M2: Subsequent Possession (Finding, Gifts, AP)

Question 1

Explain the Doctrine of Relative Title

Answer 1

Who has the better title?
The true owner has the best title, but given the situation we can ignore that.

In this doctrine the first finder has better rights. Why? First in Time! Protecting the possession of a first finder, which is a default rule that is often used when you don’t have anything else to work with.

Question 2

We protect ownership and possessors because it advances social values. Certainty, Fairness, Efficiency

Explain how each value is advanced through relative title

Answer 2

Certainty: What you have with you is probably yours. People don’t carry around titles and receipts to everything. True owner may be absent or unknown.

Fairness: You have expectations on what you hold will not be taken from you.

Useful/Efficiency: Enables socially useful activities, ex: voluntary bailments

Question 3

Name at least three reasons why we have relative title in property law (protecting finders and possession, not just owners)

Answer 3

1. Put items back into the stream of economy (efficiency)
2. Promotes peaceful public order (certainty)
3. Minimizes self help (judicial economy)
4. Encourages honesty (social efficiency)
5. Allows socially beneficial activities to occur (ex: bailments)

Question 4

What is the rule of finders and how does it apply to property law?

Answer 4

Rule of Finders: The possessor/finder has better rights beyond the rest of the world EXCEPT the true owner AND any prior possessors. Beyond the rightful owner, a finder of property is the next in line as the owner and may “maintain trouver” With subsequent ownership, title is relative (better rights)

“Possession is 9/10 of the law”

Question 5

What is the jus tertii defense and why was it not applied in Armory v Delamirie?

Answer 5

“jus tertii defense”: third party rights
+ Why didn’t the D give the ring/stone back? Probably because the P couldn’t prove ownership, so the D asserted rights of an absent true owner as his defense.
+ Courts usually reject it b/c they want the defendant to stand on their own rights and not rely on an unknown third party, as it makes the defendant look like more of a thief than the plaintiff.

Question 6

What is a Bailment by definition? What are the two types? List an example for each.

Why is it important to have a distinction between the two types?

Answer 6

Def of Bailment: rightful possession of goods by a person who is not the owner.

Two types: Can be voluntary or involuntary.

Voluntary is very common.
Ex: dry cleaning, keys left with valet, pet at the vet’s office

Involuntary less common. In this case, Armory (P)

Why the distinction? Standard of care from the Bailee to Bailor depends on who benefits from the arrangement

Question 7

H: F1 loses a watch that they found a year ago. F2 finds it. Later on, F1 finds out that F2 has his watch. Who gets to keep it?

Answer 7

Under the Doctrine of Relative title, F1.

Question 8

H: Would it have made a difference if Armory swiped the jewel from the real owner’s dresser while at work?

Answer 8

Generally, no. Why? Certainty and judicial efficiency “Any other rule would lead to an endless series of unlawful seizures and reprisals in every case where property had passed from possession of rightful owner” = recognizes possessory interest of a wrongdoer from above all but the true owner.

Question 9

What were the two conflicting rules and how were they applied in Hannah v Peel?

Answer 9

Finders Rule: Whomever finds a lost item/chattel has rights over everyone besides the true owner

Applied directly to the case:
There was a lost brooch→ P found it → As soon as he was aware it was of value, P gave it to the authorities
→ D never had possession of it → D never had knowledge of it until police notified him
————————-> P is the owner above D

Freeholder’s Rule: If a person finds property while working for someone else/on someone else’s real property, the real property owner has rights above all else but the true owner.
+ Man possesses everything which is attached to or under his land
+ So long as the real property owner exercises control (use rights) on the real property.
+ It doesn’t matter if the property owner is aware of the item’s existence, as long as they are attached to or under the land, it belongs to the owner as a matter of property rights.

Question 10

When classifying lost property, what are the three main types? Why does this matter in the US?

Answer 10

Lost → True Owner → 1st Finder
Mislaid → Turned in to owner of locus (place found) for a period of time → either goes to True Owner who claims it OR it gets recategorized as abandoned

In the US, owners of the mislaid items usually win. Why? Owners of mislaid items can often retrace their steps to find locus quo again.

With regards to lost items, finders usually get to keep because the owner really doesn’t know where it is, so it rewards honesty in finders (finders keepers)

EXPECTATIONS AND CONTEXT, also the category determines the better relative owner

Question 11

What were the prevailing values demonstrated by the court in Hannah v Peel’s decision?

Answer 11

Economic efficiency: Gets items back into the stream of commerce. Also protects finder’s relative title above all

Honesty: Hannah came forward and was forthright, and this court rewards his “commendable and meritorious”

Fairness, Expectations, Use: B/C Peel never occupied the house, he bought it and it was taken over by the Army (involuntary bailment). By the court’s definition, Peel never “used” the house and they are treating his rights to items in the house differently than the real property. Why? Expectation of the parties. It doesn’t matter where it was found, what matters is that Peel should expect that when soldiers occupy his home, the dominion control lessens. AND because Hannah had a right to be there, while performing patriotic duty, plus was especially honest and had similar rights to Armory.

