Property Flashcards

Blackstone

having ownership means having sole and despotic control over something, this is the strongest property ownership

Locke

our property rights come from the fruits of our labor

• if the earth produces something naturally, it belongs to everyone, but if men through their labor, apply it to the property, then the property becomes theirs

Doctrine of Accession

if A adds labor or labor + materials to some object that B owners, then B is awarded the object unless:

1) A transforms the item into a fundamentally different article

2) greatly increases the value of B’s original item

Hardin

applies law and economics to property –> control over goods necessary to achieve efficiency, internalize externalities

• private ownership and some time of regulatory agency to govern ownership is necessary

• private ownership is necessary to avoid the tragedy of the commons

Externalities

the impact of an action the results of which fall on someone else

property law is meant to minimize these externalities

there can be positive and negative externalities

Bundle of Sticks

ownership is a bundle (collection) of rights (legally protected interests) which can be separated out from each other to allow certain rights to be taken away without removing the rest (thus preserving most of the ownership)

• rights to include, transfer, exclude, destroy, etc.

Numerous Clauses Principles

you cannot have too many property rights bouncing around because we want people to know you have a right in that property

Progressive Property Movement

property is more than just things, it is more about the human condition

progressive property –> human flourishing

• property is about power and property is a scarce thing so moral and ethical decisions

Natural Law Theory

law = govt’ recognition

• property rights only exist because the law recognizes them and governments create them

Formalism

looking to established sources and try to determine what is required as an articulation of the rule from the sources

Instrumentalist

what is the best option for this time, view, etc. and then make the rule that matches with this

Tangible Real Property

land, building, timber, crops

personal tangible property

laptop, car, suit, books

intangible real property

fee simple absolute (ownership), easement, lease interest

• A car is real/tangible property BUT if you are leasing a car, your interests in the car are intangible/real

intangible personal property

stocks, intellectual property, digital assets

Protection of Persona

courts have found that your image and likeness is property but its not the same as your house for example

• a person does not have to commercialize their persona prior to their death

• example a law and economics in action

• trying to create a rule with market efficiencies

Policy implications of Protection of Persona

nothing is purely coming from the mind of the creator, every idea we have comes from something/someone else so if we protect everything, creativity will be stifled

Protection of Persona Exceptions

1) First Amendment – right to freedom of expression

• the use of someone’s name or likeness in media reporting

2) Matter of legitimate public interest

• idea that we are not going to protect someone’s persona to the extent that the activity of another person relates to a matter of legitimate public interest

• ex: writing an article about a politician

Involuntary transfer of property rights

situations where one part acquires property rights from someone else and the person from whom those rights are transferred are not intentionally or voluntarily giving them up

Rule of Capture

The first person to take possession of an unowned thing owns it first

only applies to things that are owned by no one and limited to tangible personal property

Res nullius

things that are owned by no one (wild animals and abandoned things)

feræ naturæ

latin term for wild animals

• considered unowned until they are captured this comes from the idea that by adding your labor into the capture of the animal, it now becomes yours (Lockean labor theory)

Rule of Capture General Rule

you must commit a physical act that constitutes physical control or dominion over the thing. Mere pursuit does not give you a property right. BUT ALSO pursuit + mortally wounding the animal would work

• entrapment also works because you have deprived the animal of its liberty of freedom

Occupancy

roman law idea that ownership via occupancy is not met until possession happens

(physical possession, corporeal possession)

• someone becomes the owner of that thing that is owned by no one through occupancy

Exceptions to General Rule of Capture

1) pre-possessory interest

2) Inevitability

3) Custom

Pre-possessory Interest

an actor has a pre-possessory interest in the property if they undertake significant steps to achieve possession of the abandoned property, but the possession is incomplete by the interference of others (or unlawful acts)

• courts honor this rule because they do not want to encourage people asserting violence to get property from someone

  • sometimes courts will have the possessor give the property back to the person with PPI OR have the value of the property be split

Inevitability

property in wild animals is acquired when the pursuer is within reach or has a reasonable prospect of taking physical possession

• make arguments about how inevitable it really is

Custom

look at what is custom in the scenario to see what usually constitutes possession

Fugacious materials

materials/things that are dispersed (oil, gas, water, etc).

oil and gas develop under land in pools, so it is not enough to own the land, you have to capture to fugacious minerals by drilling for the oil which incentivizes people to be the first person to drill but this leads to a greater loss of oil from pumping

