ACQUISITION BY CAPTURE
Property 5
Acquisition By Capture 5
Actual physical possession 5
Pierson v. Post (Fox) 5
Ghen v. Rich (Whale) 6
Interference with Business 6
Keeble v. Hickeringhill (Duck Pond) 6
Externalities (Demsetz - Toward a New Theory of Property Rights) 6
Coase 6
Acquisition by Find 6
First in Time 6
Relativity of Title 6
Finder has better right to find than all the world except true owner. 6
Armory v. Delamirie 6
Constructive Possession 6
Finds on private property go to owner 6
Hannah v. Peel (Exception) 6
Invited guests 6
Employees 7
Finds on Private Property Open to the Public 7
McAvoy v. Medina 7
Mislaid objects go to owner of land. 7
Lost objects go to the finder 7
Adverse Possession 7
Elements 7
Exclusive possession 7
Open and Notorious 7
Continuous 7
Statutory Period 7
Hostile 7
Claim of right 7
Policy 7
As Statute of Limitations 7
Color of Title 7
Taxes 7
Adverse Possession Against Governement 7
Real Property 7
Van Valkenburgh v. Lutz (uncle Charlie) 7
Manillo v. Gorski 7
Morengo Caves 7
Howard v. Kunto (shifted lots) 7
Tacking 8
Of AP 8
Of Real Owner 8
No AP against future interests 8
Personal Property 8
Policy 8
O'Keeffe v. Snyder 8
Disabilities 8
Aquisition by Creation 8
Interference with Business 8
International News Service v. Associated Press 8
First in Time 8
Cheney Bros. v. Doris Silk Corp. 8
Unnecessary Statutes 8
Virtual Works v. Volkswagen of America 8
Nuisance 8
Traditional 8
Use one's property in such a way as not to injure the property of another. 9
Elements 9
Substantial 9
non-trespassory 9
invasion of the 9
use or enjoyment of the land. 9
Intentional – Most cases. 9
Unintentional 9
Balancing Test 9
Policy for Balancing 9
Boomer v. Atlantic Cement Co. 9
Spur 9
Property Rules, Liability Rules, and Inalienability 9
Source 9
Property Rules, Liability Rules, and Inalienability: One View of the Cathedral 9
Guido Calabresi / A. Douglas Melamed 9
Property Rule 9
Must be negotiated for and bought, with consent 9
Use when equity and efficiency point the same way 9
Liability Rule 9
Rights to compensation 9
Informative to judge. 9
Inalienable 9
Cannot be taken away 9
Choosing 9
Consider transaction costs. 9
Risky course gives property right to party that doesn't deserve it and relies on post verdict bargaining. 9
When case is close, tough to choose, yet magnitude of mistake is small too. 9
Restatement View 9
Injunctions 9
Damages 9
The Right To Exclude 10
Balancing in Trespass 10
Supreme Court Cases 10
No exclusion for entire town 10
Marsh v. Alabama (1946) 10
Picket Reach Specific Persons 10
Logan Valley Plaza (1968) 10
Decline to Expand Logan 10
Lloyd Corp. v. Tanner (1972) 10
Overrules Logan Valley 10
Hudgens v. NLRB (1976) 10
Pruneyard Shopping Center v. Robins (1980) 10
State v. Shack (1971, NJ) 10
Bell v. Mayland (1964) 10
Possessory Interests In Land 11
Rights in Land 11
Sell 11
price controls 11
blood, organs, babies - give not sell 11
Destroy 11
paper money 11
haz. waste 11
Gift 11
can't in bankruptcy "fraudulent conveyence" 11
sell but can't give. 11
Possessory Estates 11
Granting Language 11
Words of Purchase - To Whom 11
Words of Limitations - What interest 11
Freehold v. Non Freehold Estates 11
Freeholds 11
Non-freeholds 11
Types 11
Fee Simple Absolute 11
Life Estate 11
Fee Tail 11
Leasehold Estates 11
Defeasible Estates 11
Generally 11
Fee Simple Determinable 11
Fee Simple Subject to Condition Subsequent 11
Public policy is Pro-Marriage 12
Adverse Possession in Defeasible Estates 12
Alienability Differences 12
Future Interests 12
Remainders 12
Remainder Test 12
Divest 12
Vested Interests 12
Vested or Contingent Test 12
Condition precedent 12
Executory Interest Test 12
Examples 12
Special Rules For Future Interests 12
Acceleration in Possession 12
Destructibility of Contingent Remainders, Doctrine of 13
Waste 13
Merger, Doctrine of 13
Rule in Shelly’s Case 13
Worthier Title, Doctrine of 13
Rule Against Perpetutities (RAP) 13
Alternatives to RAP 14
Cy Pres 14
Wait and See 14
USRAP 14
New York 14
RAP and Leases 14
The Symphony Space, Inc. v. Pergola Properties, Inc. 14
