Personal Property

Ownership by occupancy

A thing capable of ownership, but not then owned, belongs to the person who acquires actual or constructive dominion or control over it and has the intent to assert ownership over it

Abandoned property

Abandoned when owner has voluntarily relinquished ownership with the intent to give up both title and possession/control Title is acquired by actual or constructive dominion or control over the thing with an intent to assert ownership over it (i.e. possession with intent to assert title and control) If held by an intermediary with no property interest, state may assume title through escheat

Specific rights of other bailees for hire in liens (exception)

Acquire no liens on goods received from persons who are not the owner

Accession

Addition of value to property by the expenditure of labor or the addition of new materials

Release of lien by court

After 20 days' notice to the lienor, a property owner may apply in circuit court to have a lien on their property released or discharged After 20 years, the debt on which a lien is based is presumed paid, and discharge will be ordered

Bailee held strictly liable

Any intentional unauthorized use of the goods or departure from the terms of the bailment that results in loss or damage Bailee fails to deliver or misdelivers the chattel, even to someone using a forged signature (Misdelivery of a vehicle in a parking garage to someone who shows up with a forged claim check brings no strict liability) Bailee is excused from delivery where the bailor has sold the property and notified the bailee, a third-party claimant has paramount title, or the property is taken from the bailee by judicial process If the bailee knows or should know of an adverse claim to the property, they will be absolutely liable to the true owner for delivery to the original bailor if the original bailor is not the true owner

Bailee's rights of action against third parties

Any recovery by the bailee beyond her interest in the bailed goods in actions against third parties regarding the bailed goods is for the benefit of the bailor

Lost property

Ask whether a reasonable person would judge that the owner accidently and involuntarily parted with possession of the property and does not know where to find it (no voluntary affirmative act) Finder usually wins over owner of the premises Exceptions: Finder is trespasser - owner of premises wins Employee finds property by virtue of an action specifically directed by employer - employer wins Property is found in a highly private locus (i.e. house or private office) - owner of premises wins

Bailments and bankruptcy

Bailed items cannot be included in the bankruptcy estate of the bailee and remain the property of the bailor

Bailee's rights of action against bailor

Bailee can maintain an action against the bailor for wrongfully taking and converting the subject of the bailment

Bailee estopped to deny bailor's title

Bailee cannot excuse failure to return property by asserting a claim to it themselves or on behalf of another

Bailee's use rights in bailed chattel

Bailee has no right to use the subject matter of the bailment unless there is an express provision in the contract or there are circumstances where such an intent is presumed

Bailee's possession rights in bailed chattel

Bailee has the exclusive right of possession, against even the true owner, as long as the bailee is exercising possession according to the terms and conditions of the bailment

Compensation in a bailment for mutual benefit

Bailee is entitled to the agreed upon or reasonable compensation

Bailee's liability to third parties

Bailee is liable for damages to others caused by use of the bailed property

Standard of care for sole benefit of the bailee bailment

Bailee is liable for even slight negligence

Standard of care for sole benefit of the bailor bailment

Bailee is liable only for gross negligence

Defects in the subject of the bailment

Bailment is gratuitous - bailor must inform the bailee of known defects Bailment is for hire - bailor is bound to inform the bailee of all known defects and those which, by the exercise of reasonable diligence, should have been known

Bailor's rights in actions for damages and future right of possession

Bailor may sue for injuries to their reversionary interest, and any negligence by the bailee is not imputed to the bailor

Duties of a custodian of a gift

Collect, hold, manage, invest, and reinvest custodial property as would a prudent person of discretion and intelligence who is seeking a reasonable amount of income and preservation of capital Must may amounts for support, maintenance, education, and benefit of minor

Fructus industriales

Crops that are the result of human labor (i.e. personal property)

Fructus naturales

Crops that grow spontaneously on the land (i.e. real property)

How to determine the status of an annexed chattel

Determined by the degree of permanency with which the chattel is affixed to the realty, the adaptation of the chattel to the use or purpose to which the realty is devoted, and the intent of the annexor to make a permanent accession to the realty Trade fixtures are rebuttably presumed to be personal property

