Property Flashcards
What are the 5 Theories of Property Rights?
1) Protect First Possession
2) Encourage Labor
3) Utilitarian Theory
4) Ensure Democracy
5) Personhood Theory
What are 4 important rights in the bundle of sticks?
1) Right to transfer
2) Right to exclude
3) Right to use
4) Right to destroy
What are the elements of adverse possession?
1) Actual
2) Exclusive
3) Open and Notorious
4) Adverse and Hostile
5) Continous
6) Prescriptive Period
Do most places consider the state of mind of the claimant in adverse possession cases?
No. Majority rule is that most places don’t consider the state of mind of the claimant. The minority rule is looks at either good or bad faith
Is privity necessary to argue tacking in adverse possession cases?
Yes.
Can an adverse claimant acquire property interest more than the record owner?
No. They can acquire the property interest of the record owner and nothing more
Under the modern rule, do landowners own up to the heavens and down to the center of the earth?
No. Under the modern rule, landowners have a claim to as much of the space above the ground they can occupy or use and rights to the subsurface they can reasonably and foreseeable use
What are 3 approaches governing surface water?
1) Riparian system: assigns water rights to a landowner whose property adjoin a watercourse
2) Prior appropriation system: Location of the owner’s land is irrelevant. Water rights are allocated to the first person to divert the water for beneficial use
3) Permit system: requires a permit for diversions of surface water
What are 3 approaches governing subsurface water?
1) Reasonable use approach: a surface owner may use groundwater only for a reasonable use on the overlying land
2) Correlative rights: the surface owner is entitled to a proportional share of the groundwater beneath their land
3) Permit system: title to groundwater invested in the state so surface owner can obtain water rights only through a permit
What are 4 ways to aquire an interest in chattels?
1) Capture
2) Finders
3) Gift
4) Creation
What is the rule of capture?
The first person to take possession of a “wild animal” on “unowned land” is the lawful owner of the animal
Does control of a wild animal have to be absolute to capture it under the rule of capture?
No. Control of a wild animal doesn’t have to be absolute (see State v. Shaw)
When does a person have a pre-possessory interest in the property?
When a person takes significant steps towards achieving possession, they have a pre-possessory interest in the property (see Popov v. Hayashi)
What are 4 categories of found chattels?
1) Lost property - owner unintentionally parts with the property
2) Mislaid - owner voluntarily and knowingly placed somewhere but the owner unintentionally forgets
3) Abandoned - owner knowingly relinquishes all rights and title to the property
4) Treasure trove - owner concealed property hidden long ago
What are the property rights given to the finder of various types of found chattels?
Lost property - finder gets rights superior to all but the prior owner
Mislaid - finder has no property rights but owner of the place where the mislaid item is found must use reasonable care in safekeeping
Abandoned - finder gets full property rights
What are the elements for adverse possession of chattels?
Very state to state, but usually include:
1) Open and notorious
2) Good faith
3) Prescriptive period
What stops the running of the statute of limitations in adverse possession of chattel cases?
Concealment and the discovery rule
What are the 3 elements of an inter vivos gift?
1) Intent - donor must intend to immediately transfer
2) Delivery - property must be delivered to the donee
3) Acceptance - donee must accept that property
What are types of delivery?
1) Manual - donor must physically give the item to the donee. Required if practical
2) Constructive - donor gives an object that provides access to the item. Allowed if manual is impractical
3) Symbolic - donor gives a symbol of the object to the donee. Done if manual is impossibl
What are the 4 elements of a causa mortis gift?
1) Donative intent
2) Delivery
3) Acceptance
4) Donor’s anticipation of imminent death
What is a fee simple absolute?
All the sticks in the bundle (right to alienate, use, exclude)
Uses the phrase “and heirs”
What is a life estate?
O conveys “to A for life” or “to A until A dies”
Right to use and exclude
Right to alienate - but converts to a life estate per autre vie (length of A’s life)
What are the 3 types of fee simple defeasible?
1) Fee simple determinable
2) Fee simple subject to condition subsequent
3) Fee simple subject to executory limitation
What is a fee simple determinable?
“So Long as”, “While”
Ex: O conveys to A while A is in the army
Full bundle of sticks but the right to alienate has conditions
What is a fee simple subject to condition subsequent?
“But if”, “and if not”, “enter and reclaim”, “right to re-enter”
Ex: O conveys to A on condition that the property is used as a farm and if not O can enter and reclaim
A fee simple but with conditions that if they happen, O has the right to take it back
Fee Simple Subject to Executory Limitation
“So long as… then to B”, “But if… then to B”
Ex: O conveys to A so long as the property is used as a farm, then to B
Executory interest (usually to a 3rd party) becomes possessory automatically upon condition
What are 3 possible future interests for a grantor?
1) Reversion
2) Possibility of reverter
3) Right of re-entry
All are alienable, devisable, and descendible
What are 4 types of remainders?
1) Indefeasibly vested remainder
2) Vested remainder subject to divestment
3) Vested remainder subject to open
4) Contingent remainder
What are 2 types of executory interests?
1) Springing executory interest
2) Shifting executory interest
What is an indefeasibly vested remainder?
- Created in an ascertainable person (person alive and identifiable at the time of the transfer)
- No condition precedent
Does a remainder always follow a life estate?
Yes.
What is a vested remainder subject to divestment?
Ex: O to A for life, then to D, but if D doesn’t survive B, then to E
Condition is subsequent, not precedent, because D’s interest is ready to become possessory unless the specified events happen (D dies before B)
What is a vested remainder subject to open?
Ex: O to A for life then to B’s children
Children are a “class” that can become bigger so the share become smaller in the future
What is a contingent remainder?
Remainder that is not “vested”
Either (1) given to an unascertainable person (ex: not yet born person) or (2) subject to a condition precedent
What is a springing executory interest?
Follows an interest in the transferor
Ex: O to B so long as D is president, then 1 year after D leaves office, to C
What is a shifting executory interest?
Follows an interest in the transferee
Ex: O to B so long as D is president then to C