Question 12

Why are the classifications between mislaid and lost property problematic?

Answer 12

It incentivizes dishonesty and goes against the purpose of rule of finders. It’s subject to manipulation. It’s also inherently uncertain and unfair. The classifications are based on state of mind, which is subjective. Instead, many states have a statutory regime with a period of time where the owner can come claim the item, if not claimed it’s auctioned or donated to charity.

Question 13

How do you define and classify abandoned property?

Answer 13

Abandoned = left behind intentionally, waiving rights to confer, true owner out
Ex: The baseball in Popov was deemed abandoned once Barry Bonds hit it into the stands.

In US property law, abandoned property goes to the finder. Abandoned property ownership is not relative; rather it is absolute.

Question 14

H: What if you help a friend plant flowers in their yard and you come across a buried box of old, precious gold coins. Who gets to keep them?

Answer 14

Treasure trove = British Common law says that the goods would be auctioned off for a museum and the proceeds split between them (kind of like Popov). US law would likely say that the owner of the land where the coins were found gets to keep them.

Question 15

Should the law of finders be changed so that the finder in shipwrecks is entitled to a reward if the property in question is returned to its owner or held to be in possession of the owner locus?

Answer 15

Salvage law = that a ship lost at sea and settled on the seabed remains the owner’s property BUT anyone subsequently reducing the ship or its cargo to possession is entitled to the salvage award.

Question 16

Name at least two justifications for Adverse Possession in favor of the AP

Answer 16

1) Earned Rights: “I did the work and earned rights over the true owner.”
2) Labor Theory and Accession: By putting in the right type of labor (productive use), you have made something that was not originally yours, yours. Metaphysical.
3) Attachment theory: The idea of losing something is painful, you can’t separate the AP with the land.

Question 17

Name at least two justifications for Adverse Possession in relation to the true owner

Answer 17

1) Sleeping on rights: You snooze, you loose
2) Fairness because quite a bit of time has lapsed
3) Efficiency in not having to go back 30+ years for title searches
4) Fairness + Judicial Efficiency: You meet these terms, we make the decision that the land is yours

Question 18

What are some community based justifications for Adverse Possession?

Answer 18

1) Making efficient use of the land. Use>Nonuse
2) Wealth distribution (in 3rd world countries)
3) Protecting interests\expectations of neighbors and third parties.
4) Economic value: growing corn and selling it locally vs. letting open field space go wild

Question 19

What are the five elements of adverse possession?

Answer 19

1) Actual Entry and Use
2) Exclusive Possession
3) Open and Notorious
4) Adverse Under Claim of Right
5) Continuous and uninterrupted

Question 20

What are the three states of mind when it comes to the adverse claim of right? What is the majority opinion and why?

Answer 20

1) Objective/Irrelevant (majority rule): Who cares about a state of mind since the action has begun and the statute clock is ticking? Why majority opinion: If you worry about subjectivity, you’re missing the intent of the rule. Other two encourage lying.

2) Good faith/Innocent: “I thought I owned it”
Color of title: mistakes happen with title/deeds, a few things to consider with;
Juries tend to favor good faith trespassers in AP cases

3) Aggressive possessor/Maine doctrine (minority view): “I thought I didn’t own it, but intend to make it mine” Not a issue in US, but think of wealth redistribution purposes in 3rd world countries.

Question 21

If someone is successful in meeting all of the necessary elements to adverse possession, is s/he responsible for paying taxes on the property they now have title towards?

Answer 21

If you get the possession/title, it dates back to the date of entry. You are responsible for taxes, value of what’s on the land.

Some AP’ers willingly pay taxes during the statute of limitations to prove their adverse claim of right.

Question 22

True or false: If the true owner invites you to use their property, you can adversely possess their land.

Answer 22

False: AP’ers can’t be there on an invite from the true owner.

Question 23

True or false: An adverse possessor must provide notice in writing to the true owner in order to meet the open and notorious element.

Answer 23

False: Open and notorious behavior in a customary way provides constructive notice to the real owner. The actual owner and the whole world would be on notice if the AP was on the property, but it doesn’t have to be in writing

Question 24

How does color of title help or hinder AP arguments?

Answer 24

Color of title: an incorrect or invalid deed

a) presumption of innocence;
b) shorter limitations;
c) Constructive possession (quasi owner) of everything in the incorrect document.

A good thing but not as strong as actual possession. Use and actual possession is more important and wins in a dispute over quasi ownership. Prior in time wins over constructive possession

Question 25

Why are both of the AP church cases we read in class good examples of why subjective state of mind should not matter?

Answer 25

Honesty was not rewarded, the land owners were sleeping on rights, it defeated the purpose of why AP law was created in the first place

Question 26

H: O owns and has been in possession of a 100-acre farm since 1975. In 1994, A entered the back 40 acres and has a color of title for the entire 100 acres. A has also improved her back 40 acres. What happens when A tries to eject O from the property, citing AP?

Answer 26

Patrick v. Goolsby: Person A does not eject Person O from their land or get full title to the 100 acres. However, A gets the 40 acres that they cultivated.

