Property Part 1

What does "claim of right" require?

"CA Rule" (professor's term) -> Intent to possess as one's own no state of mind requirement For "adverse under a claim of right" you need only analyze unpermissiveness intent to possess as one's own will never really be an issue if one is trying claim under AP "Iowa Rule" (again, professor's own term from Carpenter v. Ruperto) -> good faith ○ knowledge that one has no legal basis for claiming property = bad faith -> No AP ○ Relevant time for determining good faith is at the moment of entry

Tragedy of Open Access (the commons)

"Externalities" -> some activities of actor A impose costs on or bring benefits to other actors, but A ignores these effects in her decisions because she is neither compensated for the incremental benefits nor charged for the incremental costs. Potential costs of open access regime: No incentive to cultivate resource or replace extracted resource Extraction is non-time-optimal (e.g. fruit picked to early) Arms race: over investment in resources to win race Overuse/unsustainable extraction. Potential Solutions: Privatization Government regulation ("leviathan") Group norms/rule (commons does not equal open access))

Cowen v. Pressprich:

"Involuntary bailee" assumes the duties of a voluntary bailee if she or he commits some "over act" of interference Note: the dissent in the main case we read becomes the law when the Appellate Division reverses "upon the dissenting opinion of Lehman, j" What Pressprich did does not equal an over act of interference sufficient to create a voluntary bailment Defendant, whose possession was involuntary, is not liable for misdelivery given its immediate and reasonable attempt to transfer possession back to plaintiff (it wasn't reasonable to suppose the messenger might be waiting for that, if he had left, no thief would be in the office who would claim to represent the plaintiffs.)

California Civil Code §564:

"The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this code, the thing of which there may be ownership is property."

Nonpermissive under a claim of right (AP)

"adverse" requires that possession be nonpermissive - without the true owner's permission "Claim of right" = having an intent to possess as one's own Need to be explicit. May include a requirement with respect to the adverse possessor's state of mind.

Exclusive (AP)

"exclusive" possession does not mean that no one else can be on the property It does not even mean that the true owner cannot occasionally visit the property It means that the Apor's possession must be exclusive of the true owner's (or anyone else's) use/possession of the property as an Owner. Actually physical exclusion is one way to meet the requirements of this element. Another is to control access to the property as a true owner would -e.g. As owner of a cave selling tickets to tourist As owner of a woodland granting licenses to hunters

Exceptions to the right to exclude

1. necessity 2. custom 3. public accommodations 4. public policy

Shelley v. Kraemer:

14th amendment protects. right to acquire, enjoy, own, and dispose of property from discriminatory state action A private agreement with a racially restrictive covenant is not unconstitutional per se, because it involves no state action But the judicial enforcement of a private, racially restrictive covenant on the sale of homes does involve. state action, and it prohibited by the equal protection clause of the 14th Amendment

Right of Publicity

= individuals right to control and profit from the commercial use of her name, likeness, persona (etc.) property - like in that one can exclude other from using of one's name, likeness, voice, etc. Threshold issues: 1st Amendment protection? If the purpose of use is "informative or cultural", then the use is protected If use "merely exploits the individual portrayed" it is not protected (advertisements) What is covered under the right of publicity? Cal. Civ. Code §3344:unathorized use of one's name, voice, signature, photograph, or likeness, in any manner, for commercial purposes Midler v Ford: the deliberate (and deceptive?) imitation of the distinctive voice of a widely known professional singer to sell a product White v. Samsung: the nondeceptive parody of a person's unique public role in a commercial Note: States vary widely in whether and to what extent they recognize a right of publicity But Cal civ. code, Midler, and White are the controlling precedents for the state of Hastings Dissent in White echoes dissent in INS v. AP and majority in Moore and Regents Institutional choice: legislature better at weighing costs and benefits to public at large (IP rights aren't free); and Creating a scheme with carefully nuanced carve-outs and exceptions (e.g. fair use in copyright)

Winkfield:

A bailee can recover against a tortfeasor for loss or damage to bailed items, even if the bailee would have a good answer to an action by the bailor "Against a wrongdoer, possession is title" The bailee must "account" to the bailor for whatever he/she receives from the suit against the tortfeasor "As the bailee has to account for the thing bailed, so he must account for that which has become its equivalent and now represent it"

Fee Simple Determinable:

A fee simple determinable ends automatically upon the occurrence of a named event, whereupon title reverts to the grantor or the grantor's successor. Note: the named event may never happen The fee simple determinable is created using language od duration such as: "As long as" "So long as" "While" "During" "until"

Fee Simple Subject to Condition Subsequent:

A fee simple subject to condition subsequent continues indefinitely except that, upon the happening of the named event (the condition), the interest can be ended by action (self-help or lawsuit) by the grantor or the grantor's successor The fee simple subject to condition subsequent is created using conditional language, such as: "But if" "On condition that" "Provided that" "Provided however" "If"

Executory Interest:

A future interest that goes with the fee simple subject to executory limitation, It: Is created in a third party that is named in the grant, and Becomes possessory upon the occurrence of some event other than the natural end of the preceding interest (death) Because the executory interest would divest the interest of someone other than the grantor, it's called a "shifting" executory interest If the executory interest divests an interest in the grantor, it's a "springing" executory interest Note: an executory interest can cut short interests other than fees

Restraints on Alienation:

A normal incident of owner sovereignty is the ability to transfer property to another Courts generally take a dim view of efforts to restrain this power in an owner Broad restraints on alienation of a fee interest - either through direct prohibition or by the creation of a defeasible fee - will generally be held void as contrary to public policy Efficiency concerns - Allow property rights to flow to the highest value user Don't force someone who no longer wants to be Gatekeeper to serve that function Restraints on alienation of life estates are generally okay

Color of Title:

A person has a color of title when he or she has some document (deed or will or judicial decree) that purports to convey title but doesn't in fact because of some legal defect. e.g. the grantor did not own the land, or the instrument was. not properly executed Knowledge of a flaw/defect does not defeat color of title However, one who receives a deed from a party whom one knows has no claim, or only a squatter's claim, to the property, will be deemed not to have color of title. Example is Johnson M'Intosh or leaving property to someone but your will says otherwise.. If the will's signatures aren't proper and the will is then determined defective. Color of title is not required for adverse possession in the State of Hastings Advantage of color of title, when where it is not required: when parcel described by deed giving color of title is larger than the section of parcel actually possessed by the individual.

