prop

title; subordinate; recover possession; Johnson
Click the card to flip 👆
1 / 71
Terms in this set (71)
title; subordinate; recover possession; Johnson
(1) THE RIGHT TO TRANSFER
Rule: Ejectment is a remedy at common law to remove a trespasser from the property.
Rule: The elements of ejectment are: (1) P holds a X (or least) to land that D now occupies, (2) D's occupancy is X to P's title (i.e., D has a lease or a license), (3) P seeks to X X of the land from D.

For example, in X v M'Intosh, the court held P did not hold a valid title to land purchased from natives. The court determined the natives never really "owned" the land to transfer it to P. Thus, the court determined there is no valid ejectment cause of action
interference; right or interest; tangible; interferes; damages; Moore
(1) THE RIGHT TO TRANSFER
Rule: Conversion is a strict liability tort that emphasizes the right to use without X from another, but when used as a defense, cannot utilize a mistake as a way to enforce it.
Rule: A cause of action for conversion requires: (1) P has a property X or X in personal (X) property, (2) D X with that property right or interest, (3) X are caused by that interference.

For example, in X v. Regents, the Court held an individual does not retain title to or ownership rights in bodily fluid, tissue, or organs taken from his body during medical procedures and thus cannot maintain a tort action in conversion. There, a doctor repeatedly harvested P's body tissues and fluids under the guise of treatment, while using them for lucrative medical research without informing or compensating. The issue before the court was whether a patient has a property interest in their cells to support a conversion cause of action. The Court held P abandoned his property interest when he consented to operation. The cells had no value when removed. Thus, there is no basis for the cause of action.
statute; Johnson; accession; transform; value; conversion; Popov
CONVERSION - Issue #1

Issue: Does P have a property right or interest in personal (tangible) property?
Rule: A claim of ownership may be limited by X. X v. M'Intosh.
Rule: The common law doctrine of X provides that when a person uses his own labor or materials in good faith to fundamentally X another's property, he acquires title to the final product, but may be liable for the X of the other's property.
Rule: One who has neither title nor possession, nor any right to possession, cannot sue for X. X v. Hiyashi.
balancing; policy; legislative resolution; protect; Moore; Moore
CONVERSION - Final PP Issue

Issue: Should conversion liability be extended?
Rule: To determine whether conversion liability should be extended, a court may consider: (1) a fair X of the relevant X considerations of extending the tort to this area; (2) whether problems in this area are better suited to X X; (3) whether the tort of conversion is necessary to X P's rights. X v. Regents.
E: For example, in X v. Regents, the court held extending the conversion theory to the use of excised human cells would utterly sacrifice the goal of protecting innocent parties (i.e., doctors/researchers) in contrast to the fiduciary-duty and informed-consent theories (consideration #3). Additionally, the court held extending liability threats to destroy the economic incentive to conduct medical research, and thus, should be left to the Legislature to determine.
exclude; record owner's; resources
Second Property Stick In The Bundle

Rule: The right to X means each owner has a right to exclude any other person from his property.
Rule: The right to exclude emphasizes X X's right to use X on land and exclude everyone else; considered most important right (i.e., record owner's title is superior).
property right or interest; intentionally; thing or 3rd; privilege or consent; damages; Steenberg; Chance; physical damages or interference;
THE RIGHT TO EXCLUDE - INTENTIONAL TRESPASS

Rule: An intentional trespass is a strict liability tort and P must provide valid reason for entering if using as a defense.
Rule: The elements of intentional trespass are: (1) P has a X X or X in land; and (2) D X (voluntarily) enters P's land or causes a X or X person to enter it; and (3) D has no X or X to enter; and (4) P suffers X.
Rule: In X, the court found trespass liability even though the Jacques' property had not been damaged. But the X court required proof of "some type of X X or X with use" before the plaintiffs could recover in trespass. "
right or interest; negligently; thing or 3rd; privilege or consent; actual
2 - THE RIGHT TO EXCLUDE

Rule: The elements of negligent trespass are: (1) P has a property X or X in land; and (2) D X (voluntarily or not) enters P's land or causes a X or X party to enter it; and (3) D has no X or X to enter; and (4) P suffers actual X to the land
right to use; harm the rights
3rd Stick in Bundle

Rule: The X to X means the record owner had the right to use his property in any way he wished, as long as he did not X the X of others.
use and enjoyment; superior right; intentional; non-trespassory; unreasonable; substantial; use and enjoyment
THE RIGHT TO USE - PRIVATE NUISANCE

Issue: Does P have a valid cause of action for nuisance?
Rule: A private nuisance involves interferences with the private X and X of one or a number of nearby properties.
Rule: The elements of a private nuisance are: (1) P has X X to land, and (2) D's act is an: (1) iX, (2) non-X, (3) uX, and (4) X interference with, (5) P's X and X of land.
property interest; bodily harm;
THE RIGHT TO USE - PRIVATE NUISANCE

Issue #1: Does P have a superior right to land?
Rule: A person cannot sue claiming a private nuisance unless she has a X X that is affected or alleges X X as the result of the activities complained of.
gravity of the harm; substantial harm; social utility; gravity of the harm; utility of the conduct; sole; spite fenceIssue #3: Was D's act unreasonable? Rule: Some states, as held in Boomer, hold the defendant's conduct is unreasonable if it causes X X, regardless of the X X of the conduct. Rule: Many states use the Restatement standard: conduct is unreasonable if the X of the X outweighs the X of the X. (see Thomsen). Rule: Additionally, action undertaken for X purpose of harming P is unreasonable as a matter of law (see X X doctrine).right to exclude; legal system; wrongdoers; communityPRIVATE NUISANCE - PUBLIC POLICY PERSPECTIVE From a public policy perspective, individuals and society has an interest in deterring intentional trespass on land, regardless of the actual harm that happens on the land. From the individual's perspective, the individual has a strong interest in protecting the X to X. Society also has a strong interest to protect the X X. The legal system, here, is being used to direct people to the legal system because: (1) X should be punished, and (2) X expects wrongdoers to be punished.conclusively fixed; balancing; necessary; sole; harm; malice; light; air; unreasonable; law; Sundowner; abate; benefit, profit, or use, diminishingIssue: Is D liable under the spite fence doctrine? Rule: A spite fence doctrine isolates a form of nuisance for which interests are presumed to be X X, and no X is X or permitted. Rule: Under the spite fence doctrine, if (1) the X (not primary) intent of tortfeasor is to X neighbor (X), and (2) the "fence" obstructs X and/or X, then (3) D's land use (the fence) is X as a matter of X. For example, in X v. Kind, the court held a property owner may be ordered to X a structure built not for her own bX, pX, or uX, but purely for the purpose of X the use or value of a neighbor's property. There, D bought a motel from P, who then built a bigger motel next door. Annoyed by that move, D erected a structure between the motels so large that it blocked air and light to P's new motel, and P sued. Although D argued that structure was not a "fence" but a "sign," the court affirmed and held there was enough evidence to find that the "fence" or "sign" structure had no useful purpose and that it was intended to harm P.illegal; public policy; useful; harm; limited right; Eyerman; senseless; enforceable;Rule: Under the right to destroy, an owner can do anything with one's property (unlimited while alive) as long as: (1) it is not X, (2) does not go against X X (consider X purpose and X to community), (3) after death, X X to destroy because society absorbs consequences. Rule: For example, in X v. Mercantile, the court held X destruction of property serving no good purpose is held in disfavor. There, D wants house, a public landmark, destroyed after death. P's neighborhood becomes concerned that the values of their homes would decrease. P files injunction to prevent house demolition. The Court held a deceased person's testamentary wish to destroy her property is not X for public policy concerns, including the adverse effect such a wish would have on neighboring property values. Thus, when an owner seeks to destroy property that