Property Quick Outline

8/3/2019 Property Quick Outline

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1. Theories of Propertya. Legal Positivismb. Natural Law Theory

2. Different Types of Propertya. Real Propertyb. Personal Propertyc. Intangible

3. 5 Theoriesa. First Possessionb. Utilitarian/Happinessc. Democracy/Civic Republicanismd. Labore. Personhood

4. Remedies & Property Law Actionsa. Real Property Actions

i. Trespassii. Quiet Title

iii. Nuisanceiv. Adverse Posessionv. Ejectment

b. Personal Property Actions (law of finders)i. Conversion CL tort action of using another s property as one s own

1. Replevin true owner takes action to recover the asset itself 2. Trover true owner seeks monetary compensation for converted personal property

ii. Larceny

iii.

Adverse possession of chattelsiv. Equitable Remedies court brings in question of fairness

1. Injunction2. Removal of Clouds of Title AP claim, Popov v. Hayashi3. Quiet Title dispute on title, I am going to bring action to quiet it

5. Property as Ownershipa. Property Rights are defined by governmentb. Property Rights are not absolutec. Property Rights can be dividedd. Property rights evolve as law changes

i. Destroyii. Exclude

1. Implemented through tort doctrine of trespass2. Property Rights Serve Human Values (State v. Shack)3. Trespass represents legal harm regardless if land is damaged

iii. Possess1. Publicity (Possession Right)

a. What is identityi. Name, likeness, impersonation, celebrity persona (White v. Samsung)

b. When will there be a violation of this right?



i. Promotion of a productii. Any an all uses/references?

iii. What impact of 1 st amendment right and creative expression?1. Overprotection stifles the very creative forces it s supposed to

nurture2. Freedom of speech as scope of protected intellectual property

expands the right of free speech contracts

iv. Use1. Common Law Doctrine of Nuisance

a. Intentionalb. Nontrespassoryc. Unreasonable

i. Gravity of harm > utility of conductd. Substantial Interference withe. The use/enjoyment of plaintiff s land

2. Spite Fencesa. English Rule

i. Erection and maintenance of a spite fence is not an actionable wrongb. American Rule

i. Structure which serves NO useful purpose ANDii. Constructed for SOLE purpose to harm neighbor

v. Transfer1. Any owner may freely transfer any of her property to anyone

a. Transfer by deed:i. Sale/giftii. Convey or grant

iii. Grantor/grantee

b. Transfer by will:i. Deviseii. Testator/testatrix/divisee

c. Intestacy Schemei. Property descend to heirs

6. Adverse Possessiona. Disseisor = person adversely possessing landb. Disseisee = person whose land is adversely possessedc. 4 Justifications for doctrine of AP

i. Preventing frivolous claims

ii. Correcting Title Defectsiii. Encouraging Developmentiv. Protecting Personhood

d. 5 elements within statutory periodi. Actualii. Open/Notorious

iii. Exclusiveiv. Continuousv. Hostile/under claim of title



1. Objective approach court does not care what disseisor was thinking2. Subjective good faith approach disseisor must believe in good faith that land is his3. Subjective bad faith approach disseisor must intend to dispossess true owner of land

vi. Statutory Requirement1. Doctrine of Tacking

a. Allows years to be added together from one disseisor to the next to satisfy stat.requirement

b. Privity must be shown in order for tacking to be validi. Must show connection or relationship between successive occupants

2. Color of Titlea. Claim to title which appears valid but may be legally defective

3. Tollinga. Time period on statutory requirement can be stopped if true owner is disabled

i. Minorityii. Imprisonment

iii. Legal Insanityiv. Away on Military Service

v. Resides Out of State7. Vertical Dimension Ownership

a. Landowner owns as much of the space above the ground as he can occupy or use in connection withland

b. Invasions of space = takingi. Where the trespass directly AND immediately interferes with owner s enjoyment/use of land

c. Indirect Invasion (subsurface ownership)i. P must show physical damage or direct interference with use of land

8. Water Rightsa. Riparian Water Rights

i. Assigns water rights to each landowner whose property adjoins a watercourseii. Theories

1. First come, first served2. Prior Appropriation system (western states)

a. Location of owner s land irrelevantb. Water rights are allocated to the 1 st person to divert water for beneficial use

