Involuntary Transfers Flashcards
Name the 6 types of Involuntary Transfer
Abandonment
Adverse Possession
Liens
Eminent Domain
Inverse Condemnation
Public Trust Doctrine
The idea of abandonment is more a matter for personal property than real property, and the most litigated area is __________________.
Shipwrecks
What is the law of salvage? How is it different than the law of finds?
Law of Salvage = The treasure hunters get a finder’s fee but not all of the recovered property (unlike law of finds which is basically finders keepers)
“Mere loss of property in and of itself is not abandonment, you need a demonstrable relinquishment of the property. Furthermore, the person claiming abandonment must show it by clear and convincing evidence.”
When the MLB wanted the baseball back that Barry Bonds hit on his 73rd home run, the court considered balls hit into the stands “abandoned” using what logic?
The MLB isn’t known for recovering balls hit into the stands, they are generally understood as souvenirs for the fans.
What are the general standards for meeting the requirements of adverse possession?
“SHOE-VAC”
Stipulated period of time - Look to the statutes
Hostile - Without the owners permission
Open and Notorious - Has to give notice in some way or another
Exclusive - Cannot be shared with others
Visible - Something you can see
Actual - There has to be some degree of physical occupation
Continuous - No significant time interruptions in the occupation
What is “Tacking”?
A concept that allows adverse possessors to satisfy the “continuous” requirement even when the property has been transferred to others.
The history can be “tacked” together to get to the stipulated period of time
Marengo Cave v. Ross:
Adverse possession of a long underground cavern under the other parties property could be actual, exclusive, continuous, but there is a breakdown in the “open and notorious” requirement.
Why would the court rule against adverse possession?
Cave owner didn’t even know he was on another’s property, and vice versa, until the events that led to the action
To allow Marengo to take adverse possession even though Ross did not know and had no reason to know of the trespass would be unjust
What is a lien?
An encumbrance on a property that allows the holder of the lien to access the property if debts are not paid
What are the 3 types of liens?
Statutory
- Created by statute
- Gives certain people a lien (such as repair man’s lien)
Judicial
- Through an adjudication by a court
- Usually involves a failure to pay a debt
Consensual
- Usually a contractual arrangement
Dieffenbach v. A.G of Vermont:
The bank foreclosed on a property, sold it, and earned more from the sale than what was owed under the mortgage. In most states the surplus goes back to the borrower.
How does the court decide here that it is Constitutional for the bank to keep the surplus?
Equal Protection Argument (14th Amendment)
Was rationally related to a legitimate state purpose
What are the procedural steps of an eminent domain taking?
- The government, through condemnation, identifies the property it wants to take
- Then the government determines how much they are willing to pay (often look to “fair market value” - but it is often a lot more complicated than that)
- Person can accept or go to court to challenge the taking
The 5th amendment requirement of “public use” in eminent domain takings has been interpreted to mean?
“Public Purpose” - meaning the public doesn’t necessarily have to gain the use of the property, but rather the government can take property with further private development in mind that will raise tax revenue or provide a public service
What is “Inverse Condemnation”?
How does it differ from eminent domain?
When the government engages in some type of action other than formally taking the property that has an impact on the owner’s property rights
Unlike eminent domain because there is no condemnation followed by an offer for a property, rather, the government affected the value of someone’s property in a way that may deserve just compensation
How does a property owner get compensated for an inverse condemnation?
By successfully asserting that a “taking” has occurred
Pumpelly v. Green Bay Co:
A dam built to control flooding on Fox & Wisconsin rivers led to flooding of 640 acres owned by Pumpelly.
How does the Supreme Court reason that this justifies compensation?
It was not a formal taking; however, the destruction of the property DOES amount to a “taking” in the sense that it destroyed usable property
5th amendment protects property from being taken without just compensation
