Acquisition

Question 1

Discovery

Answer 1

First in time acquires ownership

Historically - Native populations were allowed to maintain title to their property

Question 2

Capture

Answer 2

Ownership awarded to first in time possession

Question 3

Capture - Wild animals

Answer 3

Capture occurs at the moment the animal is deprived of its natural liberty, and there is complete control over the animal

If the animal escapes into its natural habitat, it is no longer property and can be captured by another

Pierson v. Post - Foxes

Question 4

Capture - constructive possession

Answer 4

One has constructive possession of any animal located on his property

Protects property rights, deters trespass

Question 5

Capture - Oil and Gas

Answer 5

Considered to run wild, and therefore is treated as a wild animal

Question 6

Capture Groundwater

Answer 6

Used to be treated the same as oil and gas

Now, most states require either (1) reasonable use, OR (2)correlative rights - in times of shortage, rights are limited to an equal share of the water

Question 7

Capture - Riparian rights

Answer 7

Prior appropriation states - first in time has “senior” interest, and is entitled to full appropriation of the water source before junior users get any. rights are transferable

Riparian states - entitled to reasonable use of the water. Reasonableness is determined by balancing the benefits of the use against the rights of others.

Question 8

Capture - Pre-Possessory Interest

Answer 8

When one takes significant but incomplete steps to achieve possession of a piece of abandoned property, and the actions are interrupted by the unlawful actions of another, the actor has a legally recognizable pre-possessory interest in the property

Ex. Barry Bonds Homerun ball

Question 9

Capture - Internet cybersquatting liability

Answer 9

Liable when - (1) bad faith intent to profit from mark; AND (2) in the case of a famous mark it is identical or confusingly similar to the original mark

Bad faith considerations:

• Any IP rights of the person in the domain name
• If the domain name consists of the name of the person
• The prior use in connection with offering goods or services
• The person’s noncommercial or fair use of the mark under the domain name
• The intentions of the person to divert customers from mark owner
• The intention to sell the domain name without actually using it
• providing false information when filing for the name
• Acquiring multiple famous domain names
• the extent to which the mark is famous

Question 10

Finders

Answer 10

One who finds property has possessory rights against all other than the original/rightful owner or prior finder

Question 11

Finders - Possession

Answer 11

(1) the intent to control property

(2) an act of control

Question 12

Finders - Lost Property

Answer 12

The owner has unintentionally and involuntarily lost possession

Finder - obtains title subject only to the rights of the original owner

Original owner can only recover from finder, not from someone who has subsequently purchased the property from finder. Because lost property shows an absence of duty of care

Question 13

Finders - Stolen property

Answer 13

If an item is stolen, the original owner can always recover property

Question 14

Finders - mislaid property

Answer 14

Mislaid - Owner voluntarily and intentionally sets property down, and then forgets where it is or neglects to recover it

Owner of the premises where the property is found, rather than finder obtains right of possession over all but the original owner

Ex. If a diamond ring is found on the floor of a home during a party, the host host who owns the home has rightful possession not finder

More likely original owner will be able to retrieve the property from the owner of the premises where he mislaid it, than by another finder who will be harder to track down

Question 15

Bailments - Standard of Care

Answer 15

Bailment solely for the benefit of Bailee - Bailee must exercise great care

Bailment solely for benefit of Bailor - Bailee only liable for gross negligence

Bailment for mutual benefit - Bailee must use ordinary care

Question 16

Abandoned property

Answer 16

Owner has relinquished rights to the property

Finder obtains ownership interest against all others, including original owner

2 ways to abandon property: (1)Purposeful (2)Unreasonable likelihood of retrieval - If there is no likelihood the owner will/can retrieve the property it is considered abandoned - locket on the Titanic

Question 17

Treasure Trove

Answer 17

Finder, not owner of property where found, obtains ownership. Many courts have rejected Treasure Trove as archaic

Question 18

Gift - Three elements

Answer 18

1) Donative intent to make a present gift
2) Delivery
3) Acceptance

Question 19

Gift - Donative Intent

Answer 19

Donor must exhibit the clear and unmistakeable intention to make a present transfer of an interest in property

Must intend to irrevocably and completely part with property

Question 20

Gift - Life Estate

Answer 20

Donor can make a present transfer of his interest in property, but maintain right of possession until his death

Question 21

Gift - Delivery - Three fundamental purposes

Answer 21

1) Makes vivid and concrete to the donor the significance of the act he is doing
2) It is unequivocal to witnesses and himself
3) Gives Donee evidence in favor of an alleged gift

