Introduction and Getting Property

Policy Considerations

Economic Efficiency, Fairness, Certainty, Personhood, and Democracy

Property Sticks

Occupy, Use, Exclude, Transfer, Modify/Destroy

Res Nullius Capture

Unclaimed property is owned by the first person to mix their labor with the property

How property becomes publicized juris

(1) Was never claimed; or
(2) intentionally abandoned.

Definition of “Lost”

Unintentional and involuntary parting with item through neglect and no knowledge of location

Finder of Lost Property v. Original Owner

Owner retains title

Finder of Lost Property v. 3rd Party

Finder has superior claim

Finder of Lost Property v. Landowner (private)

Landowner has superior title for items in house or embedded in land

Finder of Lost Property v. Landowner (quasi-public)

Finder has superior title

Definition of “Mislaid”

Voluntarily places property down, intending to retain ownership, but fails to reclaim before found or forgets where it is

Finder of Mislaid Property v. Original Owner

Owner retains title

Finder of Mislaid Property v. 3rd Party

Finder has superior claim

Finder of Mislaid Property v. Landowner (private)

Landowner has superior title for items in house or embedded in land

Finder of Mislaid Property v. Landowner (quasi-public)

Landowner has superior title

Definition of “Abandoned”

Intentional, voluntary relinquishment of title

Finder of abandoned Property v. original owner

Finder obtains tite

Finder of abandoned Property v. 3rd Party

Finder obtains title

Finder of abandoned Property v. Landowner (private)

Landowner has superior title for items in house or embedded in land

Finder of abandoned Property v. Landowner (quasi-public)

Finder has superior claim

Bailment

A person has possession of the personal property of another for some purpose

Standard of Care

Only Bailee benefits: Great Care

Only bailor benefits: Only gross negligence

Both benefit: Ordinary Care

Elements of a Gift

Donative Intent, Delivery, Acceptance

Type of intent?

Present and irrevocable

Types of Delivery

Manuel, Constructive, and Symbolic

Manuel Delivery

Strongly favored and can be through an agent

Constructive Delivery

An object is given that provides ‘sole’ access to the item given

Symbolic Delivery

Something that represents the gifted item is given; unfavored

Acceptance Meaning

Donee accepts dominion and control over the propertyhenW

When is acceptance presumed?

When the item is valuable

What is an inter vivos gift?

A gift given during the lifetime of the donor

What is a causa mortis gift?

A gift given in anticipation of imminent deathhenW

When is a causa mortis gift revocable?

If the donor recovers

Delivery Requirements

If real delivery is possible, then it must be used

Eminent Domain

(1) Taking of a property
(2) for a legitimate public use
(3) for a fair market price

Legitimate Purpose

May be given to private individual, has enabling statutes consistent with 5th Amendment

Adverse Possession

(1) Actual use in the manner a reasonable owner would
(2) Exclusive control
(3) Open and notorious
(4) Continuous
(5) Adverse under claim of Right

SOMETIMES

Color of Title or Payment of Property TaxesxE

Exclusive Control

Must exclude title owners as an owner would
Group may be adverse possessors
Can grant a license

Open and Notorious

Some form of visible evidence that is not concealed

Tacking

Successive claimant may tack their possession onto earlier

Hostile

Must be without the permission of the actual owner

Objective approach — Majority

Good faith — Minority

Malice — MEGA-minority