wild animals must be Captured.Captured=mortally wounded or trapped

Minority Rule: Reasonable prospect of capture is enough

Mislaid

Lost

Abandoned

Treasure Trove

Lost

a) def?

b) who gets it?

a)  item that was unintentionallly parted with

b) finder or owner of locus in quo has rights to item above all but the TO

Mislaid

a) def?

b) who gets it?

a) intentionally put in a specific place but TO forgets where they placed it.

b) usually goes to locus in que b/c true owner might remember where they left in and come back.

Coins or currancy, has likely been hidden so long that the TO is dead or unassertainable.

 finder or locus in quo has rights above all but the TO

owner no longer wants property and voluntarily gives up property rights.

Finder has rights above all but the TO

Finder v. Locus in quo (owner or the place where found)

4 Factors courts use?

Employee- if found in "course of employment" employees usually have a duty to give item to Boss who can keep it.  -Some courts disagree

Honest finder- courts may favor someone who makes and attempt to find TO

tresspassing finder- courts favor landowner

Location- underground-- favor landowner

surface--favor finder

public- favor finder

private- favor landowner

Jus tertii:  3rd party can keep item because possessor doesn't have a rightful claim to it.

Courts reject defence:  prior possessor or finder will get possession

Bailment:

1) Possession: bailee must have control over the item to have possession.

-but can be involuntary in the case of a finder (who is a bailee)

2) Mutual Assent:consent to take the item

3) Reasonable expection bailee is responsible for shell and thing inside regardless if it's value is know.

Levels of care required by bailee?

a) Common Law

b) Modern Rule

a)  Depends on who benefits:

Benifit of bailor: slight care

Mutual benifit:  ordinary care

Benifit of bailee: extraordinary care

b) Modern Rule: All bailments require ordinary care

Bailee has a duty to deliver and is STRICTLY laible if item is mistakenly delivered to a 3rd party

EXCEPTION:  Finders are required to use ordinary care to locate the TO.

Possession rights of a thief?

equitable estopple

Common Law

Trad view: TO is estopped from using the derivative title principle to recover an item from a later purchaser.

-when owner had created a bailment and gives the bailee indicia of title.

- owner must have been sufficiently blameworthy in creating the ostensible ownership problem that misled a good faith buyer.

3rd pary may believe that the possessor is that TO of the object based opon that possession but someone else is the TO.

-causes conflicting claims

a person with voidable title can transfer a good title to a good-faith purchaser for value. (so.. ower can go after someone w/voidable title but only untill he transfers his title to someone else.)

even when...

a)transferor was deceived as to the identity of purchaser

b)the delivery was in exchange for a check that was later dishonered

c) it was agreed that the transaction was to be a cash sale or

d) the delivery was procured thought fraud

TO is estopped from using the derivative title rule when he entrustes the good to a merchant that deals in goods of the kind and it is bought by a good faith buyer.

-TO has cause of action against the merchant only. Entitled to value of item not sentimental value

-Rule facilitates trade b/c buyers know they are getting a good title if perchased from a merchant

testamentary

causa mortic

inter vivos

testamentary gifts

-given in a will at death or donor

-must be signed by testator w/ a witness and notary

Causa Mortis Gifts

Given in expectation of imminent death

donor must die as expected so gift is conditional on donor's death

-or-

 if the donor changes his mind and revokes the gift

given by living person with NO expectationsl

irrevocable

but can be conditional.

Elements of a Gift

Donative Intent

Delivery

Acceptance

Intent to make an immediately effective gift

Intent can be conditional (express or emplied)

Delivery Requirement for a Gift

manual/physical transfer to donee usually required

Majority:  Symbolic/constructive delivery is allowed then manual delivery is impracticable or impossible.

Minority: allow symbolic/constructive delivery when manual deliver is inconvenient

Minority: more flexible with the requirement when there is unequivocal proof of donative intent and allow symbolic/const. delivery regardless

Constructive Delivery?

Symbolic Delivery?

Constructive:  when donor gives the donee the means to gain access to or dominion and control over the item. (like car keys)

Symbolic: when donor gives the donee an item that symbolizes or represents the gift. (like a note or a picture)

usually shown by donee's words or actions

can be implied if the gift is unconditional and beneficial to the donee.

Adverse Possession

a) def.

b) elements required

c)policy?

a) states statute of limitation after which the TO can't take legal action to eject a possessor and adverse possessor gets the title to the land.

b)  POACHER, Possession must be:  Open, Actual, Continuous,  Hostile, Exclusive, for Required period of time.

c) protect stale claims(eviendence it hard to find), quiet title (correct errors),punish TO for sleeping on rights, protect possessor's reliance interest.

Acts that will show TO and everyone else that AP is claiming the land. No secrets! Act like typical owner would

Examples:  farm the land, use for recreation, build a fence, lumbering

Actual possession of entire land is required to put TO on notice

possessor has used the property in the way an average owner of similarly situated property would.

