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Property 1 Final

Terms in this set (177)

Ejectment
1) the ejection of an owner from a property; 2) legal action where a person wrongfully ejected from their property seeks to recover possession, damages, and costs.
Potentiate
A ruler who possesses great power (a monarch)
Conveyance
Voluntary transfer of a right or property
Conquest
Taking posession by force
Accession
Acquiring rights to new chattels through creation
Abandonmnet
Intent to relinquish rights with no intent to pass those rights to anyone in particular
Relativity to Title
Prioritizing rights over property as relative to other people. You might have some rights, but someone else might show up with more. Chronology does not always dictate this.
Ratione Soli
Rights to wild animals on your own land. Only lasts while they are on your land. We support this because it discourages trespass...
One can claim the animal if:
- They manifest intent to apporpriate the animal to one's own use
- They deprive the animal of its natural liberty and
- Bring the animal under certain control
Ferae Naturae
Wild animals
- Exception: Non-active animals. Tiger on king street
Animus Revertendi
Domestic animals, those that are in the habit of returning home by training or instinct. The person they return to is the true owner but they can carry burden of proof
- this encourages owners to put the world on notice of their property
Rule of Increase
Partus sequitur ventrem the offspring follows the condition of the mother. Why? This gives certainty because we know who the mother is; susteance for the offspring: and transubstantiality - mixing of fluids indicates closer relationship
Trover
Common law cause of action for money damages resulting from the defendant's conversion to his own use of chattel owned or possed by plaintiff
Replevin
Common law cause of action to obtain the return of chattel owned or possessed by plaintiff
Constructive Possession
A legal fiction
Possession
The control someone intentionally exercises over a thing.

Posession = Occupancy + Intent to Possess
Capture
(Pierson v Post)
Discovery is to land as capture is to chattel
Property
Rights (A Bundle of Sticks) + Persons + Things
Occupancy Theory
Intent + Ocupancy = discovery (The "Capture" of Real Property)
Modern Application of Capture: WATER
Ground Water: That which is underground aquifers
English Rule: Rule of capture as we know it
American Rule: Rule of reasonable use
Surface Water: Streams, ponds, other non-navigable waters
Prior Appropriation: Intent + Occupancy + Reasonable + Beneficial
Riparian Rights: Intent + Occupancy + Not interfering
First in Time =
Superior Claim
In Rem
Related to Property
Elements of Adverse Possession
- Running of the Statute
- Open and Notorious
- Actual and Exlusive Possession
- Continuos Possession
- Hostile Possession
(ROACH)
Running of the Statute
- Statutory period varies by jurisdiction
- Starts when claimant begins adversely possessing land
- Disabilities on the part of the owner can toll the statute
Open and Notorious
- Open possession: Not secretive
- Notorious possession: Generally known
Actual and Exclusive Possession
- Actual: 1. Intensity of use: "average" degree of use. 2. Area of use: only applies to occupied land and land under "color of title"
- Exlusive: No sharing with the owner
Continuous Possession
- Throughout the statutory period
- Comports with "average" degree of use
- Tacking is allowed in certain circumstances
Hostile Possession
- Hostile = adverse = claime of right = claim of title
- Permission voids hostility
- Voluntary arrangement can turn hostile
Color of Title
A claim founded on a written instrument (a deed, a will) or a judgement or decree that is for some reason defective and invalid
- Actual Possession
Claim of Title
One way of expressing the requirement of hostility or claim of right on the part of an adverse possessor.
Tacking
The ability of successive landowners to combine the time of their adverse possession so that the last owner can meet the 10 year requirement
Res Nullius or Terra Nullius
A thing or territory belonging to no one
Trespass on the Case
An action brought to recover damages from a person whose actions have resulted indirectly in injury or loss
Certiorari
A writ or order by which a higher court reviews a decision of a lower court
Bailment
Rightful possession of property by a person (bailee) who is not the true owner (bailor)
Bailee
Not the owner of goods
Voluntary Bailment
The bailor gives possession to the bailee.
Bailor
Owner of the goods
Involuntary Bailment
A bailment that occurs without an agreement between the bailor and bailee
- Lost and Found
Locus in quo
"The place in which" lost personal property is found.
