Property Outline
Prof. Kali Murray
Fall 2006
I. What type of property is at issue?
A. Types
a. Tangible
1. Real: rights to land, territory, and the things on it (trees, mineral rights, airspace, etc)
2. Chattel: tangible personal property that you can carry with you (books, cars, etc)
b. Intangible: invisible things (copyrights, stocks, ideas, etc)
1. INS v. AP: News might be property
(i) AP gave value by expending capital
(ii) Public gave value by willingness to pay
(iii) Freshness/originality confers value
(iv) Labor is a way to acquire property interest
(v) Reward can create property interest
2. Motorola Test
(i) info gathered at cost
(ii) info is time sensitive
(iii) Δ use of info is free-riding
(iv) Δ service is in direct competition
(v) Δ services reduces incentive to produce service
B. Major themes of Property
a. Oppositional: Property owner’s absolute right of ownership v. other’s (society’s) right to Property
b. Associational: collective recognition of ownership by others; unless society recognizes it as property, it isn’t
II. How can you acquire property?
A. Creation
B. Find
a. Rule(Charrier v. Bell): if finder finds abandoned property, he generally has the ownership claim to it; if it is mislaid or lost, he has no claim to it; goods that are buried with the intent to be left buried perpetually have not been “abandoned” and finder has no right
1. abandonment: owner forms an intent to relinquish all rights in the property
2. lost property: the owners accidentally misplaced it (no intent)
3. mislaid property: the owner intentionally left it somewhere-and then forgets where she put it (though there is a time factor for the courts to consider)
b. Doctrine of Discovery says that first possession is ownership
c. Modern Doctrine gives ownership to all, additional rights gained by cultivation
C. Adverse Possession
a. Brown v. Gobble, Romero v. Garcia, Nome 2000 v. Fagerstrom
b. doctrine that transforms trespassers into owners; true owner seeks ejectment
c. majority rule requires trespasser to prove 5 elements with “clear and convincing evidence” rather than a mere preponderance of the evidence
d. Requirements for adverse possession:
1. Actual possession: adverse possessor must actually possess the property in question
2. Open, notorious and visible: use must be so visible that owner reasonably should have known; possessor’s use must be similar to typical owner of similar property
3. Exclusive- true owner must be excluded from ownership rights
(i) Fence is excellent evidence of exclusion
4. Continuous: adverse possessor cannot entirely give up possession at any time
(i) Doesn’t mean that she can’t leave- but you cannot totally relinquish possessory rights and responsibilities-
(ii) Tacking: the joining of consecutive periods of possession by different persons to treat the periods as one continuous period
5. Adverse or Hostile: possessor is on the land o the true owner’s consent
(i) Possession is presumed to be non-permissive- so it is for true owner to prove that he did in fact give permission
6. Statute of Limitations compliant- varies from state to state- usually 10-20 years (in MS its 10)-Statutory period ends once owner brings suit to get adverse possessor off the land
(i) Exceptions to Statute of Limitations
(a) if adverse possession is made against a child
(b) if owner is incompetent
(c) if owner is in prison
(ii) Personal Property
(a) Conversion: on notice (statute begins) when property is stolen
(b) Discovery: statute begins when owner discovers property is missing – requires prompt discovery by owner
(c) Demand: statute begins when owner demands return of stolen item
e. Adverse possessor’s state of mind: 4 approaches:
1. Objective test (majority) based on possession: possessor lacked permission from the true owner – either did or didn’t
2. Claim of right: the adverse possessor must act toward the land as an average owner would act
3. Intentional dispossession: adverse possessor must know that she is occupying property owned by someone else and must intend to oust or dispossess the true owner (controversial because it rewards wrongdoers) (last three tests are subjective)
4. Good faith: in some jurisdictions, only innocent possessors-those who mistakenly occupy property owned by someone else-can acquire ownership by adverse possession
f. Color of title possession claims (def. a written instrument or other evidence that appears to give title, but does not do so)
1. Starts off with rightful possession
2. Then the deed was not recorded properly or did not describe the boundaries of the property (ex: lack of signature of parties)
3. Through the actions of the adverse possessor, they can possess the land and make a legitimate claim to the land.
(i) Romero (color of title dispute): An indefinite and uncertain description of property in a deed may be clarified by the later acts of the parties and the acts may establish adverse possession.