Morse v. Blood:

A restraint on alienating a fee to a (small) class of persons is usually okay. In this case, however, the restraint on alienating the fee to a small class of persons + forfeiture condition operated as a broader de facto restraint on alienation There were multiple parcels of property in Henry's estate; the forfeiture condition applied to all parcels if Margaret transferred even "one cent" of the estate to her family or Henry's family The forfeiture condition, by the terms of the grant, would continue to hover over pieces of property even if Margaret transferred them to permissible buyers Potential buyers would be deterred by fear of forfeiture due to inadvertence or bad faith by Margaret in disposing of other property from the estate Note: this is different form a forfeiture condition that applies to a single parcel of property (and which will usually be upheld) E.g. Blackacre "to Bart so long as alcohol is not consumed on the property This forfeiture condition would continue to apply even after Bart sells the property But the triggering condition for forfeiture in this case is under the control of the buyer/new owner Again. Contrast this with the situation in Morse, where someone who bought Greenacre from Margaret could again, under the terms of the grant, forfeit is based on what Margaret does with Pinkacre. Result: the condition restraining alienation is void and Margaret has a fee simple absolute instead of a fee simple subject to condition subsequent.

Open and notorious (AP)

AP must "fly his/her flag over the property" in such a way as to put the actual owner on notice that the property is being held under an adverse claim of ownership The true owner need not have actual notice The possession must be such that any true owner who's paying attention would have actual notice.

Keeble v. Hickeringill

Action may lie for malicious (and wasteful) interference with preprocessory right Applies to tangible personal property

Actual (AP)

Actual. Actual Possession = the ordinary use to which land is capable of being put and such as an owner would make of it e.g. enclosing, building, farming, clearing land, planting shrubs, inhabiting, issuing licenses to hunt, cutting timber, etc. "Possessory acts necessary to establish AP may vary with the characteristics of the land" (Urban v. rural; farm v. woodland; etc.) Contrast "actual" with "constructive" possession - one with good title to real property even if not in actual possession of the land, will be deemed to be in constructive possession of it (for purposes, e.g., of bringing trespass and ejectment claims). Another possible way of approaching the "actual" element is to look whether the acts of the would-be adverse possessor could ground an action for ejectment/trespass. Note: There will typically be a huge overlap in the facts that go to proving each element.

Edward v. Sims

Ad Coelum applies to caves, regardless of the location of the entrances. Dissent: Driven by ex post distributive concerns (Lockean view of Edward's labor) Prefigures reasoning in Hinman Very cool read, but not the law Note: Ad Coelom can be understood as another example of the principle of accession: surface owner is the most prominent pre-assigned property owner.

U.S. v. Causby, 328 U.S. 256 (1946):

Ad Coelum has no place in the modern world... BUT "landowner must have exclusive control of the immediate reaches of the enveloping property."

Waste:

An action a future interest holder can bring against a present possessory interest holder Affirmative waste: affirmative action that causes "excess" damages to the future interest Usually lowers the value of the property; defined in terms of "normal use" E.g., excess extraction of natural resources Passive waste an unreasonable failure to act causing "excess" damage to the future interest Common examples: failure to pay taxes; failure to fix leaky roof, causing water damage; failure to bring cause of action again against AP'or Ameliorative waste: affirmative action by tenant that substantially changes the property, but increases its (market) value Borkaw: not allowed if future interest holders object Melms v. Pabst -> limited carve-out: allowed if circumstances have changed so drastically that the property has lost most/all of its value/usefulness in its unchanged state

Disclaimer:

An intended recipient of a grant can refuse the property through disclaimer Requires clear and unequivocal expression of intent to disclaim May require other formalities, as prescribed by statute Accepting any benefit of the asset in question defeats an attempt of disclaimer

Patents:

Applies to new, useful, and nonobvious inventions Exclusive rights to sell/license the invention for 20 years in return for giving up secrecy (the patent must "teach the invention"

Copyright:

Applies to original works of "authorship" Requirements: Authorship, originality, reduction to tangible form No registration required Applies to: Writings, sound recordings, graphic works, photography, motion pictures... Not phone books (must show modicum of creativity) Limitations on: Reproducing, distributing, publishing, displaying, performing, adapting Exceptions: Fair use (for criticism, comment, news reporting, teaching, scholarship) "That" copy Term: 70 years after the death of the author If the work was for hire (created by a corporation), then 120 years after creation, or 95 years after publication, whichever is shorter

Trademark:

Applies to words or symbols that identify commercial enterprises, goods and services. Origins in unfair competition (and common law) Goal: to prevent people from passing of their goods as those of others Indefinite term

Descendants:

Assume now that the deceased does have (multiple) surviving lineal descendants. How is the property divided among them? There are two basic systems: per stirpes (Better for immediate descendants) and per capita (better for later descendents)