Easements 14
Generally 14
Right to enter other’s land. 14
Enforcement between contracting parties. Like K 14
Remedies 14
Transferability. 14
Positive Easement 14
Right to enter other’s land 14
Negative Easements 14
Owner promises to refrain from certain action 14
Types 14
Will not block light or air. 14
Lateral Support 14
Subadjacent Support 14
Blocking Artificial Stream 14
Generally 14
Easement Creation 15
Grant 15
Reservation 15
Exception 15
Prescription 15
Necessity 15
Private Eminent Domain 15
Easement Termination 15
Abandonment 15
Necessity 15
Prescription 15
Sale 15
Merger 15
Defeasibility/TOY 15
Types 15
Real Covenants 15
Definition 15
Positive 15
Negative 15
Remedy at Law 15
Caveats 15
Use contract law when between original promisor/promisee 15
Running With The Land 16
Generally 16
Burden 16
Benefit 16
Equitable Servitudes 16
Remedy 16
Remedy at Equity, Injunctions. 16
Elements to Run 16
Burden 16
Benefit 16
Tulk v. Moxhay 16
Establishes equitable servitudes in UK 16
England didn't recognize instantaneous privity. 16
on grounds of fairness 16
Benefits of Covenants 16
Reciprocal Promises 16
Non-reciprocal promises 16
Third Party Beneficiary Solution 16
Implied Negative Reciprocal Servitudes 17
Condo Associations 17
Generally 17
Nahrstedt v. Lakeside Village Condominium Association, Inc. 17
Pets 17
Kids 17
Test 17
Protects against poor choices. 17
Size of Area Restricted 17
Propagation of Rule 17
Trusts 17
Reasons 17
Lack of flexibility in L.E. 17
Creates trustee with power to sell and negotiate 17
Co-Ownership 17
Tenancy in Common 17
Elements 17
Creation 17
Default modern presumption in "To B and C" grants 17
Joint Tenancy 17
Right of survivorship 17
Common Law Presumption 17
Four Unities 17
Destruction 17
Tenancy By the Entirety 18
Elements 18
Destruction 18
Marital Property 18
Common Law 18
Coveture 18
Married Women's Property Acts (1840-1900) 18
Equitable Division 18
Community Property 18
9 states 18
Divides Property into Categories 18
Community Property 18
Commingling 18
Fiduciary Duty 18
Division of Assets 18
Landlord Tenant Law 19
Generally 19
Types 19
Term of Years 19
Periodic Tenancy 19
Tenancy at Will 19
Tenancy at Sufferance 19
Tenants Remedies 20
At CL 20
Constructive Eviction 20
Illegal Leases 20
Implied Warranty of Habitability 20
Delivery of Possession 20
Covenant of Possession 20
English Rules 20
American Rule 20
Subleases and Assignments 20
Sublease 20
Assignment 20
Determination 20
Commercial - Right to Sublease/Assignment 20
Residential Right to Sublease/Assignment 21
Residential Duty to Mitigate 21
Recording System 21
Title Search Process 21
Common Law Rule 21
First in Time 21
Exceptions to First in Time 21
Recording Acts 21
Generally 21
Race 21
Notice 21
Shelter Rule 21
Race Notice 21
Faulty Recording 21
Wild Deeds 22
Chain of Title Problems 22
Covenants & Easements 22
Records Too Soon 22
Records Too Late 22
Land Sales Contracts 22
Purpose 22
Warranties of Grantor 22
Has ownership 22
Marketable Title 22
Violation of Marketable Title 22
Present Violations of Ordinanace & Covenants 22
Adverse Possession 22
Deeds 22
Purpose 22
Effectuates Land Sales 22
Types 22
Quitclaim Deed 22
Special Warranty Deed 22
General Warranty Deed 22
Present Deed Covenants 22
Generally 23
Seisin 23
Right to Convey 23
Against Encumbrances 23
Future Covenants 23
Quiet Enjoyment 23
of General Warranty 23
of Further Assurances 23
Zoning 23
Reasons For 23
Public/Private Land Use Controls 23
Sources 23
Village of Euclid v. Ambler Realty Co. (1926) 23
Aesthetic Zoning 23
Generally 23
Serves General Welfare 23
Standards 23
Zoning Against Speech 24
Adequate Substitution Required 24
Exclusionary Zoning 24
Mt. Laurel I 24
Mt. Laurel II 24
Mt. Laurel III 24
Altman's Thoughts 24
San Antonio Independent School District v. Rodriguez 24
Other Solutions 24
Limits on Ownership 24
Exclusion 24
Use 24
Destruction 24
Alienability (Sale) 25
Eminent Domain 25
Takings 25
Constitutional Source 25
Limits 25
Reasons for Compensation 25
Regulatory Takings 25
Goes Too Far 25
Pennsylvania Coal v. Mahon (1922) 25
Conceptual Severance/Denominator Problem 25
