I. ACQUISITION OF PROPERTY
i. Legal Theories:
1. Legal Formalism: law is a collection of first principles (basic concepts of law) and should be used to decide basic cases. Want certainty and strict adherence to laws.
2. Legal Realism: we should view what judges do as heavily influenced by their class, social status and law is another issue of social policy. Skeptical approach to the law. Want discretion in cases and flexibility.
ii. Property: rights among people that concern things
1. “bundle of rights”: rights to (1) exclude, (2) transfer, (3) use and possess
2. Real property: land and anything attached to the land
3. Personal property: things other than land.
a. Chattels: tangible, visible personal property. Ex: jewelry
b. Intangible: invisible. Ex: stocks, patents, contract rights
c. Bailment: the rightful possession of a chattel by someone other than the owner (ex: borrowing a book). Bailee has a duty of care of the ordinary negligence standard.
iii. Acquisition of Property
1. Acquisition by Discovery:
a. the sighting or finding of unknown or uncharted territory
b. Conquest: taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.
2. Acquisition by Capture
a. Ratione soli (English Law): an owner of land has constructive possession of wild animals on his land, until the animal leaves.
i. American Law: landowner doesn’t have possession of the animal on his land, but may bar hunters access on their land, therefore, having the animals to themselves.
ii. Capture Rule (common law): property rights in wild animals are acquired only through physical possession. The first person to kill or capture the animal acquires title to it.
b. Also applies to oil and natural gas under owner’s land
3. Acquisition by Creation
a. Any expenditure of mental or physical effort (make a painting or chair), as a result of which there is created an entity, whether tangible or intangible, vests in the person who brought he entity into being, a proprietary right to the commercial exploitation of that entity, which rights is separate and independent from the ownership of that entity.
b. Accession: one person adds to the property of another. (making a chair from wood)
1. the first person to take possession of lost or unclaimed personal property. Possession requires (1) an intent to control the property and (2) an act of control.
2. Finders’ rights depend on: (1) the presumed intent of the original owner, (2) the identity of the competing claimants and (3) the location where the item is found.
3. Statutes Defining Rights of Finders: state statute requiring the finder to turn over the item to police; the find is then advertised and the true owner has a set period (90 days-1 year) to file a claim. If no claim is made within this period, the item belongs to the finder.
b. TYPES OF P
i. Definition: property is wrongfully taken but eventually taker of land can claim ownership . Adverse possession is a method of transferring an interest in land without the consent of the prior owner.
ii. RULE: wrongful possession of property overtime can ripen into ownership if the property is improved and the statue of limitations in which the rightful owner can claim his property back has ran out. Modern trend to shorten SOL to 6-10 years.
1. to punish owners that “sit on their rights” by not using the land productively and neglecting the use of their land.
2. To reward the adverse possessor that improves the land and benefits from its productive use.
3. to secure (quiet) titles so that land has an owner and someone is responsible for it
4. to put disputes relating to property to rest.
iv. Elements: HAVEC: Adverse possession must be Hostile, Actual, Visible, Exclusive and Continuous.
1. ( actual entry giving exclusive possession that is open and notorious, adverse and under a claim of right, and continuous for the statutory period)