Full Property Deck

Doctrine of Discovery

\***First in Time, First in Right\***

First discovery of land, either by purchase or conquest, gives exclusive title to those who made it. Such a right allows for the extinguishing of occupants.

Johnson v. McIntosh

Plaintiff claims Illinois land under two grants by certain Native tribes. Purchase through the Indians occurred first. But the Court wants to decide if the titles transferred after the Revolutionary War.

Title to land given by Natives and received by a private individual is NOT valid and sustainable in court.

Acquisition by Conquest

Taking possession of enemy territory through force.

\***It is a subset of the doctrine of discovery\***

Discovery provides a right but that right is perfected through conquest.

Acquisition by Capture

An animal is occupied when the pursuer has an unequivocal intention of appropriating an animal into a person's individual use, has deprived the animal of its natural liberty, and brought the animal within certain control.

Elements:
(a) Intent
(b) Destroy Natural Liberty
(c) Certain Control

Ownership of ferae naturae (wild animal) begins with

corporeal possession (physical capture) of the animal

pursuit of a wild animal alone without mortally wounding it or trapping it is insufficient to claim it as property (Pierson)

Pierson v. Post

Post (plaintiff) was hunting a fox using dogs and hounds that were under his possession. Pierson saw the fox being pursued. Pierson decided to capture and kill the same fox. Pierson won.

(Pierson v. Post) When is the fox yours? (4 answers)

(1) Manucapture (grab it)
(2) Mortal wounding w/o abandoning pursuit
(3) Trap it (nets, etc.)
(4) Ratione Soli → If it's on your land, it's yours.

Custom Exception to Acquisition by Capture

An animal does not become property until possession has been established by the taker. Such possession must be firm and complete and clearly have all the characteristics of the property.

Ghen v. Rich

Whale case w/ industry custom

If a fisherman does all that is possible to establish a property right and industry custom states that the whale belongs to the whaler, then the animal should go to the whaler. The finder is compensated with a small fee.

Ratione Soli

An owner of land has possession (constructive possession) of wild animals on the owner's land.

Landowners are prior possessors of any animals ferae naturae on their land until the animals take off.

Keeble v. Hickeringill

Keeble set up a decoy pond on his land, which he used for the lawful purpose of luring wildfowl to his property. On three separate occasions, Hickeringill, from his own property, fired off guns near Keeble's pond to scare away the wildfowl that had gathered there. The wildfowl were scared away and did not return. Held for Keeble.

Where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood, there an action lies in all cases.

Law of Finders

The title of the finder is good as against the whole world but the true owner. Prior possessor prevails over subsequent possessor.

Armory v. Delamirie

P found a jewel and took it to D's goldsmith shop to find out what it was. D's apprentice took out the stones and called the goldsmith to let him know it came out to "three halfpence." The goldsmith offered the boy money. The boy refused and asked for the stone back. The apprentice returned the "socket" without the stones.

D is liable. P gets the stone.

What was the adequate measure of damages in Armory v. Delamirie (jewel case) (acquisition by find)?

The value of the highest quality of jewels that can fit the socket unless the goldsmith produces the jewel and shows it not to be "of the finest water."

General Rule — Where a person has possession of a house or land, the items on that property are presumptively...

THEIRS.

Exception (items found on someone else's property) — When property is lost and the true owner is never found...

the finder has possession of the article even if it is found on someone else's property.

Hannah v. Peel

Soldier found a lost brooch on a property, which was owned by D, where soldiers were being quartered. The soldier gave it to the police, who then couldn't find the owner so gave it to D. D sold it and offered a reward to P. P wanted the brooch.


The brooch was lost in the ordinary sense of the term, and it was probably lost for a considerable amount of time. D was never physically in possession of the premises at the time. He had no knowledge of the brooch until he was informed of its existence.

Lost vs. Mislaid

Lost: finder gets whatever is found
Mislaid: only the true owner has the right to it

Mislaid Items

An item that was voluntarily placed somewhere, and accidentally left behind, does not constitute lost property.

