Property Midterm

Property Midterm Attack Outline (Issue Tree)

Walk the tree top-down on every fact pattern. Each bold question is an issue; the sentence after it is the rule. Mnemonics appear as [NAME] with what each letter stands for. Answer each issue as: issue, rule, apply the facts, conclude, and argue both sides where the facts are close.

WHAT PROPERTY RIGHTS DOES X HAVE?

Property is the relationship of people to things (tangible or intangible), a "bundle of sticks" that is not always absolute: (1) ownership, (2) possession, (3) use, (4) alienation, (5) improvement, (6) exclusion of all others, and (7) future rights.

DOES X OWN THE PROPERTY?

Ownership is acquired by (1) capture, (2) finding, (3) creation, (4) adverse possession, or (5) gift (purchase comes later in the course). Ownership also carries water rights and the right to exclude.

DID X CAPTURE THE PROPERTY? Ownership of a wild animal requires actual possession; mere pursuit is not enough. First in time, first in right. [MANIC] = Mortal wound, Actual possession, Nets, Industry custom, Constructive possession (landowner)

Is it a wild animal? Wild animals are not owned and not domesticated. A domesticated animal, or one already captured, stays the owner's even if it escapes.
Did X do everything possible short of physical possession? Mortally wounding or ensnaring (nets, traps) may equal capture, especially a large animal like a whale where immediate possession is impossible. An industry custom may recognize the killer as owner; a later finder gets only a reasonable reward, not the animal.
Is there constructive possession? A landowner has constructive possession of all wild animals on the land, so a trespasser's catch belongs to the landowner.
Did X invest time, skill, and effort in a business that captures animals (like a decoy pond)? X owns no uncaptured animals, but X can sue a neighbor who deliberately and maliciously interferes. Ordinary competition is allowed.
Did the animal escape after capture? A wild animal reverts to the wild and the captor loses rights unless he recaptures it.

DID X FIND THE PROPERTY? First classify it as (1) lost, (2) mislaid, or (3) abandoned. [LAM] = Lost = finder; Abandoned = first to claim; Mislaid = owner of the place

Was the property lost? (The owner parted with it unintentionally.) The finder has rights superior to everyone except the true owner.

Was it found, lost, then found by someone else? The first finder keeps the better title (title is relative).
Was the property stolen? Traditionally, a thief's rights are superior to a later wrongdoer's, though some courts disagree.
Was it found on the land of another? The finder wins if the owner never possessed the premises and never knew of the item and the finder acted responsibly (turned it in). The landowner wins if the owner possesses the premises, or the item was embedded in the land.
Was it found by an employee or agent? The employer keeps the rights to what is found on the job.
Was it a shipwreck? Under maritime law the finder gets a salvage award, not title, unless the ship was abandoned; the U.S. and the states claim wrecks in their territorial waters. [PEEL] = when the finder loses: Prior finder, Embedded in land, Employee or agent, Landowner in possession and aware

Was the property abandoned? The first person to take possession and assert ownership owns it. If another's wrongful acts prevented possession (a crowd mobbing a catch), a court may divide it equally.
Was the property mislaid? (Deliberately placed, then forgotten.) The owner of the land or business where it was left wins over the finder, because that owner is likelier to return it.
Was it a bailment? A bailee (valet, repair shop, coat check) holds for the owner and has no ownership rights.

DID X CREATE THE PROPERTY? This implicates (1) patents, (2) trademarks, and (3) copyrights.

Is there a patent? Granted for a process, product, machine, or composition of matter that is novel, useful, and non-obvious; lasts 20 years; an improvement qualifies if the improvement is novel. [NUN] = Novel, Useful, Non-obvious
Is there a trademark? Words or symbols identifying the source of goods or services, protected against uses likely to confuse consumers (unfair competition); registered under the Lanham Act.
Is there a copyright? Creative expression (not ideas) fixed in a tangible medium; lasts life of the creator plus 70 years; subject to fair use and licensing; infringement is actionable.