has substantial value to society, some courts have limited this right.wild animals; unowned; actual; constructive and symbolic; appropriate; commons; conduct; intent; hunting; intends; kills and takes; mortally; continuing; trapping; escape; Pierson; absolute; control; maintains; custom(C) METHODS OF ACQUIRING PROPERTY (1) ACQUISITION BY CAPTURE Rule: In general, the acquisition by capture applies to the acquisition of X X (ferae naturae) seized on X land. Rule: The acquisition by capture rule emphasizes X possession as a stronger claim over X and X possession. The capture rule influenced the development of modern property law, and was later expanded to non-ferae naturae objects. Rule: Traditionally, the elements of acquisition by capture, are: (1) P intends to X a wild animal from the X, and (2) P's X clearly manifests that specific X. Sub-Rule: Under the X rule, a property in wild animals arises when P (1) X to capture animal, and (2) X and X (harvests) animal. Issue: Are there any exceptions? Rule: A mortal wounding of animal may create a property interest in that wild animal when P has proof of: (1) X wounding and X chase; or (2) X animal without possibility of X. X v. Post. Rule: An enforceable property right in netted wild animals is established even if pursuer has no x control, but instead: (1) brings animal into her X, and (2) x that control to show the world she does not intend to abandon the property. Pierson v. Post. Rule: An enforceable property right can be based on X. Ghen.name, likeness, or identity; appropriates; consent; injured; nature; surrounding circumstances; White; impersonates; uses; reference; how; whether(C) METHODS OF ACQUIRING PROPERTY (2) ACQUISITION BY CREATION + PASSAGE OF TIME Rule: A right of publicity interference arises when: (1) P has a property right in nX, lX, or iX, and (2) D X P's name, likeness or identity without P's X, and (3) P is x. Rule: What constitutes a celebrity's identity will depend on the X of the celebrity involved. A court may consider the X X in determining whether a celebrity's identity has been used. X v. Samsung. Rule: A D may appropriate P's name, likeness, or identity without P's consent when D X P, D X P's name, D makes obvious/nonobvious X to P's likeness, name, or identity. Rule: It is not X D has appropriated the P's identity, but X D has done so.adverse possession; quiet title; Gurwit; Van Vulkenburgh; statutory; ejectment; automaticallyRule: Title to real property may be acquired by X X. Rule: Adverse possession claims normally arise in two procedural situations: the adverse possessor either brings a X X action to confirm his title (as in X) or raises the doctrine as a X to an owner's lawsuit to recover possession (as in X X). Rule: If a title owner does not, within the X period, take legal action to eject a possessor who claims adversely to the owner, the owner is thereafter barred from bringing suit for X. Rule: Moreover, title to the property X vests in the possessor.actual; exclusive; open; adverse; continuous; statutory; burden of proof;RULE: To acquire title by adverse possession, the following essential elements of adverse possession must be met: 1) X possession, 2) X possession, 3) X and notorious possession, 4) X and hostile possession, 5) X possession, and 6) for the X period. The X of X is on the adverse possessor to show that they have met all the required elements.physically; reasonable record owner; character, location and nature; intensively; recreational; someACTUAL POSSESSION Issue: Was the adverse possessor physically using the land (actual possession)? Rule: Actual possession means the adverse possessor is X using the land in the same manner as a X X X would, given its X, X and X. Sub-Rule: The claimant may also meet the "actual possession" standard by using the land more X than a reasonable owner would. Sub-Rule: The use of land solely for X purposes (such as hunting, fishing, hiking, and riding four-wheelers), however, is not considered actual possession in X states.usual cultivation and improvement to agriculture; Gurwit; character; signs; firewood; cleaned; neighbors; title owner;Rule: The gold standard for actual possession is X X and X to X. However, both may not always be required. For example, in X, P obtained title through adverse possession because P's conduct was consistent with X of the land (even if there was no cultivation). Specifically, P's posted "no trespassing" and "no hunting" X on the property, cut X, and X up downed trees. The X acknowledged the P's ownership of the property, and the X X witnessed P cutting trees on the disputed tract and did not object.statute; substantial enclosure; improvements; small; insubstantial; improvement;Rule: Actual possession may also be limited by state X. For example, in Van Vulknburgh, the court held P's did not obtain title through adverse possession because there was no X X nor X to the land as required by state statute. There was no improvement to the land because: (1) the shack built by Ps was too X, (2) the garden built by Ps was X, and (3) placing rubbish on the land was not an X.recreational; visible; irregular; characterACTUAL POSSESSION THE OWNER WILL ARGUE: - B's use is X, not X enough to put owner or community on notice, X (given X, location, and nature - i.e. removing rare crops).physical; recreational; visible; reasonable owner;ACTUAL POSSESSION The USER WILL ARGUE: - B's use is X (digging and taking), not X (sells crops?), X, (anyone driving down road can see B removing/gardening), consistent with how a X X would use the land given character, location and nature of land (B removed small rare cacti, and not otherwise made any changes).restricting use; record owner; public; cultivates; non-cultivated; third parties; come back and retake; obtain; tenants in common;EXCLUSIVE POSSESSION Issue: Was the adverse possessor's use of the land exclusive? Rule: Exclusive possession means the adverse possessor is X X to the land, in a way that it cannot be shared with the X X or the X in general. Rule: If possession of a particular area is not exclusive, such that another person X a certain amount of acres of the claimant's land, a court may award a claimant title only to the X-X portion of the tract. Rule: Use of disputed property by X X may also prevent an adverse claimant from proving exclusive possession (i.e. public uses lake to drive boats). Rule: To defeat the element of exclusive possession, a record owner has to actually X X and X property; a mere visit is not enough. Rule: Two or more people may work together to X title by adverse possession; they will obtain the title as X in X.visible; form of notice; community; inspection; inquiry; negligence/abandonment; actual; inspection; diligent; furtive, secret or hidden, gossiped; possibility; Gurwin;OPEN AND NOTORIOUS POSSESSION Rule: Open and notorious possession means the claimant's possession must be so X and obvious that the record owner gets a X of X from the X or from X. Rule: Notice may arise from X, meaning if record owner can see what's going on, record owner has a duty to inquire. Rule: Reasonable notice emphasizes the record owner's X/X, such that the record owner saw or should have seen the claimant's possession. Rule: It is not necessary to show that the owner obtained X knowledge of the claim, or that the owner conducted an X; the owner is charged with the knowledge that a X inspection would reveal. Rule: However, X, X or X activities do not count as open and notorious possession. Rule: The claimant's possession has to be X about in the community, not just a X X. Rule: As held in X, if the claimant's possession is in the sight of passerby, the element is satisfied.true; permission; objective; good; bad; implied; Tioga; intent to hold; ejected; statute of limitations; reasonably mistaken; color of title; void or invalid; possession; faulty; constructive; outlaw; aggressive; intent; permission;ADVERSE AND HOSTILE POSSESSION Rule: Adverse and hostile possession means the possessor does not have the X owner's X to be on the land. Rule: There are three approaches to the adverse and hostile possession element: (1) the X test, (2) the X faith test, and (3) the X faith test. MAJORITY OBJECTIVE TEST Rule: Under the majority jurisdiction, objective test, the adverse possessor's state of mind is X by the conduct used to meet the other elements, including actual, exclusive, open and notorious, and continuous possession. For example, in X Cole, the court held adverse and hostile possession does not require an X to X against the property's true owner. Rather, the court held hostility will be implied if the true owner has not X P within the X of X period. MINORITY JXN SPLIT - GOOD FAITH Rule: Under the good faith rule, the adverse possessor is a X X trespasser and believes the property has no owner. For example, with X of X, an adverse possessor holds a X or X title either because of reasonable mistake, or the predecessor's origins