Animus possedendi
Intent to possess
Treasure trove
Any money or coin, gold, silver plate or bullion hidden in the earth
Prospect Theory
People regard loss of an asset in hand as more significant than forgoing the opportunity to realize an apparently equivalent gain
Ad Coelum Doctrine
The traditional theory that whoever owns the soil owns to the heavens
Constructive Adverse Possession
Adverse posessor has
1) COLOR of TITLE(bad title, not an intentional trespasser)
2) can grant posession to entire color of title tract, even if only ACTUAL possession of part of it.
3) The Amount ACTUALLY Possessed must bear a REASONABLE RELATION to the whole.
4) Property must be UNITARY(no roads/etc through it)
Adverse Possession
Entry into and continuance of possession must be accompanied by an intention to invade the rights of another in the lands
Maine Doctrine
Does not recgonize possession by ignorance as adverse
Good Faith Claim
One must enter upon the land claiming in good faith the right to do so.
Intestate
Dying without a will
Will
A legally enforceable declaration of how a person wishes his or her property to be distributed after death
Nullum Tempus Occurrit Regi
No time runs against the king
Discovery Rule
A cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of action.
Voidable Title
A title that may be canceled if the injured party chooses to do so
Requirements of a Gift of Personal Property
Intent, Delivery, Acceptance
Livery of Seisin
When you sell the entire bundle of rights
"I own it and I have the right to sell it."
Entrusting
Transfer of possession of goods
Acquiesence
Agreement without protest
Constructive Delivery
Handing overt a key or some object that will open up access to the subject of the gift
Symbolic Delivery
Handing over something symbolic of the property given
Traditional Rule of Gift
If an object can be handed over, it must be
Gift Causa Mortis
A gift made in contemplation of and in expectation of immediate and approaching death
Gift Inter Vivos
A gift made during the donor's life, with no fear of impending death
- Requires that the donor intend to make irrevocable present transfer of ownership
In Extremis
At the point of death
Wills
A legal document that tells how an estate is to be distributed when a person dies
Intellectual Property (IP)
Property in ideas (patents and expressions (copyrights), as well as brands (trademarks) abd prietary secrets (trade secrets)
Patent
Processes, machines, manufactures, "compositions of matter"
- 20 years from the date filing an application
Copyrights
Literary, musical, choreographic, dramatic and artisitc works, computer software
- Gerneally, the author's life + 70 years
Trademarks
Brand names, logos, trade dress, product designs
- May last indefinitely; but might become too generic. Ex: Asprin
Trade Secrets
Propriety secrets
Lockean Labor Theory
A theory of natural law that holds that property originally comes about by the exertion of labor upon natural resources.
Bundle of Rights
1) Right of use
2) Right of enjoyment
3) Right of disposal
Public Trust Doctrine
The public must be given access to-and beneficial use of-property assets held in trust by the state for the benefit of the citizens
Hot Pursuit
We want you to get your stuff back and you have the best chance of doing so in the moment, so long as you take only reasnoable measures
- Do not like self-help
Right to Exclude
Gives the property owner the legal right to keep others off the property and to prosecute trespassers.
- An ESSENTIAL stick in the bundle - if you have dominion and control, you have the right to exclude others.
Freehold Estate
Normal tenures of feudal times
Nonfreehold Estate
Referring to mere leases
Leasholds
Lessor grants rights to lessee
Seisin
Ownership of a freehold estate obtained through holding title and right to possession of the land
Subinfeudation
The subdivision of a feudal estate by a vassal who in turn becomes feudal lord over his tenants
Escheat
The state takes property upon an owners death if there is no will & no heirs exist.
Homage and Fealty
Loyalty and service
Quia Emptores
Prohibited subinfeudation in fee simple
Heirs
Persons who survive the decedent and are designated as interstate successors under the state's statute of descent
- A living person has no heirs (yet!)
Filius Nullius
A child born out of wedlock
Next of Kin
The persons who succeed to an interstate's personal property
Bona Vacantia
Goods without an owner
Collaterals
All persons related by blood to the decedent who are neither descendants nor ancestors are collateral of kin
Issue
A lineal descendant of an individual
Numerus Clausus Principle
Limit fragmentation of ownership and thus promote the easy transfirability of property rights
Testator
A person who makes a will
Fee Simple
An estate capable of being inherited by whoever turns out to be the heirs of the fee simple owner, can have no limitations put upon its inheritability
Fee Tail
An estate in land created by conveyance
Life Estate
A freehold estate in land that is limited in duration to the life of the owner or to the life or lives of some other designated person or persons.