Unitization

to avoid loss of oil by everyone pumping, some states have developed unitization programs – the portion that you get needs to be divided evenly based on the amount of oil that was on your property

surface water

streams, rivers, and lakes

2 methods: riparianism and prior appropriation

Riparian regime

you can draw and become the owner of water from a body of water that abuts your property, subject to a rule of reasonableness

most prevalent in state to the east of the Mississippi river

animating principle of the riparian regime

there is an unlimited amount of water

Resonableness in Ripirianism

based on custom, social norms, and pre-exisiting uses

Prior appropriation

premised on the idea that water is a scarce resource, but still dealing with land owners who have property that abuts a body of water

whoever makes the first beneficial use of the water upstream surpasses the right of those downstream

consequence of prior appropriation

the person upstream starts drawing water and that results in there being less water downstream, but this does not matter because the person downstream still has the weaker right to the water; UNLESS the person downstream makes the first beneficial use of the water, then they will win

Ground water

water that is placed under the ground

Rule 1 of Ground Water: The american approach to groundwater

the tempered rule of capture but it prohibits wasteful uses of the water

Rule 2 of Ground Water: The english approach to groundwater

the first person to capture the water from the ground has it

Possession

9/10th of the law

intent to possess + some act of control/dominion = possession

• a person who has possession has a major advantage over everyone else in the world except the owner

2 elements of possession

Corpus & Animus

Corpus

you have to be exercising physical dominion over the thing (physical)

Animus

you have to intend to possess this thing on your own behalf (mental)

constructive possession

legal fiction that gives you possession even if you do not have physical possession; your physical acts accompanies by the intent of a portion of property where the property has boundaries imparts your possession against everything within the boundaries

Civil possession

you start with both elements of possession but then give up the physical aspect for a period of time but you do not give up the mental element

Rule of Finders

A person who finds lost property has ownership interest in the property that is superior to the interest of anyone except the property’s rightful owner

• only applies to lost or mislaid things*

relativity of title

property rights can be different as to a thing depending on how you are asserting your rights

• courts usually rule in favor of the prior possessor

Lost Property

owner is not likely to ever find the property again

Finder win, but not against the true owner or prior possessor

Mislaid property

property that is placed where it is likely that the owner will return to it

the longer the property is separated from its owner, the more it shifts from mislaid to lost

the landowner wins more often in places that are open to the public

finder wins, but not against owner or prior possessor

Abandoned Property

the true owner gives up possession voluntarily

Considerable Factors in Law of Finders

1. public/private property

2. placement of the item

3. employee/employer relationship

4. time of placement

5. owner’s knowledge

Public/private

the more public the place, the less the expectation that everything there belongs to the owner (more likely to go to the finder)

Placement of the Item

if the item is embedded in the soil, or attached to it, it generally goes to the owner of the land

employee/employer relationship

if a finder finds property as an employee of the property owner then the found property usually goes to the owner of the land

time of placement

does the found property seem like it has been there for a while or just recently placed there? If it has been there for a while, more likely to go to the finder

Owner’s knowledge

if the owner did not know the found item was there or context clues leads to this inference, it is more likely to go to the finder

Adverse possession

if you occupy or possess someone else’s property for long enough, you the possessor become the owner

AP big picture

• the elements change from state to state

• gives legal recognition to what is actually happening on the ground

  • gives real world effect to what we perceive to be the property rights

5 elements of adverse possession

1. actual possession

2. exclusive possession

3. open & notorious possession

4. hostile /adverse possession

5. continuous & uninterrupted possession

Taints to adverse possession

1. taint of violence

2. taint of minority

3. taint of disability

actual possession

requires some sort of physical use of the thing; you have to possess the property physically as would the actual owner of the property, this is determined by courts based on the type of land that is at issue and viewed through the lense of how it has been historically been used (ex: constructing, grazing, cattle, farming)

extent of possession

the adverse possessor actually possess the amount of property that they are actually possessing

courts want to calibrate the level of physical property as to what you are doing on the property

Constructive Possession

physical activities sufficient for actual possession for a portion of a much larger piece of property, when the entirety of the property is enclosed in some way (2 ways to satisfy)

• mean to convey to the true owner that someone is possessing their property and if they want to keep it, they should do something about it

boundaries

can be constructed (fence) or pre-exisiting or natural boundaries

Color of Title

having the deed or some other conveyance instrument that has a property description that is within the boundaries of that property and has been recorded in the land records

exclusive possession

possession cannot be shared with the true owner, you as the possessor have to act as the land is your own

