Professor Calo Property Outline Spring Semester 2010
Property Outline
I. Acquisition of Property
A. Law of Finders – Acquisition by Find
1. Lost Property – owner accidentally lost, and does not know where to find it.
Ex. Watch falls of wrist and lands on the street
a. Rule: Finder gets the property, and has title good against the whole world, except for the true owner.
b. finder unless:
– very private place
– owner of locus had actual or constructive prior possession
– finder is trespasser (unless trespass in incidental)
– finder is in master-servant
– true owner shows up
2. Mislaid Property – owner intentionally places property in a spot, but forgets it.
Ex. Purse left on shop counter
a. Rule: Owner of the premises is entitled to possession against the whole world, except for the true own.
– Rational: Keep it close to the place it was mislaid so true owner might remember where it was misplaced and reclaim it.
3. Abandoned Property – owner voluntarily and intentionally relinquishes ownership with the intent to give up title and possession.
Ex. Owner throws watch in the garbage can because does not want to replace the battery
a. Rule: Finder obtains both title and possession if he exercised control over the property with the intent of ownership. (good against whole world including owner)
4. Treasure Trove – Hidden $$, gold, silver, etc
a. Old
– buried w/ intent to return – goes to the state
– Buried w/ no intent to return – goes to the finder
b. Modern in US – goes to the finder
5. Shipwrecks – traditionally, salvage award to finder
a. US Territorial Waters, if abandoned – State
b. US Territorial Waters, if not abandoned, – salvage award to finder
B. Bailments – rightful possession of goods by one who is not the true owner. Bailor remains title, bailee possession
1. elements
a. exclusive control/possession of bailee
b. accepted by bailee to the exclusion of the owner
2. 3 Types of Bailments Traditionally
a. Gratuitous Bailment (Bailor’s benefit)
– Strictly for the benefit of the owner
– Liable only for gross negligence
– Low standard of care
Ex. Dog sitting
b. Bailee’s Benefit
– Responsible for great care
– Liable for slight negligence
Ex. X gratuitously lends her sports car to her friend Y to drive to Y’s class reunion.; borrowing lawnmower
c. Mutual Benefit
– Payment given for providing service
– Ordinary care
– Ordinary negligence
– Care an ordinarily prudent person would do under the same or similar circumstances.
Ex. Clothes to dry cleaners; Car in shop
3. Affects/Burden of proof – bailee must prove reasonable care under same/similar circumstances.
a. presume damaged while in possession of bailee
4. Involuntary Bailment – dog in garage, items washing to shore)
a. bailment thrust upon you…only care is ordinary negligence
5. Duty to Deliver – regardless of the standard of care, a bailee is held to strict liability when it comes to redelivery.
a. Misdelivery of goods – even though reasonable care exercised, strictly liable
b. Involuntary Bailee is negligent only if he was negligent in delivering goods to wrong person.
Ex. You find a cat in your garage, and unknowingly give it to the wrong little girl because she claims it is her cat.
6. Container cases- If someone takes the wallet out of my coat at a coat check, is the bailee responsible?
a. Depends on if bailee is made aware of it and has taken responsibility for it
C. Adverse Possession
4 Elements of Adverse Possession
1. Exclusive Entry and Possession – (not sharing possession with the owner or the public)
2. Open and Notorious Possession – (acts appropriate to the condition, size and locality of the land to constitute reasonable notice to the owner and claim of dominion)
3. Adverse and Under Claim of Right – (without the owner’s consent)
4. Continuous and Uninterrupted Possession – (degree of occupancy and use that an average owner would make of the property for statutory period; tacking allowed, under certain circumstances)
1. Elements
a. Actual entry giving exclusive possession
b. Open and notorious
c. Adverse (hostile) and under claim of right
(A) Objective Test
1. Look to see if the actions of the possessor look like they are claims of ownership.
2. If they look to the community to be under claim of right, they are acceptable.
3. A person can be an adverse possessor even though he is not actually claiming title against the true owner. The important thing is that he is occupying the land without the permission of the owner. Permission negates a claim of right.
(B) Subjective Test
1. Adverse possessor has honest mistaken belief
2. Dishonest trespasser know land is not theirs, but try to take it anyway under hostile AP
d. Continuous and Uninterrupted – used in a way that everyone else would use it, depending on the nature of the property
2. Color of Title – Claim founded on written instrument which, unknown to the claimant, is defective or invalid.
a. Constructive Adverse Possession- if you occupy part of land on a color of title for the statutory period and obtain that portion by adverse possession, you obtain all of the land listed within the title
– parcels must be contiguous and under common ownership
3. Tacking
a. if adverse possessors are in privity, the current adverse possessor can tack the statute of limitation from when the initial adverse possessor (in privity) first occupied it before it was conveyed
– Privity can be:
i. Familial
ii. Economical (i.e.: purchased from AP)
b. If an adverse possessor is ousted by another adverse possessor, the latter cannot tack the time on, but if the first one comes back and ousts the second one, the first adverse possessor can “pick up where he left off” without having to start over
4. Interruption of AP
a. By Owner
– lawsuit – tolls Statute of Limitations, if O succeeds statute starts over
– Physical – statute must start over
5. Boundary Disputes
a. Objective Test – The possessor’s mistake is not de
asible Fees – a fee simple is created to be defeasible upon the happening of a certain event, and the owner of the fee simple loses the present possessory interest. All or alienable, devisable, descendable
1. Fee Simple Determinable – a fee simple estate limited to automatically end upon the happening of a specified event.
Ex. O ® School Board so long as the premises are used for school purposes.
a. Transferability – May be inherited, so long as the stated event has not happened, however, it remains subject to the same stated limitation.
b. Correlative Future Interest – Possibility of Reverter to grantor.
c. “so long as,” “during,” “until,” “unless”
2. Fee Simple Subject to Condition Subsequent – Does not automatically terminate, but may be cut short (divested) at the grantor’s election when a stated event occurs. It does not automatically end, thereby allowing it the potential to go on forever. The grantor merely retains the power to reenter and terminate the estate, but this right must be exercised by the grantor.
Ex. O ® A, but if alcohol is sold on the premises, the grantor has the right to reenter the premises.
a. Transferability – may be transferred or inherited until the transferor is entitled to, and does, exercise the right to reenter.
b. Correlative Future Interest – Right of Re-entry
– o must elect to reenter or rights stay w/ A. Statute of Limitations begins to run upon occurrence of event
c. “but if,” “on condition that,” and “provided that”
3. Fee Simple Subject to an Executory Limitation – fee simple that automatically divests in favor of a third person upon the happening of a stated event.
Ex. O ® School Board, but if within the next 20 years, then to A
a. Correlative Future interest
– Grantor – Reversion if 3d party cannot take
– Transferee – Executory Interest
C. Fee Tail – From feudal England, a way of keeping the land in the family. It lasts as long as the grantee or any of his descendants survives, and it is inheritable only by the grantee’s descendants. A fee tail has been abolished in most states today, and is interpreted as either a life estate or a fee simple absolute.
“To A and the heirs of his body”
D. Life Estates – has the potential duration of one or more human lives. Life estates are freely alienable during the lifetime of the holder.
1. For the Life of the Grantee – estate is measured by the life of the grantee.
Ex. O ® A for life
A has a life estate, and O has a reversion (it reverts)