Life Estate Pur Autre Vie
A life estate "for the life of another," where the measuring life is someone other than the life tenant. (3rd Party)
Disabling Restraint
Withholds from the grantee the power of transferring his interst
Fofeiture Restraint
If the grantee attempts to transfer his interest, it is forfeited to another person
Promissory Restraint
The grantee promises not to transfer his interest
Language to Create a Present Interest in a Fee Simple Absolute
"To A"
"To A and her heirs"
Language to Create a Present Interest in a Fee Simple Determinable
"So long as"
"While"
"During"
"Until"
Language to Create a Present Interest in a Fee Simple Subject to an Executory Limitation
"Unitl...then to..."
"But if...then to..."
Language to Create a Present Interest in a Fee Tail
"To A and the heirs of his body"
Language to Create a Present Interest in a Life Estate
"To A for Life"
"To A for the life of B"
Language to Create a Present Interest in a Fee Simple Subject to a Condtion Subsequent
"But if"
"On condition"
"Provided that"
Future Interest in Grantor of a Fee simple Determinable
Possibility of Reverter
Future Interest in Grantor of a Fee Simple Subject to a Condition Subsequent
Right of entry / Power of termination
Future Interest in Grantor of a Fee Tail
Reversion
Future Interest in Grantor of a Life Estate
Reversion
Future Interest in Third Person in a Fee Simple Subject to an executory Limitation
Executory Interest
Future Interest in Third Person in a Fee Tail
Remainder
Future Interest in Third Person in a Life Estate
Remainder
Wrench of Delivery
Think all gifts are revocable
Testimentary Gift
By will, does not need to be delivered
Relativity of Title
Title to property that may prevail over some people, but is not absolute and will not prevail against another who has a superior claim
Conneticut Doctrine (French v. Pearce)
Majority view: Open and notorious requirement
- Do not want to reward knowing wrongdoers
Temporal Tacking
Time
Spacial Tacking
Space included in transfer
Privity
A relationship, with various legal consequences depending on the circumstances, between different parties having a legally recognized interest in the same subject matter.
DIsabilities that can Toll the Statute
"The 3 I's"
- Infantry
- Insanity
- Incarceration
Decedent
The person who died
Escrow
A bond, deed, or other document kept in the custody of a third party, taking effect only when a specified condition has been fulfilled.
Trustee
A person acting on behald of the donor
Agent
A person acting for the donor
Non-Rivalrious
My consumptions of a resource does not diminish it for others to use
- Air, national defense, information
Non-Excludable
I cannot exlude others form utilizing a resource
- Air, national defense, information, an open fishing pond
Free Riders
People who benefit from the group but give little in return
Right to Include and Exclude
...
Right to Destroy
The scope of an owner's right to destroy is unclear. In practice, the law rarely intervenes to prevent destruction. But concern arises when an owner seeks to destroy property that has substantial value to society, and some courts have limited this right.
Right to Abandon
Must have intent to relinquish all interest in the property with no intention that it be acquired by another person with a volitional act effectuating that intent
Ad Coelum Rule
To whomever the soil belongs, he owns also to the sky and to the depths
Cujus est solum, ejus est usque ad coelum et ad inferos
"To whomsoever the soil belongs, he owns also the sky and to the depths"
Bernard
Drill, we love oil
Union Oil
Drill, but not so much that we have excessive drills that aren't in line with the rest of the jurisdiction
Constructive Trust
A legal fiction employed by courts of equity to compel the owner of property to convey that property to the victims of that owner's fraud.
Generally, the goal of a constructive trust is to prevent unjust enrichment of a party who receives title to property but is not legally entitled to that property
Hot News Doctrine
The quasi-property right lasts only as long as the news is a commodity/for as long as it has some market value
Newman v. Bost
RULE: A constructive delivery of a gift causa mortis will be effective where it plainly appears that it was the intention of the donor to make the gift, and where the things intended to be given are not present, or, where present, are incapable of manual delivery from their size or weight.
Elemts of a Gift
1. Present
2. Donee
3. Gratuitous
4. Object
5. Voluntary
Gruen v. Gruen
RULE: A valid inter vivos gift of chattel may be made where the donor reserves a life estate and the donee never has physical possession until the donor's death.
O'Keefe v. Snyder
The discovery rule tolls the statute of limitations if the owner of stolen personal property acted with due diligence to pursue the property.
Howard v. Kunto
RULE: Where several successive purchasers received record title to tract A under the mistaken belief that they were acquiring tract B, immediately contiguous thereto, and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants, there is sufficient privity of estate to permit tacking and thus establish adverse possession as a matter of law.