Principle of Accession:

Basic idea: ownership of one thing is assigned to owner of another "thing" Increase Accretion Fixtures Doctrine of accession Ad coelum

Vested Remainder Subject to partial Divestment (a/k/a Vested Remainder Subject to Open)"

Because more members could be added to that class while the grantee is alive, the class is "subject to open" I.e. Marge grants Blackacre "to Homer for life, then to his children and their heirs." At the time of the grant, Homer is the father of Bart and Lisa (but not yet Maggie)

Jacques:

Carves out an exception from the general rule that mere nominal damages cannot support punitive damages when there is intentional trespass to property Appears to elevate the right to exclude from real property above other legal rights

Ad Coelum:

Courts reject the literal application: which grants property rights "from the center of the earth to the sky." Ad Coelum is not and never has been the law. But it still has some force Looking up -> deeds to land are stated in terms of some measurement of the surface area, but it's understood that owner's can build "up". And if flights come close enough to constitute a direct and immediate interference with owner's enjoyment, it's actionable trespass. Looking down -> the default rule with respect to the space below the surface still looks a lot like a literal application of ad coelum.

Ad Coelum(revisited)

Default rule: ad coelum applies to the column (cone) beneath the surface of the land Subterranean rights can be severed contractually (such that mineral rights don't belong to the person who owns what's above the surfaces) Ad coelum has limited application to the column (Cone) above the surface

Whales (Ghen):

Default: fast fish/most whales (whale attached (via harpoon and rope) to boat) Sperm whale: first iron rule (first harpoon + fresh pursuit) even if whale breaks free Finback whale: first iron minus the requirement of fresh pursuit.

How to Apply the RAP in 3 Steps:

Determine what future interests have been created If the RAP applies, determine whether the future interest in question is valid or invalid under the rule If the interest is invalid, determine what interests remain by striking out the invalid interest (and however much more is necessary so that you wind up with only recognizable, valid interests)

Johnson v. M'Intosh:

Dominion over disputed lands rest with US (from Great Britain via Virginia) British dominion originated with discovery (does not equal possession) Established right of exclusion vis-a-vis other (European) nations Native Americans retained right of occupancy Right to occupancy: "to be protected, while in peace, in possession of their lands" Nontransferable Subject to extinguishment by sovereign power (federal government) And, in theory, only by the sovereign power Extinguishment can be effected through: Conquest/war Treaty/sale 1773/75 deeds ineffectual 1795 treaty extinguished tribal rights in the contested lands Rule: Land title transfers are only valid when made under the rule of the currently prevailing government. Land title transfers from Indian tribes to private individuals prior to the American Revolution are not recognized in a United States court.

Future Interests:

Each defeasible fee and the life estate are matched with future interests A key distinction among future interests is whether they are 1. Retained by the grantor or 2. Created in a third party Note: the relevant moment for making this distinction is the moment of the grant

Sequential Possession:

Finder: one who discovers lost property and possesses it Note: a tension in finder law In theory, a finder is generally deemed to be a "bailee" of the true owner, with a duty to preserve/return the item to the true owner. In practice, the finder often treats the property as a true owner would, and the law will often try to protect the finder's ability to do so without interference (from anyone except the true owner) Converter: one who takes, keeps, or disposes of property wrongfully Conversion (the act of converting): The wrongful possession or disposition of another's property as if it were one's own; an act or series of acts of willful interference, without lawful justification, with an item of property in a manner inconsistent with another's right, whereby that other person is deprived of the use and possession of the property Note: Conversion may be criminal (e.g. larceny, theft), but needn't be In a sequential possession dispute where the true owner is absent, start by identifying each party as either a finder or converter Armory: finder wins against all but true owner Therefore, finder beats converter Note: this rule applies in the State of Hastings regardless of temporal priority Clark: first finder beats second finder Anderson: first converter beats second converter

Fixtures - other applications:

First Merit Bank v. Antioch Bowling Lanes (bankruptcy case): The court determines in a case like this, it must look less to the permanency of annexation (i.e. whether the property in question can be moved) and more to the issue of whether the property in question is appropriated or adapted to the use or purpose of the part of realty to which it is annexed.

Basis for Federal Regulation:

For patents and copyrights, the U.S. Constitution (Article 1, Section 8, Clause 8): "Congress shall have the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" For Trademarks, (presumably) the commerce clause

Present Possessory Estates:

Freehold interests originally were those that involved military service obligations, whereas a lease (non-freehold estate) did not A tenant of a freehold interest evolved into what we would now term an owner Freehold: Fee Simple Absolute Life Estate Defeasible Fees Fee simple determinable Fee simple subject to condition subsequent Fee simple subject to executory limitations Each is just like a fee simple absolute except that they may end upon the happening of a named contingency Non-freehold: Lease

INS v. AP -> Quasi-property right in news

From BNA v. Motorola (2d Cir. 1997) (Cited in case note 1, pg. 118) -> "a hot-news", INS like claim is limited to cases where: Plaintiff generates or gathers information at a cost; The information is time sensitive; The defendant's use of the information constitutes free riding on the plaintiff's efforts; The defendant is in direct competition with a product or service offered by the plaintiffs; and The ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. Brandeis dissent: Where a case involves complex social/political problems that implicate the public interest, and where there are no on-point statute or common-law rules, courts should defer to legislatures in crafting new rules. Factors: Unlimited subpoena power Ability to create nuanced regimes with exceptions/etc. Ability to create administrative mechanism for administering new rules

Williams v. Estate of Williams

G.A. Williams had a fee simple absolute What he devised + what he retained (if anything) had to add up to a fee simple absolute "The Conservation of Estates" Because court rules that his will created a life estate ( subject to executory limitation, etc.) in the three named daughters, it must imply a reversionary interest.

