Property I

Property fall;

Theory’s

Labor-change with efforts

Institution of property-legalizing grabbing of property by men.

Policies that property law promots; individual use of land also; competition, efficient use of land/resources, economics, ease of administration, best interest of public (in that area).

Acquisition;

Discovery;

To gain first possession you must change property with your labor. Symbolic taking and “effective occupation”.

Capture;

Wild animal; must mortally wound, kill or physically trap it. (constrain freedom of movement). Also can’t interfere with right to manage and get profit from own property.

Baseball; must have physical power over it and intent to hold/make use of it.

Determine by custom of industry

Fugitive resources; must capture and intend to make use.

RULE OF TRESPASS, TRUMPS RULE OF CAPTURE.

Creation;

Chattels; by common law property is limited to the chattels which embody his invention. Also have trademark law and copyright law (because we want to encourage effort, economic efficiency).

News case; but want to encourage competition as well.

Cyberspace; ACPA protect trademarks online, if any bad faith you fall under it.

Property in one’s persona

Celebrity right of publicity is property interest. Also name, likeness, and other aspects of identity.

Cells, property but can’t sell. (health and safety, plus don’t expect to keep them).

market-inalienable-give but not sell

market alienable, sell, but not give

inalienable, if can’t sell.

FULL property rights include; right to exclude and include. (migrant worker, mobile home across land).

LIMITS OF PROPERTY RIGHTS and what SUPERCEDES rights? Property not relationship between person and thing but best rights to that thing between persons.

Subsequent possession

Finders;

Finder has good title against everyone else except true owners and subsequent owners (even if finders) .

Exceptions;

Employee (goes to employer)

mislaid (goes to property owner)

buried (goes to property owner)

abandoned ships (act)

repatriation of native American remains act

voluntary bailment; rights only to damages (trover), not to recover property (replevin).

Involuntary bailment; rights to damages (trover) or title (replevin).

Adverse possession;

Statute of limitations after which owner cannot sue a current possessor of land for ownership. When elements fulfilled, transfer of title, once transferred it goes back to when adverse possession first started.

Reasons; automatically quiet titles, sleeping on rights, settle arguments over transfers of land made over a given time ago, reward people who labor over land.

Color of title; defective title-gives you adverse possession to all land in title if you actually possess only part. BUT possession from true owner can trump color of title.

Elements;

Actual entry of exclusive possession

Must use land as typical owner of that land would.

Can’t share any part with public or true owner

Open and notorious

Urban areas; boundary disputes no.

Hostile and adverse

Objective; if no permission from owner

Good faith; trespass was because of mistake.

Intentional trespass; trespass was intentional

Continuous for statutory period

Some statutes have disability exceptions that give more time to true owner, disabilities can’t be tacked and must have existed when adverse possession started.

Can tack possessions from subsequent adverse possessors if there with permission.

Adverse possession by chattels;

Same elements as above but also five ways to interpret open and notorious

Am jur-statute starts running at theft, but stops if chattel concealed, starts again if bought by good faith purchaser

Appellate o’keefe- all elements of adverse possession need to be there including open and notorious

Discovery rule o’keefe-statute starts running from theft, but is stopped until discovery if owner uses du diligence to get it back.

Market overt-good faith purchaser gets it

Ny/gugenheim-doesn’t start running until true owner asks possessor for it back.

Acquisition by gift;

Intention (to give to be bound and give gift NOW0

Delivery (actual if possible, constructive if not, some courts allow symbolic).

Causa mortis; done in anticipation of immediate death; same elements, but courts are very strict about delivery element.

System of estates/present interest;

Fee simple

Life estate

Fee tail (not allowed now, used to go with life estates to heirs of body).

In construing wills;

courts don’t like partial intestacy.

Default that T wanted to transfer all property.

Default to assume fs rather then life estate

Default to assume tenants in common v. joint tenants/

If present and future tenants, sale maybe ordered if necessary and best interests of all parties.

Can restrict use, but not alienation

Condition based on malice invalid.

Default for condition subsequent v. determinable.

Fee simple determinable, goes with possibility of reverter;

Title transfer Automatic if condition breached

Language; so long as, while used for, during continuance of, until no longer used for.

Adverse possession starts when breach.

Fee simple subject to condition subsequent

May be cut short if condition breached by suit.

Language; but if, provided however that, on condition that if premises,..

THIS IS DEFAULT, courts like better, because they don’t like automatic transfer.

Adverse possession starts on exercise of right of re-entry.

Fee simple subject to executory limitation. (3^rd party)) subject to executory interest.

Future interests

Transferor; reversion, possibility of reverter and right of re-entry.

3^rd party; vested remainder, contingent remainder and executory interest.

Vested= ascertained class,

can sell it, give it away, prevent waste etc.

If created in ascertained person and not subject to condition precedent.