"Finding" such a *mislaid* item does not create property rights in any finder or possessor other than the true owner.

Bridges v. Hawkesworth

Box of money dropped inside a store. Finder gave it to the store to advertise and find the true owner. The rue owner was never found. Finder wanted the money but the shop declined.

Court found for finder → General right of finder to any article which has been lost, against all the world, except the true owner. P did not intend to waive any title by giving the money to D.
The money was LOST, not misplaced.

McAvoy v. Medina

While getting a haircut at a barber shop owned by Medina (D), McAvoy (P) found a pocketbook on the table and showed it to Medina. The pocketbook had been placed on the table by a customer and accidentally left on the table. McAvoy (P) left the pocketbook with Medina (D) in case the true owner wanted to claim it. After no owner came forward, McAvoy (P) demanded three times that Medina (D) give the money to him. Medina refused.

The property was NOT lost. It was voluntarily placed on a table in D's shop by a customer who accidentally left it there and never came back for it.

If you hire someone to do something, and the employee finds something...

It does not belong to the employee.

South Staffordshire Water Co. v. Sharman

Pool cleaner found two rings while cleaning a pool for P and did not deliver the rings to P but failed to find the owner.

Court rules for P. "The possession of land carries with it in general, possession of everything attached to or under the land, and in the absence of a better title elsewhere, the right to possess it also."

It makes no difference that the possessor is not aware of the thing's existence.

Adverse Possession

Means of "transferring ownership"

The running of the statute of limitations bars action by the owner and also vests a new title in the adverse possessor.

Once acquired, this new title "relates back" to the date of the event that started the SOL running, and the law acts as though the adverse possessor were the owner from that date.

Adverse Possession Requirements

(1) Entry that is actual and exclusive,
(2) Open and notorious,
(3) Adverse and under a claim of right, and
(4) Continuous for the statutory period.

Why must entry be exclusive?

Because if the land is open to the public, then its possession is not adverse.

Sleeping Principle

Entry should be open and notorious such that it would put reasonably attentive property owners on notice

Actual Occupation or Possession

To acquire a title to real property by adverse possession, there must be an "actual occupation" or possession under a claim of title, that the premises are protected by a substantial enclosure, or that the premises are usually improved.

Valkenburgh v. Lutz

Lutz built a structure and started a gardening business on a lot of land that the Valkenburghs eventually bought.

Court found against Lutz. He failed to show SUFFICIENT improvement.

Encroachments

Encroachments are NOT enough to establish open and notorious.

Where there is an encroachment of a small area and intrusion is not clearly and self-evidently apparent to the naked eye because the precise location of the dividing line is unknown or there is nothing on the land to show by visual observation an encroachment, we cannot presume notice to the owner.

Mannillo v. Gorski

D builds steps and a concrete walk way that encroach 15 inches onto P's lands. D contends she has title to the land through adverse possession. P argues that D did not obtain title by adverse possession because the possession was not of the requisite hostile nature.

A small encroachment does not meet the open and notorious standard.

Requisite possession requires

Possession and dominion "as ordinarily marks the conduct of owners in general in holding, managing, and caring for the property of like nature and condition."

It is not necessary that the occupant should be actually on the premises continually. If the land is occupied during the period of time during the year it is capable of use, there is sufficient continuity.

Tacking in Adverse Possession

Taking of adverse possession is permitted if the successive occupants are in "privity."

A purchaser may take the adverse use of its predecessor whether the land was intended to be included in the deed between them, but was mistakenly omitted from the description.

Howard v. Kunto

There was an error in the deed. The 50 feet described in the deed were not the same 50 feet in which the house stood. The described land is an adjacent lot. Over the years, this land was conveyed MULTIPLE times.

Adverse possession was established in this case.

Disability and Adverse Possession

Disability is immaterial unless it existed at the time when the cause of action accrued.

Only the first disability counts.

Good Faith Improver

One who makes an improvement to land in good faith and under a mistaken belief that he is the landowner.