Remedies for one who is wrongfully deprived of possessory rights

Detinue Trespass Trover - recover value of chattel plus damages for dispossession

How do wild animals become personal property

Dominion and control over the animal You set the trap or net, you own the animal You mortally wound the animal, you own the animal You merely chase the animal, you do not own the animal You trespass and kill game on someone else's land, they own the animal You're wild animal escapes, you lose your property right to it unless it is marked and you attempt to recapture it or it periodically returns to you

Requirements of an inter vivos gift

Donative intent Valid delivery Valid acceptance

Actual physical delivery

Donee has acquired dominion and control over the subject matter of the gift

Symbolic delivery

Donor hands over some object, other than the item given, that is symbolic of the item Most common way of effectuating symbolic delivery - written instrument that manifests donative intent, describes the subject matter, is signed by the donor, and delivered

Delivery to donee already in possession

Donor need not repossess and then return article to donee if donee is already in possession of it Where donor and donee reside together at the time of the gift, possession of the item at the time and place of common residence is not sufficient to establish a gift, except for personal paraphernalia

Doctrine of emblements

Former tenant can reenter and remove crops planted by them prior to the termination of there estate where the tenancy was for an indefinite duration and the tenancy terminated without the tenant's fault

Gift causa mortis

Gift given in contemplation of death Peril donor faces must be a fair degree of certainty or likelihood of death than is imminent and likely to occur (donor may die of a different cause than the one they thought they would die from) Donative intent Valid delivery Valid acceptance

Treasure trove

Gold, silver, or paper representative thereof the owner of which is unknown - lost property

Specific rights of cleaners and launderers in liens

Have a lien on clothing for the value of services performed After 90 days, the clothing may be sold upon 10 days' notice to the owner by registered mail

Requirements to be a common carrier

Holding out to perform a service to all who apply Carriage must be for hire Service must be for carriage

Acceptance

Implied by silence Gift is beneficial to donee - acceptance is presumed Explicit rejection may be completed by words or deeds

Confusion

Known contributions and goods are of the same kind and quality - parties are tenants in common in proportion to their respective interests regardless of how the confusion took place Unknown contributions and confusion is innocent - owners are tenants in common of the mass and share equally Unknown contributions and confusion is wrongful (includes negligent confusion) - burden is on wrongdoer to identity their goods or the entire mass belongs to the innocent party

Common carrier's liability for baggage

Liable for baggage delivered to it and for non-baggage knowingly accepted Not liable as an insurer for goods retained in the possession or control of the passenger May be liable in a negligence action for failure to properly protect its passengers

Specific rights of innkeepers in liens (exception)

Lien attaches to any property brought into the inn by a guest, even if the guest is not the owner of the property, except where the innkeeper knows the guest is not in rightful possession of the property

Specific rights of common carriers in liens

Lien for charges, except on goods received from someone other than the owner

Release of lien by agreement

Lien may be waived by a contract inconsistent with the existence of a lien General contractors, subcontractors, or suppliers may not waive a mechanics' lien in advance of furnishing any labor, services, or materials Any contract that waives or diminishes their rights before the provision of services or materials is void

Specific rights of mechanics and garage owners in liens

Lien on repaired personal property If property is subject to an instrument securing money, the mechanic's lien is limited to $1,000 Garage owner has lien on car for towing, storage, recovery, and care of car If the car is subject to an instrument securing money, the garage owner's lien is limited to $500 for storage and to $1,000 for alteration and repair Entitled to lien against any proceeds remaining after satisfaction of all prior security interests or liens, and may retain possession of the property until the charges are paid If there is a prior lien noted on the title to a car registered with the state, that lienor must be notified by certified mail 10 days before sale of the car

Specific rights of warehousers in liens

Lien on stored property for storage and labor charges

Specific rights of owners of self-storage facilities in liens

Lien on stored property that is superior to other existing liens to the extent of $250 or, if the leased space is climate-controlled or the item stored is a car with a lien previously recorded on the certificate of title, $500.

