Property Outline Fall Semester:

I.

II.

Introduction to Property
a. What is the definition of property?
A legal relationship between people v. something we own
Ex) real property, goods, chattels, personal property, commercial
property, joint own, marital property
b. Property Rights
i. Bundle of sticks (#1 goal is to protect those sticks)
1. The rights one has when they own or claim to own property
(the right to sell, burn, subdivide, lease, transfer, change it)
Johnson v. McIntosh
2. Sticks are: right to exclude, transfer, posesses
c. Locks Labor theory
i. How much was put into the property
d. Theories on Property
i. Doctrine of Accession: way to acquire property. Use 4 element test
1. Added significant value
2. Good faith/innocent
3. Great transformation
4. Property of another
ii. Docttrine of Ad Coelum: you own everything up to the heavens
and down below
First Possession of Property [Discovery, conquest, creation, capture]
a. Acquisition by Discovery [FIRST IN TIME]
i. Fundamental rule for determining ownership is that the first person
to take possession of a thing owns it.
ii. Nemo Dat: You cant give away what you dont have to give and
you cant receive what someone doesnt have
iii. Doctrine of Conquest: taking possession of enemy territory by
force, followed by formal annexation of the territory by the
conqueror
iv. Doctrine of accession: when a person takes someones property
adds to it, puts his or her own work to transform the property.
Should the person who transforms it get to keep the property?
b. Acquisition by Capture
i. Think the chart from un-owned to owned- how does one get there?
ii. Wild animals are not owned by anyone but a person gained
possession of such an animal he has rights in that animal superior
to those of the rest of the world. CAPTURE is sufficient, cant just
spot or chase an animal [Pierson v. Post]
iii. Ad Coelum: you own up to the heavens and below the earth
c. Acquisition by Creation
i. Intellectual Property (Patents, Trademark, Real Property,
Copyright, Right of Publicity)
1. Before publication=quasi property

III.

2. After publication=just news and no ones property

ii. If you create something then that something is yours to exploit.
The underlying idea derives from John Locke who reasoned the
fruits of your labor in consequence of having a property in your
person
iii. General rule: no protection against imitation
d. Property in Ones Person
i. A celebritys right of publicity in example the right to control the
commercial value of his name likeness or personality is tangible
personal property. [Vanna White case]
e. Ownership of Body Parts
i. No action for conversion when your body parts are being used as
research. [Moore v. Regents]
f. Right to Include, Right to Exclude
i. The right to include and exclude leads to free transferability [State
v Shack]
g. Trespass V. Nuisance
i. Trespass:
1. Doesnt matter whether its unintentional or intentional just
have to prove there was a trespass
ii. Nuisance:
1. Test for nuisance- must keep proving
a. Unintentional v. intentional
iii. Similar b/c can be intentional or unintentional
iv. Differs b/c trespass=physical and nuisance= invasion
Subsequent Possession of Property
a. Acquisition by Find
i. How do we classify the actor? (F1, F2, C1, C2, TO)
ii. What is the item? (Jewel, brooch, purse)
iii. What is the items classification? (Lost, mislaid, abandon)
iv. Where was it found? (Private/public)
v. General rule: An owner of property does not loose title by losing
the property. The true owners rights persist even if the article has
been lost or mislaid. As a general rule, the finder has rights
superior to everyone but the true owner, but there are exceptions to
this rule.
vi. Possession: A finder must acquire physical control and have intent
to assume dominion over the object. Constructive possession
b. Finders and the Law of Bailments [Always want to protect the true
owner]
i. Bailment: the delivery of a chattel for some express or particular
purpose upon a contract, express or implied, that after the purpose
has been fulfilled then the chattel shall be redelivered to the bailor.
ii. When is a bailment created? By the delivery of the PP by one
person to another in trust for a specific purpose pursuant to an
express or implied contract to fulfill that trust