Question 27

H: Two lots, 1 and 2, are owned by X and Y respectively. X and Y are not in possession. The lots are conveyed by an invalid deed from Z to A, who enters lot 1 and occupies it in the usual manner for the period required by the statute of limitations. A sues X and Y to quiet title lots 1 and 2. What’s the result?

Answer 27

Y wins.

Wheatley v San Pedro: There was no entry upon or actual possession maintained of any part of the land in dispute until a date less than five years prior to the start of the action. Under Cal. Civ. Code § 322, constructive adverse possession required continued occupation for five years. It would have been unfair to deprive appellee of title to his land without him ever having actual notice that his title was disputed when there was no visible invasion of his title was disputed when there was no visible invasion of his premises

Question 28

What is the Maine Doctrine in regards to adverse possession?

Answer 28

Maine AP doctrine (not used anymore, not even in Maine) = AP must have “an intention to claim title within a certain boundary, whether it shall be the correct one or not.” AND in Maine, AP mistakes with neighbor’s boundaries are negated. The mistake negates adverse intent.

Question 29

What are the modern tendencies to mistakes on boundary encroachments?

Answer 29

More fair decision: Forcing conveyance (at market value) of land from the owner to the improver. OR give the landowner the option to buy the improvement (at market value). Many states have provisions for such an issue with land improvements and boundaries.

Question 30

How do courts typically handle encroachment that are very minor? What if they’re pretty large?

Answer 30

Sometimes, if the error/mistake is trivial, the court will dismiss altogether in favor of judicial economy. If the encroachment takes up substantial land, removal of the improvement might be ordered. Depending on competing consideration. Ex: Amko v Welborn, 2001 and the two-part test applied.

Question 31

Why do courts often treat intentional encroachments so harshly?

Answer 31

Stewart E Sterk, Property Rules: “Legal rules can create incentives to search for information even when the search would be inefficient. In particular “property rule” protection often gives leverage to right holders disproportionate to the harm those right holders would suffer from intrusion on their rights. That leverage, in turn, gives potential resource users private incentives to expend time and money on search even when search will generate minimal social benefit. “Liability rule” protection, by contrast, limits incentives to conduct inefficient search for the scope of property rights. Thus, high search costs can explain the unwillingness of courts to award injunctive relief in cases of “innocent” boundary encroachments.”

Question 32

What elements are necessary to be able to utilize tacking in AP from the AP’s side?

Answer 32

1. Continued occupancy in both parties
2. Privity/voluntary transfer between both parties
3. adverse possession or color of title (or both)

Tacking adds time, adds land for AP’ers

Question 33

What are necessary elements in tacking from a true owner in adverse possession?

Answer 33

+ Involves Privity: any reasonable relationship (low standard) via sale or will
+ Only passing the same interest via deed

Question 34

Why did the Howard v Kunto court decide the way they did?

Answer 34

This is not an adverse possession case at all; rather it’s a doctrine that saves the day in the case. The easiest solution to the problem with bad deeds in this case would be to swap land, but that wasn’t an option. AP did the trick!

One element to AP missing in this case: Actual Entry, the Kuntos never stepped foot onto the land in dispute. How did the court miss this? They were eager to solve the case.

Question 35

What is the disabilities statute in relation to adverse possession? What are the three categories of protected parties under this? How does it work?

Answer 35

Disabilities: Extends period of time given for owners to kick someone out/quiet title

Applies to/Protects three groups:
1) minors
2 in prison
3) unsound mind

How it works: If the owner has one of these disabilities at time of entry, we stop the clock until the disability no longer applies OR owner dies

If the disability no longer applies, it’s 10 years from the removal of disability

The timing of the disability could be a windfall or a curse! Shortening the statute or making it significantly longer

Question 36

H: Owen, a 10 year old, was willed property in 1990. Later that year, person T enters this property with an intent to adversely possess the land. In what year does he have to kick out an AP?

Statute of limitations: 10 years
Age of majority: 18

Answer 36

1998 = Owen turns 18, the clock starts now. 2008 = 10 years from Owen’s 18th birthday.

Question 37

H: O owns and lives on a 160 acre farm. He has been there since 1960. In 1975, A occupies 40 acres of O’s farm. A has an invalid deed to all of O’s farm. Since her entry, A has occupied and improved “the back 40” in the usual manner for the statutory period required for adverse possession. A brings suit to evict O from the farm. Who wins?

Assume 10 year statute of limitations.

Answer 37

O wins because he occupied the farm first and has prior possession of the whole farm.

Why?

1) A cannot share the land with O to meet the element of possession of the ENTIRE Farm = fails for exclusive ownership
2) A didn’t enter the remainder 120 acres, just the back 40, so she doesn’t meet the statute of limitations or the entry.

Could A claim constructive possession of the the back 40? Yes, but for the whole property color of title yields to actual possession and yields to first in time.

Question 38

H: In 1960, O enters a 160 acre farm as an adverse possessor. He has an invalid deed to the entire farm . In 1975, A occupies 40 acres of the farm. A has an invalid deed to all the farm. Since her entry, A has occupied and improved “the back 40” in the usual manner for the statutory period required for adverse possession. A brings a suit to evict O from the farm. Who wins?

