Unit 1: Trespass, Nuisance, Spite Fence, Adverse Possession, Found Property, Gifts

What are the bundle of sticks in property rights?

Right to Use

Right to Exclude

Right to Destroy

Right to Transfer

What cause of action is used to enforce the right to exclude?

Trespass

What limits the right to exclude?

Necessity and Consent

Trespass

1) Intentional

2) Unprivileged Entry

3) Onto land in possession of another

Intentional

Voluntarily entering onto land

Unprivileged Entry

Without consent or necessity

In possession of another

Another individual has property rights over the land

Right to Use

The legal entitlement to utilize one’s property without interference

• Limited by Nuisance, Spite Fence, Zoning Ordinances/Statutes

Nuisance

A legal claim involving the use of one’s property in a way that unlawfully interferes with another’s enjoyment of their property

1) Intention

2) Nontrespassory

3) Unreasonable

4) Substantial Interference

5) With the use/enjoyment of the property of another

Spite Fence

A fence built or maintained to annoy a neighbor.

1) Erecting an unusually high fence/structure

2) For the sole purpose of annoying a neighbor

Right to Destroy

Legal right of a property owner to alter, demolish, or dispose of their property as they see fit, subject to applicable laws and regulations.

• Depends heavily on the jurisdiction’s laws/society’s values

Personal Property

movable

Real Property

The ground and anything attached to it

Capture

Acquiring unowned property

Rule of Capture for unowned animals

“Possessory rights may be claimed if you show actual possession, mortally wound the animal and remain in pursuit, or deny the animal of its liberty

Conversion

The exercise of wrongful dominion over the personal property of another

Constructive Possession

Where one owns property and an animal walks onto that property. The landowner has “constructive possession” over the animal.

Animus Revertendi

Where one has a tamed, wild animal with a tendency to return.

• Possessory rights are maintained even when it wanders off

Adverse Possession

Allowing one to go onto property and do something with it when the one with rights to the land does not object

• Defense against Trespass

1) Entry and Actual Possession

2) Exclusive Possession

3) Open and Notorious

4) Continuous Possession

5) Adverse and Hostile

6) For the Statutory Period

Entry and Actual Possession

The claimant must physically use the land in the same manner that a reasonable owner would, given its character, location, and nature.

• First, describe the property and it’s natural characteristics

• Second, identify what a true owner would do with such property

Exclusive Possession

The claimant’s possession can’t be shared with the owner or with the public in general.

• Takes steps to indicate that it’s their property.

  • Ex. fence/no trespassing signs

Open and Notorious

Possession must be visible and obvious, so that if the owner made a reasonable inspection of the land, he would become aware of the adverse claim.

• Is their possession hidden? did they leave a mark on the land?

Adverse and Hostile

a) Possession NOT authorized by the owner.

b) Mindset required to establish. (JX Split).

i. Good Faith jx. Claimant has true belief that the land is theirs and they are simply mistaken.

ii. Bad Faith jx. Claimant intends to take title from the owner.

iii. Abolished. Claimant’s state of mind is irrelevant.

Continuous Possession

Claimant’s possession must be as continuous as a reasonable owner’s would be, given the character, location, and nature of the land.

For the Statutory Period

Depends on statute provided.

• When did the adverse possession start, and whem can they claim a title according to the statute?

  • Do they require tacking?

Tacking

Succeeding periods of possession by different persons may be added together to satisfy the statute of limitations so long as the successive possessors are in privity.

• Privity, meaning a reasonable connection between successive occupants of property.

  • Ex. “Buyer/Seller.”

  • NEVER successive trespassers.

  • May be exemplified by deed, intestate succession, or will. (Grantor/Grantee / testator/devisee / heir)

• Prior possessors must meet the elements of adverse possession too.

Adverse possession statute: MUST UNDERSTAND!

A: (“An action to recover the title to or possession of real property shall be brought within four years after the cause thereof accrued, but if a person entitled to bring such action), (at the time the cause thereof accrues),

B: (is within the age of minority, of unsound mind, or imprisoned, such person, or anyone claiming from, by, or under such person, may bring such action within three years after such disability is removed, whichever date is later.”) This statute WILL be on the exam!!

A: A person has X years to bring a COA of trespass against someone who begins to take possession of property and develops a claim for adverse possession.

B: If at the time the adverse possession claim begins, that person is a minor, of unsound mind, imprisoned, or has a disability, they have Y years after the disability to removed to bring a claim of trespass against an adverse possessor.

Between A & B (whichever is longer) will provide the amount of time for the statutory period required to receive property rights through adverse possession.

Lost Property

Property that the owner unintentionally and involuntarily parts with.

• Ex. phone on the street

• Superior rights? First finder/true owner

Mislaid Property

Property that the owner voluntarily and knowingly places somewhere but then unintentionally forgets/leaves it.

• Ex. leaving phone in bathroom

• Superior rights? Landowner/true owner

Abandoned Property

Property that the owner knowingly relinquishes all right, title, and interest to.

• Ex. Coke thrown into trash

• Superior rights? First finder

Treasure Trove

Property the owner concealed in a hidden location long ago.

• Will never be treasure trove b/c not old enough!

• Superior rights? First finder

Bailment

Rightful possession of goods by a person who is not the owner

Bailor

True owner of the property

Bailee

Person who has rightful possession of the goods.

Larceny

COA against another’s taking of personal property

“Unlawful taking of another’s personal property

Gifts

The immediate transfer of property rights from the donor to the donee without any payment or consideration

• Inter Vivos

• Gift Causa Mortis

Intervivos Gifts

Defense against conversion

1) Donative Intent

2) Delivery

3) Acceptance

Donative Intent

Donor must intend to make an immediate transfer of an interest in property

Delivery

Property must be delivered to the donee so that the donor parts with dominion and control

• May be…

  • Manual: Donor physically transfers possession of the item to the donee. Required if practicable

  • Constructive: Donor physically transfers to the donee an object that provides access to the item. (ex. key that provides access to a house)

  • Symbolic: Donor physically transfers an object that represents the item. (ex. stocks/deed)

Acceptance

Donee must accept the property.

• Acceptance of valuable property is presumed.

• Evidenced by use of gift

Engagement Rings

MAJ: conditional on marriage

MIN: considers fault in returning the ring, and the ring is given to the “not at fault” party

Gift Causa Mortis

1) Donative Intent

2) Delivery

3) Acceptance

4) Donor’s anticipation of imminent death

5) Donor’s death from the anticipated ailment or event

**Revocable any time before death

**MAJ: if the person doesn’t die from the anticipated ailment/event, the gift is revoked automatically.