Acquisition by Gift Requirements

(1) Intent to make a present trasfer
(2) Delivery of possession
(3) Acceptance of the gift

Types of Delivery (Acquisition by Gift)

Actual delivery: preferred method; entails actually handing over gift

Constructive delivery: handing over key or some object that will open access to the gift

Symbolic delivery: handing over something symbolic of the property (usually signed writing)

Inter Vivos vs. Causa Mortis

Inter vivos: given during life; irrevocable

Causa mortis: given on deathbed; revocable if owner survives

Donatio Causa Mortis Limitation

If the donor lives, the gift is revoked.

When is constructive delivery effective?

Where it plainly appears that it was the intention of the donor to make the gift, and where things intended to be given are NOT present, or where present are INCAPABLE of manual delivery from their size or weight.

But where the articles are present and capable of manual delivery, this must be had.

Newman v. Bost

In the final weeks of his life, intestate summoned plaintiff, his housekeeper of ten years, to his bedside. He handed P a set of keys and proclaimed that he wanted her to have everything in his house. What does she get (life insurance, household property, piano, bedroom property)?

LOSE → insurance policy (donatio causa mortis), PARTLY → household property furniture (donatio),
MAYBE → piano (inter vivos),
WIN → bedroom furniture (inter vivos)

Inter vivos gifts require that the donor intend to make...

An irrevocable present transfer of ownership.

If the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by will.

Gruen v. Gruen

Gruen sent letters to his son, Michael, indicating intention to give Michael a valuable painting for his 21st birthday. Victor did not deliver the painting and kept it. The painting was to be given upon Victor's death, with Victor holding a life estate in the painting. Michael acknowledged the gift to his friends and associates and held both letters for over 17 years to verify the gift. Upon Victor's death, Michael's stepmother, Ms. Gruen (defendant), refused to give Michael the painting. Michael brought action.

Three Requirements for Copyright Protection

(1) Originality — the work must be an independent creation of the author and must demonstrate at least some minimal degree of creativity.

(2) Work of Authorship — literary works, musical works, dramatic works, pantomimes, choreographic works; pictorial, graphics, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

(3) Fixation — the work has to be fixed in some kind of tangible medium (CD, canvas, etc.)

Establishing Infringement Elements

(1) Ownership of a valid copyright, and

(2) Copying of constituent elements of the work that are original.

Feist Publications, Inc. v. Rural Telephone Service Co.

Publication company copies a telephone company's number directory.

Copyright protection may only extend to those components of a work that are original to the author.

Facts are not copyrightable. However, compilations of facts generally are. They possess originality.

Rural's list is in alphabetical order. There is nothing remotely creative about this. The selection, coordination, and arrangement of Rural's directory does not satisfy the standards for copyright protection.

Fair Use Doctrine

Permits unauthorized copying in some circumstances, so as to further "copyright's very purpose."

In determining whether the use made of the work is a fair use, the following factors should be considered:

(1) The purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purpose);
(2) The nature of copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of copyrighted work.

Authors Guild v. Google

Google makes very small, random excerpts of books available. Judgement for Google.

Giving authors absolute control over all copying from their works would tend in some circumstances to limit, rather than expand, public knowledge.

Public Trust Doctrine

Ownership over land flowed by tidal waters, or beneath bodies of water, is vested in the State in trust for the people.

What are the public's rights to use tidal lands and water? → Navigation, fishing, and recreational uses, including bathing, swimming, and other shore activities.

Submerged land, up to the average high water mark, is owned by the state.

Matthew v. Bay Head Improvement Association

*Easement and Public Domain*

Private landowners offering a public good must permit public access across dry land to reach public-trust waters.

Determining what privately-owned sand area will be available and required to satisfy the public's rights under a public trust (factors):

(1) Location of dry sand in relation to the foreshore
(2) Extent and availability of publicly-owned upland sand area
(3) Nature and extent of public demand
(4) Usage of upland sand land by the owner

Copyright law governs

the ownership of creative expression

Eldred v. Ashcroft

1976 Copyright Act — copyright protection generally lasted from the work's creation until 50 years after the author's death.

