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What does actual possession afford under the law?
Actual possession of a contested resource often creates a rebuttable presumption of the right to possess, that can only be rebutted by a superior claim.
What are the nine (9) bundled rights said to be given to the owner of property under property law?
- The nine bundled rights said to be given to the owner of property under property law is are the right to: Bequeath/Devise, Destroy, Dispose, Enjoy, Exclude, Occupy, Possess, Transfer, and/or Use.
Describe the "Labor Theory of Property".
The Labor Theory of Property asserts that if a person's labor is mixed with the property then they should be reward with ownership of said property.
Describe the "Possession Theory of Property".
The Possession Therory of Property asserts that if you reduce property to possession then you own it.
What are the three (3) considerations to bear in when dealing with Relativity of Ownership?
- The three considerations to bear in mind when dealing with relativity of ownership are:
- 1. Who was the initial owner of the property?
- 2. Who came into possession of the property?
- 3. Who will the court say has title in the property?
What is the policy underlying the Relativity of Ownership doctrine?
The policy underlying the Relativity of Ownership doctrine is putting property back in play as oppose to having it sitting un-used.
What is the policy underlying possession establishing a rebuttable presumption of ownership in property?
The policy underlying possession creating a rebuttable presumption of ownership is maintaining the security of owning property and all transactions and other thing that rely upon such security in ownership of property.
What is the standard of proof for establish title in property?
The standard for establishing proof of title in property is the preponderance of the evidence.
What practical purpose of the courts allowing possession to create a rebuttable presumption of ownership?
The practical purpose of the courts allowing possession to create a rebuttable presumption of ownership is having a means by which to break the stalemate created when neither party can establish title by the preponderance of the evidence.
When is the presumption of ownership that is vested in the possessor of property rebutted?
The presumption of ownership that is vested in the possessor of property is rebutted when the challenger to the possessor's title present by a satisfactory evidence that he/she possesses superior title.
Define Res Derilectae.
Res Derilectae - Things that such as television sets on the curb for refuse collection that are intentionally abandoned
Define Res Nullius.
This which had no previous owner such as animal and fish
What are the five (5) elements of De In Rem Verso?
- The five elements of De In Rem Verso are:
- 1. An enrichment
- 2. An impoverishment
- 3. A nexus between the enrichment and the impoverishment
- 4. An absence of justification or cause for the nexus between the enrich and impoverishment
- 5. No other remedy at law for the plaintiff
Define "Lost Property".
Property the owner misplaces and cannot find.
Define "Mislaid Property".
Property the owner intentionally leaves someplace and subsequently can't recall the location of.
Define "Abandoned Property".
Property which the forfeits by reason of his forming the subjective intent to relinquish all rights in it (even if it started out as lost or mislaid.
Define "Relativity of Ownership".
Relativity of Ownership is the area of property law that deals with the relative legitimacy of title claims by various individuals attempting to establish clear title ownership in property.
Define "Treasure Trove".
Treasure Trove is defined as hidden gold, silver, or currency with the appearance of antiquity the owner of which is unknown
What does the Employee Rule, with respect to Relativity of Ownership, set forth?
The Employee Rule sets establishes that if property is found within the course of employment the employer shall have superior title to said property.
What are the three (3) classifications of lost personal property?
The three classifications of lost property are Lost, Mislaid, and Abandoned.
Does the owner have the right to recover mislaid property?
Yes, the owner does have the right to recover mislaid property.
Do finders have a right to keep abandoned property?
Yes, finders do have a right to keep abandoned property.
Does the Finder prevail over Third Parties if the owner doesn't claim property?
Yes, the finder does prevail over Third Parties if the Owner doesn't claim property.
Which party previls if the Finder was trespassing when he found the property in dispute?
When the Finder is trespassing at the time he finds property he the Landowner will prevail.
If the Finder is on the premises lawfully and finds property in one's home who will have the best title to the property?
If a Finder is in the premises lawfully and finds property in one's home, the homeowner will have the best title.
If a Finder is on the premises lawfully and finds property in a place accessible to the public who will have best title?
If a Finder is on the premises lawfully and finds property in a place accessible to the public the determination of who has best title will depend upon the jurisdiction the parties are in.
If the lost property is embedded in the soil who will prevail at court?
If lost property is embedded in the soil the Land-Owner will prevail unless the property found is Treasure Trove.
How are Native-American graves and artifacts usually treated?
Native American graves and artifacts are protected when found on tribal and Federal land and will be given to the tribe they hold the most significance to; unless they are found on private property in which case they are fair game.
Are there any jurisdictions that place a middleman between the Finder and the property that he finds?
Yes, in some jurisdictions the Finder must bring the property to the authorties so that they can try to identify the property's true owner, and if after a certain amount of time such an owner isn't found the Finder will be able to claim ownership of the property.
Trespass is defined as the unprivileged entry onto property possessed by another.
Define the Adverse Possession Doctrine.
The Adverse Possession Doctrine is a means by which the title in property is transferred one person to another by reason of a trespasser's possession of another's property in a manner that is exclusive, visible (open and notorious), continuous, and adverse/hostile for a time that exceeds the statutory limitation.
