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Property Outline

Law Outlines > Property 1 Outlines

This is an extract of our Property Outline document, which we sell as part of our Property 1 Outlines collection written by the top tier of Widener University Commonwealth Law School students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property 1 Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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?
o 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 o

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.
o 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 enter the hermits land (State v. Shack)
 Most uses of hermit's rights will be governmental

The Bouncer's Right
 The landowner's right to discriminate among various parties permitting some to enter or use the land while keeping others off the property entirely
 There are commercial and non-commercial variations
 Analytically they are similar
 A property owner may not exclude government officials who seek to aid people on the property when they have a legal right to do so (State v. Shack)
o Exclusionary Vibes
 The landowner's communication to potential entrants about the character of the community's inhabitants
 Although the landowner invokes no legal right to exclude anyone from the property in question, an exclusionary vibe may still be effective at excluding a targeted population.
o Exclusionary Amenities
 A collective resource that provokes a polarizing response among people who are considering purchasing a home or renting an apartment
Intellectual Property

Cheney Bros. v. Doris Silk Corporation
 No property rights in ideas
 If there were property rights in ideas than this would eliminate competition

INS v. AP
 You can copy facts from news but can't copy word for word
 This is because of the social value of news to the public

It is a public good

Rule: Ideas can be copyrighted unless they have statutory protection

Rule: Copyright protects form of expression

 Exception: fair use doctrine (Usually for education)
Exception: Transformative use
 Example: Parodies
Moore v. Regents
 Issue 1: Prior Informed Consent
 In this case consent to use cells
 Informed consent necessary
 Issue 2: Conversion
 Taking cells from body to use in research is not conversion

o

Present and Future Interests


Heirs

Get property from person who does not have a will
Devisees

Inherit property from person with a will
Issue

A person who is of lineal dissents
 Example: Children and grandchildren
Ancestors

People who you are descendent from
 Example: Parents and grandparents
Collaterals

Blood relatives who are not descendants or ancestors
 Example: Brothers, sisters, cousins, aunts, uncles, nephews, nieces
Executor

A person appointed to administer a deceased person's estate

Present Interest

Duration

Fee Simple
Absolute

Unlimited

Fee Tail

Fee Simple
Determinable

Potentially
Unlimited (Lasts as long as the blood line)
Limited
(Measured by someone's life)
Potentially
Unlimited

Fee Simple
Subject to

Potentially
Unlimited

Life Estate

Language Which
Creates Interest
"to A"
"To A and his heirs"
"To A and the heirs of A's body"

Future Interest in
Grantor
None

Future Interest in 3rd Party
None

Reversion

Remainder

"To A for life"

Reversion

Remainder

"To A, so long as
…"
"To A, until…"
"To A, but if…"
"To A, on the

Possibility of
Reverter
(automatic)
Right of Entry
(Power of

None

None Condition
Subsequent
Fee Simple
Subject to
Executory
Limitation

Potentially
Unlimited

condition that…"
"To A, provided that…"
Conveyance that would create previous 2, but the future interest is held by a third person,
rather than grantor

Termination)

Executory Interest
(Automatic)

Remainders

A remainder is vested if:
 It is granted to an ascertained person and
 It is not subject to an express condition precedent.
 Death of prior life estate owner does not count as condition precedent

Types of vested remainders
 Indefeasibly vested
 Certain of becoming possessory and
 Cannot be divested
 Vested subject to open class (or vested subject to partial divestment)
 Created in class of persons
 One member of the class is ascertained
 Vested subject to divestment
 Not certain of becoming possessory
 May be divested if stated condition occurs

A remainder is contingent if it is either:
 In an unascertained person OR
 Example: an unborn child
 Subject to condition precedent

Alternative contingent remainders
 When there are 2 contingent remainders that revolve around the same contingency
 Example: "To A for life, then to B if B survives A, and if B does not survive A, then to C."
 If the remainder is granted in fee simple absolute the grantor has no reversion.
Kinds of executory interests

Divest interest of another transferee (shifting)
 O to A, but if A goes to law school, to B
o Divest interest of transferor (springing)
 O to A when A turns 21
Ambiguous Grants Intent of testator, based on language of entire document when read in light of surrounding circumstances

Every grant or devise passes all of estate of grantor or devisor, unless intent to pass lesser estate is expressed or necessarily implied in instrument

Will conveys all of testator's real estate unless contrary intent appears by words or context
Restraints on alienation

Factors
 Type of interest
 Courts are usually hostile toward restraints on the alienation of fee simple interests
 Kind of restraint
 Disabling

Denies the grantee of the property the power to alienate the property
 Promissory

Grantee promises not to alienate the property
 Forfeiture

Grantee will forfeit the property if the grantee attempts to alienate the property
 Whether restraint is total, on one hand, or partial or temporary
Waste Categories

Affirmative Waste
 A voluntary act by the present interest holder that damages property
 Good Husbandry Doctrine
 Present interest holder may harvest timber to the extent that it is consistent with good management of the forest
 Excessive harvesting is prohibited
 Open Mine Doctrine
 Present interest holder may continue to extract mineral resources if extraction was already being done when the present estate began
 New mineral extraction may not begin

Permissive Waste
 The failure of the present interest holder to exercise reasonable care to protect and maintain the property

Ameliorative Waste
 A voluntary act by the present interest holder that increase the value of the property
Concurrent Ownership

Tenancy in Common
 To "A and B"
 Both A and B have right to use and enjoy whole property
 Partition
 Partition in Kind o

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