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Property I
University of Toledo School of Law
Kennedy, Bruce M.

Property Kennedy Fall 2016

Nature of Private Property

Bundle of Rights

i. Private property is universal but local; exclusive but not absolute

ii. Property rights are defined by the government, are not absolute, can be divided, and evolve as laws change.

iii. Rights of Private Property (exclusive but not absolute)

iv. The Rights:

Right to use/enjoy
Right to exclude
Right to usefruct (using the fruits of your property)
Right to transfer

Right to Use

Owner has right to use as long as they do not injure the rights of others

One cannot use his property in a way that interferes with another’s (neighbor) enjoyment or use of their own property (spite fence/ nuisance doctrine)

Private nuisance—when one landowner’s use of his property unreasonably interferes with another’s enjoyment of their own property
Intentional, non-trespassory, unreasonable, and substantial interference with the use and enjoyment of the plaintiff’s land

Old rule:

Illegal based on its very nature, per se nusisance
Brothels, casinos, spite fences

New rule:

When determining a general nuisance, courts balance competing land use by balancing the gravity of the harm to the plaintiff against the utility to defendant

Negative easement (Prah v Maretti):

Prevents a neighbor from doing something they are generally allowed to do
Inherently invisible
Air, light, water through irrigation ditch, and support
In Prah, owner of home wanted easement because neighbor’s house blocked sunlight to his solar panels

Right to exclude

Protected by trespass, both intentional and unintentional
Unprivileged, intentional entry upon land owned by another to establish trespass

Intentional (voluntary), Unauthorized (other than consent or out of necessity, entry upon land of another

Defense against trespass: Licensee
Owners cannot exclude the government and some jurisdictions have held that owners cannot exclude doctors/lawyers from those trying to help migrants on the property (State v Shack)

Property rights are not absolute

Right to Usefruct

Right to use the fruits created by your property
Right to use property to produce income/profit from one’s property (cows, crops, etc.)

Right to Transfer

The right to sell or give away property by gift, sale, devise, or descent

Derivative v Original Title

Derivative title: title derived from its former owners

A(sale) àB (sale) à C
C’s title is good if B’s title was good: B’s title was good if A’s title was good
One cannot pass a better title that one actually has
If X has a void title and sells to A, A also has void title
Thieves cannot pass good title

TO(stolen) à TH (sale) àA (sale)à B
TH has a void title, so A and B also have void title
If TO tracks down the stolen property from B, TO has superior title as true owner

Original Title

Title not derived from its former owner
Example: Pierson killed fox, he gained original title because the ferae naturae was previously unowned and he has prevented it from escaping
Three ways to get original title:

Abandoned chattel
Adverse possession
Capture of un-owned property or ferae naturae

Possession leads to/is basis of ownership for all three cases
Not true for the rest of the world of property

Quick Claim Deed

TO does not know what he owns on the property but tells buyer that whatever he owned is now yours
Transferring property but making no warranty as to what you have

Limited: Right to Destroy

Right to destroy property by will is not absolute
Right to destroy that one has the day before he dies is limited upon owner’s death

constructive possession of the whole tract


Cannot be shared with the true owner or the public
Cannot be exclusive if two or more adverse possessors use the property adverse to each other’s ownership

Open & Notorious

To put real owner on notice so must be visible/obvious
If owner were to inspect the property, he would be aware that someone else might be claiming the property
True owner does not have to know—they just must be capable of knowing

Adverse and hostile

Cannot be authorized by the owner—possession stemming from the true owner’s consent does not meet the standard
Must be a trespasser
Without the permission of the true owner “under a claim of right”

Claim of right- pursuing a claim—acts towards claiming ownership

Majority: Objective test: determined by looking at the outside actions of the claimant and if he is using it the same as the true owner would
Minority: Subjective test: person is claiming land if they have a good faith belief they have right to possess the land; requires good faith belief on behalf of the claimant that he is entitled to the property


Does not mean constant; but you cannot begin adverse possession then abandon it, and cannot claim it through ouster
Continuous is defined in terms of the character of the land itself

Continuous as the R owner would be
Continuous even if not on the land often
Occupied as the R owner would