Property

Color of Title

Enables an adverse possessor to obtain title by adverse possession to the entire parcel of land covered by the document. However, for this to happen, the adverse possessor must actually adversely possess at least a portion of the property covered by the document. Arguably, the document establishes constructive possession of the entire parcel covered by the document. Therefore, the adverse possessor gets the portion of the property she actually adversely possesses plus the rest of the parcel covered by the document.

Bailment

The transfer and delivery by an owner of prior possessor of possession of personal property to another. It is a legal relationship between a person and personal property. It is rightful possession of personal property by one who is not the true owner.

Private Nuisance

The use of defendant's land which results in an intangible invasion of plaintiff's land that substantially and unreasonably interferes with plaintiff's use and enjoyment of her land.

Common Law Reasonable Use Rule (Surface Water)

Under this rule, each landowner has the right to discharge diffuse surface water from her land in a reasonable manner. The majority of states, today, follow the reasonable use rule.

Substantial Interference

a. It means that persons of normal sensitivities would consider the interference to be substantial. The element forecloses actions for invasions that are insubstantial and deters complaint by petty or overly sensitive plaintiffs. b. The "substantial interference" requirement serves to separate normal everyday noise, smells, etc. from noise, smells, etc. which a reasonable person of ordinary sensibilities would find acceptable from those which a reasonable person of ordinary sensibilities would find a substantial interference with their right to use and enjoy their property. This requirement recognizes that in day-to-day society we all must accept a certain amount of noise and other intangible interferences. This requirement acts as a filter to block typical intangible interferences which a reasonable person would find acceptable.

Elements of Gifts

1. Donative Intent: There must be an INTENT to make a PRESENT gift (an intent to make a future gift is not valid); 2. Delivery: The donor must DELIVER the gift to the donee by a transfer of possession & dominion over the gift property (generally ACTUAL delivery (also called MANUAL delivery)) is required, but SYMBOLIC or CONSTRUCTIVE delivery (see below) is allowed if actual delivery is impossible or impracticable under the circumstances); and 3. Acceptance: The donee must ACCEPT the gift (acceptance is typically presumed unless the donee expressly refuses to accept the gift).

2-403

1. No vendor can transfer a better title than he or she has. 2. The true owner can revoke a voidable title. However, if the person that has a voidable title sells the object, the true owner cannot recover the item from the good faith purchaser. They initiated the action by selling it originally. They must take it out on the person that sold it.

Two Kinds of Property

1. Real Property 2. Personal Property

Legal Bundle of Rights

1. Right to possess (immunity from loss or harm without consent) 2. Right to exclude 3. Liberty to use 4. Power to transfer

Acceptance

A bailment requires the bailee's acceptance of the delivered property. Like the delivery element, acceptance might not be actual. i. Constructive: Found when a person comes into possession of an object by mistake or takes possession of it when it is left or lost by its owner.

Pledges

A bailment to secure a debt or obligation of the bailor. It is a bailment for security. The transfer of possession need not be made to the pledgee. Instead, it can be to a third party.

Conversion

A common law action for tort of using another's property as one's own. It is the wrongful exertion of control over an asset inconsistent with the true owner's rights to the property.

Common Law of Finders

A finder of lost property has greater rights to the found property than all the world except the true owner. "The title of the finder is good as against the whole world but the true owner.

Inter Vivos Gift

A gift between living persons. For this to be effective between the giver (donor) and the recipient (donee), the donee must show three things

Gift

A noncontractual, gratuitous transfer of property. It is made without legal consideration. If there is consideration, it is not a gift.

Adverse Possession

A process through which a person who uses property for a statutorily determined period of time becomes the owner of the property and defeats all rights of the person with legal or record title. A person takes ownership of property through adverse possession by using the property as would a true owner for a statutorily determined period of time.

Public Nuisance

Actions typically involve an action brought by the government against some activity or use of property by a landowner [D] that causes an injury to the public generally. Public nuisance actions have historically been criminal actions; however, today they are often civil actions. Generally, a private party can't bring a public nuisance action. [Remainder of the discussion will refer only to private nuisance actions].

