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Property I
Vermont Law School
Schmidt, Elizabeth


Vermont Law School

Prof. Betsy Schmidt

Spring Semester

I. Introduction to Property

A. Theories of Property

1. First-in-Time

a. “First come, first serve”

b. How property arose

2. Encourage Labor

a. Owned labor and natural resources equal property rights

b. Copyrights and Patents

3. Maximize Societal Happiness

a. Property in order to maximize the overall happiness of society

b. Welfare for all citizens

c. Utilitarianism

4. Ensure Democracy

a. A person owns their land and could thus exercise the independent political judgment that was vital for true democracy

5. Personhood Development

a. To be a person – an individual needs some control over resources in the external environment

b. Property is necessary for an individual’s personal development

c. Close emotional connection to certain tangible things, which virtually become part of one’s self

6. White – the law usually vests title in the person who created

B. Rights of Property

1. “Bundle of sticks”

2. The Right to Transfer

a. General Rule: any owner may freely transfer or alienate any of her property to anyone

b. Occasionally, the law restricts:

i. Who can transfer or obtain property

ii. What property can be transferred

iii. How property may be transferred

iv. Johnson v. M’Intosh – private citizens cannot purchase land from Native Americans

v. Moore v. Regents of the University of California – cannot sell (most) body parts, you do not own your cells after removal

3. The Right to Exclude

a. General Rule: The owner has a right to exclude any other person from his property

b. Trespass

i. Any intentional intrusion on land owned by another

1)State v. Shack – Ownership rights in real property do not include the right to bar migrant laborers working on the property from access to governmental services

ii. Damages:

1)General: Compensatory (nominal) damages

2)Punitive Damages awarded if the trespasser was willful

a) Jacque v. Steenberg Homes

iii. Defenses:



a) Fire

c. Right to Roam

i. Less need to recognize the right to roam – have public parks

ii. In many states, the owner of rural, undeveloped land must affirmatively post “No Trespassing” signs in order to exclude hunters. Absent such signs, hunters have an implied right to enter the land. But, there is no comparable implied right of access for recreational hikers

4. The Right to Use

a. General Rule: A landowner had the absolute right to use his property in any way he wished – as long as he did not harm the rights of others

b. Limitations

i. Nuisance


a) Intentional

b) Nontrespassory

c) Unreasonable

d) Substantial interference with

e) The use and enjoyment

2)Prah v. Maretti

ii. Spite Fences

1)General Rule: a landowner cannot erect an unusually high fence along his property line for the sole purpose of annoying his neighbor


a) Intent

b) Usefulness

3)Sundowner, Inc. v. King

5. The Right to Destroy

a. General Rule: You can destroy your property

b. Right to destroy if you made it

c. Exceptions:

i. Affect other people

ii. Property has significance

6. Property rights are not absolute – Property rights are relative

II. Owning Property

A. Adverse Possession – a legal way to acquire property without purchasing it

1. Elements:

a. Actual Possession: how a reasonable person/owner would use the land given its character, location, and nature

i. Adverse possessors do not need to occupy or use every foot of the land at every minute (Gurwit v. Kannatzer)

ii. Some states have statutes that require adverse possessors to meet certain requirements (Van Valkenburgh v. Lutz)

b. Exclusive: possession is not shared with the owner or another possessor

i. Husband and wife does not count as sharing it with another

c. Open and Notorious: must be visible and obvious, so that a reasonable inspection would uncover an adverse possessor

d. Adverse and Hostile:

i. Adverse Possessor’s intent

1)Good faith/Mistake – some states requirement met only if the claimant believes in good faith that he owns the land

2)Bad faith – a few states require bad faith where the claimant must intend to take title from the owner

a) Cannot recognize ownership right to the title holder and meet adverse and hostile element of Adverse Possession (Fulkerson v. Van Buren)

3)Irrelevant – most states

a) Hostility is implied if all other elements are met (Tioga Coal v. Supermarket)

b) Reluctant to award land title to a land pirate

ii. Do not have owner’s consent

e. Continuous Possession – continuous as a reasonable owner would be given the character, location, and nature

i. Howard v. Kunto – summer occupancy only of a summer beach house is an “uninterrupted possession” of the land.

f. Statutory

B. Rule Of Capture

1. Pierson – rule of capture awards property rights to the person who brings a wild animal under her certain control (kill or fatally wound)

a. Shaw – control of ferae naturae does not mean absolute control, but control that the ferae naturae is so confined that it is “practically so impossible” that escape cannot occur

2. Ferae naturae –wild animals are unowned while roamin in their natural habitat

3. Cattle, horses, pigs, sheep, and other domesticated animals are an exception to the rule of capture (animae revertendi – “habit of returning”)

4. Rule of Custom

a. The custom of whalers in Provincetown, Massachusetts was considered when one court ruled that a person who killed a whale with a bomb-lance owned it even though the whale would initially sink and then float to the surface days later

b. Goals of efficiency, certainty, and social order

C. Finders

1. Four Categories

a. Lost Property: property is lost when the owner unintentionally and involuntarily parts with it

i. Armory – The finder has property interest greater to everyone except the owner and the prior possessor

b. Mislaid Property: Property is mislaid when the owner voluntarily and knowingly places it somewhere, but unintentionally forgets it

i. McAvoy – Mislaid chattels belongs to the owner of the locus in quo, not the finder

c. Abandoned Property: property is abandoned when the owner knowingly relinquishes all right, title, and interest to it


en the donor dies

a. Valid only if it satisfies the Statute of Wills

i. Requires a writing signed by the donor; and

ii. Two or more witnesses

4. Causa Mortis: gifts given in the contemplation of death

III. Estates In Land

A. Present Interests

1. Fee Simple

a. If the language of a deed or will is ambiguous, the court will interpret it in accordance with the transfer’s intent

i. Most jurisdictions assume that a fee simple is intended if there is any ambiguity in the conveyance

b. Fee Simple Absolute: largest group of private property rights recognized by our legal system

i. Holder has all the rights in “the bundle of sticks”

ii. There is no future interest that accompanies the fee simple absolute

iii. Traditional conveyance

1)Example: O conveying [title] “to buyer and his heirs”

2)Words of Limitation: describe the estate being granted

a) “Heirs”

3)Words of Purchase: identify the grantee

a) “To B”

4)If “and heirs” was missing, then a life estate was created

iv. Modern

1)Do not have to include “and heirs”

2)Almost all states presume that the grantor intends to convey a fee simple unless he uses words of limitation that specifically convey a different estate

v. Alienable: can be sold or given away during the owner’s lifetime

vi. Devisable: can be transferred by will at death

vii. Descendible: can pass by the laws of intestate succession if the owner dies without a will

2. Life Estate

a. Measured by the lifetime of a particular person

b. Life Tenant: the holder of a life estate

c. Words of Limitation create the estate

i. “For Life”

d. Reversion: seller retains a future interest that becomes possessory upon the end of buyers life estate

e. Life estate pur autre vie: (for life of another) A life estate can be measured by the life a person other than the grantee

i. Example: “O conveys Greenacre to B for the life of C” – B’s estate is measure by the duration of C’s life

ii. The life estate pur autre vie is usually created when the holder of a life estate conveys his interest to someone else

f. An ordinary life estate is alienable, but not devisable or descendible

i. The grantee who holds a life estate pur autre vie can devise his estate or allow it to pass intestate succession to his heirs

g. Restraints on alienation: a provision in a deed or will that prohibits or limits a future transfer of the property

i. If such a provision expressly prohibits the future transfer of a fee simple, it is void as against public policy of freedom of alientation