3. Equal Rightsa. All riparian proprietors have equal rights to use the water, none can use to

deprive others of equal opportunity4. Natural Flow

a. Unlimited amount for natural uses (bathing, washing)b. Take water for artificial use (irrigation) so long as natural flow is not

substantially diminished in quality/quanityt5. Reasonable Use (American Rule)

a. Full use of watercourse that is beneficial but not unreasonable to othersb. Surface Water Rights

i. Common Enemy1. Owner can repel water from land in any manner

ii. Civil Law (Natural Flow)



1. Owner could not interfere with natural drainage or diffused water2. B must accept natural runoff from A s land

iii. Reasonable Use1. Each possessor privileged to make reasonable use of land even though surface waters

may cause harm to othersc. Underground Water Rights

i. Reasonable Use

1. Surface owner may use groundwater for reasonable use on overlying landii. Correlative rights

1. Surface owner is entitle to proportional share of groundwater beneath his landiii. Permit System

1. Water rights obtained through permit9. Owing Personal Property (Possession)

a. Rule of Capturei. Pursuer must take some action to deprive wild animal/unowned thing of natural liberty and

subject it to pursuer s control (Pierson v. Post)ii. Under State v. Shaw (fish in nets)

1. Pursuer must submit wild animal/unowned thing to his control,2. deprive it of its natural liberty,3. and intend not to abandon

b. Role of Customi. Courts may adopt custom when crafting holding (e.g. whales in NE)

c. Gray Rule:i. Possession requires an individual s complete control of an item after any incidental K between

the item and other people and things has concludedd. Bernhardt & Finkelman rule:

i. 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 Popov s argument

e. Conversioni. Wrongful exercise of dominion over the personal property of another

10. Owning Personal Property (Possession) - Findersa. Categories of Found Property

i. Lostii. Mislaid

iii. Abandonediv. Treasure Trove

b. Finder s Rulesi. When there are competing finders the first finder should be the one to keep itii. Finder prevails above all but the true owner/prior possessors

iii. Where found item is attached to land/underground, it is awarded to landowneriv. Where one finds in the course of working for another, the employer should prevailv. The more public the space in which the item was found more likely found item goes to finder

c. Finder s Policiesi. First Possessionii. Rewarding Honesty



iii. Encouraging Findersiv. Returning Property to True Owner

11. Bailmenta. Bailment possessor of property is holding for the true owner

i. Bailor is true ownerii. Bailee has temporary possession of property

b. Types of Bailments/Standard of Care

i. Mutual/for hire1. Negligence/ordinary care2. (E.g. leaving car at mechanic)

ii. Benefit of bailor1. Gross negligence/slight care2. (E.g. Bailee watches bag for Bailor)

iii. Benefit to bailee1. Slight Negligence/high standard of care2. (E.g. Bailor gives Bailee his car)

12. Adverse Possession of Chattels

a. Actual, Exclusive, Continuous, Hostile, Open and Notorious, Statutory Periodi. Open and Notorious

1. Does person use item as normal person would2. Item displayed in public forum3. Item being used in such a way to notify true owner of it s location

a. Concealmenti. Some affirmative act which placed property in situation which prevents

its discoveryii. Statutory Period

1. Tacking

a. Privity between possessors neededb. Some courts refuse tacking because

i. Each transfer without title is a separate conversionii. Tacking increases difficulty that true owner would discover

b. Discovery Rulei. COA will not accrue until injured party discovers, or should have discovered through reasonable

diligence, facts with form the basis of a COA.ii. Was true owner diligent to find whoever has their stuff

iii. Limitations clock only starts ticking when they state a claim of larceny, requires owner to track itdown and find it

c. Demand and Refusal Rulei. Clock doesn t until you find it and say give it upii. statue is tolled until the true owner demands return of chattel

13. Giftsa. Inter Vivos

i. Given while donor is aliveii. Does not require payment or consideration

iii. Donor can back out but once delivered and accepted it is irrevocableb. Elements of Inter Vivos



1. INTENT2. DELIVERY3. ACCEPTANCE

ii. Intent1. Donor must intend to make an immediate transfer of property

iii. Delivery (property must be delivered to donee, so donor parts with dominion and control)1. Manual Transfer

a. Physical exchange2. Constructive Delivery

a. Transfer of something that gives donee access to gift (e.g. key)3. Symbolic Delivery

a. Something that represents the gift (e.g. letter)iv. Acceptance

1. Donee must acceptc. Conditional Gift

i. Engagement rings1. Courts agree ring is given subject to implied condition of marriage, so donor can recover

the ring only if the engagement were dissolved by agreement or if the donee were atfault for breaking it off

