Property

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herald3811
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192479
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Property
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2013-02-27 19:08:09
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Property Law
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Property Law
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  1. Acquisition by Discovery
    sighting/finding of unknown or uncharted territory. 

    Frequently accompanied by a landing and the symbolic taking of possession, acts that give rise to an inchoate title that must (on one view) subsequently be perfected, within a reasonable time, by settling in and making an effective occupation.
  2. Conquest
    taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.
  3. res nullius or terra nullius
    hitherto unknown territory
  4. Principle of first in time
    The first person to take occupancy or possession of something owns it.
  5. Ratione Soli
    Acquisition by capture.

    Owner of land has possession - constructive possession - of wild animals on the owner's land.

    landowners are regarded as the prior possessors of any animals ferae naturae on their land, until the animals take off.
  6. Abuse of right
    An owner abuses her property right when she exercises that right with the subjective intent of harming someone.
  7. Rule of Capture:  Water

    Groundwater
    water found underground aquifers, was governed by the English rule of absolute ownership, which allowed each landowner over an aquifer to withdraw freely without regard to effects on neighbors.
  8. Rule of Capture:  Water

    Surface waters
    Some groundwater as well are allocated according to an explicit rule of first in time, called prior appropriation.

    First person to appropriate (capture) water and puts it to reasonable and beneficial use has a right superior or later appropriators.
  9. Locke's Theory of Labor
    property originally comes about by the exertion of labor upon natural resources.

    • He answered that persons own themselves and therefore their own labor.
    • When a person works, that labor enters into the object. Thus, the object
    • becomes the property of that person.
  10. Equities
    • backward-looking,
    • focused on the behavior of the parties in the case, can impact outcome,
    • typically more influential at the trial court level.
  11. Policy
    considerations
    • forward-looking,
    • focused on how the proposed rule in this case would effect future behavior of
    • people and entities in general.

    • *are often in tension with each other, or with the underlying values, or with the
    • equities, and a good essay will flesh all of these tensions all the way out and
    • discuss each one of them, one by one.
  12. Real
    Property
    land and its attachments
  13. Personal
    Property
    chattels
  14. Right to title (ownership) versus...
    right to possession (occupation)
  15. Chain of title
    traces ownership of property from person to person, often the first step in legally analyzing a property problem.
  16. "Constructive" possession
    means the law treats someone as if they have literal physical possession even if they do not (see, e.g., mortally wounding an animal, below).
  17. What's
    at stake when it comes to real property?
    Not just land.  Culture, resources such as animals, minerals, water, oil, gas; non-monetary resources such as open space, clean air, view, quiet.
  18. Action in trover
    brought to recover value of personal property taken and converted by another.
  19. Applying black letter law to facts
    • often does not result in a clear answer, or a good answer, which is why policy considerations, underlying values driving the legal rules, and equitable considerations come
    • into play.  (This played out in the whale case, in which the court did not apply the black letter rule from the fox case.)
  20. Person who "got to" (possessed, occupied) property first
    has a higher claim over others who came afterwards (first come, first served).
  21. Person who put labor towards obtaining or improving property
    should have an ownership interest equivalent to his labor.  (Raises the question of how you know when something's been improved.)
  22. Property law tends to breathe easier when it is aligned with custom
    though such alignment is not mandatory (fox case).
  23. Created property
    can be not only possessed but exploited, often by more than one person, which gives rise to a distinct set of common law rules for created property.  Examples:  books, songs, photos, media content, a celebrity's name.
  24. Sometimes the value of property lies in...
    being the only person or entity who can exploit that property during a particular window of time (newspaper case).
  25. The values driving property law (Acq by creation)
    often come into tension in the IP context and have to give way to each other.
  26. Granting exclusive property rights to the creator of chattels is not "free"
    • in that society pays a price for that protection;
    • accordingly the law endeavors to strike the right balance between competing values
  27. property law deals with relations among persons with respect to things
    not relationships between people and things.
  28. Title is a relative concept, the question is, among those in the case,
    who appears earliest on the chain of title (who also has legal capacity to claim title)?
  29. Possession is evidence of title
    it is not synonymous with title.
  30. "Possession" is a term of art,
    you are only on the chain of title if the court recognizes you as a person who acquired "possession.”
  31. Accordingly the concept of “possession” is not so much a legal doctrine that courts apply, but rather,
    a conclusion the court reaches after considering where privileging different policy concerns will lead.
  32. “Constructive possession” is a concept the court applies when
    it wants to find legal possession in the absence of literal physical possession.
  33. An action in trover
    is an action to recover damages equal to the value of converted property.
  34. An action in replevin
    is an action to recover the property itself rather than damages equal to its value.
  35. bailor
    is a person who gives over real or personal property, whether voluntarily or involuntarily.
  36. bailee
    is a person to whom such property is entrusted, whether voluntarily or involuntarily.
  37. Values & policy concerns
    driving common law of acquisition by find
    • Desire to reunite property with its "true owner," which is to say, the person who
    • is first in the chain of title.

