Views on the origin of property:

Legal positivism versus natural law theory

Bonus:  Where did Locke stand?

Legal positivism:  rights are product of government

Natural law:  Rights are a product of nature, independent of government

Locke:  purpose of government is to enforce natural law (NLT)

Bonus:  What view on the origin of property does the Declaration of Independence subscribe to?

And the Constitution?

Declaration:  Natural law (right to life, liberty & pursuit of happiness endowed by the creator)

Constitution: Legal positivism

What are the three most important rights in the property rights bundle?

Which of these is essential?  Which are absolute?

1.  Right to exclude

2.  Right to transfer

3.  Right to possess

None are essential or absolute

What rights are involved in

Real Property versus Personal Property

Real property:  Rights in land and anything attached to it.

Personal property:  1.  Chattel:  Anything tangible

2.  Intangible:  Intellectual property, etc.

Theories of Property

Name 4, how do they work?

1.  First occupancy-->first in time

2.  Labor theory (Lockean)-->adding labor to stuff gives person property right in that stuff.

3.  Traditional Utilitarianism:  Property rights promote general welfare, and there is no moral entitlement

4.  Economic utilitarianism:  Everything is converted to $, promotes efficient use of resources, maximizing public good.

Capture Rule

What does Pierson v. Post establish as the rule, and how does Ghen v. Rich add to it?

Pierson v. Post:  Capture = successful kill/capture, or diligent pursuit + mortal wounding

Ghen v. Rich = within the context and customs appropriate ("all a whaler could do")

Finders

What are the three categories of property finders might come across?

1.  abandoned (O intentionally/voluntarily relinguishes all rights)

2.  Lost:  Unintentionally and involuntarily parts with property

3.  Mislaid:  voluntarily put in place and O intends to retain ownership but fails to do so

Finder versus Landowner

Who gets what? and why?

Landowner gets stuff within a house, embedded in the soil. (has "constructive possession)

If found in a public place, usually considered "mislaid," and again, goes to landowner based on legal fiction that it was entrusted to owner's custody.

Gift inter vivos:  made between living people, irrevocable

Gift causa mortis:  made between living people, but where the donor's is anticipating imminent death.  Gift is revocable if donor survives.

1.  Intent

2. Delivery

C. acceptance (presumed if object is of value)

Manual/Actual Delivery

Constructive Delivery:  transfer of access/control (like a key)

Symbolic delivery:  representation/symbolizes the gift (title)

1.  intent

2.  delivery

3.  acceptance

4.  donor's expectation of imminent death.

1.  actual entry

2.  exclusive

3.  Open and notorious

4.  Adverse, under a claim of right

5. Continuous

For a statutory period.

O'Keeffe v. Snyder:  

Statute of limitations doesn't start until the conduct of the adverse possesser is obvious enough to put the diligent owner on notice.

Traditional significance of  Freehold versus Nonfreehold Estates:

Modern significance?

Traditonal

Freehold:  owners have a mystical form of possession--seisin

Nonfreehold:  No seisin

Modern

Freehold = owning

nonfreehold = forms of leasing.

to A . . .. and his heirs

wop:  identify who owns the estate

wol:  identify the type of estate A is recieving

Old:  "To A and his heirs"

Current:  "to A"--we assume the entire estate is being conveyed unless donor uses specific language to convey less than that.

Fee Tail

What is it, why did people do it?

What is a Life Estate

Freehold/non-freehold?

An estate whos duration is measured by the life/lives of specified persons.

Freehold.

For adverse possession, claimant can only be found to constructively possess that which she occupies/uses.

If claimant has color of title, and occupies part of the parcel, they are deemed to have constructive possession of the whole parcel

What's "open and notorious" possession for an adverse possession claim?

Examples?

Obvious enough possession that a diligent inspection by the owner would reveal the adverse possessor.

Building, growing crops are usually sufficient.  For unimproved rural lands, less intensive uses can suffice (hunting, wood-cutting, no-trespassing signs)

What's "adverse" under claim of right?

Three ways to address:

1.  Objective test--no concern w/ state of adverse possessor's mind:  Used w/o permission (claim of right language kind of ignored)

2.  Good Faith test--adverse possessor mistakenly thinks land is theirs.

3.  Intentional Trespass:  Adverse possessor knew the land wasn't theirs & intended to take title.

Combining successive periods of adverse possession by different people to satisfy statutory duration requirements.

To use tacking, there must be privity between successive claimants by the transfer of possessory rights.

What does it mean for the period of an adverse possession to be tolled?  When would this occur?

How does it work?

Tolling: is extending the adverse possession period when the owner is not able to protect his interests due to disability such as age, imprisonment, or mental incapacity.

In most states tolling can only be used if the disability already existed when adverse possession began.

Fair competition enriches society, but Hickeringill's conduct was counter to social improvement.

IE:  Public policy outcomes should be considered in deciding the boundaries of enforceable property.

1.  Agreed boundaries:  oral agreement

2.  Acquiescence:  Owner doesn't object to a known encroachment over a long period of time.

3.  Equitable estoppel:  If a neighbor convinces another neighbor to rely on their statement and this is to the detriment of the neighbor who thought they knew where the boundary was--can't deny their statements.

What are the four means of passing land ownership form one person to another?

*Note that three are accomplished by the grantor and the last is accomplished thorugh law.

1. sale

2.  give

3.  testate succession

4.  intestate succession

*1-3 are "conveyances" that go to grantee or purchaser

4. is an inheritance that goes to heir

term of years

periodic tenancy 

tennancy at will

Interest:  refers to when ownership begins (future?  Present?)

Estate: refers to when ownership ends (life estate? Fee simple because there's no set end point?)