But, under CTEA, most copyrights now run from creation until 70 years after the author's death.

This extension of copyright clause requirement The Copyright Clause's requirement that copyrights be granted only for limited times does not bar Congress from extending the terms of existing copyrights.

Trademark Requirements

(1) Distinctiveness
(2) Non-functionality
(3) First use in trade

Trademark: Distinctiveness

The mark must distinguish the good or service of one person from those of another.

Fanciful and arbitrary marks typically get the strongest protection.

Suggestive marks are also inherently distinctive.

Trademarks: Non-functionality

Patent protects on the basis of functionality. Hence, if an aspect of a good is exclusively functional, it cannot be protected by trademark law.

A product feature is functional if "it is essential to the use or purpose of the article or if it affects the cost or quality of the article, that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage."

Trademarks: First in Use

An exclusive right to use a mark requires the first use, not just the first adoption, of the mark in a particular geographic market.

In Re Cordua Restaurants

Cordua Restaurants owned a chain of restaurants called Churrascos. Cordua filed a trademark application, seeking to register a stylized form of the word "CHURRASCOS." The application was rejected on the ground that the mark was generic.

Generic terms cannot be trademarked.

Two-Step Test — Whether a given term is generic:

What is the genus of goods or services at issue?
Is the term sought to be registered or retained on the register understood by the relevant public primarily to refer to that genus of goods or services?

Nature of Ownership: Right to Exclude

General Rule — A property owner has the right to exclude others from his or her land, and this right is enforceable by law.

Jacques v. Steenberg Homes, Inc.

Steenberg Homes had to deliver a mobile home. The easiest way to do so was to cross the Jacques field. Steenberg plowed a path through the field and delivered despite adamant protests. Held for Jacque.

Nature of Ownership: Right to Exclude *Exception*

The ownership of real property does not include the right to bar access to governmental services available to migrant workers.

State v. Shack

Two legal aid workers came to meet migrant workers that work and live on a farm. The farm owner said they couldn't meet with the workers privately without the owner's supervision. Held for migrant workers.

Restraints on Alienation

An unlimited restraint on alienation, even if self-imposed, is not valid.

Davis v. Davis

Mother has a life estate in a property that she rents out and kids have a remainder interest. In the deed, D limited her life estate to "personal use of the Grantors." Kids sue to keep mom from renting the property.
The deed language creates an unreasonable restraint on the alienation of Mrs. Davis's life estate and is therefore void.

Patent Exhaustion Rule

A patentee's decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose.

The purchaser and all subsequent owners are free to use or resell the product just like any other item of personal property, without fear of an infringement lawsuit.

Impression Products, Inc. v. Lexmark International, Inc.

Lexmark sold toner. Users would give these cartridges to remanufacturers. Judgment for Impression Products.

Elements of Abandonment

(1) Owner must intend to relinquish all interests in the property, and
(2) There must be a voluntary act by the owner effectuating that intent.

Is abandonment rebuttable?

Yes.

An owner can reclaim property if the rebuttal of the presumption of intent to abandon is done prior to the property coming into another's possession.

Hawkins v. Mahoney

A prisoner escaped from jail. His belongings were put in a storage room. Intent to abandon his property was presumed.
However, Hawkins' return and request for his property prior to it being claimed by anyone else, he effectively rebutted the presumption that he ever intended to abandon his property.

To successfully abandon a property...

An owner must relinquish all rights, title, claim, and possession of title with the intent of terminating their ownership.

Pocono Springs Civic Association, Inc. v. MacKenzie

MacKenzie's attempted to abandon their empty lot. What did they do to abandon the property?
Attempted to turn the lot over to the Ass'n.
Attempted to gift the land over to be used as a park.
Stopped paying real estate taxes on the property, which resulted in a sheriff's sale on the property. No buyers.
Another tax sale took place, but again no buyers found.
Mailed a notarized statement setting forth their intent to abandon the property to "all interested parties."
Refused to continue to accept mail at that address.