Statute of limitations: 10 years

Answer 38

O wins because he occupied the farm first, so that A can not claim constructive possession = his bad title is better than her bad title. O has better relative ownership rights = certainty

O met all of the elements of AP and statute of limitations, he is the true owner = fairness

O was the true possessor, he was living on the land. A can’t kick him off, she cannot meet exclusive rights.

Color of title yields to actual possession and yields to first in time

Question 39

In 1974, O enters on a 160 acre farm as an adverse possessor. He has an invalid deed to the entire farm . He occupies and improves 60 acres of the farm in the usual manner. In 1975, A occupies 40 acres of the farm not occupied by O. A has an invalid deed to all of O’s farm. Since her entry, A has occupied and improved “the back 40” in the usual manner for the statutory period required for adverse possession. A brings a suit to evict O from the farm. Who wins?

Statute of limitations: 10 years

Answer 39

O wins because he occupied the farm first and has gained title to the whole farm by constructive possession.

The first in time, first in right doctrine still holds sway. Again, A has at most a constructive possession claim, which is neutralized by O’s prior actual possession of a part and prior constructive possession of the whole via color of title to the rest. This question differs from the first two in that we have dueling adverse possessors, but the result is the same because in such scenarios, we look to who is first to determine who has superior title.

Question 40

X owns Lot 1. Y owns Lot 2. Lots 1 and 2 are next to each other. Neither X nor Y are in possession of the lots they own. Z gives A a single invalid deed to both Lots 1 and Lot 2. A enters Lot 1 and occupies it in the usual manner for the statutory period required for adverse possession. A sues both X and Y to quiet title to Lots 1 and 2. In A’s suit against Y, who wins?

Answer 40

Y wins because he could not have done anything to protect himself against A’s constructive possession claim.

A didn’t meet the element of entry, nor did she meet the element of open and notorious use = impossible to quiet title by not meeting 2/5 elements.

Question 41

X owns Lot 1. Y owns Lot 2. Lots 1 and 2 are next to each other. Neither X nor Y are in possession of the lots they own. X gives A a deed to both Lots 1 and Lot 2. A enters Lot 1 and occupies it in the usual manner for the statutory period required for adverse possession. A sues Y to quiet title to Lot 2. In A’s suit against Y, who wins?

Answer 41

Y wins because he could not have done anything to protect himself against A’s constructive claim

A didn’t meet the element of entry, nor did she meet the element of open and notorious use = impossible to quiet title by not meeting 2/5 elements.

Even if X gives A a deed, A still needs to meet the elements of AP.

Question 42

X owns Lot 1. Y owns Lot 2. Lots 1 and 2 are next to each other. Neither X nor Y are in possession of the lots they own. Z gives A an invalid deed to both Lots 1 and Lot 2. A enters Lot 1 and a teeny, tiny piece of Lot 2. A occupies in the usual manner for the statutory period required for adverse possession. A sues X and Y to quiet title to Lots 1 and 2. In A’s suit against Y, who wins?

Answer 42

A wins, if Y had notice of A’s encroachment (entry or use) on Lot 2.

Yes! If Y had notice of A’s encroachment, even into a teeny section of Lot 2, then the open & notorious requirement would have been met. This meets all of the five elements of AP.

Question 43

A and B own adjacent lots. A erects a fence on what she mistakenly believes to be the true boundary dividing the lots. In fact, the fence is on B’s land, three feet beyond the boundary. For the statutory period required for adverse possession, A mows the grass on her side of the fence and places patio furniture in the three-foot strip. Years later, B has a survey done and uncovers A’s original error. To “avoid a hassle,” A tears down the fence and builds a new fence on the original boundary. Three years later, A changes her mind and sues to eject B from the three-foot strip. Who wins?

Answer 43

A wins, if she established title before tearing down the fence.

Even if A didn’t quiet title, she likely met the AP requirements and is the better owner. Tearing down the fence doesn’t give the land back to B.
B has five years to adversely possess the land back and establish title away from A once she tore down the fence. OR A could sell the land to B.

Question 44

In 1987, A enters adversely upon Blackacre, owned by O. In 1994, B shows up and tells A to scram. A packs up and leaves. B moves in and takes possession in the usual manner. In 1997, who owns Blackacre?

Statute of limitations: 10 years

Answer 44

O because B cannot take advantage of A’s years of occupancy.

Yes! The law requires privity between adverse possessors to allow tacking. Privity is usually defined as a voluntary transfer. When one potential adverse possessor ousts the other, the statute of limitation re-starts because there is no privity relationship.

Question 45

In 1981, A enters adversely upon Blackacre, owned by O. In 1982 O dies, leaving a will that devises Blackacre to “B for Life” (creating a life estate, present possessory for B) and remainder to C (creating a remainder interest in C - a right to take Blackacre whenever B dies). In 1997, B dies without ever having entered Blackacre or having done anything to kick A off Blackacre. Who owns Blackacre?

Statute of limitations: 10 years

Answer 45

A because an owner cannot defeat adverse possession by subsequent transfer.

