property 1 midterm

The majority decision in Pierson v. Post is a leading example of what theory?

First possession

what rights make up the bundle of sticks?

The right to transfer, exclude, use, and destroy.

What is the takeaway from Johnson v. M’intosh and Moore v. Uni of Cali, two cases that cover the right to transfer?

The right to transfer is not unlimited, the government can step in and put limits on it.

Takeaway from state v. shack (Right to exclude)(Tedesco and the government service workers)

Owning property doesn’t mean you can stop people from coming onto your property if they are there to provide government services to workers living on that property

Takeaway from Jaque v. Steenburg (Right to exclude)(Mobile home delivery)

Jury can decide to give punitive damages (punishment money) for purposeful trespassing, even if no actual harm was done and only a small amount of nominal damages was given.

Takeaway from Tranfield v. Arcuni and Prah v. Maretti (Right to use)(Spite fence, Blocking sunlight)

Right to use is not unlimited. You can’t unnecessarily and maliciously deprive neighbor of enjoyment or basic human rights with your use of your property.

Takeaway from Eyerman v. Mercantile Trust (Right to Destroy)

You can’t destroy your property at the detriment of others (financial/public policy)

Elements for Nuisances

• Intentional

• Non-trespassory

• Unreasonable

• Substantial interference

• Use and enjoyment of land

What are the elements of adverse possession?

• Actual

• Exclusive

• Open and Notorious

• Adverse or hostile

• Continuous

• For the statutory period

Element of adverse possession - Actual

Claimant must have physical use of the land in the same manner that a reasonable owner would. (Summer home 3 months out of the year would be valid.)

Element of adverse possession - Exclusive

Claimant cannot share possession with the owner or public

Element of adverse possession - Open and notorious

Possession must be visible and obvious, so that the owner would be aware if they made a reasonable inspection

Element of adverse possession - Adverse or hostile

• Possession authorized by the owner does not meet this element. it must be either;

• Good faith- Belief that he owns the property

• Bad faith- has the intent to take the land knowing its not his

Element of adverse possession - Continuous

Continuous possession as a reasonable owners would be, given the character, location, and nature of the land.

Reminder for midterm Boston loves ______

Rebuttals (Rule, issue, analysis/rebuttals, then conclusion)

Why do we justify adverse possession?

• Preventing frivolous claims

• Contracting title defects

• Encouraging development

• Protecting personhood

(PECP)

Doctrine of tacking

allows someone to combine consecutive periods of time a piece of property was adversely possessed. There must be privity (Some reasonable connection for judicial recognition)

Finders

What constitutes as lost property?

When the owner unintentionally and involuntarily parts with it.

Finders

What constitutes as mislaid property?

when the owner voluntarily and knowingly places it somewhere, but then unintentionally forgets it and leaves it behind.

Finders

What constitutes as abandoned property?

When the owner knowingly relinquishes all rights, title, and interest to it (Intentionally placed and intentionally forgot there)

Finders

What constitutes as a treasure trove?

when the owner concealed it in a hidden location long ago. Usually limited to things like gold, silver, coins, or currency. Also typically has something dating the item to verify its age.

Who has right of possession for lost property?

Original owner

Who has right of possession for mislaid property?

Original owner

Who has right of possession for abandoned property?

Finder

Who has the right of possession for a treasure trove?

Finder against everyone except original owner

What are the elements for inter vivos gifts?

• Donative intent

• Delivery

• Acceptance (Usually presumed)

Donative intent

The donor must intend to make an immediate transfer if property

Delivery

The item must be delivered to the donee

Acceptance

Donee accepts gift (Usually presumed)

List the delivery methods of gifts in order of the best

1. Manual delivery

2. Constructive delivery

3. Symbolic delivery

Manual delivery

Donor physically transfers possession of the item to the donee. Traditionally required if practicable

Constructive delivery

physical transfer to donee of object that provides access to gifted item. (car key, wedding ring, check)

Symbolic delivery

The donor physically transfers to the donee an object that represents or symbolizes the gifted item.

Inter vivos gift

voluntary transfer of property or assets made by a living person to another recipient while the giver is still alive.

What are the elements of causa mortis gifts?

• Donative intent

• Delivery

• Acceptance

• fear of potential death or knowledge that death is imminent

Is a causa mortis gift valid if someone is scared of flights and gifts something thinking they will die?

No. Anxiety of death is not valid. Donor must make the gift in anticipation of their imminent death.

What are the five theories that seek to justify the recognition of property?

1. Protect First Possession

2. Encourage Labor

3. Maximize Societal Happiness (Utilitarian theory)

4. Ensure Democracy

5. Facilitate Personal Development

Protect First Possession

“First come first serve” It describes how property rights arose, but not why it makes sense to recognize them.

Encourage Labor

Mixing labor with your land created value and gave you a right to that private property

Maximize societal happiness

Someone owns property not because it only benefits them, but because recognizing their title will promote the welfare of all members of society.

Ensure Democracy

The right to own has an important effect on citizens’ relationship with the state and their understanding of that relationship.