(ii) Nome 2000 Rule
(a) Squatters: a person who settles on property without any legal claim or title: Seasonal use of property in an area where property is generally used seasonally is enough to claim adverse possession
g. Prescriptive Easement: an easement created from an open, adverse, and continuous use over a statutory period
1. differences between adverse possession and prescriptive easements
(i) adverse possession is a claim of land
(ii) prescriptive easement is for use of land
2. must meet same guidelines of adverse possession (open and notorious, hostile, adverse, continuous and exclusive); except show use rather than possession
(i) Rule: a general outline of consistent use is sufficient to establish a prescriptive easement even if the specifications of the land used are not definite
3. Problem with permission:
4. For A.P. claim, permission would be assumed
5. For P.E. claim, owner must exercise rights against use
(i) acquiescence – know about use without exercising right to exclude
h. Adverse Poss. of Chattels: title is passed for adverse possession of chattel only by entrustment
1. Entrustment (U.C.C.) argument for good faith purchaser): the transfer of possession of goods to a merchant who deals in goods of that type and who may in turn transfer the goods and all rights to them to a purchaser in the ordinary course of business
2. Theft
(i) True Owner à Thief à Bona Fide Purchaser (never has title)
(ii) Exceptions:
(a) True Owner à Thief à Merchant à BFP (has rights over true owner)
(b) Seller (under duress) à Buyer à BFP (has rights once takes possession)
(iii) If seller tries to get item back from buyer, he can recover
(iv) If buyer sells to BFP, seller loses rights
(v) however, a BFP can then gain title to something by adverse possession
i. Encroaching structure: building on someone else’s property
1. absolute right to remove structure – nothing else matters
2. relative hardship – mistake is innocent, harm minimal, interference minimal, cost of removal substantial
(i) either compensate true owner for damages (decrease in mkt value)
(ii) sell structure to not true owner for fair price
(iii) Court can decide for non-owner based on unjust enrichment
(a) Either sell to non-true owner for fair price
(b) Compensate non-true owner for improvements made
3. Predominant rule – true owner owns encroaching building
j. Argument for Rightful Owner
1. Discovery Rule (majority rule): SOL would only begin to run when the titleholder discovers or reasonably should have discovered where the stolen property is (i.e., a painting is put on display somewhere)
2. Demand and refusal rule (minority rule): allows for a cause of action against a good faith purchaser when the titleholder makes a demand for return of the chattel and the person in possession of the chattel refuses it