What action(s) does successful adverse possession act as an affirmative defense against?
The actions that successful adverse possession of property prove act as an affirmative defense are ejectment and trespassing.
Is a landowner able to re-possess his property after it has been adversely possessed?
No, after a landowner's land has been adversely possessed by a trespasser the doctrine of Adverse Possession barres them from bringing an action for ejectment.
What is the standard of proof that must be met to establish Adverse Possession?
The standard of proof that must be met in order to establish Adverse Possession is either Clear & Convincing Evidence (in the majority of jurisdictions) or a Preponderance of the Evidence (in the minority of jurisdictions).
Tacking is a doctrine within the doctrine of Adverse Possession which allows the adverse possessor to count the time a previous adverse possessor held the land toward toward his own time for the purpose of meeting the time statutory time requirement.
How is the Adverse/Hostile element of the Adverse Possession doctrine proven.
Hostile/Adverse Possession is proven by showing that possession of the disputed property was against the right of the true owner and is inconsistent with the title of the true owner.
How is the Actual Possession element of the Adverse Possession doctrine proven?
The Actual Possession element of the Adverse Possession doctrine is proven by showing evidence that the possession of disputed property was used for enjoyment, cultivation, residence or improvements.
How is the Open & Notorious element of the Adverse Possession proven?
The Open & Notorious element of the Adverse Possession is proven by presenting evidence that the possession of the disputed property was in such a manner as to give notice to the true owner that the property is being claimed by another.
With respect to the Open & Notorious element of Adverse Possession is the owner of the property responsible for knowing everything that happens on his property?
No, the Landowner is only responsible for knowing what a reasonable inspection of the property would disclose.
With respect to the Open & Notorious element of the Adverse possession, will courts consider reputation when passing upon this element?
When passing upon the Open & Notorious element the courts will take into consideration who the pubic associates ownership of the land with.
How is the Exclusive Possession element of the Adverse Possession proven?
The Exclusive Possession element of the Adverse Possession doctrine is proven by presenting evidence that shows that possession of the disputed property by the adverse possessor was such that it excluded the true owner from acting as the true owner as well as excluding third parties from using the land.
How is the Continuous Possession element of the Adverse Possession doctrine proven?
The Continuous Possession element of the Adverse Possession doctrine is proven by presenting evidence that the adverse possessor exercised control over the property in ways and intervals of time customarily pursued by owners of that type of property.
Define Quiet Title.
Quiet Title is an action in which the plaintiff seeks a declaratory judgment from the court stating that he or she owns is the rightful owner of property.
Define Color of Title.
Color of Title is the type of Adverse Possession that is brought on when an adverse possessors satisfies the elements of the Adverse Possession doctrine and also has a deed that purports to transfer the land in question, but said deed is ineffective to due to some defect in the deed or some process by which the deed was issued.
What makes the deed significant when adverse possession is achieved via Color of Title?
The deed in a Color of Title Adverse Possession action is significant because if the Adverse Possessor prevails all of the land described in the deed will be awarded to them.
An easement is a right of use given pursuant to a non-owner's limited (not demonstrating an intent to treat the property as one's own) actions in lieu of an awarding/shifting of the title.
Define Affirmative Easement.
An Affirmative Easement is an easement that allows some action on another's property.
Define Negative Easement.
A Negative Easement is an easement that disallows some action on another's property.
With respect to the Open and Notorious element of the Adverse Possession doctrine, what test must the actions of the Adverse Possessor pass?
Respecting the Open and Notorious element of the Adverse Possession doctrine the adverse possessor's action must be such that it puts the true owner on notice that his land is being occupied.
Respecting trespassing what is the court's presumption?
Absent a lease, the express granting or denial of permission, or an agreement of some kind the courts presume that a person is trespassing.
What happens to an Adverse Possessor's claim of Adverse Possession if it can be proven that they were on the owner's property with his permission and why?
If it can be proven that the Adverse Possessor was on the owner's land with the owner's permission then the Adverse Possessor's claim of Adverse Possession will fail because trespassing is a required baseline condition for the doctrine of Adverse Possession.
What is the Owner's danger in even permissively allowing another to possess his property for a great length of time?
The Owner's danger in allowing another to possess his property for a very long period of time, even permissively, is that to the extent that the possessor reasonable relies on that permission to invest in the land the possessor might be granted possessory rights in said land to the extent that the owner is estopped from denying further permission.
What are the only two ways possessions can be changed from permissive to impermissive?
- The only two ways in which possession is switched from permissive to impermissive are: 1) The owner expressly revokes the prior permission; or
- 2) The Adverse Possessor or Co-Owner announces that they are Ousting the True Owner
What are the Four (4) Approaches to the Necessary Mindset for establishing a case for Adverse Possession and their problems?