DID X OBTAIN THE PROPERTY BY ADVERSE POSSESSION? Possession must be (1) open and notorious, (2) actual and exclusive, (3) continuous, (4) for the statutory period, and (5) hostile; some states also require (6) paying taxes. When met, X owns it, and a quiet title action gives marketable title. [ACHOES] = Actual, Continuous, Hostile, Open and notorious, Exclusive, Statutory period

Was possession open and notorious? Apparent enough that a reasonable true owner paying attention would know (no sneaking in and out). A tiny encroachment is the usual fight.
Was possession actual and exclusive? X actually occupied the land and did not share it with the true owner. Guests, family, and customers do not defeat exclusivity; co-possessors (a couple) can possess together.
Was possession continuous? Regular use as a true owner of that kind of property would use it (seasonal use of a summer house or ski chalet is fine; leasing it out while away is fine). A real gap restarts the clock.
Was possession for the statutory period? Usually 5, 10, or 15 years (once up to 21). Compute from the start date and state the year it was satisfied.

Was the period tacked? Successive periods of possession are added together if there is no gap, including when the possessor changes (father to son) and when the true owner changes (owner dies, heir takes).
Was the period tolled? It is paused only if the true owner was under a disability when the possession began.

Was the owner disabled, and when? A minor, insane, imprisoned, or (in some states) on active military duty. [PIMP] = Prison, Insane, Minor, Posted away on military duty. Only the original disability at the start counts; later disabilities and an heir's are ignored. The owner (or estate) may sue within the normal period, or 5 years after the disability ends if that is later.

Was possession hostile? Contrary to the true owner's rights and without permission, whatever X's state of mind (knowing trespasser or honest mistake). [NOPE] = No Owner Permission Existed. Permission defeats hostility (a tenant cannot adversely possess against the landlord). [MAINE vs. CONNECTICUT] = Maine (old) required knowingly claiming the land and rewarded intentional wrongdoers; Connecticut (modern) only asks if possession is contrary to the owner's rights
Did X pay taxes? Required only in a minority of states.
Was it based on a written document (color of title)? If so, occupying part gives title to all land described, except what the true owner actually occupies. If not, X owns only the portion actually occupied.
Is the true owner the government? Majority: no adverse possession against it. Minority: allowed, sometimes with a longer period or only for property held in a proprietary (commercial) capacity.

DID X RECEIVE THE PROPERTY AS A GIFT? A gift is a present transfer without consideration and requires (1) present intent, (2) delivery, and (3) acceptance. [AID] = Acceptance, Intent, Delivery

Was there present intent to give? The donor's mental state, inferred from circumstances. A promise to give later or at death is not a gift.
Was there delivery? Three kinds: actual, constructive, symbolic. [SAC] = Symbolic, Actual, Constructive

Was there actual (manual) delivery? Traditional: required whenever it is possible. Modern: courts and legislatures are relaxing this (a note saying the watch is yours is increasingly accepted).
Was there constructive delivery? Handing over a key to a box, bin, or an item too large to move. Allowed only when manual delivery is impossible or impractical.
Was there symbolic delivery? Handing over a paper or symbol of the item; same limit as constructive delivery.
Was it delivered to an agent? The donor's agent: not complete until handed to the donee. The donee's agent: complete.
Was it already in the donee's hands? Intent alone completes the gift; if the donee hands it back to hold, the donor is only a bailee.
Did the donor keep a life estate? A present gift of a remainder while reserving a life estate is valid; physical delivery is unnecessary.

Was there acceptance? Presumed unless the donee immediately repudiates.
Is the gift revocable? Depends on whether it was inter vivos or causa mortis. [BOOMERANG] = a causa mortis gift comes back if the donor survives

Was it inter vivos? Made during life, not in contemplation of death; irrevocable.
Was it causa mortis? Made during life in contemplation of imminent death. Did the donor survive? If so, it is revocable (automatically in some states, by the donor's choice in others).
Was it an engagement ring? A conditional gift on the marriage. Traditional: fault-based (the donee who broke it off returns it). Modern: no-fault, so the ring goes back to the donor whenever the marriage does not occur. Exception: a later unconditional gift ("keep it") lets the donee keep it. [RING] = Return If Nuptials Get cancelled

WHAT WATER RIGHTS DOES X HAVE?

Rules differ by (1) drainage / surface water, (2) watercourses, and (3) groundwater, and by state.

Was it drainage / surface water? Depends on whether the state follows (1) reasonable use, (2) common enemy, or (3) civil-law.

