美国法学院-Property-outline

1、Property OutlineRight to Use (Must consider Zoning) Build house Build 2 unit Apt. building Build factory Conduct pig farm Pollution producing activitiesRight to Exclude All Others (You do not have this right all of the time, must look at laws) New state highway Keep out airplanes traveling to OHare

2、Police chasing escaped convict Tenant who was given 10-year lease by grandparentsRight to Transfer to Others You want to sell it only to African Americans You want to let someone “use” it for a year You want to transfer it to 3 persons You want to sell it, but only want it used as a farm You want to

3、 make gift of the land to your child only if she (1) earns JD degree (2) Never marries and (3) Never marries current beau.Right to “Things” on the Land Wild animals roaming the land Genetic code of rare trees on land Diamond ring “found” on grass Diamond ring found by gardener 6 inches under soil Di

4、amond ring left by door to door salesmen You do not want to pay real estate taxesProperty ClaimsA. Trover Damages measured by the value of the propertyB. Replevin Get the property backChapter 1 Personal PropertySection I. Wild AnimalsI. Categories of Wild AnimalsA. Ferae Naturae- Wild Animalsa. Publ

5、ic Policy1. Want certainty of Ownership2. Encourage the killing of beastsB. Domitae Naturae Domesticated Animalsa. All are owned by someone, even if wanderingb. Public Policy1. Want to know who owns the animalC. Animum Revertendi Animals that returna. Deer that return, swans that come back, carrier

6、pigeon.b. Defeasable property, destroyed if they return to wildnessII. Pursuit does not give you possession. Pierson v. Post, Dapson v. DalyA. Hunter chasing a beast isnt considered to have possession, possession occurs when you have physical possession of it.a. Property can be acquired in wild anim

7、als by occupancy only, and in order to constitute occupancy the animal must be deprived of his natural liberty, by wounding or other methods, so that he can be brought into control and power of the pursuer. Buster v. Newkirkb. Hunter wounded a deer, but didnt kill it. D killed the deer the next day.

8、c. PP Certainty of ownershipIII. Once the person confines the animal in such a way that he can use him when he wants to and there are reasonable precautions to prevent escape, the animal is the property of the person. State of Ohio v. ShawA. Fish confined in a net are sufficiently secured for owners

9、hip to be assumed, even though theres a possibility of escape.IV. A wild animal does not become property until a firm possession has been established by the taker. But as soon as this possession has become full and complete, the right of property is clear, and has all of the characteristics of prope

10、rty. Ghen v. RichA. Traditions of Whale Fishing alter the general idea that you have to have the animal in your control and power to own it.V. Where a violent or malicious act is done to a mans occupation, profession, or way of livelihood, there an action lies in all cases. Keeble v. HickeringillA.

11、Hunter fires gun, to run ducks off of Ps land, disturbs Ps business.VI. Rule of Law holds that the state is a sovereign in regards to the animals in their waters. They have the power to regulate but not power of ownership. S. of N.D. v Dickinson CheeseA. State sued for damages to the fish in their l

12、ake, Section II. Acquiring Abandoned PropertyA. Occupation or possession of property lost, abandoned, or without an owner must depend upon an actual taking of the property with the intent to reduce it to possession. If you place a boat over abandoned property that has the means to raise it, and keep

13、 forth effort to raise the cargo, all while guarding your find from intruders, you have established occupancy. Eads v. BrazeltonA. Court rules that marking a sunken ship with a buoy doesnt amount to occupation. Court said they had to have their boat over the sunken ship, with the capability to raise

14、 it.B. Should someone improve the value of abandoned property through their personal labor or expense, it gives them property rights. Haslem v. LockwoodSection III. Finders RightsI. The finder of a chattel, though he doesnt acquire an absolute property in it, yet has such a property, as will enable

