Uploaded by amandapfeffer87

Property Outline- 1L

Sunday, February 13, 2022
10:46 AM
Original Acquisition by capture
First ask: Is it in someone's prop? rational soli- Owned by whoever owns the prop (constructive
Then determine whether animal is domesticated or not? If domesticated then it has a will to
return to original owner, look for things that suggest they belong to someone (a bell or collar), if
domesticated then cannot kill it, assume it is domesticated
If not domesticated then we apply rule of capture first in time first in right have to see what we
assume in that context (3 things to take into account)
o Goal- What is the goal you want to serve? The societal goal
o Certainty-Certain who for sure killed it
o Is it difficult to administer? Administrability- what is the easiest rule that makes sense
Rational soli
o is what will determine rule of capture, landowner is considered to be in possession of a
resource that’s on their land even if they do not have physical possession of it
Doctrine of increase
o Offspring of domestic animals belongs to the owner of the original stock
Doctrine of accession
o A in good faith applies labor alone or labor plus materials to some object that B owns. If
A adds labor alone, the final product is generally awarded to B unless A's labor (1)
transforms the original item into a fundamentally different article or (2) greatly
increases the value of B's original item
Rule of Capture
If not domesticated then apply rule of capture, first in time first in right applies diff in diff
contexts but have to take into account:
o Goal- What is the goal you want to serve? The societal goal
o Certainty-Certain who for sure killed it
o Is it difficult to administer? Administrability- what is the easiest rule that makes sense
Having right does not entitle you to trespass to recover what is yours
Fugitive resources
Rule of Capture leads to Tragedy of commons- if we can all use the resource then it will get
exploited, maximize short term gains but pay in the long-term viability of reliability
o Owner manages resource in a more sustainable way
o Connects to utilitarian view- if we assign prop rights then commons will be better,
negotiate with owner
Oil and gas- rule of capture, creates race to pump
o It is owned once it is reduced to physical possession
o Unitization
Water- surface water and groundwater, rule of capture
o Surface water Riparianism (land)- when water is abundant, water rights derivative of rights to
the land, each owner has right to use the water
 Prior appropriation- when water is scarce, person who first captures water and
puts it to reasonable/ beneficial use has right superior to later capturers
Ground water
 Absolute ownership, rule of capture
Bundle of Rights
PO has a collection of rights to prop
o Right to exclude, right to use, right to destroy, sell
Right to Exclude
Most important stick in the bundle according to some scholars
o Strength: Jacque v. Steenberg
trespass was unpriv awarded punitive damages even though no actual damages
was caused
o Limitations: Commonwealth v. Magahni,
 Necessity: exonerates one who commits a crime under the pressure of the
circumstances if the harm that would have resulted from compliance with the
law exceeds the harm resulting from the D's violation of the law
 Elements for necessity
1. Imminent danger
2. D's actions must be capable to abate the danger
3. No legal alternative
 Not necessary to present evidence of exhaustion of all
alternatives only those reasonable for someone in D's
4. Legislature has not precluded the defense
o Civil trespass- consists of unprivileged intentional encroachment upon prop
 Unpriv when encroachment is w/o owner's consent, lacks necessity, is not
otherwise justified by public policy
o Trespass is criminal only when d enters another's land knowing that he lacks priv to do
so or if d refuses to leave after being asked to
o Limits on right to exclude
 Necessity
 No right in denying workers the opportunity for aid available from federal state
or local services
 Civil rights leg forbidding forms of discrimination
 Landlord's right to evict tenants like rent controls
 Public rights of access to private beaches
 Homeowners who have defaulted on mortgage payments
Right to transfer
Andrus v. allard
Prohibition of sale of lawfully acquired prop does not effect a taking in violation of 5th
Takings clause- private prop cant be taken for public use w/o just compensation, govt may take
private prop as long as it does so for public use and with payment of just compensation
Bundle of rights- govt did not take all the rights only right to sell, still had right of possession,
use, display, give, devise, and others
Reduction in value of prop is not necessarily equated with taking
Right to Destroy
Eyerman v. Mercantile trust co.
Right to destroy is limited when:
o (1) Cant do what you would by will what you could do if you were alive
o (2) subject to historical landmark preservation
Public Trust Doctrine
Covers the beds of the rivers, river banks, and the wet sun area in the beach, these areas are
owned by state
How does public trust doctrine affect private ownership
o When there is no way to access the wet sun area other than through properties private,
do they need to give public access? YES
Matthews v. bay head improvement association
public trust doctrine-takes into account plenty of actors such as other ways to access when the
prop is not municipally owned
The public must be given both access to and use of privately-owned dry sand areas as
reasonably necessary. While the public's rights in private beaches are not co-extensive with the
rights enjoyed in municipal beaches, private landowners may not in all instances prevent the
public from exercising its rights under the public trust doctrine. The public must be afforded
reasonable access to the foreshore as well as a suitable area for recreation on the dry sand.
