Property

what are the three types of acquisition?

by capture, by discovery, by creation

what are some of the rights in the bundle of rights?

right of exclusion, right to transfer, right to destroy

what are the bundle of rights

the different rights that someone may or may not have through ownership

What is Locke’s labor theory of property?

labor + free resource = ownership

property is necessary for human flourishing

Pierson v. Post

• acquisition by capture

• Post chasing the fox, Pierson kills it and carries it off

• holding: pursuit alone is not enough to be considered capture, nor is wounding the fox

• rule: the rule of capture (very easy to administer)

Popov v. Hayashi

• acquisition by capture

• Popov catches the baseball and is engulfed by people; Hayashi is also pushed to the ground and picks up the baseball and puts it in his pocket

• holding: equitable division - the plaintiff and defendant had an equal and undivided interest in the ball

• Brian Gray rule: a person who catches a baseball that enters the stand is its owner if the person has achieved complete control of the ball

• Finkelman and Bernhardt theory: person must be actively engaged in trying to achieve control

doctrine of accession

ownership is given to the person who makes improvements

if I take someone’s grapes and make wine, I own the wine but have to compensate the owner of the grapes

doctrine of increase

if a baby is born to an animal, the baby belongs to the owner of the mother

fugitive resources - what is the rule for oil and gas?

• owned once it is reduced to physical possession

• any surface owner whose land lies above the reservoir is free to pump oil or gas so long as the drilling remains within the imaginary column of space projected down from the boundaries of his land

fugitive resources - water

surface water

• riparianism: water rights are derivative of rights to the land

• prior appropriation: the person who first appropriates water and puts it to reasonable and beneficial use has a right superior to later appropriators

groundwater

• today is commonly governed by legislative and administrative programs

tragedy of the commons

open access commons create

• rival

• non-excludable - people want a free ride

solutions

• government regulation

• property rights

• limited access commons - limit access and use to members of a relatively small group of whose members have equal privileges

Jacque v. Steenberg Homes

• the right to exclude

• the Jacques told Steenberg homes that they could not move their neighbot’s mobile home through their yard, but they did it anyway

• the court held that punitive damages could be awarded on top of nominal damages (even if there was no real damage) because of both the privae landowner and society’s interest

Commonwealth v. Magadini

• the right to exclude

• Magadini was charged with trespassing on three properties after being barred with no trespass orders. The defendant was homeless and focused his case on the necessity defense

• holding: the judge erred in ruling that the defendant failed to meet his burden - defendant was not required to try every single possible alternative just what was reasonable

what does the rule of necessity require?

• clear and imminent danger

• a reasonable expectation that the action will be effective in protection from the danger

• lack of a legal alternative

• the legislature has not precluded the defense

what is trespass? criminal vs civil?

• entering someone else’s property without permission or any right to do so

• civil: does not require you to know you are entering someone else’s property

• criminal: requires the trespasser to know that they lack the privilege to enter the land of another

Andrus v. Allard

• the right to transfer

• The Eagle Protection and migratory bird act prevented the destruction of bird species by preventing the sale or obtaining of protected items like feathers

• Appellees sell Indian artifacts that are made partially of the protected feathers

• The court held that preventing them from selling the artifacts did not violate the Fifth Amendment

• rule: even if the most profitable use of the property is gone, if there are enough sticks left in the bundle, it is not a taking

Eyerman v. Mercantile Trust Co.

• the right to destroy

• Louise Johnston left in her will for her home to be demolished, her neighbors protested becuase they felt it would bring their property values down; so they had the neihborhood designated as historical

• The court held the house cannot be destroyed - the right is not unlimited it is limited by public policy

• rule: this decision is not thought to be a good one by many

what is the public trust doctrine?

Navigable waters and their beds and banks are owned by the sovereign in trust for the public - it has to be managed to encourage navigation, recreation, etc.

