Abandoned

Lost

Mislaid

First in possession has superior possession rights over later possessors.

Certain objects require actually establishing dominion over to take possession (a baseball)

Other property only requires someone to begin the process of establishing dominion over it (treasure salvaged from under water, a wounded hunted animal).

Landowners may be able to claim ownership when property is simply on their land.

Landowner claims are stronger when the property is buried on the land, land is for private use, or the property was found by a trespasser.

Landowner claims are weaker when the property is sitting on the land, the property is found by someone with a right to be on the land or the land is intended for public use.

Property inadvertently left somewhere.

Finder has superior rights to everyone except the true owner. 

Case:

Stamps

Some evidence suggests that the original owner has given up rights to the property.

First person to establish possession has superior rights to everyone including the original owner.

Case:

$82,000

Property that was intentionally placed somewhere but the original owner forgot where.  The court assumes that the owner still has a desire to possess it.

Person owning the land has superior rights to the land above all others except the rightful owner.

The property it is found in/on can be a vehicle not just real property.

Case:

Money in the Airplane

Delivery

Acceptance

Case:

The Ring Cast

Can be created by words or conduct.

Control must be relinquished to the bailee.

Constructive bailment can be created by finding property.

Can be shown by words or conduct

Can be created by a representation of security

Must have some knowledge of the contents

Case:

Allen

You can wave the acceptance of a bailment if you give adequate notice.

It is possible to wave a bailment using signs (parking garage) but you have to show that the bailor had to read it.

Duty of Care

An ordinarily prudent person in similar circumstances

Consider:

Nature of property

circumstances of the bailment

knowledge of the value

Case:

The Ring Case

Duty not to misdeliver

Voluntary-Strict Liability

Involuntary (constructive bailment)-Negligence

Note that some jurisdictions have a different duty depending upon the benefiting party.

10 Years

Must meet adverse possession elements

20 Years

We assume that you have done everything necessary to have good title

40 Years

If you occupy land under color of title for 40 years you have good title

Must be continuous for 10 years

Tacking is not allowed

Unless, property was transferred to a legal heir.

Disability or underage of owner prevents the clock from starting.

Once the disability ends and the clock starts it does not stop if disability returns

Once property is acquired by adverse possession it can be transferred to another party--Porter (Sold property to another party along with property they thought they owned adjacent to it but had actually only adversely possessed.

Tacking is allowed

It is possible to tack together the possession by several different owners, none of whom have the 10 years necessary for regular adverse possession

Clock does not start with underage owner.

Clock starts and stops with intermittent disability/sanity of owner

Tacking is allowed as long as there was privity between owners.

Must be under color of title.

Doesn't have to be a valid deed, just a piece of paper that purports ownership

If land is held under color of title the adverse possession claim is for the entire property described in the title, not just what is actually possessed.

If not held under color of title adverse possession claim is for only that land which was cultivated, fenced, significantly improved, or otherwise possessed in a way that an ordinary owner of that type of land would.

Continuous

Hostile

Open

Actual

Notorious

Exclusive

Test: Is the use continuous and consistent with the use of average owners of similar land.

Tests:

Hunting cabin used 6 times/year, concrete slab--Monroe

Cutting timber when it matures--Winchester

Seasonal Use--Nome

Storing things on lot--Jones

Test 1:

Is it a boundary dispute or a tract dispute?

Test 2:

Did the adverse possessor act towards the land as a true owner would?

Boundary dispute:

Parties agree to where the line is on paper but disagree as to where the line is on the ground--mistaken possession of land by an adjacent land owner.  

Tract dispute:

Parties have overlapping deeds.  Overlap creates a separate parcel.  

-Disagreement as to where the line is on the ground

-S.C. Law--Mistaken possession lacks the element of hostility-Lynch

-Unless the possessor intended to possess the land above all others including the rightful owner-Taylor

Majority Rule--The intention of the possessing party does not matter as long as he used it as an owner would.

