Property I Outline

 
Background___________________________________________________
 
o   4 kinds of property rights
§  Right to exclude
·         Keep others from using it
·         Considered one of the most important private property rights
·         Corollary is allowing others to use it and to control that use
§  Right to possess
§  Right to use
§  Right to alienate
·         Transfer property
o   These four rights are considered the bundle of rights
§  The more numerous the rights one has with respect to a thing, the more significant is one's ownership interest in it
§  These rights can be separated
·         E.g: Lessee has right to use property but not to transfer it
§  Rights in property can be shared
·         Concurrently
·         Consecutive
o   One has rights to the thing now but another has rights now to possess thing in the future
o   Less common
§  The bundle of rights is limited
·         Zoning and nuisance laws
·         Where do property rights come from?
o        Transfer
§  Purchase
§  Gifts
§  Inheritance (even if there is no will)
o        Create
o   Possession
§  When thing exists and can become property but it has no property rights in it yet
§  It exists and was owned but was abandoned 
§  When thing exists and is owned but property owner is sleeping on rights
·         Other Background Information
o        Action for trespass on the case- action for indirect harm
§     Ejectment: tort action for recovery of real property
§     Trespass and Nuisance: recovery for damage of real property
§     Trover: recovery for damages to personal property
§     Replevin: recovery to get personal property back
o   Types of arguments
§  Instrumental arguments: societal interests
§  Custom
§  Fairness
 
 
Possession and Ownership_______________________________________
 
Possession of Previously Unowned Property
 
·         Possible rules for possession
§     First physical possession
§     Certain future possession
§     Reasonable prospect
§     Pursuit
§  Court seems to indicate that it likes certain future possession better
§  Court overrides fairness to have clear rule
·         Rule of capture
o   Whoever gets it first, owns it
o   Results in depletion of resources (tragedy of the commons: if everyone has access to resource, people tried to use it)
o        Generally not recognized
·         Possession, according to Holmes, requires:
o   Relation of manifested power in relation to object in question and
o   Intent to exclude others from interfering with the object
 
Possession of Previously Owned Property: Finders Laws
Common law categorizes property in three ways
o   Lost property
§  Unintentionally parts with property
§  Goes to finder
§  Finder holds property against everyone but the true owner and is often considered a bailee for the true owner
§  Usually a prior possessor's claim is superior to that of a subsequent possessor
·         Hypo: A finds watch; A loses watch; B finds watch; A has better claim
§  Sometimes the landowner on which the lost property is found can prevail over the finder
o   Mislaid property
§  Owner intentionally puts property somewhere and forgets where
§  Goes to owner of premises where property is found
§  True owner may remember where he put property and return there to claim it
o   Abandoned property
§  Owner intentionally parts with possession and gives up all rights no longer owning it
§  Sometimes it is obvious when property has been abandoned–throwing something in trash
§  Abandoned property goes to the finder
·         Need to look at state of mind of true owner
·         Finders Statutes
o   Provide incentives for finders to locate true owner
o   If true owner is not located within time period, finder becomes owner [if lost property] o   If true owner is located, there is often a finder's fee awarded
o   Courts just decide between the parties of the case who has the best claim, not who really has the best claim
Duty to Owner: The Law of Bailment
 
Bailment
o   Has elements of contract and tort law
o   States often have statutes that specify rights and duties of bailees in certain industry
o   Courts will look at the statute and k if it exists for a bailment
o   Elements of a bailment
§  Lawful possession of another's property (always exists)
§  Property has been delivered by owner to possessor (usually exists)
§  Delivery is pursuant to an agreement or a K(that bailee return property to bailor)
§  First two elements are all required by jurisdictions that follow tort model of bailment
§  In others, third requirement of agreement makes bailment element of contract law
§  Cases come out the same way in the tort and k jurisdictions
o   Can have a bailment even without delivery if you find something; finder is treated as constructive bailee
o   Standard of Care when Property Transferred
§  Bailee is strictly liable if they convert property
·         Even if she gives it to someone else
§  If anything else happens, bailee is negligent
§  Some courts use ordinary standard of care
§  Majority asks who benefited from bailment
·         Gratuitous
·         If bailee benefits, liable for even slight negligence [like friend borrows car] ·         Sole Benefit for the Bailor
·         If bailor benefits, liable for gross negligence only
·         If there is mutual benefit, there is ordinary standard of care
§  Most bailments fall into category where both bailee and bailor benefit
o   Burden of Proof
§  Burden of proof shifts to the bailee to show what happened to property
 
Adverse Possession
 
·         Leads to ownership rights that trump rights of previous owner
o   Possessor gets title that is good against the whole world
o   Adverse possessor is a trespasser until SOL runs at which point they become true owner and are treated retroactively as