15、him to keep it against all but the rightful owner. Armory v. Delamirie, Clark v. MaloneyII. Ratione Soli Awards property rights to the landowner for items found attached to, or embedded on the owners soil. Barker v. Bates It makes no difference that the possessor is not aware of the things existence

16、. S. Staffirdshire Water v. SharmonA. Trespassers do not have any claim to anything they find while trespassingB. A man does not necessarily possess a thing which is lying unattached on the surface of his land, even though the thing is not possessed by someone else. Hannah v. Peel An item was lost i

17、n Ds house, P found it, Ps entitled to itIII. Employers are entitled to things their employees find, while working, in their place of employmentIV. Types of Property / Finders RightsA. Lost The true owner has been unintentionally dispossessed of the property. The finder has better title to lost stuf

18、f than anyone except the true owner.B. Mislaid The true owner intentionally left the stuff sitting around, intending to pick it up, but forgot. In this case, the owner of the property where the stuff is found has better title to the stuff than anyone except the true owner.C. Abandoned The previous o

19、wner intentionally gave up the property and left it lying around so that someone else could acquire it. For example, if you leave furniture on the curb to be picked up by the garbage truck, it could be understood to be abandoned property. The finder of such property has an unqualified right to it.D.

20、 Treasure trove This one is like pirate booty! If you find hidden treasure that has been hidden for so long that it would be impossible to find the true owner, then the treasure is awarded to the finder as long as they werent trespassingSection V. BailmentsI. Definition The transfer of possession of

21、 personal property to a person who is not its owner and for a limited purpose. It requires the possession of the property by the bailor, its delivery to the bailee pursuant to a contract or other agreement, and its acceptance by the bailee.II. ElementsA. Possession of the chattel nearly impossible t

22、o establish ownership, so possession is satisfactory Dominion and ControlB. Delivery of possession to the baileeC. Control of the chattel by the baileeIII. Types of BailmentsA. Bailment for ConsiderationB. Reciprocal Bailment Bailor and Bailee get a benefitC. Gratuitous Bailment As GiftD. Constructi

23、ve Bailment involuntary bailee is liable once he exercises dominion and control over the thing.IV. Burdon of Proof A. Bailor must prove there was a bailment, and they didnt get the item backB. Bailee must prove the absence of negligence.V. Duty of CareA. Bailment benefiting Bailor Low duty of careB.

24、 Bailment benefiting both Equal duty of care, if not then negligenceC. Bailment benefiting Bailee High duty of careVI. Bailee is responsible to the bailor, if the goods are lost or damaged by his willful default or gross negligence, or if he doesnt deliver up the chattels on lawful demand, it is the

25、refore reasonable that he should have a right to recover either the specific goods, or else a satisfaction in damagesVII. Whether a sale is a bailment or sale depends generally on whether the product of the identical articles delivered is to be returned to the original owner, though in a new form. I

26、f it is to be returned, it is a bailment. Carr v. Hoosier PhotoSection VI. GiftsI. Types of GiftsA. Inter Vivos Gift while livingB. Testamentary At death of donorC. Gifts Causa Mortis On condition of donors deathII. Elements Inter Vivos GiftsA. Donative Intent Want to make a gift now, not in the fut

27、ureB. Delivery most important, transfer from one to the other, manifests the donative intent1. Actual2. Constructive3. SymbolicC. Acceptance III. Donative IntentA. Intent to make a gift now Inter Vivos giftsB. Intent to make a gift at Donors death Must do it by willIV. In order to transfer property

28、by gift there must either be a deed or instrument of gift, or there must be an actual delivery of the thing to the donee. Irons v. SmallpieceV. In order to have a valid inter vivos gift, there must be a delivery of the gift, either by a physical delivery of the subject of the gift or a constructive

29、or symbolic delivery such as by an instrument of gift, sufficient to divest the donor of dominion and control over the property. Gruen v. GruenVI. A check isnt a gift, until it is deposited or cashed. The giftor still has the funds, and can cancel the check still.Section X. Adverse Possession of Per