-Parties have overlapping deeds

-Where they overlap creates a new parcel in the middle

S.C. law--mistaken possession of the land does qualify as hostility--Clark

Basic elements of Hostility

-Did the possessor treat the land as if he owned it?

Selling oil rights, building on it, selling timber--Monroe

Possessing the land with the permission of the actual owner negates hostility--"Trailer Park" case

Test: Are the acts of possession such that the actual owner is put on notice that the land is being adversely possessed?

Acts can be any that give the actual owner notice.

Cutting timber, building a cabin--Monroe

Putting a camper on blocks, installing a septic system, planting non-indigenous trees--Nome

Surrounding property owners assuming that possessor owns the land--Nome

Land must be possessed exclusively by the possessor.

Tests:

-Occasional use by people other than the owners will not negate exclusivity--Porter (turnaround)

-Excluding others from the property is evidence of exclusivity--Nome

Necessary for co-tenants to claim adverse possession.  Clock starts ticking after ouster has occurred.

The possessor must actually deny the co-tenant access to the property.

Changing the locks and not giving co-tenant a key can be ouster (Shecut-beach house)

Co-tenants refusing to assert claim to the land or profit from the land can be ouster (Wright--the Aitchie case)

Execution (of the deed)

Delivery

Recording (only necessary to prevent a subsequent purchaser from claiming superior title)

Granting Clause--describes the consideration, description, and words of grant (to A and his heirs)

Habendum Clause--describes the estate (Fee Simple Absolute, Life Estate, etc.), not required for a valid deed.

Warranty--assurance by grantor that the title is as good as he says it is, gives grantee a remedy if there are problems with title, quit claim deed has no warranty

Signiture--only grantor's signature, necessary for a valid deed, in SC in order to be valid it must also be signed by 2 witnesses

Delivery--must include an intent for title to transfer and some manifestation of that intent

Conveys:

Who the grantor is

Who the grantee is

What property is being conveyed

An Action verb that grants it

Any easements or reservations for the grantor

Consideration--land can be transferred without consideration (Schrieber)

 Description of the property--must be specific enough to be able to tell what the property is (Describing the land as 700' more or less with no monuments on the ground is not specific enough, Kirven)

Describes the estate:

"to A and his heirs and assigns, forever" is Fee Simple Absolute

When there is an inconsistency within the deed regarding the type of estate given the court will generally go with the larger estate (Hunt)

Gives the grantee recourse if grantor's title has encumbrances

Quit Claim--gives no warranty

Limited Warranty--Grantor has done nothing to diminish the title but gives no warranty for what previous owners may have done

General Warranty--warranty's the property against all title defects caused by the grantor and any previous owners

Warranty Covenants

Present Covenants

Present Covenants

A breach of one of these covenants will happen immediately upon conveyance and the grantee will have an immediate right to seek recourse.  Only the first grantee can sue for breach of these since subsequent grantors have no warranty to convey to subsequent grantees. 

Seisen--to have the current possessory right to the title

Right to convey--

Sometimes a trustee may not have seisen but may have the right to convey the property

Against Encumbrances--warranties that there are no encumbrances on the property, or warranties that these encumbrances exist and there are no others (restrictive covenants, easements, etc.)

Warranty Covenants

Future Covenants

Can be breached at some point in time in the future but are not automatically breached at conveyance.  Subsequent purchasers can enforce these.

Further Assurances--grantor will provide any documentation necessary in the future to convey good title

Warranty and quiet enjoyment--no one else will claim against your land or interfere with your title

Grantee cannot sue grantor for a breach of quiet enjoyment until that covenant has actually been breached, not in anticipation of it (Lober, coal on land)

Remedies for Breach of Warranty Covenants

Present and Future

Grantee can sue for breach of present covenants immediately

Grantee can sue for breach of future covenants only when they occur.

Subsequent owners can skip over intermediate owners to sue the owner that committed the harm