, but after the condition has been met, it is still not a gift; you still need to deliver to make it a valid gift)

– yes for conditions subsequent

– promise to make a gift is unenforceable

– check is not a complete delivery (there is still power to revoke)