Rights of lienors

Liens by innkeepers, stable owners, garage owners, mechanics, and bailees can be enforced after 10 days by sale at an auction if the property does not exceed $10,000 Must notify owner and publicly advertise the sale If property is worth more than $600 and is not a motor vehicle required to be registered, the lienor must give notice to any secured party who filed a financing statement against the property

Adverse possession of personal property

Limitations period of 5 years Actual, open and notorious, hostile and adverse, under claim of right, and exclusive and continuous Tacking is permissible when there is privity Limitations period is tolled when P suffers from a disability and where D is out of jurisdiction or has fraudulently concealed themselves to avoid service

Exculpatory clauses by bailee

Limits liability for ordinary negligence so long as bailor has received effective notice Posted signs - not binding in the absence of proof that bailor read notice or should have read notice Claim check - not sufficient proof that bailor knew or should have known of the limitation Hotels - may limit liability for articles placed in their care by providing notice; may limit liability for goods lost from hotel rooms if they provide a safe place for storing valuables and give notice Warehouses - may limit the amount of liability in case of loss or damage to stored goods by including a limitation provision in the warehouse receipt or storage agreement

Limitation of liability for common carrier

May contract to limit liability - binding even if shipper did not read contract Requires additional consideration Cannot relive carrier from all liability due to its own negligence (makes contract void) Interstate Commerce Act - restricts ability of interstate carriers to limit liability imposed on them by the Act

Can real property be conveyed as a gift causa mortis?

No

May an owner of personal property be divested of title without their consent?

No

Will the donor's failure to put the gift in possession of a custodian or designation of a ineligible person as custodian affect the consummation of the gift?

No

Compensation in a bailment for sole benefit of either party

No compensation Ordinary expenses - borne by bailee (bailee has a special lien over bailed property) Extraordinary expenses - borne by bailor

Can a bailee take possession of property without their consent?

No, but a constructive or involuntary bailment arises where the agreement of the parties is implied (i.e. lost goods)

BFP of stolen goods

Not protected against the claim of the owner unless the limitations period has run on the owner

Tortious conversion

One who does not have title to goods cannot pass title even to a BFP except: With regard to transfers of money and negotiable instruments Where a bona fide purchaser has received goods through a wrongdoer to whom the owner intended to transfer title Where a bona fide purchaser has relied in good faith upon the true owner's representations that the possessor is the owner or has authority to sell

Standard of care for mutual benefit bailment

Ordinary due care

Accession by willful trespasser

Original owner is entitled to property in its improved state regardless of the degree of augmentation in value made by the trespasser Original owner may sue trespasser for damages for conversion or return of property in detinue

Accession by innocent trespasser

Original owner retains title and may seek damages for conversion or return of the chattel in detinue If species of property has been completely changed or enhanced in value to a great extent by an innocent trespasser, original owner may only sue for damages

How to tell when a car is bailed in a parking lot or garage

Parking lot or garage keeps keys - car is bailed Self-park lot where driver keeps keys - car is not bailed

Donative intent

Present mental capacity and intent to pass title Donor may reserve right of possession until future date as long as there is an intent to immediately vest title in the donee Easier to find when donor and donee are closely related

Annexation intended to be permanent

Process of converting personal property into real property

Severance

Process of converting real property into personal property

Uniform Disposition of Unclaimed Property Act

Property in safe deposit boxes are presumed abandoned if the owner does not claim the property or demonstrate an interest in it for more than 5 years

Human tissue rights

Property right in one's own human tissue until one voluntarily provides a sample to a third party

Rights and duties of a possessor of lost or mislaid property

Quasi-bailee Duty to find the true owner if known or reasonably discoverable with a duty of care Duties persist until an abandonment arises or the statute of limitations has run - possessor becomes new owner

Revocation of a gift causa mortis

Revoke gift by affirmative act Donee predeceases donor Donor recovers (unless gift is realty)

