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#Post#: 55--------------------------------------------------
Property 1 -Outline1!
By: SunsetSailor Date: February 17, 2011, 9:31 pm
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1. Acquisition
a. Discovery  First in time
i. Indians may only sell land to U.S. or under direction of U.S.
ii. Aboriginal Rights
iii. Policy: Use & Development of Land, Locke Labor Theory
b. Rule of Capture
i. First in possession
1. Constructive possession (stretch first in time)
a. Categorical = spectrum
b. Policy = reward labor and kill foxes/whales/ducks (know how
to argue policy)
i. To fight policy: nullify prediction
ii. or nullify morality of predicted outcome
2. Fugitive resources  landowner:
a. Ducks
i. Unfair competition
ii. malicious intent to disturb
b. Inanimate (Oil/water)
i. Oil  dispute over under whose property the oil lies
ii. Water
1. East, Water rights are property front rights
2. West, Water rights are amount of water apportioned
iii. Policy (better wells, pumps)
iv. First in time
ii. Labor Theory
1. Property gained by improvement through addition of self
2. Policy to reward use and improvement
c. By Creation
i. Accession
1. adding labor to another’s property
a. can make it yours
b. but original owner is entitled to value (see Gilbert)
2. “quasi property” (newspapers) property only between
competitors
ii. Eminent Domain
1. Takings Clause: GVN’T may take at fair market value
2. Mandatory License: GVN’T may use patent/™ at cost in certain
situations (Cipro)
iii. Copycats
1. Policy: copycats helps market (Cheny bros)
a. Give less expensive items to public
2. Policy: copycats hurt market (news)
a. Unfair competition
b. Applies only to news industry
3. How to justify/balance interests  promotion of low
costs/unfair competition
a. Reward labor, individual creativity (individual interest) VS
b. Monopolies, stifle creation, improve on creation (public
interest)
iv. Intellectual property
1. Policy: First in Time
2. ©, patent, ™, etc
3. Fair Use: one can copy the expression of an idea, not idea
alone (west side story)
4. laws to protect rights of companies (VW internet)
a. Blue-Note Café
b. Cyber squatters  bad faith intent to profit
v. Property in ones persona (right to control how you are
publicized)
1. Policy: protect labor of creating persona
a. Bette Middler and Ford Co.  Sold to be as Bette
imitation illegal
b. Elvis Estate  Likeness, not interpreted to be Elvis
vi. Property in One’s Person
1. once cells leave body, no longer owned by person
2. Dichotomy
a. Medical research is so important that it should be free
b. If it is so important it cannot be free
3. Balance creator (individual) and public interest?
4. Should body parts be sellable/ownable (bundle of property
rights)?
5. Right to exclude = Categorical
a. While in body, Moore had right of exclusion of cells
b. Jacque v. Steinberg homes (property crossing) Exclusion
c. After leaving body, Moore had no right to exclude
d. State v. Shack (migrant workers aid) No Exclusion
6. Policy, Individual v. public good
d. By Find
i. Finder has right of ownership against all world except true
owner and prior possessor
1. promotes honesty (against biggest strongest person)
2. promotes finding
3. Owner, Finder & Bailee
a. Who could most easily have avoided the situation?
b. Will any party be forced to pay twice?
ii. Attached to property?  constructive possession
1. Broach = not attached (unknown to owner, property of finder)
2. rings lost in pond on property = attached
3. boat buried on property = attached
iii. Mislaid
1. (intentional/unintentional)
2. give to locus owner (not finder) so true owner may find it
iv. Lost
1. unintentional
2. give to finder w/ intent to find true owner
v. Abandoned
1. Intentional disregard
2. finder keeps even if true owner is found
vi. Rule:
1. Finder gets if:
a. Honest
b. Labor of possession
2. Locus owner
a. Reasonable expectation
i. Public/private
ii. Possession/control
b. True owner (mislaid)
vii. Attached to property v mislaid? Constructive possession?
2. Subsequent possession
a. Adverse Possession
i. Theory and Elements
1. Actual/Exclusive
a. No other party possesses land
b. May give permission to any other to be on/use the land
 voids actual & AP
c. If paying rent, have been given permission to use land, no
exclusivity.