Matthews v. Bay Head Improvement Association

• public trust doctrine

• bayhead improvement association owns parts of the beach and they hire lifeguards and guards to limit the beach to members during daytime hours in the summer

• the court held the association qualified as a quasi-public association and the use of dry sand will apply - if land is owned by a municipality, the public in general must be allowed to access the wet area

• rule: even private property can be limited by the public trust doctrine

abandoned property

someone no longer wants the property, so they leave it and forget about it - intentionally

the finder keeps it

lost property

falls out of the pocket, the person does not know where it has been lost

the finder or owner of the place keeps it - depending on how public the place is (the more public the place, the less likely to return to owner)

mislaid property

placing something down and leaving it there on accident - one can retrace their steps to find it

the owner or possessor of the premises where the item is found keeps it

Armory v. Delamirie

• plaintiff - a chimney sweep’s boy - found a jewel and brouht it to the defendant’s shop; the apprentice took out the stones and delivered back the socket without the stones

• holding - the chimney sweep has possession of the jewel

• rule - what is important in ownership is the relationship; if the original owner appears, the chimney sweep does not not keep the jewel

Hannah v. Peel

The owner of Gwernhaylod house requisitioned it for quartering soldiers; plaintiff corporall hannah was adjusting curtains when he discovered a brooch covered in cobwebs; he handed it over to the police who handed it over to the defendant when the owner was not found

the court held for the plaintiff because the brooch had clearly been there for a long tiime (cobwebs) and the homeowner was not actually occupying the home so it was closer to a public property than private

Why does adverse possession exist?

to cure mistakes in title and because we don’t like unproductive land

what are the elements of adverse possession?

• actual entry in the property

• exclusive

  • You cannot share with the true owner or the public in general

• open and notorious

• adverse and hostile/claim of right

  • doctrines: good faith, bad faith, objective

• continuous for a statutory period

  • as an owner of the property would

  • tacking with family member

• taxes

  • required in some states

Chaplain v. Sanders

• original owners (Hibbards) opened a trailer park and treated a deep drainage ditch as the boundary line; a survey conducted by the eastern parcel revealed the true boundary; the Hibbards sold to the Gilberts, explicitly listing the property boundary lines; the Sanders then purchased the lor and continued to use it as it was

• the Chaplains filed a suit to quiet title and the court held that the hostility requirement only requires the adverse possessor to treat the land as their own - the best way forward is to look at how the possessor behaves, not the subjective intent

Color of Title

• someone enters the property with a document, even if mistaken or shady, believing that they own the place

• all states give some kind of advantage to people who have some kind of conveyance, even if it is mistaken

  • may shorten the statute of limitations

  • all states give constructive possession - you do not need to use the entirety of the property to be granted possession

    • still requires actual entry but not use of the entire property

    • fencing the property can be argued either way

Howard v. Kunto

• the Kunto’s home and dock were built on a 50-foot parcel different than the one described by their title; they only used the land during the summer

• the court entered a decree quieting the defendant’s title to the disputed tract of land

  • they found that occupancy during the summer months was sufficient because that is how a typical owner would have used it

adverse possession - disabilities

• the clock may be paised

• only count if present when the adverse possessor enters

• read the statute carefully

O’Keeffe v. Snyder

• Georgia O’Keeffe alleged her paintings were stolen from a New York art gallery in 1946; Snyder alleged that he purchased the paintings

• the court applies the discovery rule shifting the duty to the owner

  • the cause of action will not accrue until the injured party discovers or should have discovered by the exercise of due diligence the facts which form the basis of a cause of action’

  • by diligently pursuing their goods, owners may prevent the statute of limitations from running

different adverse possession approaches for property that can be moved

• conversion rule

• adverse possession approach

• the discovery rule

• the demand rule

conversion rule

the statute begins to run against the true owner as soon as the property is converted

adverse possession approach

the limitation period begins to run when the adverse possessor takes possession of the chattel

the discovery rule

the cause of action for conversion does not accrue, triggering the running of the statute of limitations until the owner “discovers, or by exercise of reasonable diligence and intelligence should have

the demand rule

the statute of limitations does not begin to run until the true owner makes a demand for the return of the property and the demand is refused

voidable title

• flawed transfer from true owner to X

  • i can go after X to recover

  • once X has transferred to someone else, I cannot go after them to recover

• if X steals the ring from me and passes it on to the third party (Y)

  • i can recover from the third party because a thief can never transfer goof title

what are the three requirements for acquisition by gift

intent

delivery

acceptance

what are the three types of delivery for acquisition by gift?

