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1L > Property > Flashcards

Property Flashcards

1
Q

5 Theories of Property Rights

A
  1. First Possession
  2. Encourage Labor
  3. Utilitarian Theory
  4. Ensure Democracy
  5. Personhood Theory
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2
Q

First Possession

A

“first come, first serve”; “first in time, first in right”

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3
Q

Lockean Labor Theory

A

ownership arises with the mixing of one’s labor with natural resources

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4
Q

Utilitarian Theory

A

recognizes property rights in objects when it will promote the welfare of all members of society

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5
Q

Civic Republican Theory

A

ensure democracy, economic security through private property ownership, political independence through private property ownership

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6
Q

Personhood Theory

A

facilitate personal development; property is necessary for an individual’s personal development; property is an extension of ourselves

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7
Q

Framing Standards for Possession

A
  1. Control
  2. Relativity of title
  3. Constructive ownership
  4. Custom
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8
Q

Rule of Capture

A

property in animals ferae naturae is acquired by occupancy only

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9
Q

Occupancy

A

kill, capture, or mortally wound without abandoning pursuit; mere pursuit does NOT constitute occupancy; efficiency rule

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10
Q

Efficiency Rule

A

everyone is better off, efficient allocation of resources

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11
Q

Coase Theorem

A

If property rights are well defined and tradeable, and transaction costs are low, then
efficiency will obtain through voluntary trade, regardless of initial allocation.

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12
Q

Invisible Hand Theory

A

competitive market will lead to the efficient allocation of resources regardless of
the initial distribution of wealth

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13
Q

Central Myth of American Property Law

A

“In the beginning, all the world was America…” (Locke), big wasteland, void, humans impose labor on land to make it theirs, start in world which no one has rights to anything

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14
Q

What is Property?

A

Rights among people concerning things; property as a bundle of rights

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15
Q

4 Key Implications of Property Rights

A
  1. legal positivism
  2. rights are relative
  3. rights are divisible
  4. rights evolve over time
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16
Q

Legal Positivism

A

property rights are defined by the government

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17
Q

Relativity of Property Rights

A

property rights are not absolute

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18
Q

Divisibility of Property Rights

A

property rights are divisible and may be split among multiple holders

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19
Q

Evolution of Property Rights

A

property rights evolve as law changes; property law is a dynamic process

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20
Q

Stability of Title

A

property rights should be certain and predictable

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21
Q

Bundle of Rights

A
  1. Right to Transfer
  2. Right to Use
  3. Right to Exclude
  4. Right to Destroy
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22
Q

Right to Transfer

A

owner may freely alienate any of her property to anyone; scope sometimes limited for public policy reasons; vital to market economy b/c property is devoted to its most valuable resource

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23
Q

Doctrine of Discovery

A

Europeans can discover land that is occupied only by Indians or non-Christians, not “civilized” people; acquire right via conquest; Johnson v. M’Intosh

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24
Q

Status Property/Whiteness as Property

A

Property is linked to identity, evolutionary trajectory of whiteness as property; identity–>status–>property; Sally’s Guardian v. Beaty

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25
Q

Critical Characteristics of Status Property

A
  1. Whiteness as a traditional form of property
  2. Modern views of property as defining social relations
  3. Property and expectations
  4. The property functions of whiteness
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26
Q

Property Functions of Whiteness

A
  1. Rights of disposition
  2. Right to use and enjoy
  3. Reputation and status property
  4. The absolute right to exclude
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27
Q

Right to Exclude

A

The law protects an owner’s right to exclude subject to privileges such as consent and necessity

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28
Q

Right to Use

A

owner is entitled to use her property as she wishes, as long as she does not injure the rights of others

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29
Q

Nuisance

A

non-trespassory invasion of another’s interest in the private use and enjoyment of the land

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30
Q

Elements of a Nuisance Claim:

A
  1. Intentional
  2. Nontrespassory
  3. Unreasonable
  4. Substantial Interference
  5. Use of enjoyment of land
31
Q

Right to Destroy

A

scope of owner’s right to destroy is unclear, law rarely intervenes to prevent destruction, but concerns arise when an owner seeks to destroy property that has substantial value to society

32
Q

Adverse Possession

A

trespassing on someone else’s land that can result in ownership of the land without buying it or obtaining a deed for long enough time with the right behaviors

33
Q

Reasons for Recognizing AP

A
  1. No public record in England before the 20th century
  2. encourage improvement of land
  3. punish those who sit on their rights
  4. help establish disputed property rights
  5. settle boundary disputes
  6. protect lengthy reliance
34
Q

3 Common Cases of AP

A
  1. AP believes he or she owns the land, but there is a defect in chain of title.
  2. AP is encroaching neighbor’s boundary
  3. AP intends to steal
35
Q