Actual

Actual possession is constituted by the type of property, location, and what uses the property would be expected in the community. An adverse possessor must be in actual possession of the property. This gives notice to the legal owner and others who come to the property that the adverse possessor is using the property. It also indicates that the adverse possessor may be claiming the property and has ousted all other persons.

Personal Property

All property other than real property. i. Ex. Automobiles, books, tables clothes, computers, and corporate stock. ii. (a) Tangible personal property (also called chattels) which refers generally to moveable property which has a physical existence that you can see, feel or touch; and (b) Intangible personal property which refers to property which lacks any tangible or physical form such as intellectual property (patents, copyrights, trade secrets and trademarks), customer goodwill or contract rights.

Hostile

Simply means that the adverse possessor uses the occupied property without the true owner's permission, and inconsistent with the true owner's legal rights. ii. A person entering property with the true owner's permission cannot claim adverse possession. 1. Ex. A tenant leasing the property for more than the statutory period cannot claim ownership since her possession was never hostile. 2. Ex. A tenant refusing to vacate property after a lease ends and denying any continuing obligation to pay rent may exhibit the hostility element. In some states, the tenant must vacate the property and then re-enter to begin the running of statute of limitations.

Trover

The action or monetary compensation conversion of person property. It is a forced sale. A person who is compensated pursuant to a trover action loses his rights to have the asset returned.

Replevin

The action or remedy to recover the asset itself plus money damages for injury to the asset.

Open and Notorious

The adverse possessor's use of the property is so visible apparent it gives notice to the legal owner that someone may be asserting an adverse claim to the land. The adverse possessor's use must be of such character under the circumstances as would indicate to a reasonable person that someone else might be claiming the property. The adverse possessor is not required to give actual notice to the true owner. If the legal owner has actual knowledge, the open and notorious element is met even though no one else has reason to know of the adverse claim. Buildings, fences, crops, or animals might constitute an open and notorious presence.

Possession

The controlling or holding of personal property, with or without a claim of ownership. Possession can be good against all except those with a better right.

Mislaid Property

Mislaid property is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is. It differs from lost property in that the owner voluntarily and intentionally places mislaid property in the location where it is eventually found by another. In contrast, property is not considered lost unless the owner parts with it involuntarily. The finder of mislaid property acquires no rights to the property. The right of possession of mislaid property belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner.

Damages

Monetary damages seem appropriate where the defendant provides significant social utility, and it cannot prevent the nuisance. In many jurisdictions, a defendant can escape an injunction only if the social utility of the defendant's primary activity benefits the public at large rather than merely benefiting the defendant personally.

Continuous

Must possess the property continuously for the entire limitations period. This does not mean the person must use the property 24 hours a day or even every day. The possessor must use the property as would a true owner under the circumstances, such as use of a hunting cabin during hunting seasons, or the cutting of timber when appropriate. The continuity element focuses on the adverse possessor's time on the property, rather than on how long the true owner has been dispossessed. If an adverse possessor abandons the property, and a second adverse possessor independently enters into possession, the statute of limitations starts new.

Externality

Not simply an effect of one person's activity on another person; rather, it is an effect that the first person is not forced to take into account. So even if someone offers you money to cover the external cost is not considered an "externality" Ex. They exist whenever some person, say X, makes a decision about how to use resources without taking full account of the effects of the decision. • X ignores some of the effects- some of the costs or benefits that would result from a particular activity, for example- because they fall on others. They are "external" to X. • As a consequence to externalities resources tend to be misused or misallocated. • If X can use his land for a 1000 dollars cost to the surrounding community but could make a change for 500 dollars that would cost the neighbors nothing, he wouldn't make the change despite it benefiting everyone.

Constructive Delivery

Occurs when one gives the keys to a safe deposit box or to a heavy or bulky object, such as a bureau or chest of drawer, to the transfree, this transfers control of the object without actually delivering it.

Symbolic Delivery

Occurs when the thing delivered stands in the place of the property. When a picture of a large chest of drawers is delivered to the donee; or when someone is given a written inventory of similar items. It is a representational delivery.