Tenancy in Common

Separate but undivided interests in the property. Each tenant in common owns an undivided share of the whole.

Interest of each may be conveyed by deed or will.

No survivorship rights.

If a party dies (they had ½ interest) and they gave their interest to a 3rd party, that 3rd party has ½ interest in the property now.

Joint Tenants

Each tenant owns the undivided whole of the property. Joint tenants are regarded as a single owner.

Right of survivorship — Upon death of one joint tenant, estate continues in survivors with interest of decedent extinguished. The co-owner becomes the owner in whole after the other co-owner dies.

Four Essential "Unities":
\***If one of these unities does not exist, joint tenancy is destroyed and a tenancy in common is created\***
(1) Time — interest of each joint tenant must be acquired or vested at the same time.
(2) Title — must acquire title by the same instrument or by joint adverse possession.
(3) Interest — all must have equal undivided shares and identical interests measured by duration.
(4) Possession — each must have the right of possession of the whole.

Interest cannot be passed by will.

Tenancy by Entirety

Similar to Joint Tenancy. Requires four unities + requirement of marriage.

The surviving tenant has the right of survivorship.

Neither can defeat the right of survivorship of the other by conveyance to a 3rd party. Joint conveyance is required.

Divorce, terminating marriage, terminates tenancy by the entirety and parties becomes tenants in common.

Creditors cannot reach property held in tenancy in the entirety form, except if IRS is a creditor.

Partition is available to?

Available to any joint tenant or tenant in common.

It is unavailable to tenants by entirety.

Two Types of Partition

Partition in Kind — physically divide the property
A way to protect your personal attachment to the land. But a sale can also do this, as long as you have the ability to be the best bidder.

Partition by Sale — proceeds from sale of the land

Spiller v. Mackereth

Spiller and Mackereth were tenants in common. Spiller used the property as a warehouse. Mackereth sent Spiller a letter demanding that Spiller either vacate half of the building, or pay rent for half of the rental value. Spiller refused. Mackereth loses.

Rule: In the absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not liable (pay rent) for the value of his use and occupation of the property.

What do you need for a cotenant to be liable for rent for use and occupation of the property?

(1) Prior agreement to pay rent, or
(2) Ouster

What is ouster?

Ouster → means to satisfy the requirements that would begin adverse possession. It is an assertion of complete control and denial of a cotenancy relationship.

Occupying cotenant must have denied his cotenants the right to enter. A simple request to enter is not enough. You must attempt to enter or demand equal use and enjoyment of the premises.

Changing the locks is not enough if the cotenant can give you a key, etc.

Marital Property

Property that is subject to division is anything that has an exchangeable value or which goes to make up wealth or estate.

In re Marriage of Graham

Education of a spouse is not considered marital property that can be divided on dissolution of a marriage.

Mrs. Graham worked as an airline stewardess. Mr. Graham worked part time. He received an M.B.A. during the course of the marriage.

Leaseholds (or tenancies)

Present possessory non-freehold estate.

Tenants have a right to use and exclude. But they are not the owner.

When any of the leaseholds is created, a future interest - in the landlord or a third party - arises.

If the landlord retains the right to possession at the end of the leasehold, the future interest is a reversion.

If a third party will take possession, the future interest will be a remainder.

Term of Years

Definition → An estate that lasts for some fixed period of time or for a computable period.

It can be terminable earlier upon the happening of some event or condition.

No notice of termination is necessary.

Periodic Tenancy

Definition → A lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination.

Examples: "to A from month to month," "to B from year to year."

If notice is not given, the period is automatically extended for another period.

Notice must terminate on the final day of the period, not the middle of tenancy.

Death of a landlord or tenant has no effect on the duration of a term of years or periodic tenancy.

Tenancy at Will

Definition → Tenancy of no fixed period that endures so long as both landlord and tenant desire.

It ends when one of the parties terminates it or at the death of one of the parties.

To create a valid tenancy at will, the language in the lease must expressly and unambiguously grant both the tenant and the landlord the similar right to terminate.