are unclear. Under these circumstances, an owner may have a good faith belief that she is owner because the property was described in the deed, but actually was in X of land under color of title because the deed was X. Thus a court may find an adverse possessor acquires title by X possession. MINORITY JXN SPLIT - BAD FAITH Rule: Under the bad faith rule, the adverse possessor is an X or an X trespasser. Rule: A bad faith jurisdiction requires the adverse possessor to have the requisite X to take the title from the owner; X is not enough. FULKERSON v. VAN BURENuninterrupted; ongoing and continuous; minute; Howard; year-round; record owner's; summer; held, managed, nad cared;CONTINUOUS POSSESSION Rule: Continuous possession means the adverse possessor's X use is as X and X as the record owner's would be, given the character, location, and nature of the land. Rule: There is no need to consider, however, whether the adverse possessor has spent every X on the land. For example, in X v. Kunto, the court held uninterrupted possession does not require constant X-X occupancy, but rather such control over the property as the X X's would be. Specifically, the continuous possession element may be met with X occupation because the owners X, X, and X for the property in a like manner and condition.met and continuous; tacking; successive; reasonable connection; good faith; rightful; awareness; objective; conduct; state of mind; marketable;STATUTORY PERIOD Rule: The statutory period count starts once the five elements above are X and X. Rule: With X, the adverse possession periods of two or more successive occupants may be combined to meet the statutory period. Tacking is permitted if the successive occupants are in "privity." Absent a claim of title, a court may exercise its discretion to allow privity if the X occupants have a X X and act in X X. Good faith requires a genuine belief the occupant is the X owner, whereas bad faith requires an X that the occupant is not. However, most jurisdictions use the X test, which looks only at the occupant's X, rather than their X of X. Rule: An adverse possession cause of action accrues when the above elements are met. The title becomes X once confirmed by a court.disabled/insane; extended; disabilityDISABILITY Rule: If a property owner is unable to sue an adverse possessor because he is X/X, the period for adverse possession will be X due to the owner's X.availability and scope; lesserIDENTITY OF THE PARTIES Rule: The identity of the record owner may affect the X and X of adverse possession. Rule: If the owner, for example, holds a X interest, such as a life estate, the successful adverse possessor receives only what the owner had - a life estate.idly negligent; active; operation of law; occupancy; transfer; gift; compensate; liableRule: Once an adverse possessor meets all 5 elements, the clock starts ticking (cause of action accrues) and runs through the statutory period. Rule: To divest in practical terms, means: (1) O is X X for statutory period, (2) user is X for statutory period, (3) at the end of the statute of limitations, user obtains tile by X of X, (4) user's right are based on user's X, not market X, X, theft, or war, and (5) the law does not require user to X O for the land, but neither will O be X for the property from the date of user's entry forward.better right; trespasser;Rule: Suppose A takes possession of the farm and meets all requirements for AP. A now holds title to the farm. If O now sues for ejectment, A will assert his title as a defense to the action. OR Rule: A property owner's cause of action against a wrongful possessor of it. The owner must bring the ejectment action within 20 years of the time the wrongdoer enters the land. Rule: To bring an ejectment claim, O must allege a superior right to T as well as prove trespass. 1. Does O have a X X to the land? 2. Can O prove T X?title; right, title, or interest; judgment; written; chain of title;Rule: A quiet title action is a lawsuit brought to establish the plaintiff's X to land. Typically, the plaintiff sues all persons who claim any rX, tX, or iX in the land, and the court issues a X that resolves the controversy. • Serves as X proof of AP title, and the judgment starts a new X of X, different from the prior owner's chain.ad coelum; heavens; airplane; surface; indefinitely; fixed height; definite; Causby; occupy or use in connection; Causby; reasonably use or occupy; connection; land;Issue: How far UP do property rights extend? Rule: Under the X X doctrine, a landowner's title extended upward to the X, but this view collapsed with the invention of the X. Today, most authorities agree that the X owner's rights do not extend upward X. One view is that the owner holds title only up to a X X, usually 500 feet (i.e. X use). Another view as applied in X (case), is the landowner owns at least as much of the space above the ground as he can X X or X in X with the X.ad coelum; reasonable and foreseeable;Issue: How far DOWN do property rights extend? Rule: The X X doctrine was that a landowner's title extended downward to the center of the earth, but modern courts increasingly question this view. Some courts, as with the court in Chance, suggest that the surface owner's rights extend downward only so far as to accommodate a X and X use of the subsurface.unowned goods; never; abandoned; first person; intend to control; exclude; taking possession; legal rights;(A) Rule of Capture Rule: The rule of capture applies to X X which either have X been owned, or have been X by their owner. Rule: Generally, the X X who takes possession of an unowned good usually becomes its owner. Rule: To satisfy the possession requirement, the possessor must exercise X X over the object and must X to X it and to X others from it. Rule: The person who acquires ownership by X X of an object is entitled to all the same X X as any other owner.(A) Rule of Capture General Rule: To acquire a property right of wild animals or things, the pursuer must (1) bring them into his power and control, and (2) so maintain the control as to show that he does not intend to abandon them again to the world at large. Rule: When he has confined them within his own private enclosure, and maintains reasonable precautions to prevent escape, the felonious taking of them from his enclosure will be larceny. State v. Shaw.(A) Rule of Capture General Rule: To acquire a property right of wild animals or things, the pursuer must (1) bring them into his X and X, and (2) so X the X as to show that he does not intend to X them again to the world at large. Rule: When he has confined them within his own X X, and maintains X X to prevent escape, the X taking of them from his enclosure will be X. State v. Shaw.(A) Rule of Capture Issue: What kind of animals can be acquired under the rule of capture? Rule: The rule of capture does not apply to domesticated animals with "habit of returning" are not wild animals. Issue: Does the role of custom factor into the rule of capture? Rule: A court may consider the role of industry custom and practice to determine whether P has a property right or interest in the property. Rule: From a labor or economic based reason, the role of custom: (1) promotes social norms and expectations, (2) protects and promotes business activity, (3) protects custom of an industry; (4) discourages violence; and (5) protects judicial resources by articulation a bright line rule.(A) Rule of Capture Issue: What kind of animals can be acquired under the rule of capture? Rule: The rule of capture does not apply to X animals; animals with a "X of X" are not wild animals. Issue: Does the role of custom factor into the rule of capture? Rule: A court may consider the role of X X and X to determine whether P has a property right or interest in the property. Rule: From a labor or economic based perspective, the role of custom: (1) promotes social X and X, (2) protects and promotes X activity, (3) protects X of an industry; (4) discourages X; and (5) protects X X by articulating a X X rule.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Rule: Conversion is a strict liability tort to recover the value of personal property; this tort emphasizes the "right to use" without interference from another. Rule: A cause of action for conversion requires: (1) P has a property right or interest in personal (tangible) property, (2) D interferes with that property right or interest, (3) damages are caused by that interference.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Rule: Conversion is a X liability tort to recover the X of personal property; this tort emphasizes the "X to X" without X from another. Rule: A cause of action for conversion requires: (1) P has a property X or X in personal (X) property, (2) D X with that property right or interest, (3) X are caused by that interference.