New York Doctrine
Goof-faith, on the rise
Armory v. Delamire
First finders case. Chimney sweep finds jewel, jewler tries to claim.
- Held that finder has rights against all but the true owner
- Held handing in for valuation does not divest control
Popov v. Hayashi
Ball was abandoned, so entered "commons", so dirst cappture (Intent + Occupancy) = Possession
Do not like "unjust enrichment"
Keeble v. Hickeringill
RULE: A party may not maliciously interfere with the legal use of the land of another.
Ghen v. Rich
RULE: When someone does all that is possible to secure control over a wild animal, within the recognized custom it becomes property of the securer.
Pierson v. Post
RULE: A person who is pursuing a wild animal does not acquire a right to that animal by the mere fact of pursuit; Mere pursuit of wild animal with an intent to capture does not constitute ownership.
Johnson v. McIntosh
Established that Indian tribes had rights to tribal lands that preceded all other American law; only the federal government could take land from the tribes.
Intellectual Property (IP) Default Rule
Copying is good because incentives to create
Two Concepts of Free Riders
i. Parasites --> Market Failure
ii. Lockean Labor Theory --> Enhance Competetion and help lower prices.
Intellectual Property (IP) Protections
1. Trade Secrets
2. Patents
3. Copyrigihts
4. Trademarks
Personal Property (Body)
Moore v. Regents
May have the right of ownership, but not the right to transfer
Moore v. Regents
Genetic material rights case, you do not have ownership rights in your own genetic material
Right of Publicity
Broad Doctrine: Idea-expression dichotomy and fair use
Narrow Doctrine: Intellecutal commons
Four Privacy Torts
1. Appropriation
2. Intrusion
3. False light
4. Disclosure
Property Alienability
1. Market-Inalienable
i. Sales prohibited but gifts alowed
2. Market Alienable (Donating Kidney)
i. Gift prohibite, but sales allowed
3. Inalienable (Forcing to sell when banruptcy)
Types of Defeasibility
1. Determinable
2. Subject to Condition Subsequent
3.Subject to an Executory Limitation
Rule of Construction
Interpretation of a clause, such as an exclusion clause, in order to reflect the parties' intention when making the clause
Waste
Undermining expectations of owners of property
Affirmative Waste
Waste caused by voluntary conduct, which causes a decrease in value
Open Mines Doctrine
If mining was done on the land prior to the life estate, the life tenant can continue mining but is limited to the mines already open.
Permissive Waste
Results from failure to take reasonable care to protect the estate
Ameliorative Waste
Change that benefits the property economically. (Increase value)
Baker v. Weedon
RULE: A court may order the sale of property which is held subject to a future interest, but only if a sale is necessary for the best interests of both the life tenant and the remainderman.
Trusts
Transfer by agreement to legal owner but required to operate it to the benefit of the beneficiaries.
Pur Sturpies
1. Traditional
2. Modern
3. Per Capita at Genration
Traditional Pur Sturpies
Property divided evenly between all survivng heirs
Modern Pur Sturpies
Only divided by what was descended
Per Capita at Generation Pur Sturpies
"Equal heir, equal share."
Vested Remainder
Person is ascertained and NO condition precedent unmet
Indefeasibly Vested Remainders
"O to A for Life, then to B."
i. Undefeatable and Undiminishable
ii. Nothing can prevent the remaindermen from taking possession
Vested Remainders Subject to Open/Partial Divestment
"O to A for Life, then to the hildren of B."
Rule of Convenience
Closes the class (early) when any class member is entitled to immediate possession
Vested Remainders Subject to Total Divestment
"O to A for Life, then to B, but if B drops out of law school, then to C."
Executory Interest
A future interest in a transferee that must divest another estate or interest to become possessory.
Inherently Contingent
Shifting Executory Interest
Divests the grantee
Springing Executory Interest
Divests the grantor
Rule of Finders
If someone finds something, they do not have absolute ownership of it, but they can keep it against anyone who isn't the rightful owner/ previous owner of the thing.
Rules Furthering Marketability
-Doctrine of Destructibility of Contingent Remainders
-Rules in Shelley's Case
-Doctrine of Worthier Title
-Rule Against Perpetuities
Doctrine of Merger
Whenever the same person acquires all of the existing interests in land, present and future, a merger occurs; ex. O conveys by deed "to A for life," then later conveys his reversion interest to A. A will have a fee simple absolute by merger.
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