Tenant at Sufferance

Arises when a tenant remains in possession (holds over) after termination of the tenancy.

Landlords typically have two options when confronted with a holdover: (1) Eviction (plus damages), or (2) Consent (express or implied) to the creation of a new tenancy.

Tenancy from holding over is usually subject to the same terms and conditions as those in the original lease, unless the parties agree otherwise or unless some term or condition is regarded as inconsistent with the new situation.

This happens often when a lease is switching from a term of years to a periodic tenancy.

Licenses

Definition → Personal privilege to use the land of another in some specific way or for some particular purpose or act
Reduced rights for the licensee (in contrast to a tenant).

Examples: sleepaway camp counselors, ticket to a sporting event, assigned seat in class, living in a dorm, night manager at hotels, a chef in a fraternity or sorority house.

Where a new tenant fails to obtain possession of premises only due to wrongful holdover by a former tenant, and where there is no express covenant stating otherwise, what is the landlord's responsibility?

AMERICAN RULE → A landlord is not bound to put the tenant into actual possession but is bound only to put him in legal possession so that there are no obstacles to prevent the tenant from obtaining actual possession.

BRITISH RULE → A landlord must oust the holdover tenant. There is an implied covenant on the part of the landlord that the premises will be open to entry at the beginning of the tenant's term.

Hannan v. Dusch

Plaintiff entered into a lease with a landowner, the defendant, to begin on January 1. On the day the lease was to begin, the plaintiff was unable to enter the premises in question due to the presence of a holdover tenant.

Court used the American Rule and said the landlord had no duty to oust the holdover tenant. The new tenant must go after the holdover tenant on their own.

Assignment vs. Sublease

Assignment → Conveys the whole term, leaving no interest nor revisionary interest in the grantor or assignee. There IS privity of contact; the defendant is directly and primarily liable.

Sublease → A transaction where a tenant grants an interest in the leased premises less than his own, or reserves a revisionary interest to himself. There is no privity of contract.

Ernst v. Conditt

The Ernsts leased land to Rogers. Rogers built a business on the land and Conditt bought the business from him. The Ernsts and Rogers extended the lease through July 1962 and granted permission to Rogers to "sublet" the land to Conditt, on the condition that Rogers remain liable under the lease. Rogers sublet to Conditt. Conditt defaults on payments.

This was an assignment, NOT a sublease.

Rogers parted with his ENTIRE interest in the property. D went into possession for the entire term and paid rent. Rogers merely agreed to be personally liable for rent and the expense of removal upon D's default.

Refusal of Assignment

Where a lease provides for assignment only with the prior consent of the lessor, such consent may be withheld only where the lessor has a commercially reasonable objection to the assignment.

This rule does NOT apply to residential leases, only commercial leases.

Kendall v. Ernest Pestana, Inc.

Landlord refused to consent to assignment of the lease and maintained they had the right to arbitrarily refuse any such request. Court said the landlord can only refuse for a commercial reason.

Factors to consider in applying the standard of commercial reasonableness:

Financial responsibility of the proposed assignee, suitability of the use for the particular property, legality of the proposed use, need for alteration of premises, and nature of occupancy.

Dispossessing a Tenant

The only lawful means to dispossess a tenant who has not abandoned nor voluntarily surrendered but who claims possession adversely to a landlord's claim of breach of a written lease is by resort to the judicial process.

Applies to commercial and residential leases.

Berg v. Wiley

Wiley claimed the lease had been violated because Berg altered the structure of the building and because of health code violations. Wiley threatened to retake possession of the building in 2 weeks if the issues were not cured. On the last day of the two-week period, Berg closed the restaurant and hung out a "Closed for Renovations" sign. When Berg wasn't there, Wiley had the cops change the locks.

Court said self-help measures are not allowed. Landlords should use summary proceedings instead.

Tenant Who Abandons Possession

A landlord has an obligation to make a reasonable effort to mitigate damages in a situation where an apartment was wrongfully vacated by the tenant.