- The Four Approaches respecting the Necessary Mindset are:
- 1) Intentional Dispossession - The adverse possessor must be aware they are occupying property owned by someone else and must intend to oust or dispossess the True Owner
- 2) Good Faith - The adverse possessor must mistakenly or ignorantly occupy the property of another
- 3) Objective - It doesn't matter what the adverse possessor thought so long as they meet the elements of the Adverse Possession doctrine
- 4) Claim of Right - One of the other three
What does the Conversion Rule of Adverse Possession of Personal property stipulate about the statute of limitations?
The Conversion Rule of Adverse Possession of Personal Property stipulates that statute of limitations will begin to run when the property is wrongfully taken and the owner is dispossessed of his property.
What does the Discovery Rule of Adverse Possession of Personal property stipulate about the statute of imitations?
The Discovery Rule of Adverse Possession of Personal property stipulates that the statute of limitations begins to run at the time the True Owner discovers, or reasonably should have discovered, where stolen property was, unless the UCC Merchant's Rule applies.
What does the Demand Rule of Adverse Possession of Personal property state?
The Demand Rule of Adverse Possession of Personal property states that until demand is made by the true owner and refused by the possessor, the possession of that property by the good faith purchaser is not considered wrongful.
Laches is a doctrine stating that a plaintiff may may not prevail if he unreasonably delayed in asserting his rights and other were prejudiced by that delay.
What does the rule of Jural Opposites state and what are the Four (4) Sets Jural Opposites?
- The rule of Jural Opposites states that one must at all times have one of the two complementary Jural Opposites but never both at the same time.
- The Four (4) Sets of Jural Opposites are:
- a. Right & No Right
- b. Privilege & Duty
- c. Power & Disability
- d. Immunity & Liability
What does the rule of Jural Correlatives state and what are the four (4) sets of Jural Correlatives?
- The rule of Jural Correlatives states that one of correlatives necessarily creates the other.
- The Four (4) Sets of Jural Correlatives are:
- a. Right & Duty
- b. Privilege & No Right
- c. Power & Liability
- d. Immunity & Disability
When dealing with the Jural Opposites and/or Correlatives what three questions should one always ask?
- When dealing with the Jural Opposites and/or Correlatives one should ask the questions:
- 1. Who has the entitlement?
- 2. Against which specific individuals does the entitlement run?
- 3. What specific acts are encompassed by the entitlement?
What is one practical use of a analysis by either Jural Correlative or Opposite?
One practical use of an analysis by either Jural Correlative or Opposite is sorting out and understanding various bundles of rights.
A Gift is an immediate, voluntary, and gratuitous transfer of ownership made without consideration.
What are the elements of Gift?
- The elements of gift are:
- 1. Capacity
- 2. Intent
- 3. Delivery
- 4. Acceptance
In the context of Gift law what does "Capacity" mean?
In the context of Gift Capacity means that the donor must possess both the mental capacity and ownership of the property such that he is able to transfer ownership.
In the context of Gift law what is meant by "Intent"?
In the context of Gift, "Intent" means that the donor has formed the subjective intent to make an irrevocable present transfer of ownership in the property.
In the context of Gift law what is meant by "Delivery"?
In the context of Gift law, "Delivery" means that complete transfer of dominion and control is effected.
What are the three types of delivery recognized in Gift law?
- The three (3) types of delivery recognized in Gift law are:
- 1. Actual Delivery
- 2. Constructive Delivery
- 3. Symbolic Delivery
Define Actual Delivery.
Actual Delivery is physical delivery, i.e. passing property directly to a person.
Define Constructive Delivery.
Constructive Delivery is handing over something that gives access to the gifted property, i.e. giving on the keys to a safe deposit box.
Define Symbolic Delivery.
Symbolic Delivery is associating the donee's name with the property, i.e. naming a library after them.
Can delivery to a third party count as delivery?
Yes, delivery to a third party can count as delivery.
What rule have the courts promulgated about delivery?
If a thing can be handed over it must be, in any case delivery must be as perfect as the circumstances allow and completed to the point of transfer of dominion and control.
In the context of Gift law what is meant by "Acceptance" and what caveat exists with respect to it.
In the context of Gift law "Acceptance" refers to the donee's taking the property. In Gift law acceptance is presumed so if a donee doesn't want the Gift he must make some signification to that affect.
What are the five (5) approaches to handling gifts in contemplation of marriage?
- The five (5) approaches to handling gifts in contemplation of marriage are:
- 1. If you're married already and you give a gift in contemplation of marriage you forfeit the property
- 2. All gifts during the engagement are irrevocable inter vivos gift
- 3. The engagement ring is conditional but all other gifts are irrevocable inter vivos gifts unless they are expressly conditioned upon the subsequent marriage
- 4. If the donee is at fault they return the gift, and vice versa
- 5. Donor gets the ring back no matter who is at fault
With respect to the doctrine of Tacking what must be between the periods of time in order for them to adhere to one another?
In order for subsequent periods of time to adhere to one another under the doctrine of tacking there must be privity between them.
Define Privity in the context of the Tacking doctrine within Adverse Possession.
Privity is some court-recognized link between the adverse possessor's possession of property and the dispossession of another party.