Inheritance of land includes the responsibility of ejecting adverse possessors

Question 46

In 1982 O dies, leaving a will that devises Blackacre to “B for Life” (creating a life estate, present possessory for B) and remainder to C (creating a remainder interest in C - a right to take Blackacre whenever B dies). In 1983, A enters Blackacre adversely. In 1997, B dies without ever having entered Blackacre or having done anything to kick A off Blackacre. Who owns Blackacre?

Answer 46

C, because adverse possession against a life estate runs against the life estate only.

AP gets the state of the land was when they entered the property — in this case, it was a the life estate of B that A “gets” because that’s when she entered the land. When B dies, the fee simple goes to C. If C doesn’t kick off A by 2007, A could own the property. The clock “restarts” in 1997 when C takes fee simple remainder, it’s a new estate.

Question 47

A enters Blackacre adversely in 1972. O is insane in 1972 and dies insane in 1995. H inherits the property from O. H is under no disability. If H does nothing, when will A acquire title to Blackacre?

21 years
OR 10 years after disability ends

Answer 47

Look at which disability is in place when A enters (O’s insanity). That disability is removed in 1995 when O dies. Death removes all disabilities. So, from 1972 to 1995, the statute of limitations (21 years) is tolled. From 1995, the statutes’s 10 year limitation (from after a disability is removed) starts to run. A gains title in 2005 if H does nothing in those 10 years.

Question 48

A enters Blackacre adversely in 1972. The age of majority is 18. O is insane in 1972 and dies insane in 1995. H inherits the property from O. H is six years old in 1995. If H does nothing, when will A acquire title to Blackacre?

21 years
OR 10 years after disability ends

Answer 48

No tacking of disabilities allowed for the inheritance of property. You only count the disability that existed when the AP entered the land. H’s age in 1995 is irrelevant in this case, as A entered Blackacre in 1972.

2005 Some disabilities count and some don’t. Can you see why? More direct hint - which disability is present at the time the action accrued?

O dies in 1995, which gives 10 years from that date (removal of disability) = 2005

This seems unfair to H, as they were only six when they inherited the property BUT it’s up to H’s estate manager/parents to survey the land that was inherited and kick out any AP’s.

Question 49

A enters Blackacre adversely in 1972. O is under no disability in 1972. O dies without a will in 1990. O’s heir H is two years old in 1990. If H does nothing, when will A acquire title to Blackacre?

Answer 49

1993

No disabilities tacking after AP enters the property

Question 50

A enters Blackacre adversely in 1972. O is one year old in 1972 (Born in 1971). The age of majority is 18. If O does nothing, when will A acquire title to Blackacre?

Answer 50

1999

The key is again to understand which disability is in place at the time A enters, and what result once the disability is removed. Here, O is a minor at the time the action accrues. That disability is removed in 1989, when O turns 18 (1971 plus 18 years).

Do O’s heirs have 10 years from 1989 to eject A? Yes! Why? The disability statute has been interpreted by courts to give those under a disability (or their heirs) either the 21 years or the 10 years after a disability is removed to eject, which ever is longer. Here, the choices would be 1993 (21 years after 1972) or 1999 (10 years after removal of O’s disability), which ever is longer, 1999. In cases where the disability at issue is minority, this is the only result that makes sense because it is the only way to functionally take into account the disability of being a minor. Otherwise, O would just have 21 years, which is the normal SOL given that the age of majority in every state is 18.

Question 51

Define latches and how it applies to adverse possession

Answer 51

Fairness application of statute of limitation, flexible standard when judges impose to soften the statute. How judges fudge the law to reach their desired result of fairness.

Question 52

Typically speaking AP of government land isn’t possible. Why?

Answer 52

Courts say the state owns its land and shouldn’t lose it because of the negligence of a few state officers or employees.

Question 53

What is a gift inter vivos?

Answer 53

Inter vivos = when you’re alive. Once you give away, it’s irrevocable.

Question 54

What is a gift causa mortis?

Answer 54

Causa mortis = on your deathbed. Revoked if the donor recovers from deathbed. Serves as a will substitute. Suicide counts, as does expectation of death several weeks/months away.

Question 55

What are the traditional vs. modern rules with regards to gifts causa mortis?

Answer 55

Traditionally, more strict rules apply to causa mortis vs. inter vivos, to avoid fraud/perjury/undue influence. For example, even if a gift has been given and accepted in the donee’s possession, it must be re-delivered if not in a written will before the donor dies. Nowadays, courts are a bit less strict with causa mortis gifts, rather than focus on delivery they look at intent.

Question 56

What are the three necessary elements to a gift?

Answer 56

3 Elements of gifts

1) Intent;
2) Delivery;
3) Acceptance

Question 57

True or false: The phrase, “Someday I die, I will give X to you” proves intent to a gift

Answer 57

False
Intent has to be present with a donative intent. RIGHT NOW sacrifice. Cannot be deterred/future gifts (Ex: “if I die” or “someday I’ll give you”)

Question 58

True or false: The rule of delivery says that if a gift can be physically handed over, it must be done.