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Issue #1: Does P have a property right or interest in personal (tangible) property? Rule: An owner, a possessor, someone judicially deemed to have a pre-possessory right, a finder of lost property or abandoned property, an owner of locus in quo of mislaid or treasure trove property, a good faith purchaser, a buyer in ordinary course, a donee, or a decedent's estate may bring a cause of action for conversion. Rule: One who has neither title nor possession, nor any right to possession, cannot sue for conversion. Popov v. Hiyashi. Rule: A court may consider the role of industry custom and practice to determine whether P has a property right or interest in the property. For example, in Popov v. Hiyashi, the court held the custom and practice of the stands in a baseball game creates a reasonable expectation that a person will achieve full control of an "abandoned" ball before claiming possession.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Issue #1: Does P have a property right or interest in personal (tangible) property (i.e. OWNER)? Rule: An owner, a possessor, someone judicially deemed to have a X-X right, a finder of X property or X property, an owner of locus in quo of X or X X property, a good faith X, a buyer in ordinary course, a X, or a X X may bring a cause of action for conversion. Rule: One who has neither X nor X, nor any X to possession, cannot sue for conversion. X v. Hiyashi. Rule: A court may consider the role of X X and practice to determine whether P has a property right or interest in the property. For example, in X v. Hiyashi, the court held the custom and practice of the stands in a baseball game creates a X X that a person will achieve X X of an "abandoned" ball X claiming possession.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Sub-Issue: If not owner Did P acquire a property right of interest in the item sufficient to support a legal cause of action for conversion? WILD ANIMALS Rule: Traditionally, the elements of acquisition by capture, are: (1) P intends to appropriate a wild animal from the commons, and (2) P's conduct clearly manifests that specific intent. Sub-Rule: Under the hunting rule, a property in wild animals arises when P (1) intends to capture animal, and (2) kills and takes (harvests) animal. Sub-Rule: The rule of capture for wild animals does not apply to domesticated animals. Issue: Are there any exceptions? Rule: A mortal wounding of animal may create a property interest in that wild animal when P has proof of: (1) mortally wounding and continuing chase; or (2) trapping animal without possibility of escape. Pierson v. Post. Rule: An enforceable property right in netted wild animals is established even if pursuer has no absolute control, but instead: (1) brings animal into her control, and (2) maintains that control to show the world she does not intend to abandon the property. Pierson v. Post. Rule: An enforceable property right can be based on custom so as to promote administrative efficiency, certainty, and social order. Ghen.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Sub-Issue: If not owner Did P acquire a property right of interest in the item sufficient to support a legal cause of action for conversion? WILD ANIMALS Rule: Traditionally, the elements of acquisition by capture, are: (1) P X to X a X animal from the commons, and (2) P's X clearly manifests that X X. Sub-Rule: Under the hunting rule, a property in wild animals arises when P (1) X to X animal, and (2) X and X (harvests) animal. Sub-Rule: The rule of capture for wild animals does not apply to X animals. Issue: Are there any exceptions? Rule: A X X of animal may create a property interest in that wild animal when P has proof of: (1) mortally wounding and X X; or (2) X animal without possibility of X. X v. Post. Rule: An enforceable property right in netted wild animals is established even if pursuer has no X control, but instead: (1) brings animal into her X, and (2) X that control to show the world she does not intend to X the property. X v. Post. Rule: An enforceable property right can be based on X so as to promote administrative X, cX, and sX oX. Ghen.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Sub-Issue: If not owner Did P acquire a property right of interest in the item sufficient to support a legal cause of action for conversion? EVERYTHING BESIDES WILD ANIMALS Rule: We may use the framework in Popov v. Hiyashi to analyze, by analogy to catching a ball, whether P has the (superior) property right or interest in personal (tangible) property to support a legal cause of action for conversion. Rule: For example, under the Finkelman rule, possession occurs when an individual intends to take control of a ball and manifests that intent by stopping the forward momentum of the ball, whether or not complete control is achieved. Rule: Under Gray's Rule, a ball is caught if the person has achieved complete control of the ball at the point in time that the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Sub-Issue: If not owner Did P acquire a property right of interest in the item sufficient to support a legal cause of action for conversion? EVERYTHING BESIDES WILD ANIMALS Rule: We may use the framework in X v. X to analyze, by analogy to X a X, whether P has the (X) property right or interest in personal (tangible) property to support a X X of X for conversion. Rule: For example, under the X rule, possession occurs when an individual X to take X of a ball and X that intent by stopping the X X of the ball, whether or not X X is achieved. Rule: Under X's Rule, a ball is caught if the person has achieved X X of the ball at the point in time that the momentum of the X and the momentum of the X while attempting to catch the ball X.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Sub-Issue: If no legally cognizable pre-possessory interest is found, should the court exercise its discretion to find an equitable solution to the bar on X's claim? - Sub-Issue: Did P request an equitable remedy - i.e. declaratory judgment, injunctive relief, or constructive trust? If yes .... Rule: A court sitting in equity has the authority to fashion rules and remedies designed to achieve fundamental fairness. Rule: To determine whether the court should exercise its discretion to find an equitable solution to the bar on X's claim, a court may consider: (1) a fair balancing of the relevant policy considerations of extending the tort to this area; (2) whether problems in this area are better suited to legislative resolution; (3) whether the tort of conversion is necessary to protect P's rights. Moore v. Regents. E: For example, in Moore v. Regents, the court held extending the conversion theory to the use of excised human cells would utterly sacrifice the goal of protecting innocent parties (i.e., doctors/researchers) in contrast to fiduciary-duty and informed-consent theories (consideration #3). Additionally, the court held extending liability to excised cells threatens to destroy the economic incentive to conduct medical research, and thus, should be left to the Legislature to determine.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Sub-Issue: If no legally cognizable pre-possessory interest is found, should the court exercise its discretion to find an equitable solution to the bar on X's claim? - Sub-Issue #1: Did P request an equitable remedy - i.e. declaratory judgment, injunctive relief, or constructive trust? If yes .... Rule: A court sitting in equity has the authority to X X and X designed to achieve fundamental X. Rule: To determine whether the court should exercise its discretion to find an equitable solution to the bar on X's claim, a court may consider: (1) a X X of the relevant policy considerations of extending the tort to this area; (2) whether problems in this area are better suited to X X; (3) whether the tort of conversion is necessary to protect P's rights. X v. Regents. E: For example, in X v. Regents, the court held extending the conversion theory to the use of excised human cells would utterly sacrifice the goal of protecting innocent parties (i.e., doctors/researchers) in contrast to fiduciary-duty and informed-consent theories (consideration #3). Additionally, the court held extending liability to excised cells threatens to destroy the economic incentive to conduct medical research, and thus, should be left to the Legislature to determine.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Sub-Issue: If no legally cognizable pre-possessory interest is found, should the court exercise its discretion to find an equitable solution to the bar on X's claim? Sub-Issue #2: - Yes or No? - Yes, because ...... o It would be unfair to D to require him to give up the X item. § E: For example, in Popov v. Hiyashi, the court held it would be unfair to D to require him to give up the ball since he did not partake in the violent efforts that followed to retrieve the ball.