Question 22

Gift - Delivery - Three types

Answer 22

1) Manual
2) constructive
3) Symbolic

Question 23

Gift Symbolic Delivery

Answer 23

The item is actually physically handed over to the donee

generally required if possible

Question 24

Gift - constructive delivery

Answer 24

Giving control over the property, rather than the actual item itself

acceptable if manual delivery is impossible or impractical

Example - giving the keys to a car or a piece of furnature

Question 25

Gift - Symbolic Delivery

Answer 25

Handing something over that represents a gift

Example: Giving a photo of a large statue as a symbol of giving the statue itself

NOT RECOGNIZED by most courts

Question 26

Gift - Inter vivos v. Causa Mortis

Answer 26

Inter vivos - gift between living persons

Causa mortis - gift made on death benefit

• Same requirements as inter vivos (normal gift) but are closely scrutinized because after the donor dies there is little remaining evidence
• want to encourage statute of wills which brings more certainty
• Revocable if donor recovers

Question 27

Gift - Acceptance

Answer 27

Acceptance is presumed, but can be rebuked

Question 28

Adverse Possession - Policies behind

Answer 28

Certainty - removes clouds of title from possessor

Economic efficiency - awards possession to person who makes productive use of land

Fairness - One who works to improve property should be awarded with ownership

Personhood - The longer one possesses a piece of property, the more it becomes a part of them

Question 29

Adverse Possession - 5-6 Elements

Answer 29

Actual
Open & Notorious
Adverse
Exclusive
Continuous
Hostile / good faith mistake

Question 30

Adverse Possession - Actual

Answer 30

Use of the land must be in a manner in which a reasonable owner would

Must be enough to put owner on notice that he should act

Usually requires the property to be protected by a substantial structure (permanent fence) and to be improved or cultivated

Question 31

Adverse Possession - Exclusive

Answer 31

Possessor cannot share title with others, including the rightful owner

By exercising right to exclude possessor is putting true owner on notice that he is making a claim of ownership

Question 32

Adverse Possession - Open & Notorious

Answer 32

Open - Possession cannot be hidden

Notorious - possession reasonably discoverable by true owner

Without - true owner not put on notice that he should eject possessor from land

Question 33

Adverse Possession - Adverse

Answer 33

Possession must be adverse to the interests of true owner

No adverse possession if you have permission to be there

Question 34

Adverse Possession - Continuous

Answer 34

Must be uninterrupted for the length of the statutory period

statutory period - typically between 5-15 years

Need not occupy property at all times - just needs to be in constructive possession the whole time

Question 35

Adverse Possession - State of mind Hostile/Good faith/Objective

Answer 35

1) Objective state of mind - does not inquire into the state of mind of possessor
- USED IN A LARGE NUMBER OF JURISDICTIONS

2) Good faith - occupation must have been made as a result of a good faith mistake
- used in a minority of jurisdictions

3) Hostile - Possessor must know the land does not belong to him, but continues to possess it anyway
- required in A FEW jurisdictions

Question 36

Adverse Possession - Color of Title

Answer 36

Under supposed authority of title

Occurs when a deed or will had a mistaken property description

Certain advantages in many states-

• Some states offer shorter statutory periods when present
• occupation of part of the property is considered constructive possession of the entire property described on the deed or will

Question 37

Adverse Possession - Tacking

Answer 37

Generally courts allow subsequent possessors to “tack” on the occupancy of previous possessors if there is (1) Privity between the parties and (2) continuity of possession

Question 38

Adverse Possession - Legal disabilities

Answer 38

Mental incapacity, Imprisonment (if unable to discover adverse possession through reasonable diligence), military deployment, minority

Statutory period does not begin to run while the disability is present IF and ONLY IF it was present at the time of the adverse entry.

Some jurisdictions start period when disability is no longer present, others just have a longer period when a legal disability is present

ONLY original disability counts, no cumulative disabilities

Question 39

Adverse Possession - Government

Answer 39

Generally cannot adversely possess government property. Considered to be owned by public, and you cannot adversely possess something you partially own

Government CAN generally adverse private property

Some states allow, but double possessory periods

Some states allow for property not actually being used for public purpose

Question 40

Adverse Possession - Chattels

Answer 40

Technically applies to chattels too

Difficult because owner not as likely to be put on notice as with real property

Typically shorter statutory period with chattels

Discovery Rule - some jurisdictions - statutory period starts when owner discovers, or should have discovered, adverse possession

Demand and refuse rule - some jurisdictions - Statutory period begins when true owner demands return of property and adverse possessor refuses