Answer 58

Mostly true. Courts want the donor to have feeling of loss = symbolic as objective evidence and final since you can’t take it back.

Some modern exceptions (ex: Gruen v Gruen)

Question 59

Beyond manual delivery of gifts, what are the other two methods of delivery and give some examples.

Answer 59

+ Constructive delivery: When physical delivery isn’t available, gives access to donee.
Ex: Handing over the keys to a car would be constructive
Ex: Access key to safety deposit box

+ Symbolic delivery: Passing over the paperwork for the title to a home would be symbolic
ex: paperwork symbolizing the gift like Gruen v Gruen

Question 60

Do we assume that gifts have been accepted if they are of value?

Answer 60

YES, an assumption of acceptance upon delivery, unless expressly refused. If you want to reject, you must do so immediately. Intention is subjective, whereas acceptance is objective

Question 61

Explain the restrictions on donor autonomy in property law

Answer 61

Autonomy is valued!
+ American property law generally allows people to do whatever they want with their personal property. If you want to hand out $100 bills on the street and the elements to a gift are met, no one’s going to stop you.

+ However, there are statutory exceptions that take away some autonomy from property owners in extreme gifting situations. Ex: Mother A gives all of her belongings/real property to her daughter so she can collect Medicare = that’s not OK. Ex: Restricting lifetime gifts by one spouse to nullify the property rights that the law accords a surviving spouse

Question 62

H: O owns a pearl ring. While visiting her daughter, A, O leaves the ring on the bathroom sink. After O leaves, A finds it and calls O to tell her about the ring she left behind. A says, “keep it as a gift.” Has O made a gift to A? If so, can O change her mind the next day and ask A to give it back?”

Answer 62

Present donative intent? When O told A on the phone to “keep it as a gift” - that could be considered donative intent. OR A’s leaving the ring behind is not considered donative intent… it was mislaid/lost/abandoned property that A is the second best owner next to O.

Delivery? Leaving behind is maybe delivery… depending on common law or modern law jurisdiction to determine it was sufficient. Did O actually hand it over or did she symbolically deliver it?

Acceptance? Presuming the pearl ring’s value, acceptance is understood.

The law of gifts has requirements to prevent fraud or regret. If the elements of gifts are satisfied, O’s gift of inter vivos is irrevocable.

Question 63

H: O owns a pearl ring. While visiting her daughter, A, O leaves the ring on the bathroom sink. A told O about finding the ring the next time they saw each other. A tells O “I want you to have it, it’s yours”. The ring is too big for A’s finger, so O takes it back, said she’d get it sized down and send it to A. That night, O is killed. Who gets the ring?

Answer 63

No gift. Garrison v. Union Trust = the words were not sufficient enough to prove a gift with delivery, since O took it back.

Intent: “I want you to have it”
Delivery: ? O’s favor: O took it back. A’s favor: O was holding on to the ring as bailment, O had given A the ring.
Acceptance: Was there acceptance? A could’ve taken the ring and had it sized down on her own instead of giving back to O. Acceptance is not necessarily presumed.

Question 64

Q: Can you text an emoji of a gift as symbolic delivery? What about texting a photo of the gift as symbolic delivery?

Answer 64

Cai: Texting a photo of a gift as symbolic delivery could work… not sure about texting the emoji. It would depend on if an emoji exists that relates to the gift.

Question 65

H: O writes a check to B, hands it to B. Before B can cash it, O dies. What’s the result?

Answer 65

No gift until check is paid, donor retains dominion and control of funds. Donor could stop payment or die, revoking command to bank to pay the check amount.

Question 66

H: Suppose that O is wearing a watch, hands A a piece of paper saying “I hereby gift A the wristwatch I am wearing” Is this a valid gift?

Answer 66

Traditional rule would say no, since it’s very easy to delivery the watch right then and there. Restatement (Second) of Property says differently, it would be valid. Though there is no case to back up and make this a rule of law yet. Which rule is better?

Question 67

H: R rents a safety deposit box jointly with his sister J. R planned to give everything in the box to her. While together at a restaurant, R handed J four $5000 bonds, saying, “I want to give these to you. J puts them in the safety deposit box. Robert added 22 more bonds to the box and a diamond ring. Only R and not J went into the box even though J had the right to do so. R placed a note in the box that read “Upon my death, the contents of this safety deposit box will belong to and are to be removed only by my sister, J” After R’s death is J entitled to the contents of the box?

Answer 67

Only the first four bonds would belong to Joan, the remaining contents were not delivered to Joan.

Intent? Yes(ish)… “I want to give them to you” but he added other items to the box. Invalid will? Maybe?
Delivery? No, if R wanted J to have the entire contents of the box, he should have manually delivered them to her. Courts tend to favor manual delivery when possible.

Although R may have intended for J to have the bonds, we aren’t sure what his intent was with the entire contents. And R didn’t deliver to J, which he should have no matter the jurisdiction.

Question 68

What was the ultimate rule established in Gruen v Gruen?

Answer 68

A valid inter vivos gift in a possession may be made reserving a life estate in the possession as long as the elements of the gift – intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee – are established by clear and convincing evidence.

