PROPERTY 1_Fishler_Spring 2011
I. BROAD OVERVIEW
-ACQUISITION OF OWNERSHIP OF PROPERTY (NOT BY CONVEYANCE)
-ESTATES IN LAND (TYPES OF POSSESSORY OWNERSHIP)
-FUTURE INTERESTS (RIGHT TO POSSESSION IN THE FUTURE)
-RULE AGAINST PERPETUITIES
-CO-OWNERSHIP OF PROPERTY
-TRANSFERS (BY CONVEYANCE)
Common law- court made law
Statue law is made by the legislature
Most of the case we will be reading is from the supreme appellate courts
A. THE RELEVANCE OF “POLICY”
1-Whose interests would you expect to be more important to a state-wide court, the interest of the PARTICULAR PARTIES IN A CASE, or the best interest of OUR LEGAL SYSTEM for resolving this type of issue in the future?
2-Should it matter whether it will be easier for attorneys to predict the outcome of future similar disputes, and thus increase the likelihood the parties can resolve their dispute without going to court?
3-POLICY ISSUES –CAN HAVE A PROFOUND IMPACT UPON, AND MAY INVOLVE COMPROMISES RELATING TO:
>>FAIRNESS TO INDIVIDUALS,
>>FAIRNESS TO SOCIETY AS A WHOLE,
>>THE DEGREE TO WHICH COMMERCE IS ENCOURAGED IN A WAY THAT MAY WELL IMPACT UPON OUR STANDARD OF LIVING.
4- IT IS RARE WHEN THERE IS A STATUTE OR CASE THAT WILL PROVIDE CERTAINTY IN DECIDING A PARTICULAR CASE – USUALLY THE FACTS ARE BETWEEN THE RULES ESTABLISHED.
-POLICY IS GOING TO BE OF CRITICAL IMPORTANCE WHEN YOU ARE ATTEMPTING TO ARGUE THAT THE LAW SHOULD FAVOR YOUR CLIENT
B. PUBLIC POLICY THEMES IN PROPERTY LAW – I.E., GIVING PRIORITY TO PROMOTING THE BROAD INTERESTS OF SOCIETY ex: buying a house with a damaged roof- court holds up the person buying the property.
1. Promote and protect the marketability of property
2. Protect stability, including industries vital to society (providing food, jobs, etc)
3. Promote the productive use of property
4. Predictability (to minimize future disputes)
C. CONDITIONS
CONDITION PRECEDENT
An event that must occur before rights or obligations will arise
CONDITION SUBSEQUENT
An event that, when it occurs, will terminate rights or obligations.
D. RIGHT TO “ALIENATE” PROPERTY RIGHTS
1. Public Policy: owner of a property right must have a reasonable right to sell such right.
2. Public Policy: promote the productive use of property
Therefore, Restraints on the right of alienation are carefully scrutinized, and . . .
An “unreasonable” restraint on alienation will be invalidated by the courts
II. Acquisition of Ownership
A. FIRST POSSESSION: capture
-Involves property not previously owned
-We focus on personal property
-We are presented with questions such as:
-How do you acquire first possession
-Do individuals who acquire first possession have greater rights than one acquiring subsequent possession.
1. Public property and domain over animals:
a. PIERSON v POST: capture wild animals
FIRST PROPERTY CASE
The doctrine of “capture” (compare “discovery”): Pursuit alone vest no property rights to the pursuer- the court said that mere chase is not enough and you need to kill and capture/ continue the chase on the animal.
Involves wild animals
Begin with wild animals in the public domain
Legal analysis: how do you “capture,” i.e., acquire first possession, of a wild animal?
b. General Rule for Capturing Wild Animals:
Actions demonstrating the unequivocal intention of appropriating the animal,
coupled with
depriving the animal of its natural liberty and bringing it within the hunter’s control.
c. The special rule adopted by court for this type of circumstance: Achieving first possession, and thus ownership, requires two elements:
1. mortal wounding, and
2. not abandoning pursuit
d. POLICIES
> Majority: Promoting certainty
> Dissent: Getting rid of “wild and noxious beasts”
e. GHEN v RICH (Mass. 1881) a dispute over the whale:
Still examining wild animals in the public domain
Under property law, does the shooting of a whale by traditional means equate to possession of the animal's remains as the shooter's property, when the animal itself is left with the anchor from the ship which shot it, but is still sold to a third party? Yes. In fishing only, the taker must make an act of appropriation that is possible in the nature of the case. If the fisherman does all that is possible to do to make the animal his own, that would seem to be sufficient. Both common law tradition and previous case law show that acquisition in the fishing industry is determined by who kills the fish is the possessor of the fish.