• manual delivery - physical/actual transfer

• constructive delivery - I give you the keys to my car to give you my car

• symbolic delivery - piece of paper saying “I give you x”

causa mortis gifts

given on deathbed

only revocable if you survive

promise of future giving is not enforceable

Newman v. Bost

• Van Pelt gave keys to a drawer of a bureau to Julia (a life insurance policy was in the drawer)

• the court’s analysis

  • piano - she must prove beyond that it was called “Julia’s piano”

  • furniture - could argue that giving the keys to the house is constructive delivery but the court says there is no evidence of this

  • furniture in her room - Julia receives this because it was already in her possession

  • life insurance - is capable of manual delivery and the bureau alone is sufficient to be considered a gift so Julia does not get this

Gruen v. Gruen

• Victor wrote his son Michael a letter that he was gifting him a painting for his 21st birthday but that he would hold onto it during his lifetime; he then destroyed the letter and sent two others saying he was gifting it to Michael

• the court determined taht Michael got to keep the gift because the gift was the remainder, not the painting and therefore could not be delivered

What are the three kinds of freehold estates?

• fee simple

• fee tail

• life estate

fee simple estate

• forever

• no need for future interest to be defined

• words of limitation

  • “to A” or “to A and his heirs”

• will go on in will or into intestate succession

fee tail estates

• ends naturally

• someone can die without issue

• can only end with defeasible estates

• words of limitation

  • “and to the heirs of his body”

• if A dies without issue, it reverts back to the grantor

life estate

• ends naturally

• everyone dies

• someone has to be there after to recover the property

• words of limitation

  • “to A for life”

• transferrable, but the moment A dies, the life estate ends

• reversion to the grantor (implicit or explicit)

White v. Brown

courts don’t like restraints on alienation

what introduces determinable estates

words of duration

where is the limitation for determinable estates

before the comma

are determinable estates automatic or not automatic?

automatic

who does the future interest in determinable estates go to?

3rd party or grantor

what words introduce estates subject to condition subsequent?

words of limitation

where is the limit for estates subject to condition subsequent?

after the comma

who does the future interest go to for estates subject to condition subsequent?

only the grantor

are estates subject to condition subsequent automatic or not automatic?

not automatic

what words introduce estates subject to executory limitation?

words of condition

where is the condition for estates subject to executory limitation?

after the comma

who has the future interest for estates subject to executory limitation?

only a 3rd party

are estates subject to executory limitation automatic or not automatic?

automatic

who receives a reversion for possessory estates?

owner, grantor, or transferee

who receives a remainder for possessory estates?

a third party

for determinable possessory estates, what interest does the owner have?

possibility of reverter

for determinable possessory estates, what interest does the third party have?

executory interest

for estates subject to condition subsequent, whay interest does the grantor have?

right to entry

for estates subject to executory limitation, what interest does the third party have?

executory interest

when do remainders become possessory?

when the estate ends naturally

what is a vested remainder

when the recipient is identifiable and there is no condition precedent (condition in the commas)

what circumstances create a contingent remainder?

when the recipient is unascertainable

when the estate is subject to condition precedent

what is a vested reaminder subject to open?

when there is a possibility that more people will come into the group

what does the grantor have when there is an estate subject to condition subsequent?

right of entry/power of termination

what does the 3rd party have when there is a determinable estate?

executory interest

what does the 3rd party have when the estate ends naturally?

remainder

what does the 3rd party have when the estate is subject to executoy limitation?

executory interest

when is a vested remainder subject to divestment?

when there is a chance that the possessory remainder will never become possessory

O to A for life, then to M, but if she has not graduated from law school by then, to H

when is a vested remainder subject to executory limitation?

when there is a condition that could cut the executory limitation short

O to A for life, then to Martha, but if she paints the house green to H

what is a shifting executory interest?

divests or cuts short some interest in another transferee

what is a springing executory interest?

when it divests the transferor

What is a tenancy in common?

more than one co-owner owns everything

very clear shares

can be transferred during life or devise by will - creditors can attach to this

What is a joint tenancy?

