Property Outline

Property Outline

Possession of Personal Property

• Rule of Capture

  • A person gains ownership of a previously unowned wild animal by capturing or gaining possession of it

    • a wild animal is considered in the possession of someone when that person has either killed or mortally wounded the animal

    • Mere pursuit does not vest title in the pursuer, unless it is accompanied by bodily seizure of the animal, mortal wounding, or physical capture

  • In order for possession of abandoned property to occur, control must be demonstrated over the property as contextual in nature.

    • Barry Bonds baseball

• Bailments

  • In order for a bailment to exist mutual assent must exist between the bailor and bailee where the bailor makes it known what is being given to the bailee

    • Ex. In Peet v. Roth Hotel gave the ring to hotel desk for safe keeping

    • Exact value does not need to be made known as long as bailee is aware of what is being given to them

  • Non-gratuitous bailment

    • Mutual benefit to both parties

    • Does not apply under the modern rule

  • Standard of Care

    • Modern Rule

      • Ordinary standard of care is to be used

        • What would the ordinary person do?

        • Depends on the circumstances

          • Circumstances depend on the value of the object

      • Misdelivery

        • Strict liabilty

    • Common law

      • Bailments solely for the benefit of the bailor

        • Bailee is liable for only gross negligence and is expected to exercise only slight care of the bailed good

      • Mutual benefit bailment

        • Most bailments created as part of a commercial relationship are considered mutual benefit bailments

        • The bailee is liable for ordinary negligence and expected to exercise ordinary care.

      • Bailments solely for the benefit of the bailee

        • The bailee is liable for even slight negligence and is expected to exercise great care.

      • Misdelivery

        • Strict Liability

  • Burden of Proof

    • has the standard of proof to show they were not negligent

• Finding

  • Abandoned Property

    • Property is abandoned when the owner no longer wants to possess it

    • Must be a relinquishment of the property

    • Belongs to the finder of the property against all others

      • Includes the true owner

  • Lost Property

    • Property is lost when the owner unintentionally and involuntarily parts with its possession and does not know where it is

    • Belongs to the finder of the property against all others except true owner

  • Mislaid Property

    • Property is mislaid when it is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is.

    • The finder of mislaid property acquires no rights to it

    • The right of possession belongs to the owner of the premises upon which the property is found

      • True owner still has absolute right to the property

  • Treasure Trove

    • Property that consists of coins or currency concealed by the owner long ago.

    • Owner is probably dead or undiscoverable

    • Belongs to the finder against all others except true owner

• Gifts of Personal Property

  • 3 elements of a valid gift during life (inter vivos)

    • Intent to make a present transfer

      • Did the owner intend to make a gift?

      • If the donor intended to make gift during life, then the gift will be valid if other elements are met

      • Make transfer now

      • Intent must be clear and unmistakable

    • Delivery

      • Actual delivery

        • Involves an actual physical transfer of the object from the donor to the donee

        • Common law required actual delivery if it was possible to physically transfer the object

      • Constructive Delivery

        • The transfer of some object, usually a key, that will give access to the property that is the subject of the gift

      • Symbolic delivery

        • Involves the transfer of a written document that evidences intent to make a gift of personal property

    • Acceptance

      • Acceptance of a gift is presumed so long as the object has some value

      • Rarely an issue

Possession of Real Property

• Adverse Possession

  • Actual Entry

    • Triggers cause of action for trespass or ejectment

  • Exclusive possession

    • Can’t share with the owner

    • Can’t share with the public

  • Open and Notorious

    • Two ways of understanding this requirement

      • Notice to neighbors

      • Notice to landowners

        • Landowners must have reasonable knowledge

          • A minor encroachment which is not visible to the naked eye is not considered to be open and notorious

          • Marengo Cave underground cavern did not count because owner could not have reasonable knowledge about the cave extending under his land

  • Adverse and Under Claim of Right

    • Possession is adverse to true owner

    • Possession is without owner’s consent or permission

    • States apply 3 different approaches of state of mind

      • Possessor’s state of mind is irrelevant; possessor must use land as reasonable owner would use it

        • Most States

        • If state of mind does not matter than you need to act like true owner and you must NOT have permission

      • Possessor must have good faith claim

        • The possession can be by mistake

        • Requires that adverse possessor honestly believed he owned the property

      • Possessor must be aggressive trespasser

        • Required that adverse possessor knew that the property was owned by someone else

        • Mistake does not qualify here

  • Continuous

    • Degree of occupancy and use that average owner would make of particular property

      • Can be used as a summer home

    • Tacking

      • If the adverse possessor is in privity with a prior adverse possessor, she can tack on the prior possessor’s time of possession onto her own to satisfy the statutory period

        • For privity there must be a written transfer, usually a deed.

          • The deed does not necessarily need to describe any of the land occupied.

  • For Statutory Period

    • All elements must be met for statutory period

    • Period will vary, based on statute

• Exclusion

  • The Hermit’s Right

    • Traditional account of the property right to exclude emphasizes a solitary, isolated individual who excludes everyone from his land

    • The hermit’s land may be invaded by another who can raise a necessity defense to trespass, and public agents like firemen or police officers in hot pursuit may be privileged to...

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