2. Private property/domain:
a. KEEBLE v HICKERINGILL: NOW MOVE TO WILD ANIMALS ON PRIVATE PROPERTY: PL owns a plot of land, on which he maintains his duck hunting business. If a stranger hinders and obstructs a land owner from engaging in their business practice through some deliberate action, then there is a cause of action which imports damage. Being that doing such action is not against the law, when someone intentionally hinders the use of the land is liable. You can only have an interference if those ducks get scared away.
3. first in time – trespassers- both wrong doers but the one who had the possession therefore he has more of a legal right to it then the second person- first in time to posses
4. General rule: Wild animal in nature is not owned by anyone, even if they pass through private property occasionally.
5. THE UTILITARIAN VEIW OF PROPERTY: ACHIEVING THE GREATEST GOOD FOR THE GREATEST NUMBER OF PEOPLE: PRIMARILY, THE FUNCTION OF PROPERTY IS TO PROMOTE THE EFFICIENT USE OF RESOURCES FOR SOCIETY AS A WHOLE, I.E., ECONOMIC EFFICIENCY
F. ACQUISTION BY “CREATION”
1. INTELLECTUAL PROPERTY RIGHTS
CHENEY BROS. v DORIS SILK CORP: There is no general law or common law rule which governs that one person's chattel may be copied and sold as another's own product. In this case they want the creation of new common law for season to season: for protection-this case protects the consumer- so they have more of a choice.
2. CREATION
ON THIS SUBJECT, IT IS IMPORTANT TO DISTINGUISH:
*COMMON LAW
*FEDERAL STATUTORY LAW*
-Patents: gran
7. FINDING – RULE NO. 5: ABANDONED PROPERTY:
-No expectation that the true owner will come for abandoned property.
-Therefore, no rationale to give it to the owner of the land.
RULE: The first finder is entitled to possession and outright ownership.
EXCEPTION: If the found item is attached to the land – owner may claim constructive possession
B. ADVERSE POSSESSION (cheap son)
1. This deals with real property/ and not personal property but it may deal with it not complete barred from personal property.
2. TWO RELATED POLICIES THAT HELP TO EXPLAIN THIS MOST CURIOUS RULE
a. The “sleeping/earning” rule: if someone has a right and they don’t assert it for a substantial amount of time then you can lose the right.
b. The “productive use of property” rule: as earned the right to own it
3. once someone takes the possession of the property it is at this point that the date of the cause of action starts so the time ticks away to when someone can claim back the property. The person that is claiming possession must be openly occupying it and the owner should be able to understand to make claim to that person taking the possession of it.
4. STATUTORY PERIOD.
Period starts: when cause of action accrues.
When adverse possessor enters upon property, this gives the owner the right to initiate an action, e.g., action to quiet title.
Period ends: end of statutory period; subject to exception for disabilities.
Periods vary greatly among jurisdictions- some is only 3 yrs or 30 yrs
5. GOVERNING LAW: need to look at both state law and case law aka
Statutory rules and Court-made rules.
6. RELATION BACK: general rule:
The running of the statute vests a new title created by operation of law in the adverse possessor. Once acquired, this new title relates back to the date of the event that started the statute of limitations running, and the law deems the adverse possessor to be the owner as of that initial date. ( when the time runs out)
7. ADVERSE POSSESSION- CONTRADICTIONS
ADVERSE POSSESSION RUNS AFOUL WITH FUNDAMENTAL PROPERTY THEORIES:
FIRST, THE TRUE OWNER LOSES TO A TRESPASSER; AND
SECOND, A SUBSEQUENT POSSESSOR PREVAILS OVER THE FIRST POSSESSOR.
8. ADVERSE POSSESSION- ELEMENTS
GENERIC ELEMENTS
a. Entry and Exclusive Possession
b. Open and Notorious: in a manner that the true owner would be on notice that they were there
c. Adversity/Claim of Right
d. Continuous possession
e. Possession for the statutory period