• you do not have to believe that the land is yours

• cannot possess land with or on behalf of others

  • people acting independently cannot adversely possess the same property

Open & Notorious Possession

has to be obvious so that the true owner is at least on constructive/actual notice that you are possessing their property

• actual notice – you tell someone or they actually know

• constructive notice – what you should know if you are paying attention/acting diligently; designed to shift ownership to a new person when a reasonable person fails to notice the occupation

Earning theory of AP

rewarding the possessor with ownership; wants to reward those who cultivate and maintain the land

Sleeping theory of AP

punishing the owner for not doing things; if you are not the true owner but are neglecting the law and doing nothing with it then you are sleeping on your rights and should lose your ownership

Hostile / Adverse Possession

state of mind behind possession, you cannot be in actual possession with permission

the mindset you start your possession with is the mindset you finish with

Neutral State of Mind

general rule; most popular among the state

• the state of mind of the possessor does not matter

Good Faith State of Mind

second most popular; possessor believes that they own the property they are possessing

• discourages stealing other people’s property

• states want to reward innocent possessors

  • you have to have a belief that you own the property that you are possessing – proven through the facts and circumstances of the case

Objective Test

if someone were standing across the street would it be reasonable for them to think that the possessor is actually the owner

Subjective Test

do you in your heart and mind really believe that you are the owner

Bad Faith State of Mind

you can only make out the hostile adverse requirement if you possess property that you know you do not own, but you want to own it anyways

• the period of time that you have to wait to adversely possess in these cases are typically much longer than if it was in good faith

  • hits on sleeping principle

Continuous & Uninterrupted

you need to possess for the requisite amount of time

tacking

you add your time to someone else that also meets all the adverse possession requirements to meet the requisite amount of time but you need privity to do so

privity

successive legal relationships between people to the same property. Serves as a nexus/connection between the successors (deed, will, inheritance)

Taint of Violence

even if you meet all of the elements of adverse possession, your possession is ineffective because it was gained through violence; courts want to discourage people from taking the law into their own hands

Taint of Minority

you cannot adversely possess against a minor until they reach the age of majority

Taint of Disability “Disability Doctrine”

persons who are deprived of reason; courts do not want people to lose their property to adverse possessors if they are not in the frame of mind to get rid of them

• this can include minority or not yet emancipated persons

• an individual who has a cognitive impairment (can be episodic)

  • some states include imprisonment, military service that takes you out of the country, absence from the jurisdiction for a long period of time

different approaches to timing

original minority approach – if the disability does not exist at the time the adverse possessor begins, then this does not affect adverse possession

1. some states will just pause the time considered for adverse possession until the disability is over

2. some states just do not allow the statutory period to begin running there is a statutory period at all (it starts at day one once the disability is lifted)

3. to allow time to accrue, but once the disability ends, placing some sort of grace period to bring an action to get rid of the possessor

Replevin

the procedural vehicle to get the property back that was wrongfully taken

AP of personal property

you have to wait until the TO can no longer bring a case under replevin

Discovery Rule

the statute of limitation begins to run when:

1. you know you no longer have possession of the thing

2. you know who the person took the possession is

Demand Rule

the time period does not begin running until the true owner makes the demand of the return and then the adverse possessor does not give it back

Conversion Rule

the statute of limitations begins to run as soon as the true owner has discovered their property has been taken

History of Possessory Estates

The King → the senior nobility → the junior nobility → the peasantry/commoners

• Each group is getting a possessory interest and then they are carving their possessory interests down, not all possessory interests are equal

Heritable

can be transferred to heirs

heirs

the people who are entitled by law to succeed to your stuff after you die

Intestate Statute

each state has a statute that tells you who your heirs are if the decedent dies intestate

Decedent

someone who has died

Intestate

involving a person (or their property) who has died without a valid will

Testate

involving a person (or their property) who has died with a valid will

Separate Property

everything you owned before the marriage , and whatever you inherited during the marriage

Community property

all of your gains and acquisitions during the marriage

Alienable

being able to transfer the property right during your life as you please

Issue/descendants

those vertically below someone on a family tree (children/grandchildren)

Ancestors

those above someone on a family tree (parents/grandparents)

Collaterals

those horizontally next to or someone in a family tree (siblings, counsins, uncles, etc).