Contingent Remainders:

Have conditions that need to be met, or uncertainties that need to be resolved, in order for the interest to become possessory

Doctrine of Accession -> Wetherbee v. Green

If D takes P's tangible personal property and makes something new, D may be permitted to keep the new item and compensate P for the pre-improvement value of the property D took In state of Hastings, accession requires: Good Faith (that is, D must show that he or she made an honest mistake in taking P's property) AND Fundamental transformation, which is satisfied by either Change of species/chemical transformation E.g. grapes into wine Not Wetherbee Or A significant increase in value (Wetherbee) Plus some physical transformation 1.875 X is not enough, however, we can assume that 28 X is enough -> Increase by double (2 x) would likely count.

Continuous (AP)

If possession is not continuous, then the statute of limitations " clock" would start running anew with new entry See Howard v. Kunto

Allen v. Hyatt Regency:

If property is lost, damaged, or stolen while in the bailees' possession there is a rebuttable presumption that the bailee was negligent (and therefore liable to the true owner) When is a bailment created with respect to a parked car? Valet parking services? yes Open air parking with free exit/entry? no Something in between? majority hold that a bailment exists here, where the parking facility Is enclosed requires a ticket to exit and has an attendant controlling the exit (most of the time), and has regular security personnel to patrol the premises (what effect would removing one of these facts have on the results)

Public Accommodations

Important exception to the default rule that an owner of property may exclude anyone she chooses for any reason or no reason at all Once you open your property to the public the law may impose certain duties on you that limit your right to exclude Traditional common law rule: Applies to inns (hotels, motels, etc.) and common carries (trains, planes, buses, boat, stagecoaches, etc.) Duties: accept all customers on a first come first served basis Must serve any person who requests service, provided it is available Valid reasons for excluding: capacity is exhausted; customer would be disruptive of service (see Uston) Charge prices that are "reasonable" Reasonable does not equal same price for everyone Unreasonable -> price as a de facto way to exclude Civil Rights Acts of 1964: Applies to inns, restaurants, and entertainment venues (defined expansive) Prohibits discrimination or segregation on the ground of race, color, religion, or national origin

Vesting:

Key distinction Vesting in possession Vesting in interest When do future interests vest in interest? All reversionary interests are deemed vested from the moment they are created Executory interests are deemed to vest in interest only when they vest in possession Contingent remainder vest in interest once: They identity of the taker(s) can be ascertained and Any and all conditions precedent have been met A remainder is vested if: the grantee(s) can be identified as (an) ascertainable person(s) and any and all conditions precedent have been met. With respect to indefeasibly vested remainders and vested remainders subject to open, one way to think about it: vesting in interest provides certainty that the interest will ultimately vest in possession, even if it has not done so yet recall that once vested, the interest survives the grantee

Bailments

License: With respect to tangible property, a license is a temporary revocable waiver of the right to exclude Bailment: temporary transfer of possession or custody of, but not title to, tangible personal property from the owner (bailor) to another (bailee) for some special purpose. Once the purpose is accomplished, the property is returned to the bailor. Examples: dry cleaning, loans of personal property (books, cars, etc.), bag check, etc. The bailee's exclusion rights vis-a-vis third parties is just like the true owner's

Indefeasibly Vested Remainder:

Like a reversion, the remainder follows a life estate, never a fee simple, but it is created in someone other than the grantor The remainder holder must be named in the same grant that creates the life estate

Custom

McConico v. Singleton 1818 South Carolina: no trespass for hunting on unenclosed, unimproved land, even if owner specifically prohibits it No longer the law, but vestiges survive: Many states have "posting law": owners must post signs (e.g. "no trespass") along the boundary of unenclosed, unimproved land in order protect right to exclude Some rural areas of that Western US retain "fencing out" laws (wherein those who want to prevent free-range livestock from coming onto their property have a duty to fence them out)

Producer Lumber v. Olney:

Mistake improvements which increase the value of land Old rule (still followed in some jurisdictions): fixture belong to land owner, who: Can either keep it, or Get an injunction for its removal Newer rule: Good faith (and non-negligent) mistake improver may seek restitution Why? Otherwise, landowner would be "unjustly enriched" Rule in Olney for fashioning a restitution remedy: Removal - or, if improvement is fixed - Payment from landowner to improver; or Forced sale to improver; or Forced auction with split proceeds However, if improver resorts to self-help (at least if it's wasteful) restitution is not available.

Moore v. Regents (majority holding)

Moore could state a claim for breach of fiduciary duty of implied consent Moore could not state a claim for conversion of his extracted cells and thus a proprietary interest in each of the products that might be created from his cells and the patented cell line "To establish conversion, plaintiff must establish an actual interference with his ownership or right of possession... where plaintiff neither has titled to the property nor possession thereof, he cannot maintain an action for conversion: Moore did not expect to retain possession of his. extracted cells; and the court rejects the. argument that he retained an ownership interest in them Moore cannot state a claim for conversion of his extracted cells precedent doesn't support it Right of publicity - no - among other reasons, lymphokines, unlike voice or likeness, not distinctive. CA law points in the other direction e.g., statute places strict limits on the disposal of anatomical parts, human tissues, etc. The statute eliminates so many of the rights ordinarily attached to property that one cannot simply assume that what is left amounts to property or ownership for purposes of conversion law But see MOSK dissent - removing key sticks from bundle doesn't imply tis not property The subject matter of UCs patent - the engineered, immortal cell line, is factually and legally distinct from Moore's cells Federal law permits the patenting of organisms that represent the product of "human ingenuity" but not naturally occurring organisms Creating human cell lines is difficult - often considered an art It is the inventive effort that patent law rewards, not the discovery of naturally occurring raw materials. Conversion liability should not be extended to this new case Balance of policy concerns: (a) patients autonomy/dignity vs. (b) encouraging socially valuable research patient autonomy can be protected by informed consent; conversion unnecessary Research could be chilled by conversion liability, which is strict (no state of mind requirement) institutional choice: legislature is proper venue for extending of patients' right here Brandeisian rationale. Moore is the controlling precedent for State of Hastings