3. Defense of laches: if there is an unreasonable delay in rightful owner bringing suit against good faith purchaser
D. Gift
a. Definition: Voluntary transfer of property for no consideration
b. Intent
1. Present, irrevocable transfer of property interest
2. Condition Precedent: “If you get me a beer, I’ll give you my outline.”
3. Condition Subsequent: “If you don’t give me a beer later, you have to give my outline back to me.”
4. Future interest: When my wife and I divorce, I will give you a ring.”
c. Delivery
1. Actual Delivery: immediate transfer
2. Constructive Delivery: circumstances indicate that delivery occurred even if not actually
3. Symbolic Delivery: some type of item is delivered that is generally accepted as a symbol of the gift or confers access to the gift
d. Acceptance
1. If intended donee refuses to accept gift, title does NOT pass to the donee
e. Types
1. Inter-vivos
(i) Between two living parties if donor intends to give immediately
2. Causa Mortis
(i) Donor makes gift in anticipation of imminent death
(ii) Intent, Delivery, and Acceptance apply; in addition, the following also apply:
(a) Donor must be about to die
(b) Donor must die
(c) If Donor doesn’t die, he can revoke gift
(d) Donee cannot predecease the Donor
(iii) Causa Mortis gift can trump a will, that’s why there are so many requirements
3. Testamentary Gifts
(i) Given after death of donor
E. Capture/Conquering
a. Acquisition of land by conquest removes all property rights from previous owner
b. Rule of Capture: the principle that objects that are ferae naturae (ex. wild animals, oil and gas) belong to the person who captures them, regardless of whether they were originally on another person’s land or someone else was pursuing them first
1. Wild Animals (Pierson v. Post): actual possession is the only way to prove ownership because animals are ferae naturae (of a wild nature)
2. Oil and Gas (Elliff): the ownership interests of oil or gas lie with the person who first extracts the mineral, regardless of if the mineral is under someone else’s land, as long as the extraction is done by reasonable means (good environmental standards, can’t damage others chances of extracting oil, etc.)
III. What are the rights of a property owner?
Right to Use: You can use your property as you wish / Right of Security from Harm: Cannot use your land in a way that harms others
Right to Transfer: You can choose to transfer your property as you wish / Public Policy: Cannot transfer property in a way that violates public policy limitations
A. Right to Exclude
a. Trespass
1. Unprivileged intentional intrusions on property possessed by another - property right = right to exclude but right to exclude is not absolute
2. Key factor in trespass case is consent
(i) Did the owner consent to let people on his land? Consent = waiver of right to exclude
(ii) State v. Shack: Property rights are not absolute; “necessity, private or public, may justify entry upon the lands of another.”
(a) In Shack, the interests of migrant workers were a critical public policy issue that the courts could not ignore
(b) A landowner cannot use exclusion right to harm others on property.
(iii) Desnick v. American Broadcasting Comp.: Though the consent was procured through fraudulent statements, there was no invasion of any interests that the tort of trespass was designed to protect, no interference was made with the business’s operations and no embarrassing details of anyone’s life were made public.
(a) construe space in terms of relationship: doctor/patient privilege – initial consultation didn’t make Δ a patient
(b) When a business opens itself up to the public, their right to exclude is lessened greatly (as opposed to a private landowner).
(iv) Uston: Owners of property open to the public do not have the right to unreasonably exclude particular members of the public, unless the person is disrupting the business’s operations or poses a security risk
(a) focus moves from right to exclude to right of access - from “right to exclude unless” to “right to come in unless”
(v) Majority rule: Amusement places have an absolute right to arbitrarily eject or exclude any person consistent with state and federal civil rights laws unless they are
(a) Innkeepers
(b) common carriers (bus, train, etc.)
b. Public Use Accommodation
1. Civil Rights Act of 1866
(i) limited to racial discrimination
2. Civil Rights Act of 1964
(i) includes religion, national origin, color)
(ii) Title II: modifies common law right to exclude
3. §1981. Equal Rights Under the Law
(i) Statement of Equal Rights: gives blacks same rights as whites, such as right to enter contract, sue, give evidence, etc.
4. §1982. Property Rights of Citizens
(i) All citizens have the right to inherit, sell, buy, convey, etc. land
5. §2000a. Prohibition Against Discrimination or Segregation in Places of Public Accommodation
(i) Equal access to any place of public accommodation regardless of race, color, religion or national origin
(ii) Following are places of public accommodation if there operations affect commerce:
(a) inn, hotel, motel
(b) facility that sells food for consumption on the premises
(c) motion picture house, theater, sports hall, etc.
(d) any establishment located within the premises of the above establishments
(e) The above provisions do not apply to private establishments
6. Elements of Act
(i) Does the person fall within the protected class? (race, color, religion, national origin)
(ii) Must be a place of public accommodation (inns, restaurants, motion pictures, etc.); if it is a private establishment, it does not qualify under the act
(iii) Person had to be discriminated against
(iv) Place of public accommodation must be involved in commerce.
7. Dale v. Boy Scouts
(i) Is organization a “place”?
(a) Site v. association
(ii) What constitutes public accommodation?