2. Albringer v. Harrisa. Anti-Heart Balm Statute

i. If wedding dissolves you can t sue the other party for wedding costsii. Allowed woman to keep ring minority opinion

ii. Donative Intent predicated on:1. Getting married2. Death from anticipated peril

d. Gift Causa Mortis

i. Made in contemplation, fear or peril of deathii. Donor must die of illness or peril which he/she fears

iii. Delivery must occur if person doesn t die it is revoked14. Present Estates: getting started

a. ESTATE: Interest in land which IS or MAY become possessory AND where ownership is measured interms of duration

b. Defining your present estates:i. Language

1. Words of purchase v. words of limitationii. Duration

iii. Transferabilityiv. Future Estatev. Actions estate holder can/cannot take

c. FSA:

i. Language1. to B and his heirs to B, his heirs and assigns, to B

ii. DURATION1. Unlimited

iii. Transferability



1. Deed, will, gift, intestacyiv. Future estate?

1. Nonev. Forfeiture

1. Nonevi. Actions taken by estate holder?

1. Use, abuse, exclusion, possession, enjoy fruits of land, transfer

d . FSDi. Estate in land which automatically expires upon the happening of a stated event which is not

certain to occurii. Language

1. so long as , until , while , during the time that , whena. TIME BASED LANGUAGE

iii. Duration/Forfeiture1. Predicated by determinable language

iv. Transferability1. Deed, gift, will, intestacy, (but only what is owned in FSD)

v. Future estate1. Back to O (possibility of reverter)

e . FSCS

i. FS estate in land which give grantor discretionary power to terminate the grantee s estate afterthe happening of a stated event, not certain to occur

ii. Language1. upon express condition that upon condition that provided that if

iii. Duration/Forfeiture1. Predicated on conditional language

iv. Transferability1. Deed, will gift, intestacy (but only what is owned in the FSCS)

v. Future estate1. Back to O (right of re-entry/power of termination)

vi. Construction preferences1. Closer you can get to FSA the better, FSCS is closer to FSA because in order for fulfill

forfeiture the grantor has to actually come and do something opposed to FSD whereforfeiture is immediate

f . FT - finite

i. Language1. to A and the heirs of his body

a. Fee tail maleb. Fee tail femalec. Fee tail special

ii. Duration1. Life estate in A, subsequent life estates in lineal blood relatives of A

iii. Transferability1. Deed (but limited to fee tail), gift

iv. Future Interest



1. Reversion to grantor (when there are no heirs of the body); remainder to someoneother than grantor

g . LE finite

i. Language1. to A for life A for his natural life A until he dies

a. For life of another : pur autre vieii. Duration

1. Life of Aiii. Future Interest:

1. Reversion to O and his heirs15. Covenant

a. Courts may interpret a qualification in a conveyance to be a covenant rather than a divesting condition.i. Covenant is a promise to do or not do something and a grantor may seek injunctive relief or

damages for a breach of a covenant, but the owner of the FS will not forfeit ownership

16. FUTURE INTEREST: Remaindersa. REMAINDER RULES

i. FI has to be created at same time and by same document as prior estatesii. Follows a freehold estate, but not a defeasible FS

iii. Cannot cut short the prior estates. Remainderman only takes if the other estate has naturallyexpired

iv. No gap between termination of prior estate and remainderman s taking of possession1. Not fulfilling one of these elements means you don t have a remainder and you need to

see if you have executory limitationb. Contingent Remainders

i. Unascertainableii. Subject to condition precedent

iii. Destruction/failure/merger rulesc. Vested Remainders

i. Remainder which is ready to take effect as the present estate immediately upon the expirationof the preceding estate

1. Indefeasibly vested going to get it2. Vested subject to complete defeasance (full divestment) could lose it3. Vested subject to partial defeasance (subject to open) has to share it

17. Rule in Shelley s Case / Doctrine of Worthier Titlea. RISC

i. LANGUAGE

1. O: BA to A for life, remainder to heirs of A2. O: BA to A for life, remainder to heirs of body of A

ii. Result1. Vested remainder to A2. Have to follow RISC regardless of grantor s intent

b. DOWTi. LANGUAGE

1. O:BA to A for life, remainder to heirs of grantor2. O: BA to A for life, then to my heirs



ii. Result1. Remainder to O (unless makes clear not his/her intent)