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Sub-Issue: If no legally cognizable pre-possessory interest is found, should the court exercise its discretion to find an equitable solution to the bar on X's claim? Sub-Issue #2: - Yes or No? - Yes, because ...... o It would be X to D to require him to give up the X item. § E: For example, in X v. X, the court held it would be unfair to D to require him to give up the ball since he did not partake in the X X that followed to retrieve the ball.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Sub-Issue #3: - The equitable solution is..... o Recognize a qualified pre-possessory interest, and have the ball be sold and proceeds divided in half. § E: For example, in Popov v. Hiyashi, the court fashioned an equitable solution to determine P had a pre-possessory interest to the ball. Specifically, the court ruled: Where an actor undertakes (1) significant but incomplete steps to achieve possession of a piece of (2) abandoned personal property and (3) the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable right to possession which can support a cause of action for conversion.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE Sub-Issue #3: - The equitable solution is..... o Recognize a X X-X interest, and have the ball be sold and proceeds divided in half. § E: For example, in X v. Hiyashi, the court fashioned an X solution to determine P had a X-X interest to the ball. Specifically, the court ruled: Where an actor undertakes (1) X but X steps to achieve possession of a piece of (2) X X property and (3) the effort is X by the X acts of others, the actor has a X X right to possession which can support a X of X for conversion.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE - The practical outcome of the solution is ...... o Rule: To determine whether the court should exercise its discretion to find an equitable solution to the bar on P's claim, a court sitting in equity may consider, out of fairness, whether awarding X item to P would unfairly penalize one party over the other. Popov v. Hiyashi.ATTACK OUTLINE - CONVERSION AND RULE OF CAPTURE - The practical outcome of the solution is ...... o Rule: To determine whether the court should exercise its discretion to find an equitable solution to the bar on P's claim, a court sitting in equity may consider, out of fairness, whether awarding X item to P would unfairly penalize one party over the other. X v. X.(B) FINDERS LAW Rule: Unlike abandoned goods, a person does not become the owner of an object that already has an owner simply by taking possession of it. Rather the possessor is legally obligated to return the object to its owner. The scope of this duty depends on the type of relationship that exists between the possessor and the owner with respect to the property. Rule: A finder is the first person to take possession of lost or unclaimed property. Possession, under the "finder's law" requires: (1) an intent to control the property, and (2) an act of control.(B) FINDERS LAW Rule: Unlike abandoned goods, a person does not become the owner of an object that already has an owner simply by X X of it. Rather the possessor is legally obligated to X the object to its owner. The scope of this duty depends on the X of X that exists between the X and the X with respect to the property. Rule: A finder is the first person to take possession of lost or unclaimed property. Possession, under the "finder's law" requires: (1) an X to X the property, and (2) an X of X.(B) FINDERS LAW ISSUE #1: WHAT IS THE CHARACTER OF THE PROPERTY? General Rule: If an owner has lost or mislaid property, she does not lose title to it unless she abandons her ownership rights. Rule: The person who finds the property must return it to the owner. Rule: Until the owner is discovered, however, the finder or the owner of the premises where the property was found has a protected possessory right in the property. Sub-Rule: No one, except the true owner, has a right to take possession from the rightful possessor. Sub-Rule: The courts have created a number of tests to determine whether the actual finder or the owner of the premises where the property was found has the right to possess it until the true owner is discovered.(B) FINDERS LAW ISSUE #1: WHAT IS THE CHARACTER OF THE PROPERTY? General Rule: If an owner has lost or mislaid property, she does not lose X to it unless she X her ownership rights. Rule: The person who finds the property must X it to the owner. Rule: Until the owner is discovered, however, the X or the X of the X where the property was found has a protected possessory right in the property. Sub-Rule: No one, except the X owner, has a right to take X from the X possessor. Sub-Rule: The courts have created a number of tests to determine whether the X finder or the X of the X where the property was found has the X to possess it until the X owner is discovered.(B) FINDERS LAW LOST PROPERTY Issue: Is the property lost? Rule: Lost property is property where the owner has unintentionally and involuntarily parts with it through neglect or inadvertence and does not know where to find it. With lost property, the general rule is that the first right arises in the finder for whatever it is. Rule: Possession is physical control coupled with an intention to assume dominion over the object. Rule: The intent may be manifested by an effort to keep others away, or may be implied, as in the case of an article discovered on the land of an owner.(B) FINDERS LAW LOST PROPERTY Issue: Is the property lost? Rule: Lost property is property where the owner has X and X parts with it through X or X and does not know where to X it. With lost property, the general rule is that the first X arises in the X for whatever it is. Rule: Possession is X X coupled with an X to X dominion over the object. Rule: The intent may be manifested by an X to keep others X, or may be X, as in the case of an article X on the land of an owner.(B) FINDERS LAW LOST PROPERTY Rule: As a bailee, the finder must retain the lost property and return it to the true owner when and if possible. Issue: Are there any retained rights? Rule: Finder obtains a property right good against all but the true owner. For example, in Armory v. Delamirie, a chimney sweep finds lost jewel (P), take it a jeweler (D) but doesn't get it back. P files a trover (modern conversion) suit against D. The issue before the court was whether P, as a finder, has a superior right in the jewel relative to the D. The court held though a finding of lost property does not confer absolute ownership to the finder, a P (finder) has a superior property right to all but the rightful owner. - Notes: Possession is 9/10th law: best proxy for items without title is possession.(B) FINDERS LAW LOST PROPERTY Rule: As a X, the finder must retain the X X and return it to the true owner when and if possible. Issue: Are there any retained rights? Rule: Finder obtains a property right good against all but the X X. For example, in X v. Delamirie, a chimney sweep finds lost jewel (P), take it a jeweler (D) but doesn't get it back. P files a X (modern conversion) suit against D. The issue before the court was whether P, as a finder, has a X X in the jewel relative to the D. The court held though a finding of lost property does not confer X X to the finder, a P (finder) has a X property right to all but the X owner. - Notes: Possession is 9/10th law: best proxy for items without title is possession.(B) FINDERS LAW LOST PROPERTY Issue: Do objects found on owner's property automatically below to the property owner? Rule: Objects found on owner's property may not automatically belong to owner: O has to inhabit premises to obtain it, otherwise doctrine of locus in quo applies and goes to finder if O never has actual possession of property. For example, in Hannah v. Peel, a P finds a valuable brooch in house that D owns but never inhabits. P hands the brooch over to D, who then sells it. P sues for ownership (replevin) or damages (conversion). The issue before the court was whether a property owner is entitled to claim any lost items that may be found on his or her property. The court held a property owner is not entitled to claim any lost items that someone else finds on the property owner.(B) FINDERS LAW LOST PROPERTY Issue: Do objects found on owner's property automatically below to the property owner? Rule: Objects found on owner's property may not X X to owner: O has to X premises to obtain it, otherwise doctrine of X in X applies and goes to X if O never has X X of property. For example, in X v. Peel, a P finds a valuable brooch in house that D owns but never X. P hands the brooch over to D, who then sells it. P sues for ownership (X) or damages (X). The issue before the court was whether a X X is entitled to claim any lost items that may be found on his or her property. The court held a X X is not entitled to claim any lost items that someone else finds on the property owner.