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Property I
University of Toledo School of Law
Cavalieri, Michelle

Final, quiz, midterm
Property I Outline Cavalieri Fall 2013
POLICY CONCERNS IN PROPERTY LAW
 
LIBERTY
Freedom to do anything with the law with regarding to property and using it.
What are you allowed to do and what can’t you do?  Example: I own a dog, but I am not free to kill my dog.
EQUALITY AND REDISTRIBUTION
How much are you allowed to accumulate?  How much stuff can you have?
If you have a lot, can we take some away (ie public purposes?) Under what circumstances could that happen (i.e. Constitution giving authority for gv’t to take prop in some instances, imminent domain).
EFFICIENCY
The law should seek the most economical way of operation.
What is the least costly, most efficient way to use the stuff?
Economics:
-maximizing land values
-maximizing return from natural resources
-lowering transaction costs
-we want land to be used fruitfully
-promoting fair competition
FAIRNESS & RESPONSIBILITY
How one uses his land with respect to the effect on the surroundings.
Can I use my stuff in ways that causes harm to others?  In what instance?
Fairness:
-meeting expectations
-balancing outcome for all parties
-putting burden on lowest cost avoider (kind of ties in with economics in a way)
-rewarding first in time (but not always, see: nuisance)
-general fairness to those who act in good faith (ex: good faith improver of another's land)
ACCESS
When a landowner allows access to outsiders and then terminates access.
I.e. law of easements, can state require me to grant access to someone else?  What kind of access?  Under what circumstances and why?
ADMINISTRABILITY
Law is easy to follow and clear with predictable outcomes.
Ability to predict how the rule will work in the future.  Can we make laws that are easy to follow and help people align their behavior?  Examples:  Speed limit 35mph as opposed to “not too fast.”  Or “you must disclose mold in selling house” vs. “must disclose mold that is 7 part particles/mm continuous in air.
JUDICIAL ECONOMY
Law makes it easier for judges to resolve, can deal with probs quickly through administrable laws that are clear-cut answers to issues.  Establish rules that judges can interpret and not waste their time on.
Example: “habitability requires that a house can be habited by a reasonable person” vs. House must be heated to 65 degrees.  A rule that everyone can predict that the crt will do, and an economical use of judicial resources.
-making judicial decisions more efficient and easier and establishing bright line rules while still allowing flexibility
 
PART II WAYS OF GETTING PROPERTY
 
Action to Quiet Title :  lawsuit in order to establish a party's title to real property against anyone and everyone, and thus “quiet” any challenges or claims to the title.
 
 
FIRST POSSESSION
 
“First in time, first in right”; the person who gets there first has possession of the property.
Types:   Discovery, Capture, Creation.
Discovery
Gives exclusive title to those who made it.  Discovery is superior to the right of occupancy.
Discovery gives a person the best title to that property, and is the closest thing a person can have to absolute ownership.  The theory is that the discoverer has the best title because she was the first in time.
Whether a person is a “discoverer”
Title is relative, rights are interpreted in terms of competing claims.
Is open to manipulation.  Possession is a legal conclusion, as demonstrated when European settlers occupied the new world and considered tribes mere occupants because they didn’t think they were using the land “correctly.” 
Acquisition by Conquest/Capture
Applies to fugitive resources and wild animals.
Mere pursuit of an animal does not give legal right to pursuer, must have control to possess.
Fugitive property
 
Movable like wild animals, oil and gas.  Belong to the owner of the land, and are part of it, so long as they are on or in it, and are subject to his control; but when they escape, and go into other land, or come under another’s control, the title of the former owner is gone & resume as common property.
Two characteristics of acq. by capture
 
Unowned, with no specific owner.  And fugitive- they are mobile.
Ferae Naturae
Wild animal
Person must kill or mortally wound it to take control.
A person becomes owner of a wild animal/fugitive resource
By capturing the animal and reducing it to possession.
1.      Mortally wounding the animal
2.      Catching the animal in a cage/trap
3.      Grabbing the animal & securing with hands
The prospect of capture
No matter how likely to succeed
Is not enough.
Domestic Animals
 
The inclination to return suggests domestication.
Constructive possession
When one is using land for profit
They have constructive possession of the future property interest. 
(Keebler case, shooting guns near duck decoy)
Labor Theory
 
Person who adds value to the property acquires interest in title.

ady owned by someone else.  Includes prop that is lost & found.
Theory of sub possess.
 
Title is relative.  A person’s rights as to property are understood in relation to another’s rights in the same piece of property.
Hierarchy of Property Interests
Who has the best/worst title for:
1.      Mislaid
2.      Lost
 
MISLAID: True owner > Locus Owner > Finder and
 
LOST:  True owner > Finder > whole world (includes subsequent finder)
Mislaid Property
 
True owner unintentionally misplaces property.
i.e. wallet left on counter at Target.
Theory of Mislaid
 
True owner will go back to where the property was intentionally placed to retrieve it, so the Locus Owner has right of possession.
Property left on “surface?”
Final exam tip given at lecture
Surface means “mislaid” but one could reason the property as lost/mislaid for the following reasons…
Policy for mislaid
 
The finder acquires no rights because we want property to end up in the hands of the true owner, which is more likely if finder has no rights.
Lost Property
 
Owner doesn’t know whereabouts.  I.e. wallet on floor at Target.
Theory of Lost
 
True owner won’t go looking for it, finder now acquires possession rights.
Abandoned Property
 
Owner intentionally relinquishes his rights to the property and has no present desire to retake it.
Theory for Abandoned
 
Finder acquires best title and becomes the true owner.
Determining Lost vs. Mislaid vs. Abandoned
 
Where was the owner when she lost the property?  What was she doing?  How did the finder find it?  What did the finder do after finding it?
Trover vs. Replevin
 
Trover: sue for $ of prop, Replevin: sue to compel return of prop.
Treasure Trove
 
CL held that finder of treasure trove got to keep it regardless of where it was found. ML has abandoned because encourages trespassers, now belongs to landowner.