    Desire to reward labor.

    Desire to reward efficiency, that is, efforts that make productive use of property.

    Desire to respect the principal-agent relationship.

    Desire to respect the bailor-bailee relationship.
  38. Adverse Possession (AP) rests on the principle that
    at some point a long-time possessor of property has earned the right to become its new true owner.
  39. AP is a mix of common law and statutory law, but almost all AP disputes TURN ON THE PARTICULAR FACTS OF THAT CASE. Accordingly,
    • resist the urge to reach for generalizations. Instead, memorize the blackletter law
    • and principles so you can wade through any imaginable body of facts.
  40. "Color of Title"--
    Paper purporting to show title to a particular lot or lots that, unknown to the person named in the paper title, turns out to be false.
  41. "Tacking"
    happens when a bona fide purchaser seeks to add the time he or she has been into possession onto the time the original adverse possessor, and perhaps some other bona fide purchaser in between, has been in possession.
  42. Courts and legislatures are not always comfortable with the concept of adverse
    possession,
    • and are reluctant to allow it even if the facts suggest it has been established
    • (e.g., Van Valkenberg v. Lutz).
  43. Most AP statutes in the U.S. are
    6-10 years.
  44. Today most AP disputes that are litigated are
    boundary disputes
  45. The legal "flip side" of an action for adverse possession is
    an action for trespass (brought by the true owner or a prior possessor seeking to eject the would-be adverse possessor from the land).
  46. AP cases are very fact-dependent,
    so analysis of the elements of AP, along with the policy and equity considerations, will turn on the facts of the particular case.
  47. A
    trial courts factually findings are only rarely reversed by the court of
    appeal.
    • However,
    • legal determinations are reviewed de novo.
  48. Sometimes
    as a remedy, the court will order a forced sale of property to a party who
    unsuccessfully seeks title via adverse possession
    • where
    • the equities support a forced sale (e.g., Minnillo v. Gorski).
  49. Values and Policy
    Considerations related to Adverse Possession
    • Desire to reward
    • expectations and avoid "wrenching" possession of land from a
    • long-time possessor (perhaps even bona fide purchaser) who has become
    • attached to it.

    • Desire to reward
    • labor that constitutes an improvement to land.

    • Desire to reward
    • the efficient/productive use of land. Desire to punish
    • inefficiency/sleeping on one's rights with respect to property. Desire to quiet
    • title in land so past and present disputes over title can be put to rest
    • and it can be freely transferred.
  50. “Testamentary” gift
    • post-death gift (typically has statutory
    • requirements).
  51. “Inter-vivos” gift
    gift made during lifetime.
  52. Once completed a gift is
    irrevocable.
  53. Declaring an intent to make a gift
    is not the same as making a gift.
  54. One can gift present interests in property
    • OR future interests in property. (Klimt painting
    • case, father retains possession and a life estate and gifts remainder to son).
  55. “In extremis”
    means on the verge of death.
  56. “Donatio causa mortis”
    • means a gift given in anticipation of impending
    • death.
  57. Values and Policy
    Considerations Driving the Law of Gifts
    • Want
    • to accomplish “wrench” of delivery, since gifts are irrevocable once made.
    • (ensure mental clarity)Want
    • to ensure evidentiary clarity by having objective act constitute delivery,
    • whether physical (e.g. handing over object itself), constructive (e.g.,
    • handing over keys), or symbolic (write and mailing or handing over letter
    • declaring gift).Want
    • to avoid fraud.Intent
    • has become more and more powerful over time in the law of gifts.The
    • modern trend is to evaluate delivery in context, taking into account all
    • the facts and circumstances.The
    • equities (and propriety) seem to loom particularly large in gift cases.
  58. TENANCY IN COMMON
    • 1.      
    • In common law, three concurrent interests are
    • tenancy in common, joint tenancy and tenancy by the entirety.

    • 2.      
    • Tenants in common have separate but undivided
    • interests in the property.

    • 3.      
    • There is one unity in the interest of the
    • property.

    • 4.      
    • Each tenant has rights to possession to the
    • whole property and may have unequal shares.

    • 5.      
    • However, there are no rights of survivorship.

