property spring 2026

what is property?

a bundle of rights

what are the bundle of rights of property?

right to exclude, use, and transfer

Labor Theory

able to get the benefits that you put the work into/reap the benefits of your labor; INS v. AP

Personhood theory

property is part of your identity; extension of self; personal property deserves stronger protection

Utilitarianism/civic republicanism theory — two key functions

property should promote social welfare and liberty

1. incentives for development — reward labor, prevent free riding

2. prevent depletion of finite resources

First occupancy/possession theory

possession or capture of previously unowned resources creates property rights

Liberty and Civic Republicanism Theory

property gives individuals a stake in society and political independence

Distributive Justice/fairness theory

fail allocation of resources across society

wild animals: how is property acquired?

acquired by occupancy, mortally wounding or capturing from a distance, and at most physical possession
(Pierson v. Post)

Wild animals: what creates occupancy?

actual capture or deprivation of natural liberty

Wild animals: what is insufficient with wild animals?

mere pursuit is not sufficient

Wild animals: when are customs recognized?

Customs are recognized when (1) necessary to the industry, (2) universally followed, and (3) promote efficient capture.

(Ghen v. Rich)

Wild animals: what are limits of customs?

environmental harms, tragedy of the commons, externalities

Wild animals: Who owns animals for hunting and fishing but is not liable?

the government

Wild animals: What did Keeble show?

abuse of right is a cause of action, cannot interfere with another’s livelihood; competition is allowed if friendly

conversion

wrongful exercise of dominion over another’s personal property

trespass to chattels

personal property is damaged or there is an interference with the use of property

Popov v. Hayashi Gray and Finklemen rules

Gray: complete control when the momentum of the ball ceases, first to pick up as the right
Finklemen: complete control is not needed, if able to stop the momentum.

Oil and Gas: spacing laws

wells cannot be close together

Oil and Gas: pooling laws

allows owners to combine interests to form units that meet spacing requirements

Oil and Gas: forced pooling

forcing owners to be part of drilling units

Oil and Gas: ground water rules (2)

english rule: first to capture and have beneficial use is the owner
American rule: can withdraw, but cannot waste

Oil and Gas: surface water rules (2)

Prior Appropriation: first to capture and put to beneficial use is the owner

Riparian Rule: the land owner along the water source is the owner

general rule of adverse possession

when one possesses another’s land in a manner that is exclusive, continous, and without the owner’s possession for a period defined by state statute, title transfers from the true owner to the adverse possessor

AP elements

1. actual possession

2. open and notorious

3. exclusive use

4. continuous use

5. adverse and under claim of right

AP: what is an exception of actual possession?

color of title

what is color of title?

facially a deed or will, but is actually invalid; enables a person to claim ownership and used for AP

Tacking Doctrine

• can add together time + space of 2 or more adverse possessors to reach the statute of limitations time.

• parties must be in privity

• space needs privity and a contractual agreement

• in favor of AP(s)

• Howard v. Kunto

Ouster

to acquire adverse possession against a co-owner, one must make an explicit statement of intent to take possession of the entire property and refuse demand of ousted co-owner
spiller v. mackereth

AP: three states of mind

1. objective standard: state of mind is irrelevant — majority

2. good faith standard: AP thinks they own the property

3. aggressive standard: AP knows they do not own, does it anyways

AP: ways to figure out boundary disputes (3)

1. agreed boundaries: oral agreement that is accepted for a long time

2. acquiescence: accepting without protest for a long time and cannot be changed

3. estoppel: representation made is relied on

AP: Disabilities (rule and who it includes)

rule: cannot tack together, must exist at time of action, +5 years once disability ends (or if turns 18 + 5 years)

1. minors

2. unsound mind

3. imprisonment

AP: rationales

• supports expectations, reflects reality

• corrects errors, quiets titles (resolve ownership issues)

AP: Economic theory

diminishing marginal utility of income, possessor would lose more and the owner would gain more

AP: prospect theory

possessor would feel loss more than owner’s opportunity to feel equivalent again

AP: Earning theory

rewards the diligent occupier and promotes the development of land

AP: penalty/sleeping theory

penalize owners for sleeping on their rights and letting APs take over

Fee simple absolute

complete ownership lasting till the end of time; transfer by sale or devise it by will (or heirs if no will)

FSA language

O to A, O to A and her heirs

Life estate

the owner owns the property for life, measured by tenant’s life

language for life estate

O to A for life

Fee simple determinable

like a FSA, but provision states that estate shall automatically end on the happening of an event/nonevent

future transferor interest for FSD

possibility of reverter

Fee simple determinable

O to A so long as, during, while, until etc.

fee simple subject to condition subsequent

does not end automatically; if condition occurs there is a right to retry.