(B) FINDERS LAW - 1/3 MISLAID PROPERTY Rule: Mislaid property means the object is: (1) intentionally placed somewhere by owner, and (2) forgotten by owner. Issue: Was the object intentionally placed somewhere by owner? Rule: An object is intentionally placed somewhere by the owner when the owner has voluntarily and knowingly placed the object in a particular place. Rule: Voluntary means of one's own accord without coercions. Knowing means (1) forming an intent to do (or not to do) something; and (2) using conduct to manifest an intent. Issue: Was the object forgotten by the owner? Rule: An object is forgotten by the owner when the owner fails to reclaim it or forgets where it is.(B) FINDERS LAW - 1/3 MISLAID PROPERTY Rule: Mislaid property means the object is: (1) X X somewhere by owner, and (2) X by owner. Issue: Was the object intentionally placed somewhere by owner? Rule: An object is intentionally placed somewhere by the owner when the owner has X and X placed the object in a particular place. Rule: Voluntary means of one's own X without X. Knowing means (1) forming an X to do (or not to do) something; and (2) using X to X an intent. Issue: Was the object forgotten by the owner? Rule: An object is forgotten by the owner when the owner X to X it or X where it is.(B) FINDERS LAW - 2/3 MISLAID PROPERTY Rule: If the second essential element (or any of them) is not met, the property is deemed lost. McAvoy v. Medina. Rule: The finder of mislaid property does not acquire the first right to possession. Rather, the owner of the locus in quo has the first right to possess the mislaid property against all except the true owner. The locus in quo is the owner of the place where the cause of action arose. Rule: The rationale underlying the mislaid property rule is the doctrine of ratione soli. The doctrine awards the landowner the right of personal property on their real property because of constructive possession. Specifically, the doctrine provides objects found within a house or embedded in the soil of private land belong to landowners, and not the finders, because landowners are more likely to facilitate the return of property to the true owner. For example, in McAvoy v. Medina, P finds pocketbook with money in it, and gives it to D (the shop owner). When owner never picks up the wallet, P claims it, but D keeps the wallet. P sues to retrieve the wallet (replevin). The issue before the court was whether P has the first right of possession to the pocketbook that was placed on the table and forgotten by the actual owner. The court held the property is mislaid, and not lost, because the owner placed the pocketbook on a table and forgot to pick it up. Second, the court held the first right arises in the shop owner under the doctrine of ratione soli, and thus the shop owner has a duty to safeguard the property until the true owner returns.(B) FINDERS LAW - 2/3 MISLAID PROPERTY Rule: If the X essential element (or any of them) is not met, the property is deemed X. McAvoy v. Medina. Rule: The finder of mislaid property does not acquire the X X to possession. Rather, the owner of the X in X has the first right to possess the mislaid property against all except the true owner. The locus in quo is the owner of the place where the X of X arose. Rule: The rationale underlying the mislaid property rule is the doctrine of X X. The doctrine awards the landowner the right of personal property on their real property because of X possession. Specifically, the doctrine provides objects found X a house or X in the soil of private land belong to landowners, and not the finders, because landowners are more likely to facilitate the X of X to the true owner. For example, in X v. Medina, P finds pocketbook with money in it, and gives it to D (the shop owner). When owner never picks up the wallet, P claims it, but D keeps the wallet. P sues to retrieve the wallet (replevin). The issue before the court was whether P has the first right of possession to the pocketbook that was placed on the table and forgotten by the actual owner. The court held the property is mislaid, and not lost, because the owner placed the pocketbook on a table and forgot to pick it up. Second, the court held the first right arises in the shop owner under the doctrine of ratione soli, and thus the shop owner has a duty to safeguard the property until the true owner returns.(B) FINDERS LAW 3/3 MISLAID PROPERTY Rule: The locus in quo is the owner of the place where the cause of action arose, which may not be the owner of real property. For example, in Benjamin v. Lindnder Aviation, a bank repossesses a small plane. While servicing it, a technician finds a stack of money in plane's wing. The money was turned in to the owner of the hanger. The issue before the court was whether the property was mislaid, and if so, whether the owner of the locus in quo was the hanger where the plane was serviced, or the plane itself. The court held there was substantial evidence showing the property was mislaid, and that the locus in quo was the plane, rather than the hanger where the plane was serviced.(B) FINDERS LAW 3/3 MISLAID PROPERTY Rule: The locus in quo is the owner of the place where the cause of action arose, which may not be the owner of X X. For example, in X v. Lindnder Aviation, a bank repossesses a small plane. While servicing it, a technician finds a stack of money in plane's wing. The money was turned in to the owner of the hanger. The issue before the court was whether the property was mislaid, and if so, whether the owner of the locus in quo was the hanger where the plane was serviced, or the plane itself. The court held there was substantial evidence showing the property was mislaid, and that the locus in quo was the X, rather than the X where the plane was serviced.(B) FINDERS LAW ABANDONED PROPERTY Rule: Abandoned property means the owner (a) intends to relinquish all rights, title and interest in the property, but not transfer title to any particular person, and (b) takes action that manifests this intent (demonstrates intent). Rule: The first person to take possession of abandoned property acquires that title against the world, including the prior owner; the unowned property becomes "captured" by another. Rule: The finder obtains full ownership of the lost property (first acquisition).(B) FINDERS LAW ABANDONED PROPERTY Rule: Abandoned property means the owner (a) intends to X all rX, tX and iX in the property, but not X title to any particular person, and (b) takes X that manifests this X (demonstrates intent). Rule: The first person to take X of abandoned property acquires that title against the X, including the X X; the unowned property becomes "X" by another. Rule: The finder obtains X X of the lost property (first acquisition).(B) FINDERS LAW Property is treasure trove when the owner concealed it in a hidden location long ago. Treasure trove is usually limited to gold, silver, coins, or currency.(B) FINDERS LAW Property is treasure trove when the owner X it in a X location long ago. Treasure trove is usually limited to gold, silver, coins, or X.(B) FINDERS LAW ISSUE #2: WAS THERE A BAILMENT CONTRACT? Rule: A bailment contract creates the rightful possession of goods by one who is not the owner (the bailee). There are three types of bailment contracts: those for the mutual benefit of both the bailor and the bailee, the primary benefit of the bailor, and primary benefit of bailee. Sub-Rule: Every bailment contract has two default terms: (1) the bailee must return the property on the bailor's demand and (2) the bailee must care for the property. Rule: Bailment means rightful possession of goods by one who is not the owner (parking the car) Rule: A bailor is the person who delivers the chattel (car owner) and is the true owner. Rule: A bailee is the person who receives the chattel (valet car driver) and is the finder. Rule: For lost and mislaid property, true owners always retain title to property. Finders are mere bailees. Rule: Constructive Bailment arises by operation of law wherein someone finds lost goods and retains physical custody of the goods.(B) FINDERS LAW ISSUE #2: WAS THERE A BAILMENT CONTRACT? Rule: A bailment contract creates the X possession of goods by one who is not the owner (the X). There are three types of bailment contracts: those for the X benefit of both the bailor and the bailee, the primary benefit of the X, and primary benefit of X. Sub-Rule: Every bailment contract has two default terms: (1) the bailee must X the property on the bailor's X and (2) the bailee must X for the property. Rule: Bailment means X X of goods by one who is not the X (parking the car) Rule: A X is the person who delivers the chattel (car owner) and is the X owner. Rule: A X is the person who receives the chattel (valet car driver) and is the X. Rule: For lost and mislaid property, true owners always retain title to property. Finders are mere X. Rule: X Bailment arises by operation of law wherein someone finds lost goods and retains X X of the goods.