Question 69

H: Suppose Victor had typed and signed a letter to Michael, “I give you the Klimt painting when I die,” would this be a valid gift?

Answer 69

No that’s a deferred gift, and doesn’t meet the present intent element. As a will, the instrument is not valid unless properly executed as a will, with witnesses.

Question 70

H: If the father had wanted to give P the complete ownership of the painting and not reserve a life estate, could he have done so by a letter sent to P on his 21st birthday?

Answer 70

Yes, that would indicate his intent. However the painting would have to be delivered shortly after to Michael, either to his college apartment or an agreed upon place for security purposes.

Question 71

Q: How do we know the painting in Gruen v Gruen was a gift and not a will?

Answer 71

As soon as he gave Michael the painting in 1963, he gave up quite a bit of rights towards the painting.

Question 72

How did the gift from Victor to Michael Gruen change the bundle of rights?

Answer 72

This case takes a valuable piece of property and splits it into to bundle rights:
Lifetime estate enjoyment - Victor
Remainder Interest - Michael (majority rights and value)

Joint ownership until Victor’s death. Fee simple absolute.

Question 73

Why does adverse possession exist?

Answer 73

Property rights are defined by law, not by public expectations. Our legal system normally respects autonomy of landowners to use (or not to use) their land as they see fit. However, if private property exists to maximize overall happiness of society (utilitarian theory), owner autonomy must be limited.

Question 74

Why did adverse possession flourish in the US?

Answer 74

Land title conflicts were a big problem. Since land was rarely surveyed, boundaries were usually unmarked. Lots of land held by absentee speculators, pioneers were able to appropriate vacant land and start using the land to support themselves == massive title confusions.

Courts modified English AP laws to suit US conditions.

Question 75

H: Suppose an adverse possessor, A, regularly cuts timber on Greenacre, an uninhabited 100-acre forest tract owned by O. O visits Greenacre every now and then. Does this interrupt A’s attempt to claim title?

Answer 75

NO, O must retake possession of the property by using it in a manner that is suited to its condition (cut wood, removing brush, harvesting timber)

Question 76

Do isolated visits by third parties destroy exclusivity in adverse possession?

Answer 76

No. For example, hunters crossing the land don’t interrupt “business as usual” for an AP that’s not exclusively hunting on the land they are possessing.

AP’s must only exclude third parties only to the extent that a reasonable owner would do so.

Why? $$$ to the AP, difficulty to the AP
Many hospitable owners of unimproved land routinely allow third parties to hunt/fish/dig clams/bike on their property

Question 77

H: What happens when two adverse possessors, A1 and A2, both occupy land by O. Do they both have exclusive possession? Or does the presence of A1 interrupt A2’s exclusive possession? Vice versa?

Answer 77

Courts normally rule that two AP’s who had joint possession will acquire title as tenants in common

Question 78

Is it necessary for an AP to send written notice to the actual owner as part of the “open and notorious” requirement?

Answer 78

No, the use of the land must be visible and notorious so that a reasonable owner would know or receive notice from their inspector, a neighbor. Constructive notice is sufficient.

Why? land owners should be aware of what’s happening on their property

Question 79

H: O owns Greyacre, 40-acres of unimproved farmland. A adversely possesses grows corn on the land for 15 years; A plows the land, plants seeds, sprays weeds, and harvests the corn. Is A’s possession open and notorious?

Answer 79

YES! If O inspected Greyacre, he would see clear evidence that A is on his land and learn about A’s title claim.

Question 80

H: O owns Greyacre, 40-acres of unimproved farmland. Once a month during a full moon at night, A trespasses onto O’s land to watch stars up in the trees. A does not use a flashlight, but instead let’s the moon’s light guide her onto O’s property and prefers to “leave no trace” behind. Is A’s possession open and notorious?

Answer 80

NO. And it’s likely not continuous, either.

Question 81

Why is the open and notorious possession rule difficult to establish in cases where wild, unimproved land like forests/deserts/wetlands?

Answer 81

Acts that constitute possession on such lands are often minor and infrequent. Most courts adopt a lower degree of openness and notoriety = grazing livestock, cutting wild hay, harvesting timber, gathering firewood, posting a “no trespassing” sign may satisfy the requirement

Question 82

If a true owner authorizes or consents to possession of land, is it considered adverse or hostile?

Answer 82

No, no matter which state of mind an authority prefers, permission does not count towards the possession/claim of right element in AP.

Question 83

H: A enters into possession of Greenacre, a 100-acre farm, fully aware that it is owned by O. Without O’s permission, A resides in the farm house, cultivates the land, and takes related steps over a 10-year period that meets the other AP criteria. Is this adverse and hostile claim of right?

Answer 83

YES, under an objective test (majority opinion), it’s adverse and hostile. She did not have permission and fulfilled all of the other requirements.

Question 84

Does the continuous possession requirement of AP mean that an adverse possessor be on the land every minute of the statute of limitations?

Answer 84

NO, it depends on the location, nature and character of the land. Needs to be continuous like a reasonable owner.