18. Rule Against Perpetuitiesa. Rule: No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the

creation of the interestb. What interest:

i. Contingent remainders, executory interests, vested remainders subject to openc. Counting:

i. Pick a validating life (life in being at creation of the interest) and add 21 years to the end of theirlife

d. Creation of interest:i. Deed (delivery, will (death), conveyance (date of transfer)

e. BIG QUESTIONi. Is the future interest holder s interest certain

f. RAP: Attacki. Examine the conveyanceii. Determine the nature of all estates

iii. Determine which FI are subject to RAP1. no interest is good

iv. When does the rule period begin?1. at the creation of the interest

v. How long is the rule period?1. A life in being + 21 years

vi. What has to happen for vesting?g. RAP and certainty

i. CERTAIN1. Certain to vest2. Certain not to best3. NOT VOID UNDER RULE

ii. NOT CERTAIN1. Not certain to vest2. Not certain to not vest3. VOID UNDER RULE

h. Protection of future interests: Waste/unproductive propertyi. TYPES

1.

VOLUNTARY stuff you do to diminish the value of property2. PERMISSIVE permitted property to fall into disrepair3. AMELIORATIVE changes nature of estate

ii. NOT WASTE1. Open mines2. Emblements3. Acts which would technically constitute waste under the CL will not be enjoined when

such acts results in improving rather than injuring the property4. There has to be substantial pecuniary damage to the reversionary interest or remainder5. Hierarchy of uses/waste protection



19. Concurrent Estatesa. Joint tenancy

i. Key feature: Right of survivorshipii. Language

1. To A and B as joint tenants with right of survivorship2. To A and B as joint tenants3. To A and B as joint tenants and then to the survivor of them

iii. 4 Unities can be important1. Time, title, interest, possession

iv. Alienation/severance sale/transfer1. Consent/notice not required at CL

v. Questionable severances lease, mortgages1. Title theory v. Lien theory states

vi. Result of severance right of survivorship destroyed and tenancy in common createdb. Tenancy in Common

i. Only 1 unity has to exist : POSESSSION (no right of survivorship)ii. Language

1. To A and B , To A and B as tenants in commoniii. Alienation

1. Gift, sale, willc. Tenancy by entireties

i. Much like JT, but must be shared by husband and wifeii. Language

1. To H&W , husband and wife2. To H&W, husband and wide, and the survivor of them

iii. Unities:1. Time, title Interest Possession, Husband and Wife

iv. Core feature1. Indestructible right of survivorship

v. Groups and T by the E: all respect right of survivorship1. Majority neither spouse may unilaterally burden or subject tenancy to outside

burdens/claims2. Minority vary in how treat ability of single spouse to burden their own right of

survivorshipvi. Remedies between tenants: Contribution, Accounting, Partition (in kind or by sale)

1. Sale factors: sentimental/emotional,20. Marital Property

a. CLi. Curtesy

1. Husband received a LE in ALL of wife s real property of which she was seisedii. Dower

1. Wife has claim in form of LE to 1/3 share of all of the real property of which her husbandwas solely seised in fee simple during his marriage

2. Intended to provide economic and social security for a widowb. Married Women s Property Act

i. Community Property



1. States view marital unit as one, partnership, in which husband and wife work as a unitfor their mutual benefit

2. Whatever one earns is deemed owned by both, so if the husband bought a house withhis wages it is deemed owned half by the husband and half by the wife

3. All property acquired during marriage is presumed to be community propertyii. Separate Property

1. Property acquired before the marriage is separate and belongs to the spouse who

owned the property before the marriage.2. Property acquired during marriage as a gift, inheritance, or a devise is the separate

property of the recipient spousec. What will be deemed marital property?

i. What arguments for recognizing (or not) palimony?1. Palimony

a. Property rights for unmarried cohabitants in committed relationshipb. Express/implied K between unmarried partners in which one partner stated

they would financially support the other in exchange for household dutiesd. What arguments for recognizing (or not) marital property rights to same sex couple?

i. Does giving different names to unions between heterosexual couples and gay couples violateequal protection clause of constitution?

1. Suspect classesa. When you have a law that treats different groups of people differently, law is

suspecti. Immutable traitii. Bears no relation to perform/contribute to society

iii. Associated with stigma of interiority and 2 nd class citizenship

Property Quick Outline

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