Justifications for Recognizing Property Flashcards
What are the bundle of entitlements
- right to use
- right to possess
- right to exclude
- right to alienate
- right to not have property taken or damaged
- right to destroy
what is the rule of capture
majority: must
- deprive it of natural liberty
- must express your intention
- must bring it under control
what is pre-possessory interest
if an actor takes significant but incomplete steps to achieve possession and the effort is interrupted by the unlawful acts of others, the actor has pre-possessory interest in the property
what are the elements of adverse possession
- actual possession
- open and notorious
- exclusive
- continuous
- adverse or hostile
- for the statutory period
in addition to the 6 regular elements of AP, what do some jurisdictions consider
- color of title
- payment of property taxes
what is the standard of review for AP
majority: clear and convincing
minority: mere preponderance
what is the first element of AP and how might it be shown
actual possession - physical occupation of the property in some way. can be shown by fencing, engaging in significant activities like building or living on land
what is the second element of AP and how might it be shown
open and notorious - must be sufficiently visible and obvious enough to put a reasonable owner on notice that the property is being occupied by someone else. could be fencing, building, mowing, etc
what is the third element of AP and how might it be shown
exclusive - use must be of a type that would be expected of a true owner. can’t be SHARED with true owner, but occasional entry by true owner might be okay
what is the fourth element of AP and how might it be shown
continuous - the adverse possessor must control the property in ways an owner would. so using a summer cabin every summer might be enough. tacking could be enough.
what is the fifth element of AP and how might it be shown
adverse or hostile - without permission.
hard to show lack of permission. majority: presume lack of permission except in case of custom
what are the three tests for the adverse possessor’s state of mind?
majority: objective test - was permission given?
minority: subjective test
some jdx reward bad faith: adverse possessor must’ve known they didn’t own it
some idx only reward good faith: only allow AP for honest mistakes
claim of right - did adverse possessor MEAN to use the land as his own?
what is the sixth element of AP and what is it generally
statutory period - generally 10 years
when will states usually allow tolling
for incapacity, military service etc
can you do an AP claim against the government?
no. can’t claim public lands
what is color of title
means the property was transferred but something was wrong with the title. ex: lacked signature, person didn’t have right to transfer it, contains mistake or bad description of property
what are some justifications for AP
- facilitates transactions
- prevents resources laying fallow
- moral: would be mean to let someone have expectations thinking it is theirs and then take it away
- utilitarian: ap’er probably values it more
- incentivizes people bringing up objections in timely manner
what does common law of finders not apply to and why
grave goods
because there was intent to put them somewhere but not intent to relinquish all rights
what affects whether or not something is considered a protected graveyard
cultural signs – signs that speak to the cultural majority get more weight
what is fungible property
property that is interchangeable with $
what is personal property
property that is irreplaceable to you