Penn Coal II 25
Goes Too Far II 25
Means/Ends testing 25
DIBE 25
RRI 25
Parcel as a Whole 25
Penn Central v. City of NY (1978) 25
TDR's 25
Permanent Physical Occupation 25
Benefits 25
Loretto v. Teleprompter CATV 26
Exception for Invited Occupations 26
Forced Regulatory Purchases 26
Non-Permanent Cases 26
Nuisance Control 26
Rule 26
Haddacheck v. Sebastian 26
Miller v. Schoene 26
Muggler v. Camdus 26
Harm or Benefit 26
Why not pay? 26
Diminution to Zero 26
All Economicly Viable Uses 26
Traditional CL Nuissance & Property Laws 26
Lucas v. South Carolina Coastal Council (1992) 26
No SOL on Takings 26
Palazzolo v. Rhode Island (2001) 26
Temporary Takings 27
Suits for Takings Damages 27
Compensation Due When Statute Withdrawn 27
First English v. County of LA (1987) 27
Reasons 27
Bad 27
Moratoriums 27
Exactions 27
Same Purpose Test 27
Nollan v. CA Coastal Commission 27
Unconstitutional Conditions Doctrine 27
Concerns 27
Efficiency 27
Analogy 27
Rough Proportionality 27
Dolan v. City of Tigard (1994) 27
Takings Decision Tree 27
No implied covenents 28
Property
relationship among people with respect to things no to a relationship between a person and a thing.
Rights the law protects
Acquisition By Capture
Actual physical possession
Pierson v. Post (Fox)
Possession
Administerability
simple if everyone knows rule
eliminate quarrels
Fairness
A tires out fox, B captures
First in Time?
Instrumental
encourage success not effort
Sport or fox elimination service
Rules can become outdated
Custom
dissent's view
Success v. Effort
No - pursuit alone
Yes. Mortal wounding
Ghen v. Rich (Whale)
Facts
∏ sues for value of whale minus finders fee
Possession
Continued pursuit impossible
pursuit as constructive possession
Name on bomb-lance
Interference with Business
Keeble v. Hickeringhill (Duck Pond)
Instrumental
encourage duck harvesting
judge balanced interests
Interference with commerce
Externalities (Demsetz - Toward a New Theory of Property Rights)
Tragedy of the Commons
Externality
Effect that actor can ignore when computing costs in decision making. Cost to others.
Communal Property
Finite set of people
Property communal
Catch, private
Sharing of catch might upset theory
Tragedy of the Commons
overhunting, mistrust, race to consume
Lake Superior situation can stop this
Free Rider
under contribution, others pay, benefit received
Transaction Costs
Hold-out
best hunter makes demands to give up rights
Private Property
Concentration of Costs and Benefits
Internalizes externalities
Ownership discrete
Lower transaction costs
Fewer persons to negotiate with
Internalization
Decision to reject benefit (liability rule)
Making the offer, or imposition of the fine.
Other Option to Private Property
regulation
communal ownership
Coase
Conditional on low transaction costs
Legal Rules Don't Matter
Outcome is the same.
Acquisition by Find
First in Time
Relativity of Title
the finder of a chattel, though he does not acquire an absolute property in it, yet has such a property, as will enable him to keep it against all but the rightful owner
keep them against all the world but the rightful owner
Contra Waste
Contra Self-Help
Finder has better right to find than all the world except true owner.
Armory v. Delamirie
suit in trover (for value, replevin for object)
Owner still secure in ownership, discourages excessive efforts to protect prop.
Puts item to use even though lost
preserves distinction between thieving and finding.
The finder of a chattel may maintain trover for it.
Prior possesors often are owners who can't prove it.
Constructive Possession
Finds on private property go to owner
Hannah v. Peel (Exception)
Owner never had constructive possession
Invited guests
keep liability of loss with location of property.
owner has better claim
limited purpose of invited guests. Less worry about supervising these guests
Employees
employers own find. rule is considered wrong
most hotels reward with employees with finds. law got it wrong
Finds on Private Property Open to the Public
McAvoy v. Medina
Mislaid objects go to owner of land.