    • 6.      
    • The property will be passed down to heirs or can
    • be willed to another party.

    • 7.      
    • Thus, the new party will be tenants in common
    • with the party still alive.
  59. JOINT TENANCY
    • 1.      
    • Tenants in a joint tenancy are regarded as a
    • single owner brought together by four unities. 


    • 2.      
    • The four unities are time, title, interest, and
    • possession.

    • 3.      
    • Under the unity of time, the interest of each
    • joint tenant must be acquired at the same time.

    • 4.      
    • Under the unity of title, all joint tenants must
    • acquire title by the same instrument.

    • 5.      
    • Under the unity of interest, all must have equal
    • undivided shares.

    • 6.      
    • Under the unity of possession, each must have a
    • right to possession of the whole.

    • 7.      
    • There are no rights of survivorship under joint
    • tenancy.

    • 8.      
    • Once a tenant is deceased their property
    • interest will cease to exist.

    • 9.      
    • Joint Tenancy is the best option for same sex
    • couples, father and son, etc as probate will not be required.

    • 10.  
    • The interests can be unilaterally severed.

    • 11.  
    • Lien theory does not sever title in a joint
    • tenancy.
  60. TENANCY BY THE ENTIRETY
    • 1.      
    • Tenants in tenancy by the entirety are regarded
    • as a single owner brought together by four unities and marriage.

    • 2.      
    • The four unities are time, title, interest, and
    • possession.

    • 3.      
    • Under the unity of time, the interest of each
    • joint tenant must be acquired at the same time.

    • 4.      
    • Under the unity of title, all joint tenants must
    • acquire title by the same instrument.

    • 5.      
    • Under the unity of interest, all must have equal
    • undivided shares.

    • 6.      
    • Under the unity of possession, each must have a
    • right to possession of the whole.

    • 7.      
    • Marriage….

    • 8.      
    • There are no rights of survivorship under joint
    • tenancy.

    • 9.      
    • Interest in title cannot be severed
    • unilaterally. 

    • 10.  
    • It can only be severed through divorce, one
    • tenant dies, and a mutual agreement.
  61. ACQUISITION BY DISCOVERY:
    • Discovery or conquest are terms of art referring to methods
    • of acquiring territory in international law. 
    •  

    • Discovery entails
    • “the sighting or ‘finding’ of hitherto unknown or unchartered territory.  A landing and symbolic taking of possession
    • give rise to title.  The land must be
    • perfected, within a reasonable time, by settling in and making an effective
    • occupation.

    • Conquest is the
    • taking of possession of enemy territory through force, followed by formal
    • annexation of the defeated territory by the conqueror.
  62. ACQUISITION BY CAPTURE:
    • Acquisition by capture seeks to find the first
    • true owner and get the animal to him/her. 
    • A person who first gains literal physical possession over a chased but
    • unwounded wild animal is the person who legally has “first possession.”  Pursuing an animal, without more, does not
    • constitute possession or occupation, and doesn’t place you in the chain of
    • title.  Alternatively, mortally wounding an animal is
    • considered "constructive possession" which is treated the same as
    • literal possession for legal purposes, as long as you follow up by doing all
    • that can be done to physically take the animal.
  63. ACQUISITION BY CAPTURE:
    (land)
    • Owners of a piece of land are
    • considered to have constructive possession of all things on that land
    • (including wild things).  Additionally, the law does not permit
    • behavior intended only to harm another's property or business (duck decoy
    • case), although it does permit useful behavior that has that result (e.g. bona
    • fide competition).  Trespassers are not
    • considered to have possession of an animal.
  64. ACQUISITION BY CREATION:
    • Created property can be not only possessed but
    • exploited, often by more than one person, which gives rise to a distinct set of
    • common law rules for created property.  Examples:  books, songs,
    • photos, media content, a celebrity's name.
  65. PROPERTY IN ONE’S IDEAS AND EXPRESSIONS:
    • INS:  In acquisition by
    • creation a person’s property is limited to the chattels which embody his or her
    • invention.  A person’s original writing
    • is property.  However, raw factual
    • information is not. 

     

    • SILK:  At common law, a
    • person's property is limited to the chattels which embody his or her invention;
    • others may imitate those at their pleasure.