Howard v Kunto is a good example = this was a summer house and Kunto only used it in the summer, this was considered continuous.

Question 85

H: Suppose that O owns Blueacre and A occupies Blueacre for 8 years in a manner that satisfies all requirements except duration (it’s a 10-year statute of limitation state). O retakes possession of Blueacre during the 9th year. Does A have claimant rights?

Answer 85

No, O’s retaking of possession before the statute of limitations is met breaks A’s continuous requirement. If A re-enters the property after O leaves, she would have to start the clock all over again.

Question 86

H: Suppose A1, an adverse possessor, occupies Red Acre for 7 years. A1 decides after that time that he is moving on to another property. A2 watches A1 leave and moves on in. Can A2 tack on A1’s 7 years to meet the continuous statute of limitations?

Answer 86

No, if tacking is to occur, both A1 and A2 should have privity. Some sort of voluntary grant of the land between each other.

Question 87

H: Suppose that L holds a life estate in Brownacre, followed by a indefeasibly vested remainder in R. Adverse Possessor A occupies Brownacre in 2009 and remains in possession through 2019. Does A then have title to Brownacre, assuming she has met the statute of limitations and all the other elements?

Answer 87

A has adversely possessed L’s life estate, but not R’s vested remainder. Once L dies, it’s now R’s property in fee simple absolute. A’s clock would have to start ticking all over again to adversely possess against R.

Question 88

A inherits land in 2000, when they are 16 years old. X enters later in 2000. At what year would A have to kick out X?

age of majority = 18
statute of limitations = 21 years

Answer 88

2021
Which clock applies? For teenagers, courts will pick whatever clock gives them the most time to kick someone out

In this case, the 21 year clock would be more beneficial vs removal of disability in 2 years and adding 10 years

(21>12)

Question 89

H: O owns a pearl ring. While visiting her daughter, A, O leaves the ring on the bathroom sink. A told O about finding the ring the next time they saw each other. A tells O, “I promise to leave you this ring when I die”

Answer 89

It’s nice that A wants to give O the ring when she dies, but this “gift” lacks present donative intent. The law of gifts is to promote certainty/efficiency and not rely on promises.

Question 90

What are Hohfield’s Bundle of Rights: “Relationship among people that concerns things” and why were they created?

Answer 90

Hohfield’s Bundle of Rights: “Relationship among people that concerns things”
Right to exclude
Right to transfer
Right to possess and use
Right to destroy

Created as a rejection to “formalist” or “conceptualist” views of ownership rights in the late 19th century.
Hohfield and his cohorts were “legal realists” and lumped all of the interests of property into one bundle.

Question 91

Sam is on her deathbed in a room full of people. She summons over her best friend Louise and tells her, “I want you to have the Russian doll in the lockbox upstairs in the bedroom. It is the only thing in the lockbox.” Sam hands her the key and Louise says nothing. A few hours later, Sam dies. In her will, she leaves all her property to her husband, Bill. Bill discovers that the Russian doll is worth one billion dollars. He demands that Louise give him the key to the lockbox. Who is a court likely to side with?

Answer 91

•Valid Inter Vivos Gift we need:
+ Present Donative Intent: Here, that’s easily met. Everyone heard her say I want you to have this
+ Delivery:
1) Actual: the older rule, is for courts to strictly require actual delivery when possible (modern trend away from that to a more lax standard)
2) Constructive: that’s the type we have here- probably okay in a modern court, but Bill could argue that she should have had anyone in the room go get the doll-
3) Symbolic: if Sam had drawn a Russian Doll and given it to her in a letter
o Acceptance: we presume acceptance when the gift is value, and that presumption can be rebutted, but here, Louise’s silence is definitely not enough to rebut that presumption- they could’ve been having a moment

Question 92

Evan owns Blackacre but he hasn’t lived there since he bought a new house in another part of town. Aaron adversely moves into Blackacre in 2020. In 2026, another adverse possessor, Marc moves in and tells Aaron that he doesn’t deserve to live on Blackacre because he isn’t as good at farming as Marc is. Aaron gets angry at this and refuses to leave. Marc challenges Aaron to a duel where the winner gets to keep living on Blackacre. Marc wins and Aaron leaves the property. Evan becomes insane in 2027 and dies in 2028. He devises Blackacre to his neice, Olivia who is 16 years old. Assuming Olivia does nothing to eject Marc, when can Marc perfect title to Blackacre? (Assume 10 year SOL, 5 year disability statute, and age of majority is 18 years old)

Answer 92

Marc entered the property in 2026, prior to Evan’s declaration of insanity, death, devising Blackacre to Olivia. Because the AP clock for Marc’s possession began ticking in 2026, before either disability were determined, we do not take either the underage or insanity disability into consideration. Marc could claim title to Blackacre in 2036 because the statute of limitations is 10 years. This may seem unfair to Evan and Olivia, however Marc had been living on Blackacre for a full year before Evan’s disability was determined. Olivia’s trustee or guardian should have done an assessment of the property when she inherited Blackacre — she had eight years to eject Marc. Both Evan and Olivia were sleeping on their rights whereas Marc was making a more efficient use of the land.