Balancing of Competing Lands

The determination of whether some land use is a nuisance typically involves balancing the competing uses of the P and D. Courts often follow the Restatement (Second) of Torts with regard to determining whether a nuisance exists. The Restatement requires the court to balance the utility of the D's land use against its effect on the P. The Restatement lays out the following to assist in the balancing - The existence of the following factors often supports finding a nuisance:

Relativity of Title

The idea that a person can have a relatively better title or right to possession than another, while simultaneously having a right inferior to yet another. This is necessary because few acquire a perfect title.

Unreasonable Interference

The main task of a court in a private nuisance case is to determine whether the defendant's actions or the condition on the defendant's property is a reasonable or an unreasonable interference

Actual Delivery

The object is physically handed over to the bailee.

Constructive Delivery

The property itself is not transferred, but something giving access to and control over it is. This involves giving the keys to an automobile or the keys to a safe deposit box. It gives the donee access, or the means of exercising possession and control over the chattel. Other examples include when the donee is already in possession, or has possession in some other capacity, as a bailee or employee. Actual delivery would be a fruitless action.

Acceptance

The recipient must accept the gift. It is usually presumed and without evidence to show rejection, there is no rejection. But no one is forced to accept a gift if they don't want it. I.e. a broken down car

Inverse Tacking

The statutory time period for an adverse possessor does not end and restart each time the property owner sells or transfers ownership of the property to a new party.

Tacking

The time period of adverse possession for one possessor can be added to or "tacked" to the time period of adverse possession by prior adverse possessors when "privity" exists between them. Typically, privity exists when the possession is transferred from one to another via deed, will, descent, written or oral contract, or mere oral consent or permission.

Fact Dependent Analysis

the determination of the existence of a nuisance cannot be determined in a vacuum. The surrounding facts and circumstances are always relevant. Therefore, it is possible for a land-use to be a nuisance in one area but not a nuisance in another area.

Ordinary Person Standard

the interference with the use and enjoyment of the land must be sufficient to offend the average normal person with ordinary sensibilities.

Injunction

Appropriate if the harm to the plaintiff outweighs the social utility of defendant's conduct, where the defendant can avoid the harm without undue hardship, or where the plaintiff's conduct is suited ot the locale and the defendant's activity is not.

Constructive Bailment

Arises when possession of personal property is acquired and retained under circumstances in which the recipient should keep it safely and return it to its owner.

Conquest

At an earlier time in history it was common for countries to acquire property via military force. Neighboring countries were invaded and annexed. Wars were fought and the victors acquired the territory of the loser. This still occurs today but on a much smaller scale than in the past. Additionally, international agreements and treaties limit this method of acquiring property today.

Discovery

At an earlier time in history when people only inhabited a small portion of the world the first people to find new lands via exploration acquired property rights to that newly discovered land. This is no longer a significant basis for acquiring property rights since few unexplored places exist on Earth today. Obviously, this theory could become important in the future with regard to space exploration although international agreements and treaties exist with regard to property rights in some celestial bodies.

Color of Title

"Color of title" means a deed or other instrument of conveyance that purports to convey title to the land in question. For example, assume that Fischer delivers a deed to Guthrie. On its face, the deed purports to convey CALIacre to Guthrie and contains a legal description of CALIacre. Pursuant to the deed, Guthrie takes possession of CALIacre. In fact, however, Fischer did not own any interest in CALIacre. Because Fischer held no interest in CALIacre, Fischer's deed did not convey any property right to Guthrie. Under these circumstances, Guthrie would be in possession of CALIacre under color of title -- i.e., by virtue of a deed that purports to convey title to CALIacre, but that is in fact invalid and thus passed no title.

Good Faith/Bonafide

1. Acquires title in a transaction in which a fair market value of the object is consideration. 2. With an honest belief that he was acquiring title to the object. 3. Under circumstances that would not lead him to think otherwise. Requires a purchaser to investigate the title with due diligence.