     

    • CH. 5:  At common law,
    • a person's property is limited to the chattels which embody his or her
    • invention.  A copier can also "name
    • check" the copied item because the copy's value rests in part on the fact
    • that it's a copy of a famous product.
  66. PROPERTY IN ONE’S PERSONA:
    • A person has property in one's persona, which includes one's
    • face (likeness), voice, signature, and name.  A
    • right to one's persona can be assigned and inherited.
  67. PROPERTY IN ONE’S PERSON:
    • A person does not have a common law property right in his or
    • her own body parts.
  68. ACQUISITION BY FIND:
    •                 Acquisition
    • by find focuses on returning chattels to the true owner wherever possible.  Property can be abandoned, mislaid, or
    • lost.  Abandonment of property is a question of intent; it turns on
    • whether the owner knowingly and formed an intent not to come back and claim
    • it.  Mislaid
    • property is property the possessor set down knowingly but then walked away
    • from, without forming an intent to abandon the property.  Lost property is property the possessor set
    • down/dropped unknowingly.  Whether
    • voluntary or involuntary, bailees have a duty to make a reasonable effort to
    • find the person who mislaid property.  As
    • against their principals, agents have no property rights because they act at
    • all times on behalf of the principal.  Example
    • of bailee/bailor relationship is valet (temporarily holds car until owner
    • returns). 

     

    • -Trespassers cannot be finders; they are among those
    • who have no legal capacity to claim title.

    -Guests and invitees can be finders.
  69. ADVERSE POSSESSION:
    • Adverse
    • possession is an open and notorious entry into possession (of a property) that
    • is continuous for a statutory period under adverse claim of rights.  Open and notorious is holding yourself out
    • clearly and openly as the person claiming exclusive right to possess the land,
    • such as putting up signs, a fence, pay property tax, or tell people that it’s
    • yours.  It provides the opportunity to
    • put the real owner on notice.  However,
    • there is no presumption of knowledge when the adverse possession involves a
    • minor encroachment along a common boundary. 
    • Entry requires physically entering into possession of property you
    • actually/use as the true owner would.  "Continuous"
    • does not necessarily mean constant; continuity requires that the would-be
    • adverse possessor use the land the way a reasonable true owner would use it,
    • which could differ if year-round home, versus weekend place, versus annual
    • vacation cottage.  The point is that the
    • would-be adverse possessor, and not the true owner or anyone else, is
    • exclusively using it the way one would expect the true owner to use it.  Absence from property is not abandonment if
    • you are using it the way a reasonable true owner would.
  70. Tacking
    • An
    • adverse possessor can "tack on" time when he or she is a bona fide
    • purchaser with privity of title to the adverse possessor (plus others with
    • privity of title). Note, however that only bona fide purchasers can tack on the
    • time of prior adverse possessors. Those seeking title through AP alone (without
    • purchase) cannot tack on the time of prior (would be) adverse possessors.
  71. ACQUISITION BY GIFT:
    • In order to make a gift of personal property, the person
    • giving the property (donor) must intentionally give the gift by delivery and the
    • person receiving the gift (donee) presumably accepts the gift. 

    • A donor intends to give a gift
    • through manifested intent.  Manifested
    • intent can be oral, such as words donor stated he/she intended to give the
    • gift, or it can be written.  It can also
    • be an object that effectuates intent, such as an endorsed check.

    • In addition to intention to give a
    • gift, the donor must deliver the gift. 
    • Delivery is the transfer of possession and can be done by a physical
    • transfer, constructive delivery, or symbolic delivery.  Physical transfer, if at all possible, is
    • physically handing over the gift.  If the
    • gift cannot be physically handed over, such as a car, possession can transfer
    • by constructive delivery.  Constructive
    • delivery grants access to the gift the donor intended to give.  In the case of a car, the donor would give
    • the keys to done, and that would be considered constructive delivery.  Assuming physical transfer is not possible,
    • and constructive deliver is not prevalent, another type of delivery is symbolic
    • delivery.  Symbolic delivery is handing
    • over something symbolic of the property given. 
    • For example, a deed, a written piece of paper, symbolizes the land or
    • property in which the deed pertains to.

    • Lastly, in order to make a gift of
    • personal property must also accept the gift. 
    • Acceptance is presumed upon delivery. 
    • Therefore, it is rarely an issue. 
    • However, a donee can expressly refuse a gift.
  72. INTER VIVOS GIFT:
    • In order to make an inter vivos gift, the donor
    • must intend to make a present transfer and deliver the gift, which must be
    • accepted by the donee.   Intent is shown through manifested intent to
    • make a present transfer.  Manifested
    • intent can be done orally, written, or object that effectuates intent.  A present transfer is a transfer made while
    • the donor is alive, and is irrevocable. 
    • If the donor intends to give the gift upon death it is invalid unless it
    • is made by a will.  Delivery of an inter
    • vivos gift can only be by physical transfer, or constructive delivery.

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