iii. Types of bailments *can be involuntary or voluntary and implied

or express
1. Gratuitous: BAILEE is benefited- without compensation
for the bailor
2. Mutual benefit: BAILOR/BAILEE is benefited- one party
takes PP of another in exchange for $ or benefit
3. Benefit of bailee: no compensation for bailor
4. A constructive bailment can fit into any of the 3 categories
iv. Questions to ask for each case
1. Is there a bailment?
2. What should the damages be?
c. Adverse Possession of Real Property * Number one is to protect T.O.
*Number two is to protect the 1st in time
i. Elements
1. Actual entry=physical presence [SOL starts at entry]
2. Open and notorious=visual to T.O. and community
3. Hostile & adverse= wrongful possession
4. Continuous=must have certain time you are there
5. For statutory period (SC is 10 years)
6. Exclusive (NOT AN ELEMENET) but just a thought but
cant share with true owner
ii. Statue of limitations is all about the end date
iii. Limitations are about beginning of time
iv. Claim of title v. color of title
1. Claim= acting as if true owner (ex. No deed)
2. Color=still have to meet all elemental requirements but if
have a color of title issue (ex. deed is in a place here but
not a good deed and its constructive)
a. Nothing about bad faith but seems like you must act
in good faith
v. Disabilities: first have to understand recognizable disabilities, if
outside then not a disability
1. Imprisonment
2. Unsound mind
3. Minority
vi. Vocab
1. Privity: legal concept referring to a legal or otherwise
special or close relationship b/w parties who have the same
rights or interests in something (prereq of tacking)
2. Tacking: the practice of adding together successive time
periods of adverse possessors in order to reach the statutory
minimum
3. Quiet title: an action to settle competing claims of
ownership over the same property
4. Tolling the Statue: means that the time during which the
following conditions are met is not counted in the time

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period or that period which has otherwise expired is

extended beyond a certain event
d. Adverse Possession Against the Government:
i. CL: it does not run against the Government
ii. Some states have changed the common law rules and few permit
adverse possession on gov. owned land on the same terms as
against private land
e. Adverse Possession of Chattels
i. To establish title by AP to chattels, the rule of law has been that the
possession must be:
1. Hostile: wrongful possession
2. Actual
3. Visible: needs to be on display
4. Exclusive
5. Continuous
ii. Cause of action/Remedies
1. Replevin: wants stuff back not just the $
2. Conversion: wants value of stuff
3. Trover: an action in trover is to recover the value of the
chattel along with damages for dispossession
f. Adverse Possession by Gift: Must use due diligence so clock will not run
until you show you have acted.
i. Three types of gifts (for each gift be able to define it and give
elements)
1. Inter vivos: a gift during the donors lifetime w/o impending
death (irrevocable)
2. Causa mortis: a gift that is made by a donor in anticipation
of his death, substitute of a will (revocable)
3. Testimony gifts
ii. 3 requirements
1. intention: may be shown by oral evidence
2. delivery: requires objective action
3. acceptance: presume acceptance upon delivery unless the
donee expressly refuses the gift
iii. Types of delivery of a gift
1. Constructive: is handing over a key or object that will open
up access to the subject matter of the gift
2. Symbolic: is handing over something symbolic of the
property given (written)
3. Manual/physical: if the object can be handed over it must
be
Leasehold Estates: Landlord/Tenant Law (CL=LL and ML=T)
a. Lease Questions:
i. First question is always: Is it a lease or something else?
1. What are the requirements for a lease?
2. How does SOF apply?

a. Elements
i. ID premises
ii. Signature of party to be bound
iii. Price
iv. In writing
v. ID parties
3. The something else
a. License: revocable, specific use, otherwise a
trespass
b. Easement: not revocable, passage way
c. Profit: right to soil (remove crops, rocks, soil)
d. Life estate: owner even if its just for my life
ii. What type of lease is it and why?
1. Type
2. Notification issues
iii. What are the rights and responsibilities of the landlord and tenant?
1. Selection of T (2 goals)
a. How far should the law go to protect the LL?
b. What are the responsibilities of society to alleviate
inequities and ensure housing and fair housing?
c. Provisions for test
i. Fair housing: protects from a LL inclusion in
a protected class
ii. 14th amendment: not when private
iii. civil rights act: race but need proof
2. Delivery of possession (legal or actual/physical)
b. Types of leasehold estates:
i. A term of years: an estate that lasts for some fixed period of time
or for a period of time or for a period compatible by a formula
(must be able to count terms)
ii. A periodic tenancy: a lease for a period of some fixed duration that
continues for succeeding periods until either the landlord or tenant
gives notice of termination
1. Rule: mirrors period and doesnt exceed 6 months @ CL
2. Language used: desire, wish
iii. Tenancy at will: no fixed period that endures so long as both
landlord/tenant desires or if party dies
iv. Tenancy at sufferance: holdover T
1. How should the LL resolve the issue of this?
a. English rule: real property rule stating that there is
an implied covenant that a landlord deliver actual
possession of a leased premises
b. American rule: real property rule stating that there
is no implied covenant that a landlord deliver actual
possession of a leased premises just legal
possession

c. Think about reasoning/meaning

i. Private/public land
ii. How is it advertised?
iii. Balance rights

*Property Rules: Courts try to set rule with least amount of harm
*Use bundle of sticks in any discussion