Subsequent possession: acquisition of prop by find, adverse
possession, and gift
Acquisition by Find/ Lost Property
Types of lost property
o Abandoned prop- goes to finder, when owner intentionally relinquishes all legal rights
to it with no intention to confer rights on any part person
 Trash
 Considered abandoned after 1 year (period depends on value of item)
o Lost- goes to finder unless it is true owner, if lost then goes to finder bc the true owner
is unlikely to retrace his steps and find it
o Mislaid- more likely owner will recover, assign it to the owner of prop where item is
found, owner intentionally placed it some location and then forgot to retrieve it
 Owner always has a better claim than anyone else
o Treasure trove-money concealed in private place, divide proceeds between finder and
 Under maritime law-ship lost at sea remains owner's prop unless title to the
vessel was abandoned
o Rightful possession of goods by a person who is not the owner
 Voluntary/involuntary (lost prop)
o Intent and control
o Non-fungible goods
o Types and standards of liability for loss or damaged prop
 Benefit the bailor: gross neg (free valet parking)
 Mutual benefit: ordinary (coat check at a restaurant, rental car)
 Benefit of the bailee: slight negligence, great care (borrow a car for free)
o Misplaced property (in all types of bailments) strict liability
o Statutory regulation tends to apply ordinary negligence to all types
Acquisition by Adverse Possession
Statute of limitations, can kick someone out of prop for as long as you have an action for
trespassing (don’t have action for trespass forever-stat of limits), if occupying the prop for the
entire stat of limts then they are the true owner
o No remedy for owner
o New title for ap since date of entry
Does not function as transferring ownership INSTEAD the stat of limitations bars an action by
owner and vests a new title for AP, once acquired the new title relates back to date of event
that started the stat of limits and AP was owner from that date
Reasoning for it: put land to good use and to correct any mistakes
(1) Actual entry- depends on stat of limits running against a cause of action. Entry
creates that cause of action and for trespass and thereby triggers stat
o Entry manifests an interloper who at least is working the prop making it
productive and earning some rights
o Color of title
 Actual possession under color of title of only a part of the land covered
by the defective writing is constructive possession of all that the writing
 Subject to limitations
 AP/trespasser has some sort of deed or conveyance document that tells
them that they are the owners but there is some mistake, states
recognize them some privilege, stat of limits may be shorter in these
 Required in some states
 Advantages in some states shorter stat of limits
 Advantages in all states: constructive possession
 Constructive possession- in general, constructive
possessing, element of control, have means to enter but
not actually there
 Situation where Ap has title owner over plot of land, relax the actual
element of AP and allow them to constructively possess the whole prop
if they actually enter the prop
 If owner is still there and only possessing the house wont be
able to possess the whole
(2) Exclusive possession- absolute exclusivity not required, but AP cant be shared with
true owner or public in general
(3) Open and notorious- entry and acts would put attentive prop owners on notice that
someone is on their prop
o If ap acts would be noticed by ordinary person then owner is regarded as
knowing what should have been known
o Constructive not actual notice
o Sleeping principle- penalize neg owner for sleeping upon his rights
(4) Hostile and under claim of right (adverse)- term of art, AP cant be with true owner's
permission, owner's permission gives AP a license which negates hostility req
o State of mind required by AP, 3 different views
 Objective standard- State of mind is irrelevant, conduct is what matters
 Once entry against owner then there is cause of action
Good faith standard- Required state of mind is "I thought I owned it"
 Requires good faith claim
 Bad faith standard- "I thought I didn’t own it but I intended to make it
 Occupants must intent to take the prop even if they know it
doesn’t belong to them
(5) Continuous and uninterrupted possession- not literally constant but continuous, reentry by owner must be open, hostile, and effective and restarts stat of limits
o Tacking:
o Privity if: (permission to tack)
 A who possesses for a period of time less than the statutory
period, voluntarily transfers the property to B, who then
possesses for a period that, together with that of A, exceeds the
statutory period.
3 policies or theories:
o Avoiding stale claims: stat law, purpose is to bar the assertion of claims based on old,
unreliable evidence by limiting the time frame within which they may be brought to
some reasonable period
 If owner's claim for possession not filed within this period, owner loses title and
adverse possessor gains a new and valid legal title
o Quiet titles/correct title errors: deed may be defective because it was improperly
executed or contains an error in description, ap resolves these probs and quiets title
after a period of time
o Protecting personal attachments: prospect theory- people regard loss of an assent in
hand as more sig than forgoing the opp to realize an apparently equivalent gain
the statute of limitations is extended if specified disabilities are present
 Read the statute
 Procedural
 Minority, incompetency, imprisonment
 Disability must exist when the AP enters the prop
o Disability does not allow the stat of limits to run
o Often it gives extra time once the disability is removed
 Death ends disability
 Disabilities cants be tacked
AP of Chattels: Different approaches under open and notorious element
When stat of limits begins to run for purposes of ap of personal prop
 Conversion rule: stat begins to rule against owner as soon as prop is converted
 Adverse possession approach- limit period runs when the ap takes possession
of chattel and the usual requirements of ap are applied
 Discovery rule-the cause of action for conversion does not accrue, triggering the
running of the statute of limitations, until the owner “discovers, or by exercise
of reasonable diligence and intelligence should have discovered, facts which
form the basis of a cause of action.