• 4 unities (modern - relaxed)

  • given at the same time

  • given in the same title

  • same amount to each person

  • possess together (does not require physical presence)

• survivorship - you can sever during your lifetime by transferring your share

• cannot dispose of by will - avoids probate

• survivor automatically gets everything

do leases or mortgages sever joint tenancies?

lease - no

mortgage - depends on the state

• lien on title view - does not sever joint tenancy

• transfer of title view - mortgage severs the joint title

What is tenancy by the entirety?

• 4 unities + marriage

• in the past, could also be between two people not allowed to marry

• only circumstance that severs during life is divorce

• way of protecting assets for the family/non-working partner

What are the two types of partition?

in kind

by sale

partition in kind

• very difficult - have to divide the land in half

• if not exactly 50/50, there is an owelty (compensation by one party to make it even)

• preferred because of historical reasons but courts don’t like it

• recognizes subjective value

partition by sale

much easier but courts tend to undervalue property

When is partition of sale preferred?

when

• physical attributes of the land make partition impracticable, and

• the interests of the pwners are better protected by a partition in sale

Co-ownership - accounting

equitable action to get his share of the benefits

sometimes brought together with a partition action

Co-ownership - action for contribution

to get paid (taxes - credit in partition)

What are the rules for contribution between co-owners for improvements

necessary repairs: advance notice or no credit

if interests of the improver can be protected, they would (in kind/by sale)

if you can justify an improvement, the money will be assigned to the person who made the improvements (in sale for example?)

What is the rule for rents and profits between co-tenants?

50/50 for renting

there are situations where you can argue for more

co-tenants: regular maintenance

managing cotenant should notify the others and they have to pay immediately or in action for contribution

co-tenants: improvements

(anything beyond maintenance)

contribution is not required but the individual may benefit during a partition in kind or by sale

What are the rules for when co-owners have to pay rent

majority rule: when there is more than one co-tenant and one is in possession, that one does not have to pay rent unless there is an ouster

minority rule: when there is a co-tenant in possession, they immediately have to pay rent

What constitutes ouster?

not clear

• Spiller v. Mackereth

  • putting locks on the building is not ouster

  • refusing to allow entry (either by saying no or not giving working keys) is ouster

• Parker v. Shecut

  • if a party says clearly that they had no intention to give the other keys/access, that is an ouster

  • the court wants to discourage self-help

• Cohen v. Cohen

  • minority rule

  • as soon as one co-tenant is in possession and others are not, that co-tenant is responsible for rent

term of years leasehold

we know when it will end

death doesn’t end it

didnt use to require notice, but now we do

• normally 30 days

periodic tenancy

month to month

implied

always requires notice

if there is no explicit notice requirement

• year to year has a 6 month requirement

• month to month has an implied notice that is the length of the period (30 days)

tenancy at will

there is no deadline

anyone can break the contract whenever they want

created when it is clear that any party can walk away at any point

modern statute requires notice

we do not like this because it creates uncertainty

tenancy at sufferance

if you stay after your lease expires

you do not hae a contract or anything

adverse possession starts after the period they allow you to holdover

jurisdiction based - look at the statute/lease?

What are the two main statutes on unlawful housing discrimination?

• Civil Rights Act of 1866

• Fair housing Act

What does the civil rights act of 1866 do?

prohibits any discrimination based on race in real estate deals

requires intent

no exceptions

only matters while entering into transaction

What does the fair housing act do?

protects against discrimination based on race (+ ethnicity), color, religion, sex (+ sexual orientation), disability, familial status, national origin

what constitutes discrimination?

• refusal

• conditions

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