I. What is Property?
a. Personal Property
i. Tangible or intangible things that are not attached to land
1. ie, chattels, things moveable
b. Real Property
i. Land
II. Found Property
a. Possession
i. To have possession one must physically possess or show active intent to possess property and have intent to exercise control of property
1. Money in sock case – kid found sock full of money but exercised shared possession first by playing with it
2. Have means to and actively pursue abandoned property (Eads v. Brazelton) to have intent to control
b. Lost Property
i. Property is said to be “lost” when it can be inferred that the owner parted with it due to neglect, carelessness, or inadvertence.
ii. Right of Possession of lost property goes to the first possessor
1.Finder has the right to all those except the rightful owner
c. Mislaid Property
i. Property that is said to be “mislaid” is one the owner intentionally places where they can resort to it again and forgets
ii. The owner of the place where it is mislaid has all rights except those of the true owner.
iii. Policy implication: owner of the place is in a better position for the true owner to be reunited with their property.
d. Unconscious Possession
i. Owner of real property is possessor of all that is on top of or in the land.
1.Regardless of knowledge of property in dispute
ii. Maintaining manifest intent over the land gives the locus in quo the right of property against all but the true owner
1.Hannah v. Peel – owner never resided in the house where the broach was found, right goes to finder
iii. British Airlines Case
1. No real bar to access
2. Property wasn’t “attached” to land
3. They didn’t actively look for lost property
iv. Some jurisdiction accept UP, some don’t
e. Public/Private Distinction:
i. Public: Right of First Possessor
1.Bridges v. Hawkesworth – money found in the shop goes to finder
ii. Private: Unconscious Possession
1. South Staffordshire – rings in pool go to owner
f. Abandonment
i. Time alone does not suffice for abandonment
ii. Relinquish control and intent to control over property
iii. Infer from actions of the owner
1. Inactions speak louder than words
iv. If that particular person reasonably gave up
v. Unconscious Possession may or may not apply to abandoned property
g. Employee/Employer Dichotomoy
i. Employee has right of first possessor against employer unless it was part of her employment duties to turn over found property
1. Hotel maids have been found to have right to property found in lobby
h. Property within a Chattel or “hidden”
i. Right to money found in the lining of a safe is to the First Possessor, not unconscious possession
ii. However, unconscious possession has been applied to money in a safe found inside a wall
1. No reasonable mind could find that the safe made it inside the wall involuntarily or by inadvertence.
i. Treasure Trove
i. Certain types of property – coins, gold, etc – that has been buried or hidden in a private real property and the owner is unknown
ii. Finder gets property
III. Adverse Possession (AN ECHO)
a. Possession must be uninterrupted, open, and notorious, hostile and exclusive, and under a claim of right made in good faith for a statutory period.
b. Tort of Conversion
i. If S of L has lapsed, tortious converter gains “title” to property and can convey title as the true owner
ii. Tortfeasor is barred from seeking procedural remedy
1. Chapin dissent: S of L bars seeking remedy, but doesn’t bar victim from taking back their property
c. Elements of Adverse Possession
i. Actual Possession
1. Exercise control with an intent to do so
ii. Possession must be adverse
1. Actual, notorious
2. Open and notorious
a. Has to be sufficiently visible (ie, steal the watch and wear it).
1) Half-way diligent owner could find out you had it
2) clandestine possession does not count
3. Hostile and under claim of right
a. Hostile: contrary to rights of the owner
1) ie, against consent of true owner
b. Under claim of right
1) Claimed rightful claim to the property
4. Exclusive of the owner
5. Statute of Limitation
a. Majority: 7 years, 20 years
b. Minority: States with 5 year statute of limitations add that the adverse possessor has to pay property taxes if any are levied.
iii. Must be continuous for statutorily defined period
1. Legislatures and courts have attached extensions
2. Continuous as a reasonable owner would – Kunto
d. Policies of Adverse Possession
i. Penalize the true owner who sits on the land
ii. Reward a person who uses the land for a long period of time
iii. Evidentiary in purpose to overcome lost deed ov
construction
i. Only consider constructional preference if ambiguities in plain reading of statute
ii. Consider the circumstances surrounding the deed
iii. Courts prefer condition subsequent over determinable because the “law abhors forfeiture”
1. Look at words of termination to determine if Condition Subsequent or Determinable
iv. Precatory Language, etc
v. Contrary to Public Policy
1. Does provision serve a legitimate purpose?
2. Depends on intent of devisor
a. Prohibiting marriage is against public policy, but providing support for someone until married is not
1) Lewis v. Searles
d. Words of Purchase and Limitation
i. Words of Purchase: “To A”
ii. Words of Limitation: “and his heirs, etc.”
1. To create a life estate or something other than a fee simple, words of limitation need to be as clear and decisive as possible
a. Consider words of reversion that may indicate life estate
1. Lewis v. Searles
V. Waste
a. Changing the property, in general, regardless of positive or negative alterations
i. Has to be on a lesser estate:
1. Landlord/tenant
2. Life Estates
3. Future Interest
a. At anytime if vested
b. Voluntary Waste
i. Act willfully to change the premises
ii. Remodeling
c. Permissive Waste
i. Not doing repairs
1. Moore V. Phillips
d. Economic Waste
i. May sell the estate if the property is insufficient to pay taxes and maintain the property.
1. You can sell the property for the estate owner’s well-being
e. Doctrine of Ameliorating Waste
i. Deed can stipulate what improvements can be made
ii. If not stipulated, improvements are still waste
1. American Rule:
a. Brewer case in which mansion was demolished and replaced with a commercial building:
1) Life tenant’s expected remaining life;