30、sonaltyI. A BFP may transfer the property to another who can then defeat the rights of its true ownerII. Adverse possessors be they BFPs or thieves, obtain absolute ownership of personalty by meeting the requirements of the law of adverse possession.III. Statute of Limitations “No action shall be br

31、ought, unless within”A. Rules for when SoL begins to run1. Traditional Rule runs from the time of the theft (When possession is taken)2. Discovery Rule When true owner finds out the property is missinga. Public Policy is against the discovery rule, because its more harsh on the true ownerb. True own

32、er would have to prove due diligence in getting the property back and this is difficult3. New York Rule When true owner makes a demand for return and the demand is refused.IV. Elements The occupants possession must beA. ActualB. Continuous for the Statutory PeriodC. ExclusiveD. HostileE. Open and No

33、toriousF. (Sometimes) under the color of title.V. Causes of Action for APA. EjectmentB. Quiet TitleVI. Public PoliciesA. Discourage state claims by the true ownerB. Punishes those who dont use landC. Preserves peace VII. Until demand is made and refused, possession of the stolen property by the GFP

34、for value is not considered wrongfulChapter 2 - The Law of NeighborsSection I. Adverse PossessionSub-Section A. The Statutory BasisI. As with personal property, every American jurisdiction has a statute of limitations requiring that actions to recover property be brought within a certain number of y

35、ears from the time when a cause of action accrued.II. American statutes permit wrongful possessors of land to obtain good title to it whenever rightful owners fail to bring an action ot recover the land within the statutory period. III. Disabilities differ by jurisdiction. Generally include.A. A.Und

36、er 21 years oldC. InsaneD. Inprisoned on any criminal charge or in execution upon some conviction of a criminal offence for any term less than lifeB. A married woman (Old Days)IV. Where the statute has begun to run against the ancestor or the other person under whom a plaintiff claims, it continues

37、to run against the plaintiff, notwithstanding any disability when the right accrues to the latter. Fleming v. GriswoldSub-Section B. The Elements of Adverse PossessionI. Elements Failure to prove any of the elements results in failure to acquire title by APA. Actual Entry Must be there, cant do it s

38、imply by thinking about itB. Open & Notorious Must let everyone see you there as if you were the real ownerC. Hostile Cannot be there with permissionD. Statutory Period Must be there for the time prescribed by law.E. Exclusive Can not be shared during the period of adverse possessionII. Hostility ar

39、ises from the intention of the adverse possessor to claim exclusive ownership of the property. No specific intent directed toward the owner is requiredIII. The intention to hold adversely must be clear, distinct, and unequivocal. Possession will not ordinarily be presumed to be adverse, but rather s

40、ubservient to the true ownerIV. P usually has burden of proof for trespass, but when claiming adverse possession burden of proof shifts to D (Affirmative Defense)V. Adverse possession w/o enclosure need not be characterized by a physical constant, visible occupancy or improved by improvements of eve

41、ry square foot of the land.VI. Actual occupancy means the ordinary use to which the land is capable and such as an owner would make of it. Any actual visible means, which gives notice of exclusion from the property to the true owner or to the public and of defendants dominion over it, is sufficient.

42、VII. There must have been an intention on the part of the person in possession to claim title, so manifested by his declarations or his acts, that a failure of the owner to prosecute w/in the time limited raises a presumption of an extinguishment or a surrender of his claim.Sub-Section C. The Future

43、 of Adverse PossessionI. Florida Statute for Adverse PossessionA. Without either color of title or payment of taxes, and w/o seven years of actual, adverse, open, hostile, and continuous enclosure or cultivation, or adverse claim cannot ripen into a valid legal titleChapter 3 Estates in Land“You can

44、 only sell what you have”The Fee Simple (Absolute)I. O_To X and His Heirs_ XA. (and his heirs) means absolutely nothing, words that make it a FSAII. Magic WordsA. To X and his heirs B. To X (Only works in the present time, previously would be a life estate)III. Xs RightsA. X is entitled to present p