Celebrity's right of publicity

Right to control commercial value of name, image, likeness, or personality is considered personal property

General lien

Right to retain all of the property of another as security for a general balance due Arises only out of a contract, statute, or well-established usage or custom of a particular trade

Special lien

Right to retain specific property as security for charges due for services concerning that specific property Lienor must have possession and have added value to the chattel In doubt - classify as a special lien

Constructive delivery

Substitute delivery (used when it would be impossible or impracticable to delivery an item) - donor surrenders as much control over the subject matter of the gift as they presently possess Donor makes out check and gives it donee - manual delivery of check is not delivery until check is cashed or note is paid Donor gives donee check made out to donor by third party - delivery occurs when it is physically delivered even if donor has not enforced the check Shares of stock and life insurance policies - physical delivery is sufficient (does not matter if donor continues to receive dividends until they die, certificate is not endorsed, or donee's name is not entered on corporate books) Gifts through agent - third party is donee's agent - valid delivery when item is handed by donor to third party; third party is donor's agent - delivery is valid when third party hands it to donee; in doubt - third party is donor's agent; donee is a minor - when in doubt, third party is donee's agent Joint bank accounts - presumption that spouses own an account equally or that there is a right of survivorship may be rebutted by clear and convincing evidence of a different intention at the time the account was established

Bailment

Transfer of personal property by bailor to bailee for the accomplishment of a certain purpose (not a transfer of title)

Conversion by bailee

Use of chattel in an unauthorized way is a conversion for which a bailor may maintain trover Makes a bailee an insurer and liable without reference to negligence

When is custodial property created?

When a security is registered in the name of the custodian, money is delivered for credit to a broker of financial institution account, a life insurance policy or annuity is registered and delivered, an interest in real property is recorded, or a certificate of title to a vehicle is issued

When does liability commence for a common carrier?

When the goods are delivered and accepted by the carrier for immediate transportation

When should final distribution of a gift to a minor be made?

When they reach the age of majority or to their estate if they die before reaching the age of majority

Mislaid property

When, judging from the place where it is found, it can be reasonably determined that it was intentionally placed there and thereafter forgotten (requires a voluntary affirmative act) Owner or occupier of premises wins over finder

Bailor's rights in actions against third parties

Where bailment is for a definite time, the bailor cannot maintain trover or detinue during the life of the bailment Where bailment is terminable, the bailor may treat the bailment as ended and maintain actions for conversion or detinue

Bailor's rights in actions against the bailee

Where the bailed goods have been lost or damaged due to the wrongful acts of the bailee, the bailor can maintain an action for damages in tort or contract, for detinue, or for conversion

Burden of proof of bailee's negligence

Where the bailor seeks to recover for the bailee's negligence, the bailor has the burden of persuasion that the bailee was negligent Prima facie case of negligence can be made by showing delivery of the goods to the bailee and the bailee's failure to redeliver the goods, or redelivery of damaged goods Bailor seeks to recover under contract theory, bailor has the duty to show that there was a bailment contract and the bailee's failure to perform by failing to return the goods or returning them in a damaged state

Literary property (i.e. copyright protection)

Work must be in concrete form, new, fixed in tangible medium of expression for a period of more than transitory duration Protection is limited to author's lifetime plus 70 years (or if anonymous, 95 years from publication or 120 years from creation, whichever is first) Claim of copyright ownership must be properly registered to enforce author's rights (can register after infringement action)

Is a gift causa mortis subject to the claims of creditors of the donor's estate?

Yes

Is a lease of land for a term of years considered personal property?

Yes

Must a bailee have actual or constructive knowledge of the article's presence for a bailment to exist?

Yes

Is a common carrier an insurer of goods liable for loss or damage under any circumstance?

Yes unless goods are lost or damaged due to an act of God, state or public enemy; due to the act or fault of the shipper; or due to the inherent nature of the goods

Are safe deposit boxes considered bailments?

Yes, even though bank does not know what is inside