Rule Against Perpetuities (RAP)

No interest is good unless it must vest or terminate not later than 21 years after [the death of] some life in being at the creation of the interest

Doctrine of Increase:

Offspring of domestic animal belongs to owner of the mother, fruit belongs to owner of the tree

First Possession:

One way to establish ownership of a previously unowned thing: the rule of first possession Applies to tangible personal property What counts as possession may vary depending on the thing that's possessed In setting a rule, courts may look to Broad principles (Pierson majority) or Customs of a community or industry (Pierson dissent, ghen) Courts may also consider broader policy concerns, including: Preservation of peace and order Promotion of activities the court considers socially useful

Creation

Ownership in "information" -> intellectual property Rationale for permitting ownership of information Standard efficiency arguments that apply to tangible property generally do not apply here E.g. the tragedy of the commons and variations thereon "the goat with three masters dies at the post" In contrast to tangible property: Information, once its been produced, is not costly to reproduce or copy Information is "nonrival" - that is, the use of information by one consumer does not diminish the use/enjoyment of another Brief, critical sidebar The efficiency-based rationale for property rights is therefore not to ensure efficient allocation among potential users, but rather to provide incentives for the production of information in the first instance. Note: many embrace a Lockean rationale, as well The law recognizes three principle IP rights: patent, copyright, and trademark These rights are governed by primarily complicated federal statutory regimes

Encroachment: Two rules (know both):

Pile: The party whose property is subject to encroachment has an absolute right to an injunction ordering the encroachment to be removed Golden Press: an injunction may be denied and plaintiff relegated to monetary damages if Defendant's encroachment is unintentional Defendants encroachment is slight Plaintiff's use is not affected Damage to plaintiff is small and fairly compensable, and The cost of removal is so great as to cause grave hardship or otherwise make its removal unconscionable. NOTE: California adds non-negligence to the requirements (i.e. Defendant did not hire surveyor prior to building)

Necessity

Ploof v Putnam: Where the doctrine of necessity applies, one who invades another property is not guilty of trespass Court provides a grab bag case where the doctrine of necessity applies; common themes include: Time sensitive Inability to control movements inaugurated in the proper exercise of a right (dog crossing property boundary as it chases sheep off owner's land; cattle grazing on. the. side of path over which they have right of way) Life > property

Hendricks v. Stalnaker:

Private Nuisance: to be actionable, a private nuisance must create "substantial and unreasonable interference" with the owner's use and enjoyment (must also be either intentional or negligent/reckless/dangerous) Interference (with owners use an enjoyment) is unreasonable if the gravity of the harm outweighs the social utility of the activity alleged to cause the harm (see footnoted 5 and 6 on pg. 27) Interference in this case was substantial, but not (the court concludes) unreasonable.

Order of Odd Fellows v. Toscano

Property was granted subject to the condition that In the event it failed to be used by the donee (the lodge), OR In the event of sale or transfer by the lodge, It would revert to the grantors (or their successors) The court struck down (2) as a restraint on alienation But the court upheld (1) Justification? (not entirely supported by opinion): conditioning the grant on the property being used by the order is good proxy for restricting the type of use).

Fair Housing Acts -- §3604:

Protected categories: Race, color, religion, sex, familial status, or national origin (a-e) Disabilities (c-f) Provisions prohibiting discrimination against persons on the grounds of one of the protected categories in selling or renting property availability terms and conditions advertising lying about availability Blockbusting Availability and terms and conditions Exceptions: §3603(b)(1): exception for sale or rental of a single family house provided: owner does not own or have an economic interest in > 3 houses at any on time If the owner is not the current or most recent occupant of the homes, she or he can only discriminate in a sale once per rolling 24-month period Owner cannot enlist aid of real estate agents or brokers §3603(b)(2): exemption for structures with less than or equal to four separate living units, where the owner resides in one of these units §3607(a): limited exemptions for: Lodgings provided by religious organizations or nonprofits affiliated with religious organizations to members of their religion, as longas: the religion itself does not discriminate. based on race, color, or national origin The lodgings aren't operated for commercial purposes §3607(b)(1): exceptions for occupancy limits by government and for family status discrimination with respect to housing for older persons

Foxes (Pierson):

Pursuit without wounding, circumventing or ensnaring does not equal possession Mortal wounding + not abandoning = possession

Two Conceptions of Property

Real property (land and buildings) Personal property Tangible (aka chattels) E.g., cars, books, ipads, candy bars, clothes, etc. Intangible Intellectual property: patents, trademarks and copyrights Financial assets: stocks, bonds, bank accounts

Equity: (Meanings)

Recognition of an exception to the general rule A correction of law where it is defective owing to its generality "Equity is about the exceptional case, the unforeseen circumstance, the extension of a law to a case that is within its spirit but not quite within its letter." Moral reading of the law Note this overlaps with the first definition: "often what leads a court to find an exception unforeseen by the legislator are reasons of natural right and justice." Doctrines and remedies developed in English courts of equity Survives mostly in the context of remedies. Usually: Money damages -> law (legal remedy) Specific performance or injunctive relief -> equity (equitable remedy) Unlike legal remedies, relief in equity is generally viewed not as a matter of right but rather as subject of the discretion of the court. If the remedy a plaintiff seeks is equitable, then a host of special doctrines apply, such as (inter alia): Equitable remedies can be given only by judges, not juries A claim for an equitable remedy is subject to special equitable defenses, such as "unclean hands" Equitable remedies are given only after the plaintiff shows that legal remedies are inadequate An equitable remedy may be enforced by contempt proceedings NOTE: Property has a long history of special treatment in equity. That is, courts have traditionally been more likely to grant specific performance or injunctive relief in property disputes than in many other areas of law.

