Midterm

Question 1

Rule of Capture

Answer 1

The Rule of Capture states that whoever possesses the wild property with certainty, has captured and owns the property.

Question 2

Ratione soli

Answer 2

1. Means “according to the soil.”
2. This is constructive possession.
3. States that we assign the rights to wild property based on who owns the land it was found on.

Question 3

First-in-time, first-in-right

Answer 3

Establishes a priority of rights based on the time of acquiring the right in question. This means that the first possessor has the better title.

Question 4

Wild Animal Fact Patterns

Answer 4

1. Ask if the animal is wild or domesticated?
   a. If it is domesticated, you need to ask if the animal has the habit of returning or not. If it has a habit of returning, then it is the original owner’s animal.
2. Ask if someone owns the property?
   a. If someone does, ratione soli would apply and this is constructive possession which says without physical possession, the owner of the land owns the animal.
3. If no one does, apply the Rule of Capture.

Question 5

Tragedy of the Commons

Answer 5

Says that resources will be exploited if we grant rights based on first come, first serve.

Question 6

Solutions for the Tragedy of the Commons

Answer 6

1. Have an owner

2. Government Regulation

Question 7

Coase’s Theory

Answer 7

It doesn’t matter who has the property right, if we allow them to negotiate, we will reach a solution that is sufficient.

Question 8

Two theories about the Role of Custom

Answer 8

1. Blackstonian Theory: when you own a piece of property, you own everything from way below the ground to all the way in the sky.
2. Bundle of Rights: Most common view. When you own property, you have these rights (sell, lease, etc.). The same person does not always have all of these rights exclusively. We can allocate these rights out.

Question 9

The Bundle of Rights

Answer 9

1. Right to Exclude
2. Right to Transfer
3. Right to Destroy

Question 10

Right to Exclude

Answer 10

Every person has a right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another

Question 11

Right to Transfer

Answer 11

One has a right to transfer their property to others, so long as the government has not restricted such transfers.

Question 12

Right to Destroy

Answer 12

One has the right to destroy their property unless it conflicts with the morals of the time and contravenes any established interest in society

Question 13

Civil Trespass Elements

Answer 13

1. Intentional
2. Unprivileged
   a. without owner’s consent;
   b. lacks necessity as justification;
   - Elements of necessity:
   - The danger has to be imminent
   - Defendant’s actions must be capable to abate the danger
   - No legal alternatives
   c. not otherwise permitted by public policy

Question 14

Criminal Trespass

Answer 14

When one enters property of another knowing that he lacks a privilege to do so; or he refuses to leave after being asked to do so. This is possessing the mens rea that is absent in the case of civil trespass.

Question 15

Law of Finders

Answer 15

The Law of Finders is trying to achieve facilitation of return to owners, reward honesty, honor legitimate expectations of finders and owners of the premises.

Question 16

Lost

Answer 16

Property that the true owner no longer has and they don’t know where it is. Generally, the finder will keep the property.

Question 17

Mislaid

Answer 17

The true owner intentionally put property somewhere but they don’t remember where that was. Generally, the owner/possessor of the premises where the property was found keeps the property.

Question 18

Abandoned

Answer 18

The true owner of the property left the property somewhere, deciding that they do not want it anymore. Generally, the finder will keep it.

Question 19

Treasure Trove

Answer 19

This applies to hidden treasure that has been hidden for so long that the true owner would be impossible to find. Generally, the treasure goes to the finder (depending on whether they were trespassing or not and whether the treasure was buried or not.

Mobile vs. buried

 a. If buried, it’s considered “misplaced” and goes to the owner of the land.
 b. If mobile, it goes to the finder so long as they are not trespassing.

Question 20

Bailments

Answer 20

A bailment occurs when there is a rightful possession of property for a period of time by someone other than the owner.

Question 21

Bailment Requirements

Answer 21

1. Personal property (not fungible)
2. Control: bailee has possession, but not title to the chattel (owner no longer has control)
3. Intent: bailee intends to possess, and actually possesses, the chattel

Question 22

Types of Bailments

Answer 22

1. Voluntary

2. Involuntary

Question 23

Liabilities attached to bailments

Answer 23

1. Benefits the bailor: gross negligence
2. Mutual benefit: ordinary
3. Benefits the bailee: slight negligence/great care
4. Misplaced: strict liability (tort of conversion)

Question 24

Adverse Possession (of land) Elements

Answer 24

1. Actual Entry
2. Exclusive Possession
3. Open and Notorious
4. Hostile and Adverse
5. Continuous and uninterrupted during the statutory period

Question 25

Adverse Possession (of chattels) Open and Notorious Rules

Answer 25

Same as the elements for adverse possession of land - except open and notorious are handled differently.

1. Discovery Rule: cause of action doesn’t accrue until the injured party discovers (or by exercise of reasonable diligence & intelligence, should have discovered) facts which form the basis of the cause of action (due diligence is for us to assess)
2. Conversion Rule: statute starts running against the owner as soon as chattel is converted. As soon as the paintings are no longer in the possession of the owner.
3. Demand Rule: statute does not start running until the true owner makes a demand for property and demand is refused. Whenever the owner requests it, it starts.