future transferor interest for FSSCS

right of entry if condition occurs, not automatic

fee simple subject to condition subsequent

O to A provided that, on the condition that, but if, provided, however, etc.

fee simple subject to executory limitation

same granting language that creates a FSD or FSSCS if the future interest goes to a third party

fee simple subject to executory limitation language

to A but if ____ occurs, then to B.

future interest of FSA

none

future interest of life estates

reversion if held by grantor

remainder/executory interest if held by transferee

defeasible fees (3)

1. FSD

2. FSSCS

3. FSSEL

future interest of FSSEL

executory interest by third party/transferee

FI: what is reversion?

grantor is to receive possession back when the estate ends

To A for life, then to B if passed the bar. if B fails, what does O have?

O has a reversion.

FI: what is a remainder?

a future interest that is created in a transferee that is capable of becoming possessory immediately upon the end of the prior estate; natural turn over. 

definition of vested remainders

(1) born and ascertainable and (2) no conditions needed for it to occur

types of vested remainders (3)

1. indefeasibly vested remainder

2. vested remainder subject to complete divestment

3. vested remainder subject to open

vested remainder subject to complete divestment

future event that could terminate the remainder, grantee has rights at the start of conveyance

which has a condition subsequent?

vested remainder subject to complete divestment

what happens when a condition subsequent is met?

can lose everything

Vested remainder subject to open

subject to dilution if more join the class after the conveyance

how to close a class (2 ways)

natural closing: births are no longer possible

artificial closing: membership in a class closes whenever any member of the class is entitled to immediate possession of a share of the gift

contingent remainders rule

either (1) a future even must take place or (2) not born/unascertainable/don’t know who yet

lacks rights at the time of conveyance until the event needed happens/need to do something to get rights

what has a condition precedent?

contingent remainder

executory interests rule

prematurely terminates preceding possessory estates; cuts short

shifting executory interest

divests some interest in another transferee

springing executory interest

divests the transferor in the future

RAP rule

no interest is good unless it must vest, if not at all no later than 21 years after the death of some life in being at the creation of the interest.

RAP: the measuring life must be

1. alive when the future interest is created

2. someone who affects the vesting of the future interest

RAP: steps (4)

1. look at interest: ONLY contingent remainders, executory interests, and class gifts

2. what must happen for the interest to vest?

3. who are the relevant lives?

4. does any relevant life validate the interest?

remedies for violating RAP (4)

1. Cy Pres

2. Wait and See

3. Unborn Widow

4. USRP

RAP: Cy Pres remedy

strike out the offending clause and leave the rest of the conveyance as it was

RAP: Unborn widow remedy

reform says that the surviving spouse was alive at the relevant time thus they count as a life in being

RAP: wait and see remedy

validity of an interest is not determined at the outset, instead see if the interest actually vests during the perpetuities period

RAP: USRP remedy

modifies the conveyance, gives benefit of the doubt to satisfy the interest

Concurrent interests (3)

joint tenancy
tenancy by entirety
tenancy in common

joint tenancy

requires four unities; automatic survivorship

four unities

time, title, interest, possession

four unities: time

acquire or vest at the same time

four unities: title

acquire through the same instrument or by a joint AP

four unities: interest

all must have equal undivided shares and identical interests measured by duration

four unities: possession

each has a right to possession of the whole

what happens when the four unities are not present in a joint tenancy?

it becomes a tenancy in common

what does a joint tenancy avoid because of surviorship?

probate

can a joint tenant give exclusive possession to a third party, denying cotenants the right to the whole?

no — only nonexclusive possession (Swartzbaugh)

tenancy by entirety

all four unities + marriage at the time

how to terminate a tenancy by entirety?

both must agree to termination

tenancy in common

default; separate but undivided interests in the property; only unity needed is possession; can transfer during life or death

what unity is needed for tenancy in common

possession

which concurrent interests have survivorship?

joint tenancy

which concurrent interests has unilateral termination as an option?

joint tenancy

severance

changing joint ownership to individual ownership

Primogeniture

eldest son takes and his line takes, if no son daughters split.

intestacy means

dying without a will

order of line when there is intestacy

heirs — spouse, issue (children and grandchildren), parents, ancestors/collaterals (siblings etc)

title theory

when someone receives a mortgage, they are also receiving the property within that package; mortagage conveys legal title to the mortgagee/lender;
joint tenant is destroyed and becomes tenancy in common (Harms

Lien theory

followed in Harms
mortgage is just a lien, security interest on the borrower’s property but the borrower still owns the property and joint tenancy is still in effect.

partition

ends the co-tenancy, distributes the property and provides a final accounting

partition by kind

physical division of property into separate parcels; courts prefer this over partition by sale; used in Delfino