Facilitate Personal Development

To achieve proper self-development, you need some control over resources in the external environment.

Property

Rights among people concerning things.

What are the four key implications to the rights (bundle of sticks) approach?

1. Legal positivism

2. Relative rights

3. Divisible rights

4. Evolving rights

Legal positivism

Property rights are defined by the government. You hold these rights only if and to the extent they are recognized by the government.

Relative rights

Property rights are not absolute. Some rights from one persons bundle can conflict with rights of others bundle.

Divisible rights

Property rights can be divided.

Evolving rights

Property law is an evolving process. Rights evolve as the law does.

A, B, and C, farmworkers living on Tedesco's property, decide to hold a large birthday party for their co-worker D. They invite ten friends from a nearby town, who enter the property to attend the party. Has a trespass occurred?

No, a trespass has not occurred because the farmworkers live on the property and have the right to invite visitors and have friends over.

Should the law recognize the owner's right to destroy under the following circumstances? A owns a beautiful, world famous painting by Claude Monet which, when publicly exhibited, helped millions of people develop a greater appreciation for fine art. A dies, leaving a will that instructs his executor to burn the painting and deposit its ashes in his grave.

No

Right to transfer

Owner may freely transfer or alienate any of her property to anyone

Right to exclude

Each owner has a broad right to exclude any other persons from their property.

Right to use

landowner has the absolute right use his property in any way he wished as long as he did not harm the rights of others.

What doctrine is the principal limitation on an owners right to use?

Doctrine of nuisance

Right to destroy

Ability of the owner to destroy their property. Limitations on valuable property.

Adverse possession

If A occupies B’s land for a long enough period while meeting certain conditions, A acquires the title to the land without B’s consent.

A occupies O's land for 6 years. A then tells his friend B: "You can be here if you want, but I'm leaving." B occupies the land for 5 more years. Is tacking allowed?

No, there is no substantial transfer or connection between the two, and therefore no privity and thus you cannot tack.

C occupies O's land for 2 years. C then tries to convey the land to her sister, D, but the deed C uses for this purpose is invalid. D occupies the land for 9 more years. Is tacking allowed?

Yes, there is privity because of the passed deed, therefore you can tack.

When an employee finds an object during the course of his employment, the court usually awards the item to the ________

Employer (Employees actions were performed on the behalf of the employer)

Gift Causa Mortis

Gift of personal property made by a living person in contemplation of death

What did the In re Estate of Oaks court say about gifts causa mortis due to suicide?

Death by suicide does not always establish a causa mortis gift, but if the donor was suffering from a mental illness at their time of death, and that illness caused the suicide, then that may constitute as a valid causa mortis gift.

Fee simple absolute

Largest group of property rights recognized by our legal system. Thus, the holder has all the rights in the metaphorical bundle of sticks.

How long is the duration of a fee simple absolute?

Potentially infinite

Identify the words of purchase and the words of limitation in this phrase, “To “A” and their heirs.”

• “To “A”” = Words of purchase

• “and their heirs” = Words of limitation

What kind of estate do states presume you are trying to convey if their are no words of limitation used? Why?

Fee simple absolute. Grantors typically intend to convey the most marketable interest.

The fee simple is freely _____ , ________, and _______

• alienable

• devisable

• descendible

alienable

can be sold or given away during the owners lifetime

devisable

can be transferred by will at death

descendible

it can pass by the laws of intestate succession if the owner dies without a will.

Gift

immediate transfer of property rights from donor to donee without any payment or other consideration.

remainder

future interest holder is a transferee, his interest is called a

O.C.E.A.N.S acronym for adverse possession

• Open

• Continuous

• Exclusive

• Actual

• Notorious

• Statutory Period

What did pierson v. post tell us about possession?

That pursuit was not enough. Needs to be a deprivation of animals natural liberty by capture or mortal wounding.

common law right of publicity elements

• Defendants use of plaintiffs identity

• Appropriation of plaintiffs name or likeness to the defendants advantage

• lack of consent

• resulting injury

Chief Justice John Marshall’s quote (Johnson v. M’Intosh)

“Conquest gives a title which the courts of the conqueror cannot deny”

State v. Shack quote (Tedesco farm case)

“Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises”

Rationales for adverse possession

Prevent frivolous claims

Viewed as a statute of limitations for recovering possession of land, it bars lawsuits based on stale, unreliable evidence.

Rationales for adverse possession

Correct title defects

It corrects technical mistakes that occur in the process of conveying title, such as error in deed descriptions.

Rationales for adverse possession

Encourage development

It reallocates title from the idle owner to the industrious squatter, thus promoting productive use of land.

Rationales for adverse possession

Protect personhood

A thing which you have enjoyed and used as your own for a long time…takes root in your being and cannot be torn away without your resenting the act.

Objective test (Adverse possessor’s state of mind)

In most jurisdictions, the adverse claimant’s state of mind is irrelevant. If he occupies the land without the permission of the owner and meets the other adverse possession requirements, this test is met.

Privity

the legal connection or successive relationship between two or more independent adverse possessors