2-403 Merchants

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Elements of Adverse Possession

1) Actual 2) Open and Notorious 3) Exclusive 4) Hostile 5) Continuous

Elements of Possession

1) Delivery of possession. (Actual, constructive, symbolic). 2) Acceptance

How Are Property Rights Created?

1) Discovery 2) Conquest 3) Capture 4) Creation

Four Categories of Found Property

1) abandoned property (2) lost property (3) mislaid property (4) treasure trove

Constructive Possession

Denotes possession that has the same effect in law as actual possession, although it is not actual possession in fact. When a person does not have actual possession, but has the power to control an asset, he/she has constructive possession. Ex. Having the key to a safe deposit box, for example, gives one constructive possession.

Exclusive

Generally means that the adverse possessor holds the land to the exclusion of the true owner. Possession cannot be exclusive, moreover, if two or more adverse possessors use the property adverse to each other's ownership. If one adverse possessor has a higher legal right, by holding color of title or having entered the property first, the adverse possessor with the higher right may oust the other adverse possessor and continue possession. Some states hold that exclusive possession means exactly what it implies- that only one person can claim adverse possession.

Elements of Possession

a. 1) An intent to possess on the part of the possessor b. 2) His or her actual controlling or holding of the property. i. Control is key, both the intent and the control elements must be present to acquire the rights of a possessor. Possession need not be actual possession.

Capture (or first possession)

If something is unowned the first person to capture or take control of it becomes its owner. For example, the first person to capture a wild animal typically becomes the owner of the animal.

Park-and-Lock Cases

If the lot operator merely gives the car owner a license to use space to park his car, no bailment results and the car remains under the owner's control. If the space is leased for a definite period of time, the car remains under the control of the car owner and no bailment exists. i. Only some states hold that a park and lock bailment exists. New Jersey Supreme Court decided on bailment because 1) The owner is in the best position to absorb and spread the risk of damage 2) The car owner's expectation is that he will reclaim the car in the condition he left it and 3) The owner's proof of negligence while he was away imposes a difficult, if not insurmountable burden.

Symbolic Delivery

Is the receipt by the bailee of at hing symbolizing the object of the bailment. This usually means transfer by use of a written instrument.

Delivery

It is usually the physical delivery of the object. An agreement that a donor will transfer, and another receive, an object is insufficient for a delivery. A promise to make a gift is unenforceable by the donee, and the donor can decide not to make the gift anytime before delivery. When physical delivery is impossible or impractical, physical delivery is not required and courts recognize other types of delivery.

Rules that came out of Pierson

It requires actual physical possession of the item. The mere pursuit is not enough. The dissenting opinion would suggest constructive possession or policy reasons.

Gift Causa Mortis

Made when the donor has an apprehension or expectation of his or her own impending death and delivers the chattel with the intention that control over the subject of the gift takes effect immediately but becomes absolute only upon the donor's death.

Intentional Interference

Mainly distinguishes the acts or conditions from negligent acts or conditions. The defendant in an intentional interference is not acting negligently. The defendant in fact knows or should know its activities or property condition will affect persons' use or enjoyment of neighboring property, but feels society should tolerate or even encourage the defendant's activity or condition despite the inconveniences to neighboring landowners.

Donative Intent

Mere delivery is not a gift because it could have been part of a loan, or a bailment. The donee bears the burden of proof to show that the donor had the donative intent. High standard for showing of donative intent.

Abandoned Property

Property is abandoned when the owner no longer wants to possess it. Abandonment is shown by proof that the owner intends to abandon the property and has voluntarily relinquished all right, title and interest in the property. Abandoned property belongs to the finder of the property against all others, including the former owner.

Lost Property

Property is lost when the owner unintentionally and involuntarily parts with its possession and does not know where it is. Stolen property found by someone who did not participate in the theft is lost property. [The right of possession of lost property belongs to the finder, as against all persons other than the true owner.]

Real Property

Refers to land and improvements attached to the land. Ex. Buildings, dams, fences

Remedy

Traditionally, once a continuing nuisance is found it will be enjoined by a court. Damages may also be available for past injury; the injunction will prevent future injury. A modern trend - at least in a few judicial decisions - is to refrain from automatically issuing an injunction for a continuing nuisance. Pursuant to this trend some courts have awarded money damages to compensate for the ongoing nuisance in lieu of an injunction.