Future Interests in Grantees:

Remainder Indefeasibly vested Contingent Vested subject to complete divestment Vested subject to partial divestment (or subject to open) Executory interest

Future Interests retained by grantors:

Reversion Possibility of reverter Right of entry (a/k/a power of termination) All three are "reversionary interests"

Valuation of Interests:

Say the holder of a life estate and the holder of a reminder in Greenacre want to get together and sell Greenacre in fee simple absolute. No problem! They can do it. but how will they divide up the money? You need two pieces of information: An estimate of the life expectancy of the life tenant This will be provided by actuarial tables This predicts how far in the future the remainder will become possessory The longer the life tenant is expected to live, the larger her share of the sale proceeds (and the smaller the share of the remainder holder) The "discount rate" The discount rate reflects the "time value" of money; functionality, it's like compound interest in reverse The higher the discount rate, the larger the life tenant's share of the sale proceeds (and the smaller the share of the remainder holder).

Howard v. Kunto:

Standard of continuity is determined by norms of property usage for particular type of property in a particular time and place occupying a summer home every year only in the summer, in an area where most homes are summer homes, is deemed to be continuous for AP purposes "Tacking" periods of possession for AP purpose -> permitted where adverse possessor are in privity In this class, for purposes of Tacking in AP, assume if there is a written conveyance from one party to another, there is privity.

Songbyrd, Inc. v. Estate of Grossman - AP of Personal Property:

Statute of limitations runs on action for conversion or replevin (as opposed to trespass or ejectment for real property) Statutory period is generally shortened for personal property than for real property E.g., CA statutory period is 5 years for AP of real property, and 3 years of AP for personal property Songbyrd: SOL for AP of personal property starts to run at the moment of conversion. Note: for analysis for AP of personal property OCEANS still applies The Open and notorious element has a special bite in the personal property context The court in Songbyrd didn't analyze this, but you should The courts have ruled that hanging a painting on the wall of a private residence does not equal open and notorious

Other Applications of First Possession:

Sunken Vessels: Eads: Actual possession = boat over wreck, engaged in salvage Ex ante efficiency argument for not counting finding/marking as possession: promote diligence in finishing the job (if you're not going to exploit the resource, get out of the way for someone who is). Salvage: ship not abandoned; salvor gets % of recovery Baseballs: Ball hit into stands is considered abandoned property (rule is different for footballs and basketballs) Popov: Ball "landing in" (grazing?) glove established "exclusive prepossessory interest" to finish the catch (and establish possession) without interferences Remedy in Popov: split proceeds of sale (idiosyncratic) Oil and gas: Common law default: right to extract from common pool as long as drilling equipment remains in ad coelom column Lots of statutory limitations

Fair Housing Council of San Fernando Valley v. Roommates.com:

The FHA does not extend to shared living spaces Based on: Statutory interpreting of "dwelling" and Constitutional concerns: The Supreme Court has recognized that "the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the bill of rights."

Airspace as public domain:

The Federal Aviation Administration has (delegated) power to determine where "navigable airspace" = part of the public domain" - part of the public domain - begins The answer varies: In uncongested areas it's generally 500 feet. In congested areas, it's 1,000 feet above the highest obstacles

Determining what Future Interests have been Created

The RAP applies only to nonvested interests Remember: all reversionary interests are deemed vested from the moment of creation! The RAP does apply to: Executory interests Contingent remainders Vested remainders subject to open

Adverse Possession

The doctrine of adverse possession arises from the idea that the true owner must bring an action for ejectment/trespass within the statute of limitations or lose his/her right to do so. Mnemonic for Adverse Possession OCEANS: Open and notorious, continuous, exclusive, actual, nonpermissive (synonym for adverse/hostile), for the statutory period. Potential Policy rationales for AP: protection of AP's reliance interests Firing lousy gatekeepers Sweeping away cobwebs of old claims potential purchasers don't need to worry about investigating claims that are decades or centuries old.

Fee Simple Subject to Executory Limitation

The fee simple subject to executory limitation also ends upon the occurrence of a named event It can be created using conditional or durational language In either case, the interest automatically ends upon the occurrence of the named event This differs from the other defeasible limitations because the future interest holder - the party to whom title transfers upon the occurrence of the named event - is not O (the grantor) or O's successor, but some other party named in the grant itself

Reversion:

The future interest following a life estate when that interest is retained by O Note: in the lease context, the landlord's interest that follows the termination of the lease is also called a reversion I.e. O grants Blackacre "to Marge for life, then to O" Marge has a life estate; O has a reversion Note: even if O predeceases (i.e., dies before) Marge, the interest survives If o dies before Marge, then O's successor will take upon Marge's death Who is O's successor? If O devised the interest in a will, the devisee If O died intestate, her heir(s) under the intestacy statute The same principle applies for all future interests

Fee Simple Absolute:

The largest package of ownership rights, out of which all others are carved No natural end (the owner dies, but the right lives on and goes to the owner's successor by will or intestacy. Simple here means inheritable by the owner's heirs with no conditions concerning "tail" The language does not prevent Marge from giving Blackacre away, selling it, or devising it to someone other than those who wind up being her heirs

Numerus Clausus:

The menu of forms of ownership is fixed, finite and closed Implicit in common law systems Innovation is always possible by statute (e.g., time shares) Courts try to ascertain the intent of grantor of a property interest in order to fit the interest into the closest available box, not to enforce intent in to the most literal fashion without regard to the menu of boxes Property (rights against the world): like a restaurant that does not permit substitutions Contracts (rights good against (a) a particular other(s)): like a buffet Disadvantage of numerus clausus: can (sometimes) frustrate grantor intent Advantage: lowers information costs E.g. the extent of due diligence a prospective buyer of land must engage in to know what she buying... Note: with skilled legal drafting, one can combine the established forms of ownership to accomplish most things a grantor would wish to effect What then is the point of numerus clausus? To make it easy for experts to interpret what interests exist with respect to a piece of property In other words, to make all the sticks in the bundle clearly visible and easy to measure.

Collaterals:

There are two primary approaches to determining who the closest collaterals are: Consanguinity: you count in terms of the (cumulative) number of generations to a common ancestor Parentelic system: you give priority to those descended from the common ancestor that's closest to the deceased

Possibility of Reverter:

This is the future interest (retained by O) that follows a fee simple determinable. I.e. O grants Blackacre "to Springfield Law School as long as it is used for instruction in the law" Note: if Springfield Law School does not quit possession, it can start a period of adverse possession

Right of Entry (a/k/a power of termination)

This is the interest that follows a fee simple subject to condition subsequent I.e. O grants Blackacre, "to Springfield Law School, but if it is not used for instruction in the law, then O has the right to reenter and take the premises" Springfield Law School has a fee simple subject to condition subsequent and O retains the right of entry Note: if O does nothing, then the Springfield Law School retains title and continues as owner as before. If enough time passes, the right to entry may no longer be exercisable, through the doctrine of laches Laches -> the equitable analog of the statute of limitations

Baker v. Howard County Hunt (Court of Appeals of Maryland) (1936):

Threshold Issue: was this even actionable trespass? (Dog law) Good Faith owner of reputable dog gets one freebie Here, Hunt club was on notice of dogs' propensity to cause damage Dogs moving in packs are not given the same benefit of the doubt as an individual reputable dog Yes, Trespass Money damages (remedy at law) Injunction? Requires That the remedy at law be inadequate Threat of irreparable harm and/or Damages intangible and incapable of measurement and/or Threat of repeated trespass (numerous actions for trifling damages) The party seeking equity has "clean hands"

Comparison between Trespass and Nuisance:

Trespass: Protects possession, clear and strict, no harm required to bring action Nuisance: Protects use and enjoyment, not clear and strict, substantial harm required to bring action. Rule of thumb: An invasion of something big and solid like a bobcat is trespass An invasion of something small like particles or waves of gas or sound or light is a nuisance.

Coase Theorem:

Two key aspects: If there are zero transaction costs, the efficient (the higher valued use) outcome will occur regardless of the choice of legal rule (who gets the right). If there are positive transaction costs, the efficient outcome may not occur under every legal rule. In these circumstances the preferred legal approach is the one that minimizes the effect of transaction costs. Implications: 1. minimize transaction costs where possible to facilitate the free transfer of rights 2. Where transaction costs are unlikely to ever fall enough, assign the right to the higher value use in the first place Big Contribution to Legal Scholarship: 1. Focus on the role of transaction costs in affecting outcomes 2. emphasis on the reciprocity of harm. A conflict over a natural resource results in a social cost. social cost = aggregation of individuals. Critique of Coase: Coase theorem rests on at least two assumptions that some might challenge All values are capable of being expressed in monetary terms Individuals are rational maximizers Endowment effect -> in certain contexts, the value that people place on something changes depending on whether people think they have the right to it or not. The literature on Coase is vast. Payoff: Useful framework for thinking about overflight and nuisance cases. If transaction costs are low and rights are well-defined, consider rearranging rights through contract. So called "Coasean bargain" Beware of "bilateral monopolies" and "assembly problems"

Life Estate:

Unlike the fee simple, which is of unlimited duration, to a natural end with the death of a named person, usually the holder of the estate. The life estate is alienable by gift or sale during the life tenant's life The life tenant cannot devise the interest by will

Introduction to the Forms of Ownership

We can divide up property's "bundle of sticks" among different owners One way to do this is by time Estate -> measures an interest in real property by duration

Doctrine of Accretion (and diminution)

When natural forces gradually shift a river* and cause the adjacent land to advance (accretion) or recede (diminution), the owner of the adjacent land gains or loses, respectively The boundary line between two properties bordering on a river shifts with the river. A sudden and perceptible change in the course of a river results in avulsion, not accretion. If the river had marked the boundary between two properties, the boundary remains the (old dried up) riverbed. Note: * means any body of water utilized as a border for land

Remainder Vested Subject to Complete Divestment:

When the occurrence of a condition can cause the interest to shift to someone else

Trespass:

Wrongful entry on another's property, is a strict liability tort, irrespective of actual physical or economic harm

Property:

a bundle of rights with respect to a thing (tangible or intangible) that is good against the world. Penner -> One essential right (or stick in the bundle): the right to exclude (essentialist) Gray -> No single right is included in every single bundle we call property (Skeptic) For the expert, property is a word that means nothing until we spell out - using different words - what it means in any given context.