Reasonable use? An owner may reasonably use and divert surface water, even onto others' land, if acting reasonably (the growing trend).
Common enemy? Surface water is an enemy to all, so an owner may do anything to keep it off, divert it, or remove it. [MOAT] = common enemy: wall the water out
Civil-law? An owner may not block, channel, or divert surface water; everyone must accept the natural flow. [FLOW] = civil-law: no blocking, let it flow

Was it a watercourse? Depends on whether the state follows riparian rights or prior appropriation.

Riparian rights? (Majority in the East.) Only owners of land abutting the stream, river, or lake may use the water, subject to natural flow or reasonable use. [ABUT] = riparian owners must abut the water

Natural flow? Owners are entitled to the natural flow and may not disrupt it.
Reasonable use? Owners may reasonably use the water even if it disrupts the natural flow.

Prior appropriation? (Majority in the West.) First in time, first in right, based on when water was first taken, whether or not the user owns land next to it. Reason: water scarcity. [FIRST] = prior appropriation: first in time, first in right

Was it groundwater? Depends on whether the state follows (1) reasonable use, (2) the English rule, or (3) prior appropriation.

Reasonable use? (Majority.) Reasonable use on one's own land; no diverting or selling to other properties.
English rule? Absolute right to withdraw all the water under one's land.
Prior appropriation? (A few Western states.) May keep pumping the amount previously appropriated.

DOES X HAVE THE RIGHT TO EXCLUDE ALL OTHERS?

An owner may keep others off without permission, and an intentional trespass is actionable. The right protects against self-help and adverse possession but is not absolute. [CAPTAIN] = Civil rights, Adverse possession, Public easement or speech, Tenant, Authorities, Imminent necessity, Needed services for workers

Is there a lawful tenant? An owner who leased to a lawful tenant cannot exclude the tenant (and some places require just cause to evict).
Is X operating a business? The right to exclude is limited by civil rights statutes.
Did Y adversely possess against X? The right to exclude, and title, are lost.
Does the public have a public easement? The right may not apply (beach access).
Is it speech-related activity? In some states a shopping center acts as a town square and people may enter to petition.
Is it necessity? A flood or fire overrides the right to exclude.
Were public safety officials on the property? With a warrant, or without one in an emergency, they may enter.
Were service providers to workers living on the land denied entry? Property rights serve human values; limited, non-ongoing access to aid workers is allowed (regular, ongoing access can be a taking).

WAS THERE A BOUNDARY DISPUTE?

States vary on how they resolve boundary disputes. [SEA] = Spoken agreement, Estoppel, Acquiescence

Is it an oral agreement state? An oral agreement fixing the boundary is honored (normally property agreements need a writing).
Is it an acquiescence state? If the owner acquiesced in a fence or encroachment, the court treats the boundary as fixed where it is.
Is it an estoppel state? The owner cannot challenge a boundary the neighbor built on in reliance on the owner's statement of where it was.

DID X ALIENATE THE PROPERTY?

Property should be freely transferable, and restraints keep property from its best use. An unlimited restraint on alienation is void, even if the grantor imposed it on himself. Reasonable restraints (like a landlord's consent clause, read narrowly) are allowed.

DID X TRANSFER THEIR RIGHTS BY LEASE? A lease is both a conveyance of a property interest and a contract. First, classify the tenancy.

What type of tenancy is it? (1) Tenancy for a term of years, (2) periodic, (3) at will, or (4) at sufferance. [TAPS] = Term of years, At will, Periodic, Sufferance

Is it a tenancy for a term of years? A fixed period with a definite end date known at the start; ends automatically with no notice. Monthly rent does not make it periodic. It can end early on tenant default. Some states cap the maximum length.

Is it determinable? A fixed term that ends early on a stated event (typically commercial). "As long as I work at X" is not a term of years.

Is it a periodic tenancy? Successive periods of the same length that renew automatically until notice. Created expressly, by operation of law when a term-of-years tenant holds over and pays rent, or when rent is due per period and no term is stated.

Was notice given, and was it effective? Notice must equal one full period (maximum 6 months; many states: 30 days) and end at the end of a period. Traditional: defective notice is void. Modern: effective, but delayed to the first proper date (notice March 15 to leave April 4 ends April 30). A tenant who leaves without proper notice has breached.