Treasure Trove

Treasure trove consists of coins or currency concealed by the owner. It includes an element of antiquity. To be classified as treasure trove, the property must have been hidden or concealed for such a length of time that the owner is probably dead or undiscoverable. Treasure trove belongs to the finder as against all but the true owner. [Some courts today reject the treasure trove category].

Benefits of Color of Title

a. 1) Many states may reduce significantly the statute of limitations period for persons taking possession of property under color of title. b. 2) The adverse possessor with color of title who successfully proves an adverse possession claim based on actual possession of a part of the tract described in the document constituting color of title is deemed to be in constructive possession of the whole tract.

Creation

Typically, the creation of something new enables the creator to acquire property rights in his or her creation. This typically does not apply to land since virtually all land is owned by someone and typically new land is not easily created. However, new products that result from research and development activities and new ideas that were not previously owned by anyone (if they were previously owned by someone they wouldn't be new) can and are created. As a general rule, the creator of such new things will become its owner. Property rights related to new ideas and technical know-how are an increasingly important type of property in the U.S. Such property, often called intellectual property, has developed its own complex body of law which is, to a large extent, a subset of traditional property law. (Intellectual property law can be studied in various upper level elective courses)

Common Law Natural Flow Law (Surface Water)

Under this rule, each landowner can only discharge surface water from her land via natural drainage paths.

Common Law Common Enemy Rule (Surface Water)

Under this rule, each landowner has the right to expel unwanted diffuse surface water from her land without regard to its effect on neighboring land.

Common Law Absolute Ownership Rule (Underground Water)

Under this rule, each riparian owner (a riparian landowner is a landowner whose land borders a stream or whose land has a stream running across it) has the right to have the flow of water across or adjacent to her land maintained in its natural state without it being diminished in quality or quantity. Each riparian owner has the right to use the water for natural purposes. Additionally, each riparian owner can use the water for extraordinary needs or purposes when such use does not materially affect the water.

Common Law Natural Flow Law (Streams)

Under this rule, each riparian owner (a riparian landowner is a landowner whose land borders a stream or whose land has a stream running across it) has the right to have the flow of water across or adjacent to her land maintained in its natural state without it being diminished in quality or quantity. Each riparian owner has the right to use the water for natural purposes. Additionally, each riparian owner can use the water for extraordinary needs or purposes when such use does not materially affect the water.

Common Law Reasonable Use (Streams)

Under this rule, each riparian owner has full use of the water for any beneficial use provided only that it does not unreasonably interfere with the beneficial uses of other riparian owners. Under this rule, the court balances the uses of the water by the different riparian owners. The majority of states, today, follow the reasonable use rule.

Common Law Reasonable Use Rule (Underground Water)

Under this rule, each riparian owner has full use of the water for any beneficial use provided only that it does not unreasonably interfere with the beneficial uses of other riparian owners. Under this rule, the court balances the uses of the water by the different riparian owners. The majority of states, today, follow the reasonable use rule.

Unintentional Interference

Usually results from negligent, reckless, or abnormally dangerous activities. These activities are either disfavored as falling below expected standards of conduct or as imposing such a high standard of care than a strict or near-strict liability standard applies as long as the interference is substantial (abnormally dangerous activities).

Misappropriation

When a plaintiff has by substantial investment created an intangible thing of value not protected by patent, copyright, or other intellectual property law, and the defendant appropriates the intangible at little cost so that the plaintiff is injured and plaintiff's continued use of the intangible is jeopardized, an action for misappropriation will lie. Some courts are hostile because copying many things results in useful competition, lower prices, and respects the limits of existing patent statutes.

Gratuitous Bailment

When the benefit of the bailment to the bailee is slight, the care required of the bailee is slight, the bailee is liable only for gross negligence. 1. Ex. Taking care of an object for a friend or neighbor, or one created by a mistake. A finder is such a bailee.