Chapter 1-6a Flashcards
Bundle of Sticks 4 Primary rights and limits:
- Right to exclude - State v. Shack
a. Rights are subject to the fair adjustment of the competing needs of the parties, in light of the realities of the relationship between the migrant worker and the operatore of the housing facility. - Transfer - Johnson v. Mcintosh
a. Moore v. U.C. Regents: Use of patient’s tissue for research does not create conversion liability
b. Johnson: a) discovery doctrine as basis for ultimate title, superseding indian nations; b) Indian title misses right to transfer land - Possess and use - Sundowner v. King
Private nuisance as an inherent limitation to right to possess and use; embodied in “Sic Utere” principle - Destroy - Everyman v. Mercantile trust [Not assigned]
E.g. Historic preservation concerns
Transfer
- Human body is not ordinarily personal property, donation generally ok, payment generally not
- Native land
Discovery doctrine: give discovering nation the ultimate title, subject only to indian title of occupancy, which can be extinguished by either purchase or conquest
Indian title: Indian inhabitants are mere occupants but are incapable of transferring the absolute title to others
Exclude - Trespass
Liability regardless of harm if he intentionally enters land in the possession of the other, or causes another or thing to do so
Defenses: Consent, Necessity, etc.
State v. Shack: Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises
Use(Private Nuisance Elements)
Malicious use (Spite Fence): No property owner has the right to erect and maintain an otherwise useless structure for the SOLE PURPOSE of injuring his neighbor
Intentional Private Nuisance Elements:
(1) Intentional
(2) Nontrespassory
(3) Unreasonable
(4) Substantial interference with…
(5) Use and enjoyment of land
Private Nuisance Unreasonableness: Balancing of the gravity of the harm(5F) vs the utility of the actors conduct(3F)
Gravity
i. Extent of harm
ii. Character
iii. Social value of use invaded
iv. Suitability of invaded use to the area
v. Burden on person harmed to avoid harm
Utility
i. Social value of conduct
ii. Suitability to the area
iii. Impracticability of prevention/avoidance of invasion
Adverse Possession 5 Elements
General reference point for analysis: What would an ordinary/reasonable landowner have done with the land under the existing conditions?
- Actual Possession
a. Actual physical use in a manner of a true/reasonable owner in light of character, location, and nature of land - gives notice
b. Constructive possession (entering under color of title) - Exclusive Possession
a. Exclusion, rather than sharing with true owner (to the extent that a “true” owner would)
b. Not negated by occasional use by true owner if the true owner’s knowledge/notice of adverse claim is not otherwise altered. - Open and notorious possession
a. Sufficiently visible that true owner knows or should know (after reasonable inspection) of trespass - Adverse & Hostile possession
a. Without permission of true owner - Continuous possession for the statutory period
Disability Tacking Adverse possession
Disability tacking Tolling:
1. Age of minority of true owner
2. Legal incompetence
3. Imprisonment
Applicable at time when trespasser entered
Disabilities that arise afterwards do not give tolling
Vertical Rights
- Modern view of airspace
a. Navigable airspace subject to a public right of freedom of navigation
b. Landowner owns as much as he can occupy or use in connection with the land including light and air
c. Permanent overhangs infringe since they affect use of surface itself - Subsurface rights
a. Not absolute
b. Contingent on interference with the reasonable and foreseeable use of the property; real damage or interference must be demonstrated
3 Main Approaches to surface water
- Riparian: Water rights to landowner whose property adjoins above ground water for reasonable use so long as it does not interfere with other riparian owners
- Prior Appropriation: Allocates water rights to landowner who first diverts water for beneficial use even if his property does not adjoin a watercourse
- Permit: Water rights based on government permits. All water rights held by the government unless given to someone.
Groundwater
Reasonable use - Nestle “water bottling plant at vacationing lake”
Broad Principles: 1. Fair participation in use for the greatest number of users 2. Use itself must be reasonable 3. Interference must be substantial for redress
Balancing test: 1. Purpose 2. Suitability of use to the area 3. Extent and amount of harm 4. Benefits 5. Necessity of the amount and manner of water used 6. Any other reasonable factor
Correlative rights: Surface owners get proportionate share of groundwater
Permit system: Govt. gives permits
Rule of Capture
Pierson v. Post: “Actual” capture
Actual corporal possession, mortal wounding, or otherwise deprive of liberty
Finder’s Rights
- Relativity of title - first in line
a. Categories: Lost; Mislaid; Abandoned; Treasure trove - Contextual inquiry most important, balancing
Relationship of true owner to item and how they parted from it to the Land owner and Circumstances of the finder
Adverse possession of Chattel - O’Keefe v. Snyder “Stolen Art Owner Doesn’t Bother Looking”
Same elements as real property BUT
Discovery Rule: COA accrues when true owner first knew or reasonably should have known through the exercise of due diligence
Shifts burden to true owner to justify deferral of period of limitations
Inter Vivos Gift + Causa Mortis
- Donative intent: Donor intends to make Immediate transfer of property
- Delivery: Item must actually be delivered Main issue (Must be done at highest in order that is practicable).
a. Manual: Giving the ring to the person gifted
b. Constructive: Giving car keys
c. Symbolic: Giving deed to stock portfolio
d. Acceptance: Usually presumed for valuable items
Causa Mortis: Added element of imminent death. If the owner survives, the gift is revocable.
Estates & Future Interests in General
The ways in which an estate is sliced up from the default highest estate of a Fee Simple Absolute (FSA)
In analyzing a conveyance or will the goal is to identify the interest transferred, and the interest retained by transferor and/or created in transferee.
Important Issues to remember
Numerus Clausus Principle: Fixed number of categories, can’t invent new ones.
Words of purchase + Words of limitation. Respectively show the recipient and the type of ownership.
Canons of construction & presumption:
3 kinds of Property Transfers
- Deed: Conveyance granted to grantee; effective immediately (alienable)
- Will: Devise by testator to devisee; effective at death (devisable)
- Intestate: descends to heir (descendible)
6 Freehold + 1 Non-Freehold Estates !!! Already have slides
- FSA: “To A (and his/her heirs)”
- LE: “To A for life; for the life of X; for life, then to B.”
- FT: “To A and (either) [heirs of his body] [his issue]”
- (FSDef) FSDet:
- (FSDef) FSSCS
- (FSDef) FSSEL
- Non-Freehold: Term of Years: “To A for 10 years, then to B”
Future Interests
- Retained
a. Reversion (LE, FT, TOY)
b. Possibility of reverter (FSDet)
c. Right of entry (FSSCS) - Created
a. Remainder (LE, FT)
i. Indefeasibly vested remainder
ii. Vested remainder subject to divestment
iii. Vested remainder subject to open
iv. Contingent remainder - Executory interest (FSDef)
Construing Legal instruments
- Plain language: “magic words”
- Intent of grantor
a. Circumstances
b. Canons of construction (policy, intestacy, alienability, forfeiture, etc.) - Applicable limitations imposed by law (statute, rules furthering marketability)
Rules furthering Marketability 1: Shelley’s case
If a freehold estate is given to a person and a remainder is given to the heirs of that person, he takes both the freehold and the remainder
Rules furthering Marketability 2: Worthier Title
If a grantor creates a remainder or an executory interest in his own heirs, the grantor retains a future interest in himself rather than creating a future interest in those heirs.
Rules furthering Marketability 3: Destruction of contingent remainder
Any contingent remainder that has not vested at the termination of the preceding freehold estate is destroyed.
Tenancy In Common
Requires: Default result of transfer to two or more persons
Survivorship?: no
Termination: Partition; agreement of owners
“Magic Words”: “To A and B”