Is it a tenancy at will? At the will of one or both parties. Traditional: if at the will of one, it is at the will of both; no notice; ends on death of either party or tenant's transfer. Modern: read the lease as written; at least 30 days' notice.
Is it a tenancy at sufferance? A tenant holds over after a lawful tenancy ends.

What rights does the landlord have? Evict, or bind the tenant to a new periodic tenancy.
Did the landlord accept rent? Eviction for holding over is waived (other defaults remain).
Was a rent increase noticed before termination? If so, the holdover is bound to the new rent.

Is it a triple net lease? Common in commercial leases: the tenant pays base rent plus its proportional share of the building's expenses (common areas, systems, labor, capital improvements), taxes, and insurance. The landlord bears none, and base rent is usually lower. "Real property taxes" include fees, levies, and assessments. [TIM] = Taxes, Insurance, Maintenance
Did the tenant sublease or assign? The tenant is free to transfer unless the lease restricts it.

Is there a provision restricting transfer? Restrictions are read narrowly against the landlord (a ban on assignment does not bar subletting, and the reverse).
Was it a sublease or an assignment? Substance controls, not the label. An assignment transfers everything remaining; a sublease transfers less (shorter time or part of the space). [ASS] = All Stuff Shipped: an assignment leaves nothing behind

Was it a partial assignment? Part of the premises for the rest of the term (common in commercial leases).

Was consent required? Traditional: the landlord may refuse for any reason. Modern (commercial): only for a commercially reasonable reason (good faith and fair dealing). Wanting more rent is not reasonable. [CRUD] = valid reasons to refuse: Credit, Record of breaches, disruptive Use, Damage. A landlord may also reasonably refuse when the tenant is already in default.

Was there a transfer without consent? The landlord may treat it as a curable or non-curable default.

Who has privity of estate? Sublease: stays with the original tenant. Assignment: the assignee. [KEYS] = privity of estate follows the keys (whoever holds the leasehold)
Who has privity of contract? The original tenant, in both. [INK] = privity of contract follows the ink (whoever signed). Assignee is always bound by the rent covenant; other covenants bind if they run with the land (notice, touch and concern, intent, vertical privity).
Who can the landlord sue? Assignment: the assignee or the original tenant (some states require the assignee first). Sublease: only the original tenant, though the landlord can evict everyone.
Was there a release or novation? The only way the original tenant escapes liability.

DID THE LANDLORD EFFECTIVELY COMPLETE THEIR DUTIES? The landlord has (1) the duty to deliver possession, (2) the covenant of quiet enjoyment, (3) the implied warranty of habitability (residential), and (4) a duty to mitigate if the tenant leaves. [HED] = Habitability, Enjoyment (quiet), Delivery of possession

Did the landlord deliver possession? English (majority): actual physical possession on day one. American (minority): only the legal right to possession, so the tenant evicts the holdover. [ENTER vs. ATTORNEY] = English: tenant can enter on day one; American: tenant calls an attorney to evict the holdover. Damages: at least the rent for the period the tenant was kept out.
Was the covenant of quiet enjoyment breached? All leases have it. The landlord must not interfere with the tenant's possession and beneficial use; breached by (1) actual eviction, (2) partial eviction, or (3) constructive eviction. [CAP] = Constructive, Actual, Partial eviction. A lease limiting the tenant's remedies does not bar this, because the eviction is the landlord's termination.

Did the landlord actually evict? Denied the tenant occupancy of the premises.
Was it a partial eviction? Denied occupancy of part of the premises.
Did the landlord constructively evict? Through action or inaction, deprived the tenant of use and enjoyment so the premises are unsuitable for the lease purpose, and the tenant moved out promptly. [SUAVE] = Substantial interference, Unsuitable premises, Act or inaction by landlord, Vacate promptly, Excuse (none). A tenant still in possession cannot claim it. A temporary interruption during repairs is usually only an inconvenience. The landlord is not an insurer (reasonable security or remedial steps are no breach).

Did the tenant inform the landlord? The landlord must take reasonable steps to fix it; a landlord who does not, or cannot control the cause, is more exposed.