Demand rule- the statute of limitations does not begin to run until the true
owner makes a demand for the return of the property and the demand is
Void/ voidable (void-, voidable- title problem in transaction between owner and first
Ex: P steals from D and sells it to S, S (void title) is only protected after stat of limits has
 Only ap cures a theft
 Good faith purchaser of voidable title has a stronger claim than the true owner
 If someone buys from a merchant entrusted with the good (not stolen) the
buyer is protected
Acquisition by Gift
o Intent 
Donor must intent to make a present transfer of existing interest in the prop
Must intent to be legally bound now not in future
Intention may be shown by oral evidence
 Donor must transfer possession to the donee with manifested intention to make
a gift to the donee
 If manual delivery not practicable then constructive or symbolic delivery may be
o Constructive delivery is handing over a key or some object that will
open up access to the subject matter of the gift
o Symbolic delivery is handing over something symbolic of prop given
o Written instrument declaring gift
 Traditional rule: if object can be handed over it must be
o Manual> constructive> symbolic
 Presumed
 Not revocable, has to be present transfer
 Gifts causa mortis: (gifts they give you bc they are dying not gifts they gift you
when they die)
o Revocable
o Historically: automatically revoked when someone gets better
o Expressly: if someone does not revoke the gift during a certain
period after the person gets better then keep it
 Engagement rings:
o Exception to rule that gifts are irrevocable
o 3 groups of states:
o No fault: ring must always be returned
o Montana: who receives the ring can keep it
o The ring must be returned except if the person who gave the
ring is the one breaking the engagement
 Checks
o Checks that have not been cashed are not enough to be considered
constructive or symbolic delivery
Not a manual delivery of the money because checks are revocable and
the courts consider death revokes the check
Possessory Estates
Vocabulary p. 194-195
o Decedent- someone who died
o Intestate- when they die without a will
o Testate- when they die with a will
o Heirs-person who inherits prop, living person has no heirs, become heirs until you die
o Issue/descendants-the surviving children, grandchildren, great-grandchildren, and so
on, of a decedent
o Ancestors- People above you on a family tree Parents usually take as heirs if the
decedent leaves no issue.
o Collaterals- All persons related by blood to the decedent who are neither descendants
nor ancestors are collateral kin. Ex. Brothers, sisters, uncles, nieces
o Escheat- If a person dies intestate without any legal heirs, the person’s property
escheats to the state where the property is located.
o Convey- transfer
o Bequest
o Devisees/ beneficiaries- beneficiaries under the will of a testate
o Owner/grantor/ testator
o Grantee/who received the conveyance
Fee Simple (Absolute)
To A and his heirs
o Words of purchase: To A (conveys a Fee simple)
o Words of limitation: And his heirs
Inheritance of fee simple:
o Testate- will
o Interstate Spouse,
 issue,
 collaterals,
 escheat
Fee Tail
To A and the heirs of his body
o Idea was to keep prop between the family, find people related by blood
o Duration: It stays in family, ends when bloodline runs out, then reverts back to grantor
o Who possesses a fee tail can transfer his interest but as soon as he dies the interest will
go to his descendants
Life estate
To a for life
o (duration is life of A)
Control in inheritance (instead of fee tail)
Followed by future interest: reversion or remainder
o Reversion to the grantor (implicit or explicit)
o Remainder in a different transferee
Term of Years
O to A for 5 years
o Words of conveyance: to A
o Words of limitation: for 5 years
o Lease
 It arises when the owner of one of the other types of estates promises to let
someone else use the land for a specific period of time
 The holder of the term of years cant sell, give, or devise the right to use the land
on that period
Defeasible Estates
Comma before
or after
Words in
interest (who
gets the prop)
Estate (ex. Fee
simple, life
estate, etc.)
Determinable (D) After
Grantor/ 3rd
Subject to
subsequent (SCS)
Subject to
limitation (SEL)
3rd party
Determinable estate
Can attach to any type of possessory estate
A determinable estate will end AUTOMATICALLY when the condition happens
TEMPORAL WORDS/DURATION Words to look for: until, so long as, during, etc.
POSITION OF THE COMMA/CLAUSE: The position of the limitation is a good rule of thumb: the
limitation is found before the comma
Estate Subject to Condition Subsequent (SCS)
If the condition happens, the grantor can terminate the estate.
o Estate may be “divested.”
Future interest: Right of entry/power of termination (grantor)
Grantor could not dispose of it. No longer the case.
It can be implied.
Limitation after the comma
o Words to look for: words of condition. Ex. “but if”
It is NOT AUTOMATIC. The state only ends when O takes action.
Same as a fee simple determinable
Estate Subject to Executory Limitation (SEL)
“Grantor transfers a fee simple subject to condition subsequent and in the same instrument
creates a future interest in a 3rd party.”
Future interest of the third party: executory interest
If the condition is met, the divestiture is AUTOMATIC.
Same effect as a fee simple determinable + executory interest but with a different name
The effects of an estate determinable subject when the future interest is held by a third party
(who has an executory interest) are equivalent to an estate subject to executory limitation (the
third party also has an executory interest).