45、ossessionB. X is entitled to future possession until X diesC. X can do what ever he wants to with the property (W/in the law)IV. Greatest possible ownership in landV. If the court cant figure out the intent of a deed or will, they will consider the gift FSA (Public Policy)A. Want to enforce the inte

46、nt of the true ownerB. Dont want restrictions on transactionsC. Want to have the fewest owners possible of one piece of landD. Want to promote marketabilityVI. If you have FSA you have every possible right to the propertyA. AlienabilityB. Right to UseC. Right to ExcludeD. Right to DeviseE. Inheritab

47、ilityVII. Future Interest of OA. O retains nothingThe Fee TailI. O_To X and the heirs of his body_ II. Magic WordsA. To X and the heirs of his/her bodyB. To X and the heirs of her body by ZC. To X and the male/female heirs of his/her bodyIII. Xs RightsA. X is entitled to present possession B. X is e

48、ntitled to future possession until Xs deathC. Only Xs children are entitled to inheritD. Upon Xs childrens death, only their children may inheritIV. A fee tail isA. Not freely alienableB. Inheritable by specific peopleC. Not devisableV. Fee Tails no longer existVI. Future Interest of OA. O retains a

49、 ReversionThe Life EstateI. O_To X for Life_ II. Magic WordsA. To X for lifeB. To X (Before 1700, now would create a FSA)C. To X to use during their lifeIII. Xs RightsA. X is entitled to present possessionB. X is entitled to future possession until Xs deathC. Xs heirs inherit nothingD. X may alienat

50、e the right to possession for Xs lifeE. Doctrine of Waste Life tenant must not use land in way that harms “remainderman”IV. A life estate isA. Alienable (For Xs life)B. Not inheritable (Except for life estate pur autre vie)C. Not devisableV. Future Interest of OA. O retains a reversionFee Simple Det

51、erminableI. O_To X as long as . _ II. Magic WordsA. To X as long asB. To X whileC. To X duringD. To X untilIII. Xs rightsA. X is entitled to conditional present possessionB. X is entitled to conditional future possessionC. Xs heirs can inherit the FSD upon Xs deathIV. A FSD isA. Free alienable, with

52、 the same conditionsB. Indefinitely inheritable w/ the same conditionsC. Devisable, w/ the same conditionsV. Automatically comes to an end when a stated event occurs, or fails to occurVI. Future Interest of OA. O has the possibility of reverterFee Simple on Condition SubsequentI. O_To X but if _ II.

53、 Magic WordsA. To X howeverB. To X but ifC. To X provided thatIII. Xs rightsA. X is entitled to conditional present possessionB. X is entitled to conditional future possessionC. Xs heirs can inherit the FSD upon Xs deathIV. A FSD isA. Free alienable, with the same conditionsB. Indefinitely inheritab

54、le w/ the same conditionsC. Devisable, w/ the same conditionsV. Does not automatically end when the event occurs, grantor has the right to take it backVI. Future Interest of OA. O has the right of re-entryRemainderI. RulesA. Only expirable estates can be followed by a future interest in a granteeB.

55、The future interest created in B must be capable of taking effect immediately upon expiration of the preceding estatea. Ex. O A for life, then to B and his errorsi. A has life estate, B has remainderb. Negative Ex. O A for life, and one year later to B and his heirsi. A has life estate, O has revers

56、ion, B has nothing, because the remainder does not take effect immediately at the expiration of the previous estate.C. The future interest created must not take effect before the expiration of the preceding estate.II. Vested RemaindersA. X is said to have a vested remainder if X has a remainder anda. X is a person born and ascertainableb. There is no condition other than the expiration of the preceding estate that must be met before Xs interest may come into possessionB. Ex: OA for life, then to B and his heirsa. A has life estate, B has