Was the implied warranty of habitability breached? Residential leases only. The landlord impliedly promises the premises stay suitable for human habitation throughout the lease, measured by housing codes or reasonable suitability; it cannot be waived or traded for lower rent, and the tenant's knowledge is irrelevant. [RENT] = Residential, Essential defect, Notice, Time to cure

Does the defect affect safety, health, or habitability? Essential facilities, not every amenity (a pool). Minor defects and defects the tenant caused do not count.
Did the tenant notify the landlord? The landlord needs notice and a reasonable chance to fix it. A landlord making repairs may argue the work protects long-term habitability.
Did the landlord fail to correct it? The tenant need not move out and may (1) terminate or rescind, (2) stay, pay, and sue for damages, (3) withhold or abate rent (a defense when the landlord sues), (4) repair and deduct, or (5) recover punitive damages for willful conduct. [STRAP] = Stay and sue, Terminate, Repair and deduct, Abate rent, Punitive damages
Did the tenant repair and deduct? Allowed after written notice and a reasonable chance to fix it, up to one month's rent, usually once per year, and not for problems the tenant caused or was responsible for.
Was it a retaliatory eviction? Usually statutory: if the landlord moves to evict within a set period after the tenant exercised legal rights, the eviction is barred or the landlord must prove a legitimate reason.

Did the landlord mitigate damages? Modern rule: the landlord must make reasonable efforts to re-rent after the tenant leaves (universal for residential; commercial varies), even if other units are vacant.

Did the landlord fail to mitigate? The landlord can still recover, but only unavoidable damages. States split on future rent: none, or the difference the landlord would have lost. If the landlord mitigated, recovery is unpaid rent until re-let, re-letting costs, and the shortfall ($750 minus $620 = $130 per month).

Was there a security deposit? It covers default and damage and must be returned within a set period (14 days to a month; California 21 days with an itemized statement and receipts); wrongful withholding can bring up to treble damages.

Was it excessive? Most states cap it (one to two months); some have no limit.
Is it interest-bearing? Most states do not require interest; a few do.
Can the landlord deduct? Damage beyond ordinary wear and tear, unpaid rent, and unpaid utilities; cleaning only in a minority of states. [RUDE] = deductions: Rent, Utilities, Damage beyond wear and tear, Exceptions (no ordinary wear; cleaning usually not allowed)

DID THE TENANT EFFECTIVELY COMPLETE THEIR DUTIES? The tenant must (1) pay rent, (2) not commit waste, (3) comply with lease terms, and (4) not use the premises for criminal conduct. [CROW] = Crime, Rent, Obey lease terms, Waste

Did the tenant pay rent? Implied even if the lease is silent. (Traditionally independent of the landlord's duties; today tenants have defenses.)
Did the tenant commit waste? Affirmative, permissive, or ameliorative. [AAP] = Affirmative, Ameliorative, Permissive

What type of waste was it? Affirmative: the tenant's acts cause damage. Permissive: damage through neglect. Ameliorative: improvements without the landlord's permission.

Did the tenant comply with the lease provisions? Whatever the lease requires (no disturbing neighbors, shoveling snow, alteration limits).
Did the tenant use the premises for criminal conduct? A breach that gives grounds to evict.

IF THE TENANT BREACHED, WHAT RIGHTS DOES THE LANDLORD HAVE? (1) Sue for damages, (2) terminate the lease, (3) evict, and (4) reclaim the property.

Did the landlord use self-help? Not permitted, even if the tenant truly defaulted and even if peaceful; the landlord must use the court's unlawful detainer (eviction) process, which is expedited with limited discovery. The tenant can recover for wrongful eviction.
Did the tenant abandon or surrender the property? Abandonment: the tenant leaves with no intent to return; the tenant still owes rent (subject to mitigation). Surrender: the tenant tenders the lease back and the landlord accepts, which ends the tenant's obligations. Mailing back keys is only a tender. [ABSENT vs. SIGNED] = abandonment: tenant absent, still owes; surrender: landlord signed off, tenant released

DOES X HAVE THE RIGHT TO ABANDON?

Abandonment occurs when an owner voluntarily relinquishes all interest in the property. [TRASH vs. TITLE] = personal property can be abandoned (trash); record title to land cannot

Is it personal property? It can be abandoned and reclaimed. Abandoned property belongs to no one until someone takes possession intending to own it; until then the former owner may reclaim it. Property put in the trash is generally abandoned.
Is it real property? An owner with perfect record title cannot abandon it by declaring so, offering it to others, or skipping taxes, and still owes the association fees.