Vested indefeasibly (assumed when say vested) will become possessory and cannot be divested.

Vested subject to partial divestment (or subject to open_ when on member is ascertained and no condition precedent, but other members may share which will divest that one person. (class closes when interest of group becomes possessory). SUBJECT TO RAP

Vested subject to complete divestment- if the condition that may happen CAN happen before that interest becomes possessory. SUBJECT TO RAP

Contingent= is when we don’t know who will get it. and

is SUBJECT TO RAP.

Unborn or unascertained person or contingent upon some event occurring other then natural termination of precedent estate. (always add reversion in O, in case it never vests). Even with alternate contingent remainder.

Executory interests

Automatically divests. It has to cut short another estate. Shifting (if comes from 3^rd party). if it comes from o then springing.

Comman rule; if comma is before then contingent, if after then vested.

Rule against perpetuities

Common law rule; no interest is good unless it must vest if at all, no later then 21 years after some life in being at the creation of the interest.

Applies to contingent remainders

Applies to Vested subject to open /partial diviestment

Cannot assume that a person will not have anymore children regardless of age or physical capacity.

Exempt commercial space from RAP.

Exempt options from RAP

Sometimes jurisdictions reform interests so they are good under rap (cy pres).

Wait and see doctrine (wait until time limit to see if it does vest).

USRAP, just 90 years, wait and see, donor can pick this or RAP.

Dynasty trusts; exemption for taxes 1 million/person. can grow in trust, laws will stop in 2010.

Common law concurrent interests

Tenants in common; separate but undivided interests in property,

no survivorship rights.

Can sell or divise by will.

DEFAULT courts prefer unless stated.

Joint tenants; regarded together as single owner. Each owns undivided property of whole.

Right of survivorship.

Must have four unities;

Unity of time

Unity of possession

Unity of title/deed

Unity of interest

Survivorship rights;

avoid probate.

Consequences for creditor; if taken during life then can reach all, after death can get nothing.

Subject to federal taxation.

Equality of shares increasingly ignored by courts.

Tenancy of the entirety-

Only in some states.

Joint tenants plus marriage.

Neither party can defeat others right by conveyance to 3^rd party.

Survivorship rights.

Severance of joint tenancy

Don’t need strawman to do it anymore

But need notice; recording of deed works

Gushing blood is still alive.

Joint tenancy bank accounts

Banks prefer joint tenancy cause easier

Convenience account, a’s account, b has power only to pay bills.

Payable upon death, a’s account, goes to be on death.

True joint tenancy, intention to share sum now and survivorship rights after death.

After death rebuttable presumption of true joint tenancy, which heirs can disprove.

Partition in kind/sale

Court has power to do either, consider best interests of all parties.

Benefits and burdens of sharing ownership.

Ouster; means either beginning of statute of adverse possession against co-tenant, or a refusing access to b, in which case, a owes b rent.

Co-tenant can lease to anyone without permission of co-tenant, as long as he doesn’t keep her out. But then owe ½ rents from lease.

Accounting; must share profits from rent/benefits

Taxes, mortgages, payments; co tenant who pays these has right to contribution from other co-tenants, unless is in sole possession.

Repairs and improvements, generally co-tenant can’t get contributions from others, but usually can get some of profits when sold.

Marital interests

Common law; husband and wife have separate property and ownership goes to spouse who acquired property. Property divided at end of marriage.

Tenancy in entirety may not be touched by creditors. (to protect family home).

Govt. can forfeit for illegal activity as long as remaining interest remains the same.

Otherwise govt. remains like any other creditor.

Termination of marriage by divorce

2000 american law institute; principles of law of family dissolution. “steer middle course between equitable division and equal division, presume equal division, also provide for gradual characterization during lengthy marriages of separate property into marital property.

Compensatory spousal payments

Loss of higher living standard

Loss of earnings caring for children

Loss of earnings caring for elderly

Loss of fair return from investment in others earning capacity

Unfairly disproportionate disparity between spouses in respective abilities to recover pre-marital standards of living after short marriage.

Reimbursement payments

Airline stewardess

Higher education isn’t property itself, but income is a factor that can be used by court in dividing property.

Nature of contribution of spouse, rather then exact career that defines marital property.

Termination of marriage by death

Spouse can get

Dower and curtesy

Dower =wife gets 1/3

Curtesy =husband gets a life estate (if issue from marriage capable of inheriting is born alive).

Will

Modern elective share;

By statute

Usually 1/3 or ½

Only applies to property at death (not intervivos gifts)

Community property states;

Idea is that earnings of spouse during marriage are owned equally in undivided shares by both spouses.

Includes earnings, rents, profits and fruits of earnings (and whatever bought with it).

Presumption of community property

No survivorship rights, some states now let couples designate survivorship rights to community property.

Management.