Hinman:

ad coelum never meant to apply literally Owner of land owns as much space above the surface as he or she uses but only so long as he or she uses it They will find no trespass unless there is actual and substantial damages Compare with Jacques where the trespass itself was the damage Note: court's analysis looks more like a nuisance than a trespass analysis

Fixtures

an item that was originally tangible personal property but, through its annexation to or association with real property, becomes a part of the realty Context: real property sales end of lease disputes property tax calculations bankruptcy proceedings estate settlement Factors for determining whether or not something is a fixture: Manner of physical attachment decisive with respect to the mirrors in Strain. The adaptability of the item to the purpose for which the real estate is used. decisive with respect to the light fixtures in Strain Intent Testimony about secret thoughts is not probative, can be inferred from objective circumstances. Best thing to do is document at the time of the transaction Presumptions in close cases: annexation by tenant does not equal fixture; annexation by owner = fixture.

Guggenheim:

carves out a narrow exception to the Songbyrd rule in actions for replevin brought against good faith purchasers for value of stolen goods, the. SOL does not start to run until the true owner makes demand for the return and the person in possession refuses to return it; NOTE: Both Songbyrd and Guggenheim are valid rules in the State of Hastings - they apply to different cases.

Public Policy

in NJ, the ownership of real property does not include the right to bar access to governmental services available to migrant workers" Hence, "there was no trespass within the meaning of the penal statute." Those acting to effectuate public policy can enter land to visit workers, advise of rights, etc. Key factors: Legislative backdrop congress has passed a law to try to aid migrant workers Workers lived and probably spend most/all of their time in the community on plaintiff's property allowing workers to com to the land was the only practicable way to reach the migrant workers New Jersey Common-law rule: applies to all business that have opened their premises to the general public Duties: same as for traditional rule Note: You should know all three rule for the State of Hastings: The traditional CL rule; the New Jersey Common Law Rule; and the Civil Rights Act in any scenario, you should assume either CL or NJ CL applies; both cannot In contrast, the Civil Rights Act is cumulative with the common law rule, - it applies in addition to whatever common law rule applies

Intestacy Statutes:

intestacy statutes define who inherits property of a deceased person when the property. is not disposed of in a will (or trust) Under every intestacy statute, one looks first to see if there is a surviving spouse and/or surviving issue issue = lineal descendants (children, grandchildren, etc.) if there is a spouse but no surviving lineal descendants, the spouse typically takes all in some states, if there are surviving parents or siblings but no surviving lineal descendants, the spouse will share with the parents or siblings if there are lineal descendants but no surviving spouse, the lineal descendants take all If there are both a surviving spouse and lineal descendants, then they split the estate according to a formula provided for in the statute note: the 1990 Uniform Probate Code would award 100% to the surviving spouse in the event the deceased had surviving lineal descendants who were not also lineal descendants of the surviving spouse If there is neither a surviving spouse nor surviving lineal descendants, one typically looks next to see if there are any. surviving ascendants - parents, grandparents, etc. the closest ascendant(s) then take (parent(s) before grandparent(s)) If there are no surviving descendants, ascendants, or spouses, then one looks to collateral siblings, cousins, aunts, uncles, nieces, nephews, etc. if you get to this point, the closest collateral(s) will inherit The statute will provide a method for determining who the closest collateral(s) are The statute will also tell you when you can stop looking if you cannot find collaterals who are sufficiently closely related If you can find no heirs under the statute, the property escheats to the state.

Jus Tertii: Right of third party

rejection of the jus tertii defense: an action to protect possession cannot be defeated by setting up a superior title in a third party thus, for example, Delamirie could not defeat armory by arguing that Armory was not the true owner Justifications for the rejection of jus tertii defense: protecting peaceful possession Procedural efficiency

Statute of limitations:

sets a period of time after which the true owner cannot bring action to recover possession, if the other elements of adverse possession are satisfied.

Charles v. Barzey:

the court interpreted intent; fit the grant into the closest pigeonhole within the established forms of ownership Personal property: does the system of estates/forms of ownership apply? (Another way of asking the same question: can there be future interests in personal property?) In "consumable chattels"? No. In nonconsumables (like art)? In state of Hastings, yes. IP and financial assets fall under this. [Note: trusts overwhelmingly consist of financial assets (a type of personal property) where beneficiaries' equitable (as opposed to legal) interests are described with the vocabulary of the forms of ownership]

Desilets:

would enforcement of statute prohibiting discrimination in rental housing based on "marital status violate Desilet's constitutional right to free exercise of religion? Did Desilet's actions with respect to prospective tenants count as "exercise of religion?" Yes, "conduct motivated by sincerely held religious convictions recognized as exercise of religion. Does the prohibition against discrimination based on marital status substantially burden The Desilet's exercise? Yes, the statute affirmatively obliges the defendants to enter into a contract contrary to their religious beliefs and provides significant sanctions for its violation Is there an important government interest sufficiently compelling such that granting an exemption to Ds would unduly hinder that goal? Need more info. statute itself is not dispositive -> "marital status is not as intense a state concern as is discrimination based on certain other classifications" constitution states "equality under the law shall not be denied or abridged because of race, color, creed or national origin statutes and case law routinely favor spouses over unmarried partners on issues relating to insurance, wills, and inheritance and so on - and there's still a statute on the book criminalizing fornication Must fall back on actual patterns of discrimination -- what is the actual burden in terms of finding housing placed on unmarried couples? (unclear from record) Therefore, SJ reversed and remanded for trial (Maa. AG dropped the case)