Possession can be constructive W/ color of title

Open: visible/unconcealed

Notorious: the adverse nature of the claim is apparent

AP's claim must be contary to the interests of the TO

three different views (some courts use combination):

objective test: looking at outside objective facts was AP's conduct contary to interests of TO

the good faith test: did AP have a good faith believe they were the owner of the land. (ie. pay taxes or have color of title

intent to claim/aggressive trespasser test: AP had subjective intent to claim the property

depends on the State law

is sometimes shortened when AP has color of title (documentation he thinks is a title)

Successive AP's can add their time if there is a privite voluntary transfer bw them

AP clock keeps going even if color of title might start fresh

written instrument (deed, title ect.) that seems to convey title to land but unknowingly lacks legal effect to convey land. 

-shortens time required for AP in some states

-spreads constructive possession to the entire property not just the part being uses

Tolling

Almost always:  minors, mentally incompetent,

Some states: people in prision or in the millitary

Disability MUST exist BEFORE AP takes possession of the land

-In some states they get the full AP period after the disability is removed 

-other states have a shortened period after disability is removed

Yes! The gov't exception.

Trad: You can NEVER adversely possess against the gov't

Modern:  Federal Gov't and some states have allowed claims in specific circumstance.  For example, when it was not being used for gov't benifit. (like a re-poed lot)

policy: not to lose public land bc some local gov't offical  wasn't doing his job very well.

Types of Concurrent Estates

(differences b/w them)

1) Tenancy in Common- undivided yet separate

2)Joint Tenancy- gives a right of survivorship

four unities: (1)time(2)title(3)interest(4)possession

"to A and B as joint tenants and not as tenants in common"

3)Tenancy by the entirety- right of survivorship

five unities 4 above + married

tenants are treated as one person

NOTE: courts favor tenancy in common w/ it's unclear

TinC: alienable, devisable, and inheritable

creditor can reach the co-tenant's interest b/c it is sepate.

JT:When transfered it severs unity and b/c a tenancy in common.

-if more then 2 people and 1 transfers then others stay in joint tenancy and the other in in a tenancy in common w/ them.

traditional(not availavle now): Husband would transfer the present estate and ROS.  If transfered wife lost right b/c they were viewed as one and husband spoke for the "one"

Married Woman's property Act-gave women equal rights to property Now two views exist:

ONE:  husband and wife were given equal right to transfer ie. she could sell her part too.

TWO:  no unilateral transfers are allowed

Types of litigation for co-tenants

Contribution- make co-tenant account for expenses of carrying charges (taxes, mortgages, insurance, etc.)

Accunting- equitable proceeding to make one co-tenant share the proceeds

Partition-have the court devide it up:

in kind(literly split it in half)

forced sale (split profit)

co-tenants and right of possession?

What happens if a police man ask to come in and one tenant say no and the other says yes???

each one owns a part of the whole and each has a right to possess the whole thing.  Each can invite or exclude who ever they want

So the police man can enter the entire property if just one of the co-tenants says its ok

Co-tenants and rent

a) do they pay it?

b)who gets it if they rent the area out?

a)Maj. you don't have to pay rent to a co-tenant who is not living on the land unless you oust them (ie don't allow them to possess the land) Policy: people would lose there home if they can't pay co-tenant not cool

min: co-tenant must pay a reasonavle price for rent to the one not living there.

b)if you get rent from at non-co-tenant you must split that with the other co-tenants after deduction expenses incurred in leasing property.  Either tenant can lease out the land

Rent from a co-tenent can be used to offset contributions or profit the other is seeking in accounting. (ie. side that didn't live there didn't benefit as much and so shouldn't have to pay as much.  Court will suptract rental value from accountin. 

DEFENSIVE only so if rent is higher the the contribution asked for it won't equal more than 0

cotenant in sole possession need not account for profits unless they oust the other cotenants. In which case they would owe the others 1/2 of rental value. 

trees v. crops

if profit is from the estate itself- (tree, minerals, ect) then it must be shared

if it was planted by a co-tenant (crops ect.) then profits need not be shared but if you farm it they can't farm it so you may be considered "ousting" and have to pay rent for farmland

A)Maj. no right of contribution for repairs but costs can be deducted from accounting or if partitioned an equitable adjustment can compensate for cost of repairs. ( policy: u shouldn't loose your home cause you can't pay to fix the roof)

B)Min. Some courts say Necessary repairs are a carrying charge and require co-tentents reimbursement for reasonable cost fo the repairs.

Improvements: improver can ask for the increased value to prop. only and is liable if value is decreased by "improvement"

Ousting can be significant for purposes of enabling cotenant in possession to establish title through AP. 

(with all the other crap too POACHER!)

 -common law rule does not allow remedy for waste

-but many states have enacted statutes that allow one cotenant to sue another for damages in waste cases.