2. Visible (Open and Notorious)
a. Must be clearly in possession of land
b. Others must recognize land as belonging to possessor
c. For encroachments, boundary line need not be known, most
jurisdictions allow for permanent structures on encroachment to
purchase encroached land from owner
3. Adverse/Hostile
a. Subjective
i. Aggressive (Maine)
ii. Innocent
b. Objective (Connecticut) intent does not matter
c. Constructive
i. First in time
ii. Actual beats constructive
4. Continuous
a. Tacking (subsequent possessors)
i. Policy 1: Punish sleeping title owner for not using land
ii. Policy 2: Reward possessor (earning theory)
iii. Privity = knowledge of land and boarders by subsequent
possessors
iv. Subsequent possessors = the more knowledge, purchase, the
more privity
1. Merely subsequent
2. Bully
3. Sale (though property was not owned)
4. Gift
b. Continuous judged by type of real estate and use of
surrounding real estate
c. If no time period stated, use 20 yrs.
ii. Color of title
1. Title transferred, but is a fraud or otherwise not valid
2. May ripen into adverse possession
3. Before adverse possession, color of title trumped by actual
title
iii. Policy
1. To protect true owner of the land, reason for the elements
2. To promote the use of land
b. Acquisition by gift (intent, delivery, and acceptance)
i. Intent to gift
1. Giver must demonstrate intent to transfer title at time of
delivery
2. Objective test
ii. Delivery
1. Actual
a. Delivery must be actual where at all possible
b. Actual item is delivered to acceptor
c. Enforceable for conversion
2. Constructive
a. Constructive delivery is allowed (in certain jurisdictions)
where actual delivery is not possible
b. Item that allows access to the gift is actually delivered
3. Symbolic
a. Symbolic delivery is allowed (in certain jurisdictions) where
actual delivery is not possible
b. Item symbolizing actual gift is actually delivered
iii. Acceptance
3. Estates – Note – real property is not “dirt” but interests in
estates
a. Fee Simple
i. The largest estate
ii. Owner owns estate and bundle.
iii. Restraints on alienation:
1. Restraints on, who gets to use land
2. erodes economy rigid class system once all sand is
owned by few
3. punishes creditors, borrowers, cannot borrow/collect on land
owned
4. Remedies:
a. Change wording of grant to eliminate restraint  life
estate
b. Change wording to grant fee simple
iv. Intestate succession
1. Issue (descendants)
2. Parents (ancestors)
3. Collateral (all other family)
4. Escheat to state
v. Determination of transfer of fee simple
1. intent of grantor
2. language in grant
b. Life Estate
i. Small estate
ii. Owner owns use of estate for life.
iii. Hard to sell (at end of life of grantee, land falls back to
grantor/heirs)
iv. Determination of transfer of life estate
1. intent of grantor
2. language in grant
v. Doctrine of waste (future interests and present interests)
1. Affirmative waste, destroying
2. Negligent waste, not used
3. Must take into account present and future interests of the
land
c. Determinable estates
i. Fee simple determinable
1. Contains a right of reverter
2. Automatically reverts when condition is met
3. Includes language with a temporal limitation (until, so long
as, while, etc…)
4. Adverse possession clock starts ticking when condition is met
ii. Fee Simple Subject to Condition Subsequent
1. Contains a right of entry
2. Elective, does not automatically revert to grantor
3. In some jurisdictions, the right of entry is not transferable
intra vivos (minority)
4. Includes language of an express condition (but if, unless, on
condition of, etc…)
5. Adverse possession clock may start ticking when condition is
met (no statute of limitations on re-entry)
4. Future Interests
a. Future interests of transferor:
i. Reversion: Future interest of grantor when a lesser estate
is left
1. Vested: Fully alienable, accelerates into possession upon
termination
2. Not subject to rules against proprieties
ii. Possibility of Reverter: Future interest of a grantor when
fee simple determinable is created
1. Freely alienable in most jurisdictions
2. Termination: could be indefinite in most jurisdictions
iii. Right of Entry: Future interest of a grantor when fee
subject to condition subsequent is created
1. Freely alienable in some states
2. Termination: Could be indefinite in most jurisdictions
b. Future interests of transferees:
i. Remainder: Future interest in grantee that becomes
possessory upon expiration of a prior estate
1. Must be expressly granted
2. Preceding estate must be fee tail, life estate, or term of
years
3. VESTED: To an ascertained person, AND not subject to
condition subsequent
a. “To A for life, then to B in fee simple”
4. CONTINGENT: To an unascertained person, OR subject to
condition subsequent
a. “To A for life, then to B if B survives A”
ii. Executory: Subject top condition precedent, and must divest
the transferor or another transferee
1. It is an executory interest if any of the following:
a. There is no preceding estate
b. It follows a fee simple
c. It does not follow the natural termination of the preceding
estate
I.
Presume O has fee simple prior to the conveyance. After the
conveyance:
Present Possessory Estates
Future Interests
A (Transferee)
O (Grantor)
B (Transferee)
Fee Simple Absolute
--
--
Life Estate
Reversion
Remainder
-- Determinable
Possibility of Reverter
--
-- Subj. to Condition Subsequent
Right of Entry
--
-- Subject to Executory Limitation
--
Executory Interest
II.
Contingent remainder
Vested remainder
A. No person ascertainable; OR
B. Condition precedent
A. Person ascertainable; AND
B. No condition precedent
Vested remainders
in Fee Simple/Life Estate
-- Subject to Open
-- Subject to Divestment
III.
Estate/interest
Fee simple
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