Question 26

Void Title Rule

Answer 26

If a person acquires possession of a good where true owner did not intend to transfer title, possessor acquires no title and title cannot be transferred to anyone else.

If the item is sold, the original owner can go after the subsequent purchasers. The only way to defend the original owner from getting the item back is to say the subsequent owners had AP.

Question 27

Voidable TItle Rule

Answer 27

Where the true owner intends to transfer the good, even though possession was procured through fraud or misrepresentation, it becomes good title if it is transferred to a good-faith purchaser for value.
a. Where you buy from a merchant, you are always considered a “good-faith” purchaser

The original owner can go after the person whose check bounced, but they cannot go after subsequent good-faith purchasers.

Question 28

Elements of a Gift

Answer 28

1. Intent
2. Delivery
   a. Manual
   b. Constructive
   c. Symbolic
3. Acceptance

Question 29

Gifts Causa Mortis

Answer 29

1. Gifts given at the time of impending death. You give this because you are about to die.
   a. Revokable (historically automatically when someone gets better – this is because the gift was given thinking you were about to die)
   b. Expressly: must revoke gift during a certain period after the person gets better or gift is valid.
   c. Uncomfortable with this because you could cover these gifts with a will.

Question 30

Gifts Inter Vivos

Answer 30

Gift made with no shadow of impending death

Question 31

Adverse Possessor

Answer 31

A person who is not the legal owner of property, and who in fact may have entered as a trespasser who uses the property for enough years becomes the owner of the property and defeats all rights of the true, record, or rightful owner, even if the latter had legal or record title.

Question 32

Adverse Possession Elements

Answer 32

1. Actual Entry
2. Exclusive Possession
3. Open & Notorious
4. Hostile and Adverse
5. Continuous and Uninterrupted

Question 33

Hostile and Adverse (AP - Land) Methodologies

Answer 33

1. Objective - Majority view. The state of mind is irrelevant and we should only look at conduct.
2. Good-faith - Minority view. Mistaken possession is hostile and adverse because we accept the argument, “I thought it was mine so I made it mine.”
3. Bad-faith - Minority view. Mistaken possession is not hostile and adverse because we do not accept the argument, “I thought it was mine and I made it mine.” The possessor must know that the land was not their’s and still intended to make it theirs.

Question 34

Tacking

Answer 34

Assuming the time that a previous adverse possessor was on the land when the property was passed through privity to the new adverse possessor.

Question 35

Privity

Answer 35

A chain of good faith possessors.

Question 36

List of Legal Disabilities

Answer 36

1. Minor
2. Insanity
3. Imprisonment
4. Military (jurisdictional)

Question 37

Open and Notorious (AP - Chattels) Rules

Answer 37

1. Demand Rule: : Statute of limitations does not start running until the true owner makes a demand for property and demand is refused.
2. Discovery Rule: cause of action doesn’t accrue until the injured party discovers (or by exercise of reasonable diligence & intelligence - should have discovered) facts which form the basis of the cause of action (due diligence is for us to assess). No demand is necessary for the statute of limitations to begin, just the discovery of the facts. This rule is in favor of the true owner and gives the true owner more time.
3. Conversion Rule: Statute of limitations starts running against the owner as soon as chattel is converted.

Question 38

Replevin

Answer 38

A procedure whereby seized goods may be provisionally restored to their owner pending the outcome of an action to determine the rights of the parties concerned.

Question 39

Void Title Rule

Answer 39

1. if a person acquires possession of a good where true owner did not intend to transfer title, possessor acquires no title and title cannot be transferred to anyone else.
2. If the item is sold, the original owner can go after the subsequent purchasers. The only way to defend the original owner from getting the item back is to say the subsequent owners had AP.

Question 40

Voidable Title

Answer 40

1. Where true owner intends to transfer the good, even though possession was procured through fraud or misrepresentation, it becomes good title if transferred to a good-faith purchaser for value.
2. We cannot reach the good-faith purchaser

Question 41

Four Unities of a Joint Tenancy

Answer 41

■ Time: the joint tenant’s interest must vest at the same time.

■ Title: The joint tenants must acquire title by same instrument or joint AP (can never arise by intestate succession or other act of law)

■ Interest: all must have equal undivided shares and identical interests measured by duration (today, unequal shares allowed)

■ Possession: each must have right to possession of whole; one can voluntarily give exclusive possession to another joint tenant

Question 42

Tenancy in Common

Answer 42

❖ Characteristics:

a. Separate but undivided interest
b. No survivorship
c. Interests are descendible and conveyed by deed or will
d. Transferees become tenants in common with the remaining tenants in common.
e. A co-tenant can mortgage his interest to secure a loan or can sell his interest, but he cannot sell his co-tenant’s interests.

Question 43

Tenancy by the Entirety

Answer 43

❖ Characteristics:

a. 4 unities + marriage (form of asset protection)
b. This is a form of asset protection