Either acting alone has power to manage.

One spouse operating business, but

Mortgages and transfers must have both names

Creditors can only reach managing spouses interest.

Managing spouse has fiduciary duty

Mixing community property with separate property.

Inception of right; property is determined at time of purchase. Return of what you paid in plus interest.

Time of vesting; title doesn’t pass until paid for.

Pro rata sharing rule. Community payments buy in a share. (get percentage of profit).

Migrating couples;

If buy house in new state must specify if want to keep property same as old state.

Problem if common law and then move to state with community property, because then no modern elective share.

Law of state where living when dead, is personal property.

Law of state where real property located for real property.

Otherwise it was where bought it.

Rights of domestic partners

Common law marriage; if jurisdiction recognizes, then must hold out as married. Then have same rights as with license.

CA and some states say that contract for property or division or support can be implied from conduct of parties. express contract not necessary. has been applied to same sex couples.

American law institute’s principles of law of family dissolution; domestic partners. Can be implied. Required, share for signifigant period of time, primary residence and life together. If partners terminate when living then marital distribution, if at death, then intestate succession.

Same sex couples different different states, battle for equality.

Defense of marriage act. No state required to recognize marriage contracted in another state. And for federal laws, marriage only man and woman.

Leaseholds; tenant and landlord law.

Term of years- must be fixed beginning and end days.

Periodic tenancy-automatic renewal for set period of time, notice must be 6 months (if 1 year or over) or 30 days (if periodic period less then 6 months).

Tenancy at will; terminable whenever either party wants.

Look at these more with contract law, then traditional property law. (will of parties, intent etc.)

Tenancy at sufferance; holdovers. Landlord can pick

They are trespassers (so sue for eviction damages, etc.)

They are renewing for another lease (for lease term, but no longer then one year)

Once a landlord picks then he is bound.

Fair housing act of 1968. can’t discriminate in rent, advertising or negotiation, sales for; color, race, sex, familial status, national origin, religion, physical disability.

Exceptions for single family homes of own less then three (but no exception for advertising).

Provides for attorney’s fees

Preference for language indicates preference for national origin.

1866 civil rights act. Only for race, and doesn’t cover advertising. But no exceptions. Must prove intent.

Some courts say you can make plus to correct past discrimination.

Soules v. us…says housing providers can raise defenses for actions that seem discriminatory.

Handicap does not include illegal use of controlled substances.

State and local legislation may protect other things.

Delivery of possession

English rule; landlord has implied duty to deliver legal interest and possession.

American rule; landlord has not duty to deliver possession, just legal interest.

Subleases and assignments; use of words in lease doesn’t help. People don’t know which is which, so use intent of parties.

Assignment is when you give all rights up

Privity of estate follows person you assign to, but privity of contract stays with you and landlord, unless landlord signs a novation (express release).

Sublease is when you reserve some

Privity of estate and contract stays with first tenant.

Landlord rights;

privity of contract=sue for contract rental.

Privity of estate= sue for reasonable rental

Possession= sue for eviction.

Clauses that ask for landlord approval before sublease or assign. If not say then some jurisdictions say he has to be reasonable. But if say then doesn’t.

Tenant who defaults

Landlord self help?

Some say never

Some say when can do peaceable and legally entitled, but very strict (almost never applies).

Surrender terminates lease ( if landlord accepts).

Landlord duty to mitigate?

Depends on the jurisdiction; if he does then burden on landlord to show, tenant pays costs.

Landlord’s remedies;

Right to sue for back rent and damages.

Doctrine of anticipatory breach, must have statute

Security deposits; frequently misused

Rent acceleration (must be in contract); means when defaults, the rest of the rent for the term is due, but then landlord can’t take back possession.

Moral hazard.

Landlord’s duties;

Quiet enjoyment

If breached by landlord then constructive eviction.

You can terminate lease and refuse to pay rent.

If breach isn’t substantial enough to leave, then stay in possession and sue for damages.

Sue for declaratory judgment

Warranty of habitability

Usually applies only to residential leases (depends on jurisdiction).

Landlord must maintain and provide clean, safe fit for human habitation. Punitive damages when breach is willfull or wanton or fraudulent.

Courts disagree if tenant can waive

Can leave and not be liable,

Stay and withhold

Retaliatory eviction; by statute. Usually landlord can’t evict within given period of good faith complaint, unless prove it wasn’t retaliatory (rebuttable presumption). If happens after period, then tenant has burden of proof.

If burns down; tenant must pay

Unless only part of building or lease says otherwise

Longer lease means more right to change

Waste; landlord can sue for waste (if you don’t let him know when things are bad…)

Law of fixtures. Anything fixed or attached, you can’t take with you when you leave, now considered real property.

Duty to repair not anymore

Accidental destruction of building lets’ both tenants and landlords out of duties.