(B) FINDERS LAW ISSUE #2: WAS THERE A BAILMENT CONTRACT? MUTUAL BENEFIT Rule: Under a mutual benefit contract, a bailee has duty to take reasonable care of the property. Thus, the bailee would be responsible for any damages that are cause by a lack of reasonable care.(B) FINDERS LAW ISSUE #2: WAS THERE A BAILMENT CONTRACT? MUTUAL BENEFIT Rule: Under a mutual benefit contract, a bailee has duty to take X X of the property. Thus, the bailee would be responsible for any X that are cause by a lack of X X.(B) FINDERS LAW ISSUE #2: WAS THERE A BAILMENT CONTRACT? PRIMARY BENEFIT OF BAILOR Rule: A bailment contract for the primary benefit of the bailor makes the bailee only liable if the property is damaged because of gross negligence or bad faith. Only slight care is needed as long as there is no gross negligence or bad faith.(B) FINDERS LAW ISSUE #2: WAS THERE A BAILMENT CONTRACT? PRIMARY BENEFIT OF BAILOR Rule: A bailment contract for the primary benefit of the bailor makes the bailee only X if the property is X because of gross X or X X. Only X X is needed as long as there is no gross negligence or bad faith.(B) FINDERS LAW ISSUE #2: WAS THERE A BAILMENT CONTRACT? Rule: A bailment contract for the primary benefit of the bailee requires the bailor to exercise extraordinary care. This means that the bailee must return the good the way he found it.(B) FINDERS LAW ISSUE #2: WAS THERE A BAILMENT CONTRACT? Rule: A bailment contract for the primary benefit of the bailee requires the bailor to exercise X X. This means that the bailee must X the good the way he X it.PERSONAL PROPERTY (C) REPLEVIN Issue: What is the cause of action to recover possession of personal property: (1) P owns or has a superior right to possess the personal property; (2) D unlawfully interferes with or detains the personal property; (3) P seeks return of the personal property.PERSONAL PROPERTY (C) REPLEVIN Issue: What is the cause of action to recover possession of personal property: (1) P X or has a X right to possess the personal property; (2) D X X with or X the personal property; (3) P seeks X of the personal property.PERSONAL PROPERTY (D) ADVERSE POSSESSION OF CHATTELS Rule: Under the discovery rule, as applied in O'Keefe, the cause of action does not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form basis of a cause of action. For example, in O'Keefe, P notices her paintings are gone. but doesn't report anything until decades later. Decades later, P sees her paintings at an art gallery and files a replevin cause of action. D hasPERSONAL PROPERTY (D) ADVERSE POSSESSION OF CHATTELS Rule: Under the X rule, as applied in O'Keefe, the cause of action does not X until the injured party X, or by exercise of X X and X should have discovered, facts which form basis of a cause of action. For example, in X, P notices her paintings are gone. but doesn't report anything until decades later. Decades later, P sees her paintings at an art gallery and files a replevin cause of action. D hasPERSONAL PROPERTY - GIFTS Rule: Possession plays a central role in the law of gifts. Rule: Usually, for a gift to be valid, the donor must deliver possession of the gift to the donee. Rule: By requiring the transfer of possession, the law requires that the donor demonstrate an understanding of the legal effect of the gift. Rule: Moreover, possession provides the donee with prima facie evidence that a gift was made. Rule: A gift is a voluntary transfer of property by one (donor) to another (donee) without any consideration or compensation. Rule: To be valid, a gift must be executed or actually made. Rule: However, a gratuitous promise to make a gift in the future is not binding.PERSONAL PROPERTY - GIFTS Rule: Possession plays a central role in the law of gifts. Rule: Usually, for a gift to be X, the donor must X X of the gift to the X. Rule: By requiring the X of possession, the law requires that the donor X an understanding of the X X of the gift. Rule: Moreover, possession provides the donee with X X evidence that a gift was made. Rule: A gift is a X transfer of property by one (X) to another (X) without any conX or comX. Rule: To be valid, a gift must be X or X made. Rule: However, a X promise to make a gift in the X is not binding.PERSONAL PROPERTY - GIFTS (1) GIFT INTER VIVOS Rule: An inter vivos gift, once made, is irrevocable. There are three requirements for an inter vivos gift: (i) donative intent, (ii) delivery, and (iii) acceptance of the gift. Title passes automatically when all three elements are met. Issue: Was there donative intent? Rule: The donor must have the present intent to make an immediate transfer of the gift. The donor may intend to immediately vest title in the donee, and yet reserve a right of possession until some future date. However, if the donor intends the gift to take effect in the future, the requisite mental state is not present, and no gift follows. Once delivery is made, the gift is irrevocable. IMMEDIATE TITLE TRANSFER & POSSESSION IN FUTURE: For example, in Gruen, a father wrote a letter to P giving him a painting, but the father reserved a life estate for himself (and did not tell his son). When the father died, P's stepmother had possession of the painting and refused to hand it over to P. The stepmother argued the gift was invalid because title vested only after the father's death. The issue before the court was whether there was donative intent on behalf of the father to give the painting to his son upon the father's death. The court held the letters, phrased in present tense, indicate the father had donative intent to give the painting to his son as a gift. Thus, bifurcation of title and future is permissible when the donative intent to vest title in the donee is immediate, but possession arises at some future date.PERSONAL PROPERTY - GIFTS (1) GIFT INTER VIVOS Rule: An inter vivos gift, once made, is X. There are three requirements for an inter vivos gift: (i) X intent, (ii) X, and (iii) X of the gift. Title passes X when all three elements are met. Issue: Was there donative intent? Rule: The donor must have the X X to make an X transfer of the gift. The donor may intend to immediately vest X in the donee, and yet reserve a right of X until some future date. However, if the donor intends the gift to take effect in the X, the requisite mental state is not present, and no gift follows. Once X is made, the gift is irrevocable. IMMEDIATE TITLE TRANSFER & POSSESSION IN FUTURE: For example, in X, a father wrote a letter to P giving him a painting, but the father reserved a life estate for himself (and did not tell his son). When the father died, P's stepmother had possession of the painting and refused to hand it over to P. The stepmother argued the gift was invalid because title vested only after the father's death. The issue before the court was whether there was donative intent on behalf of the father to give the painting to his son upon the father's death. The court held the letters, phrased in X X, indicate the father had donative intent to give the painting to his son as a gift. Thus, X of title and future is permissible when the donative intent to vest X in the donee is immediate, but X arises at some future date.PERSONAL PROPERTY - GIFTS (1) GIFT INTER VIVOS Issue: Was there delivery of the gift? Rule: The basic ways of accomplishing the delivery requirement are: (i) actual physical delivery, (ii) constructive delivery, (iii) delivery by written instrument, and (iv) symbolic delivery. ACTUAL PHYSICAL DELIVERY Rule: Normally, only manual delivery of the gift to the donee satisfies the delivery requirement. To show that delivery has been accomplished in this manner, there must be a showing that the done has received dominion and control over the subject matter of the gift. CONSTRUCTIVE DELIVERY If the donor cannot deliver the gift manually because of its size, location, or character, a court may accept some form of constructive delivery by which the donor transfers control over the gift though he has not given the donee actual possession. For example, the delivery requirement will be satisfied if the donor surrenders as much control over the subject matter of the gift as he presently possesses. SYMBOLIC DELIVERY Additionally, a symbolic delivery may satisfy the delivery requirement when the donor hands over some object, other than the item given, that is symbolic of the item. Symbolic delivery is most commonly effectuated by delivering a written instrument. THIRD-PARTY AGENT Rule: Finally, the donor may satisfy the delivery requirement if she irrevocably delivers it to a third person as the donee's agent.PERSONAL PROPERTY - GIFTS (1) GIFT INTER VIVOS Issue: Was there delivery of the gift? Rule: The basic ways of accomplishing the delivery requirement are: (i) X physical delivery, (ii) X delivery, (iii) delivery by X X, and (iv) X delivery. ACTUAL PHYSICAL DELIVERY Rule: Normally, only X delivery of the gift to the donee satisfies the