Elements of AP

A
  1. Actual Possession
  2. Exclusive Possession
  3. Open and Notorious Possession
  4. Adverse and Hostile Possession
  5. Continuous Possession
  6. For the statutory period
36
Q

Additional State Requirements for AP

A

claim of right, good or bad faith, payment of property taxes, color of title

37
Q

Justification for AP

A
  1. Prevent frivolous claims
  2. Correcting title defects
  3. Encouraging development
  4. Protecting personhood
38
Q

4 Ways to Acquire Rights

A
  1. Capture
  2. Find
  3. Adverse Possession
  4. Gift
39
Q

Rule of Capture

A

awards property rights to the person who brings a wild animal under her certain control

40
Q

Control (State v. Shaw)

A

confinement in own private enclosure, subject to use at his own pleasure, and maintains reasonable precautions to prevent escape; State v. Shaw

41
Q

Control (Popov v. Hayashi)

A

When a person completes a significant portion of the steps to achieve possession of an item, but is prevented by the unlawful conduct of another, that person is entitled to a prepossessory interest in the item

42
Q

Popov v. Hayashi

A

prepossessory interest constitutes a qualified right to possession

43
Q

State v. Shaw

A

control must be pretty certain the animal will not escape; animal must be deprived of its natural liberties

44
Q

Control

A

confinement in own private enclosure, subject to use at his own pleasure, and maintains reasonable precautions to prevent escape

45
Q

What is Property?

A

Rights among people concerning things

46
Q

animus revertendi

A

habit of return

47
Q

partus sequitur ventrem

A

the offspring follows the condition of the mother

48
Q

ratione soli

A

by reason of the soil

49
Q

Johnson v. M’Intosh

A

Land title transfers are only valid when made under the rule of the currently prevailing government

50
Q

Trespass

A
  1. intentional entering of land
  2. possessed by another
  3. or causing a third person or thing to do so
  4. regardless of if any harm was caused
51
Q

Right to Use

A

owner is entitled to use her property as she wishes, as long as she does not injure the rights of others

52
Q

Spite Structure

A
  1. no purpose

2. strictly to harm another

53
Q

Doctrine of Prior Appropriation

A

first user to appropriate the resource has the right of the continued use to the exclusion of others

54
Q

Right to Destroy

A

scope of owner’s right to destroy is unclear; law intervenes to prevent destruction, but concerns arise when an owner seeks to destroy property that has substantial value to society

55
Q

Qualified Right to Destroy

A

rational person’s decision to destroy should be assumed to be in service of further expressive objectives

56
Q

Eyerman v. Mercantile Trust Co.

A

When a landowner attempts to compel his successor in interest to do to the land something against public policy, a court may deem the condition void.

57
Q

Gravity of Harm Test

A

gravity of harm can’t outweigh the utility of the conduct

58
Q

Actual Possession

A

physically use land in same manner the owner would

59
Q

Exclusive Possession

A

possession cannot be shared with owner or with the public in general

60
Q

Open and Notorious Possession

A

possession must be visible and obvious, so owner could become aware of A.P.

61
Q

Continuous Possession

A

possession must be continuous as a reasonable owner’s would be

62
Q

Adverse and Hostile Possession

A

not authorized by the owner; 3 mental states (good faith, bad faith, or mind is irrelevant)

63
Q

Preventing Frivolous Claims

A

bars lawsuits on stale, unreliable evidence, protecting the occupant from frivolous claims; security of title encourages productive land use

64
Q

Correcting Title Defects

A

resolves technical mistakes occurring in conveyance of land by protecting title of the person who actually occupies the land

65
Q

Encouraging Development

A

reallocates title from idle owner to industrious squatter, thus promoting the productive use of land

66
Q

Protecting Personhood

A

a thing you have enjoyed and used for a long time takes root in your being–OWH

67
Q

Finders

A

A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone but the true owner (and prior finders), and is entitled to keep abandoned property

68
Q

Gifts

A

Immediate transfer of property rights from the donor to the donee without any payment or other consideration

69
Q

Elements of a Gift

A
  1. donative intent
  2. delivery
  3. acceptance
70
Q

Inter Vivos Gift

A

ordinary gift of personal property that one living person makes to another; present interest in future estate

71
Q

Testamentary Gift

A

future interest in present estate; only valid if its satisfied the statute of wills

72
Q

Causa Mortis

A

gift of personal property made by a living person in contemplation death; must actually die of what death was contemplated

73
Q

Elements of Causa Mortis

A
  1. donative intent
  2. delivery
  3. acceptance
  4. donor’s anticipation of imminent death
    * donor may revoke the gift before his death

1L (9 decks)

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