Lost objects go to the finder
If kept with shop, more likely for real owner to retrieve
Dubious distinction between the two
Removes incentives for finder to reveal find.
Adverse Possession
Elements
Exclusive possession
Open and Notorious
Sufficiently open to give real owner reasonable notice
Continuous
Normal use
Summer house, just for summer. How an average true owner would use the property, such that neighbors would regard it as exclusive dominion.
Statutory Period
20y Common Law
5y CA
Hostile
Lack of consent from real owner
Claim of right
Goes to hostitlity & Open & Notorious
Some jx's have good faith required
Some have bad faith required.
For lotlines Maine doctrine (Subjective)
perverse rewards bad faith.
CT Test Objective Test
CA has no claim of right req.
Policy
Reward use – 19th C. notion, during industrialization
Encourage monitoring of property
Owners often not thieves, victims of fraud or error.
A sells to B and C, C lives there 20y, then B sells to D.
As Statute of Limitations
Preserve evidence
Only concerned with first trespass.
Color of Title
Specific written instrument involved.
Can shorten statutory period.
Use of any part can be adverse for entire lot.
Taxes
CA & some states require taxes to be paid.
Adverse Possession Against Governement
Generally not allowed
Inefficient. Why punish everyone for single officials poor acts
Burden. Vast tracts of land.
Real Property
Van Valkenburgh v. Lutz (uncle Charlie)
NY requires "claim of title", hostiltiy
NY statute said have to "enclose" land
Manillo v. Gorski
Lotline problem.
Rejects - ME doctrine , "claim of right."
Adopts CT docrine
No presumption of knowledge, open and notorious, from a small encroachement.
pay fair value.
Morengo Caves
Tension between open and notorious use and openness of rights violation
Howard v. Kunto (shifted lots)
Definition of continuous for summer home means normal use.
Tacking for satisfaction of the statute is allowed with parties in privity.
Tacking
Of AP
Allowed with Privity
voluntary transfers only
no document required
Of Real Owner
Generally denied new statute of limitations.
Reset SOL could extend litigation infinitely into the future
No AP against future interests
"To A for life, then to B."
If AP arrives after the grant, then SOL doesn't run against B.
B gets new SOL after taking possession
If AP arrives before grant, then SOL runs against both.
Personal Property
Policy
Generally though theft is worse than trespass
Poor record keeping for personal property
Open & notorious difficult to identify
Rights violation simple to spot, property is gone!
O'Keeffe v. Snyder
Discovery Rule
Had reasonable steps been taken, when you would have known the identity of the possessor is when the SOL starts to run
Difficult to administer. Counter factual
Open and Notorious and Reasonable Search the same thing.
NY Rule
Date of demand on possessor.
UCC 2-403
M entrusted with property of O can transfer good title to B.
Must be merchant of this type of chattel.
Not stolen goods, just entrusted goods.
Incentives to trust merchants.
Voidable Title
B buys from A with bad check (has VT)
B can transfer good title to C
Void Title
B steals from A
B cannot transfer good title to C
Disabilities
Military, Insane, Prison, Minor
Most Jx's accomodate
SOL tolled until diability removed.
Only first disability counts.
Aquisition by Creation
Interference with Business
International News Service v. Associated Press
Reap what you sow. Benefits of efforts
Create incentives for competition and cheaper prices
Monopoly = High R&D & High Prices
No Monopoly = Lower R&D lower prices.
Ownership of the news suppresses discussion
Court sees as interference with AP's business
First in Time
Cheney Bros. v. Doris Silk Corp.
Foil to INS about monopoly incentives.
No property held in silk designs
Snobbery
Time advantage in first producer
Distinguished INS v. AP to hold strictly to the news.
Unnecessary Statutes
Virtual Works v. Volkswagen of America
Like fox hunting? Promotion of activity
Reap where you didn't sow
Not sure you need this statute, however poaching could be a problem
Types
Cybersquatters
Wait to sell
Parasites
AdultsRUs
Poachers
i.e. if Virtual Works sold cars
Nuisance
Traditional
Use one's property in such a way as not to injure the property of another.
Elements
Substantial
non-trivial
non-trespassory
Big particles.
Some Jx's have abolished this distinction
invasion of the
Actually comes onto property
Fountainbleu Hotel
Lack of light not an invasion. Can't be nuisance.
use or enjoyment of the land.
Use...land – Not personal, but in use of property
Intentional – Most cases.
Liable when have knowledge
Reasonably Know
Substantially certain.
Unintentional
Liable when Negligent, Reckless, etc.
Balancing Test
Majority of Jx's do B ................
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