delivery requirement. To show that delivery has been accomplished in this manner, there must be a showing that the done has received X and X over the subject matter of the gift. CONSTRUCTIVE DELIVERY If the donor cannot deliver the gift manually because of its X, X, or X, a court may accept some form of constructive delivery by which the donor transfers X over the gift though he has not given the donee X possession. For example, the delivery requirement will be satisfied if the donor surrenders as X X over the subject matter of the gift as he presently X. SYMBOLIC DELIVERY Additionally, a symbolic delivery may satisfy the delivery requirement when the donor hands over X object, other than the item given, that is symbolic of the item. Symbolic delivery is most commonly effectuated by delivering a X X. THIRD-PARTY AGENT Rule: Finally, the donor may satisfy the delivery requirement if she X delivers it to a third person as the donee's X.PERSONAL PROPERTY - GIFTS (1) GIFT INTER VIVOS Issue: Was the gift accepted? Rule: When the gift is beneficial to the donee, acceptance by her is presumed. However, the donee may refuse to accept a gift by an affirmative act. Even if it is given to the third party (and the giftee doesn't know) the gift is still accepted. Rule: Statements and actions of the donor make for the best evidence of intent. Rule: Conditional gift does not suffice either.PERSONAL PROPERTY - GIFTS (1) GIFT INTER VIVOS Issue: Was the gift accepted? Rule: When the gift is X to the donee, acceptance by her is presumed. However, the donee may X to accept a gift by an X X. Even if it is given to the third party (and the giftee doesn't know) the gift is still X. Rule: Statements and actions of the X make for the best evidence of X. Rule: X gift does not suffice either.PERSONAL PROPERTY - GIFTS (2) GIFT CAUSA MORTIS GENERALLY Rule: A gift causa mortis is a conditional gift of personal property in anticipation of the donor's imminently approaching death. Rule: A condition is fine as long as it is done before delivery and it is communicated to donee. The requirements of a gift causa mortis are: (i) donor makes a gift in anticipation of death "from a present illness or from an extended or apprehend peril", (ii) donor dies of the ailment or peril feared; (iii) delivery, and (iv) acceptance of the gift. A valid gift causa mortis is immediately effective when it is made.PERSONAL PROPERTY - GIFTS (2) GIFT CAUSA MORTIS GENERALLY Rule: A gift causa mortis is a X gift of personal property in X of the donor's X X death. Rule: A condition is fine as long as it is done X X and it is X to donee. The requirements of a gift causa mortis are: (i) donor makes a gift in X of X "from a X illness or from an X or X peril", (ii) donor dies of the ailment or peril X; (iii) delivery, and (iv) acceptance of the gift. A valid gift causa mortis is X X when it is made.PERSONAL PROPERTY - GIFTS (2) GIFT CAUSA MORTIS Issue: Did the donor make a gift in anticipation of death "from a present illness or from an extended or apprehend peril?" Rule: The donor must have been suffering from an illness that realistically confronted her with a fear of death. Rule: With imminence, there is recognition of a valid gift causa mortis as long as the donor was suffering from an actual illness that threatened her life.PERSONAL PROPERTY - GIFTS (2) GIFT CAUSA MORTIS Issue: Did the donor make a gift in anticipation of death "from a present illness or from an extended or apprehend peril?" Rule: The donor must have been suffering from an illness that X X her with a fear of death. Rule: With X, there is recognition of a valid gift causa mortis as long as the donor was suffering from an X X that threatened her life.PERSONAL PROPERTY - GIFTS (2) GIFT CAUSA MORTIS Issue: Did the donor die? Rule: Traditionally, cases held that the donor had to die as anticipated. In some jurisdictions, a gift causa mortis is still effective even though the donor does not die from the contemplated peril if (1) the death occurs within the same approximate time frame or (2) the cause of death is related to that peril. Thus, one who attempts a gift causa mortis in contemplation of death will have made a valid gift as long as she fails to recover, even if the precise cause of death is different.PERSONAL PROPERTY - GIFTS (2) GIFT CAUSA MORTIS Issue: Did the donor die? Rule: Traditionally, cases held that the donor had to die as X. In some jurisdictions, a gift causa mortis is still effective even though the donor does not die from the X X if (1) the death occurs within the same approximate X X or (2) the cause of death is X to that peril. Thus, one who attempts a gift causa mortis in contemplation of death will have made a valid gift as long as she X to X, even if the precise cause of death is X.PERSONAL PROPERTY - GIFTS (2) GIFT CAUSA MORTIS Issue: Was there delivery of the gift? ACTUAL PHYSICAL DELIVERY Rule: Normally, only manual delivery of the gift to the donee satisfies the delivery requirement. To show that delivery has been accomplished in this manner, there must be a showing that the done has received dominion and control over the subject matter of the gift. CONSTRUCTIVE DELIVERY If the donor cannot deliver the gift manually because of its size, location, or character, a court may accept some form of constructive delivery by which the donor transfers control over the gift though he has not given the donee actual possession. For example, the delivery requirement will be satisfied if the donor surrenders as much control over the subject matter of the gift as he presently possesses. SYMBOLIC DELIVERY Additionally, a symbolic delivery may satisfy the delivery requirement when the donor hands over some object, other than the item given, that is symbolic of the item. Symbolic delivery is most commonly effectuated by delivering a written instrument. However, some states hold that the donor may not accomplish a gift causa mortis by virtue of symbolic delivery. The rationale is that execution of a written document that acts as a testamentary device should be sufficient to vest title in a donee only if drawn in compliance with the Statute of Wills.PERSONAL PROPERTY - GIFTS (2) GIFT CAUSA MORTIS Issue: Was there delivery of the gift? ACTUAL PHYSICAL DELIVERY Rule: Normally, only manual delivery of the gift to the donee satisfies the delivery requirement. To show that delivery has been accomplished in this manner, there must be a showing that the done has received dominion and control over the subject matter of the gift. CONSTRUCTIVE DELIVERY If the donor cannot deliver the gift manually because of its size, location, or character, a court may accept some form of constructive delivery by which the donor transfers control over the gift though he has not given the donee actual possession. For example, the delivery requirement will be satisfied if the donor surrenders as much control over the subject matter of the gift as he presently possesses. SYMBOLIC DELIVERY Additionally, a symbolic delivery may satisfy the delivery requirement when the donor hands over some object, other than the item given, that is symbolic of the item. Symbolic delivery is most commonly effectuated by delivering a written instrument. However, some states hold that the donor may not accomplish a gift causa mortis by virtue of X X. The rationale is that execution of a X X that acts as a testamentary device should be sufficient to vest title in a donee only if drawn in compliance with the X of X.PERSONAL PROPERTY - GIFTS (2) GIFT CAUSA MORTIS Issue: Was the delivery accepted? Rule: When the gift is beneficial to the donee, acceptance by her is presumed. However, the donee may refuse to accept a gift by an affirmative act. Even if it is given to the third party (and the giftee doesn't know) the gift is still accepted. Issue: Was the gift revoked? Rule: Estate of Oaks reflects the minority view that a gift causa mortis becomes effective only if and when the donor dies. Under the majority approach, such a gift is effective at the time it is made, but may be revoked depending on future circumstances. If the donor recovers, the gift is automatically revoked in many states. In other jurisdictions, the donor who survives must expressly choose to revoke; but delay is dangerous.PERSONAL PROPERTY - GIFTS (2) GIFT CAUSA MORTIS Issue: Was the delivery accepted? Rule: When the gift is X to the donee, acceptance by her is X. However, the donee may refuse to accept a gift by an X act. Even if it is given to the X X (and the giftee doesn't know) the gift is still accepted. Issue: Was the gift revoked? Rule: X of X reflects the minority view that a gift causa mortis becomes effective only if and when the X X. Under the majority approach, such a gift is effective at the time it is X, but may be X depending on X circumstances. If the donor recovers, the gift is X X in many states. In other jurisdictions, the donor who survives must X X to revoke; but delay is X.