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property midterm > Property Midterm > Flashcards

Property Midterm Flashcards

1
Q

What 3 concepts do Courts use to support property?

A

Economic maximization; Certainty; Fairness

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2
Q

What are the 5 theories of property law?

A

First come, first possession; labor; utilitarian; civic republican; personhood

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3
Q

What is the first come first possession theory?

A

First person to possess the property is the proper owner.
- Critics say this can lead to depletion of resources, and it less relevant today as most tangible things are already owned. The theory does not adequately justify property, bc it describes how property rights arose, but not why it makes sense for society to recognize those rights.

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4
Q

What is the labor theory?

A

John Locke’s theory in 1600s. Believed property came from God. Each person has a property right over themselves given the laws of nature and thus people have a right to the fruit of their labor as well as their creativity, ingenuity and innovation.
- Criticism: How much value do you need to effectuate ownership?

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5
Q

What is the utilitarian theory?

A

Jeremy Bentham. Recognize property in order to maximize overall happiness or “utility” of society.
- Actions permissible if and only if it results in net happiness (happiness versus suffering) as compared to other options.

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6
Q

What is the civic republican theory?

A

Owning land allows the exercise of political judgement, which is vital to true democracy and thus should be afforded to the masses.
- Criticism: Only applied to White men

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7
Q

What is the personhood theory?

A

Each person has a close emotional connection to certain tangible things and so these things shouldn’t be sold on the common market

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8
Q

What are the elements needed to capture wild animals (Pierson v. Post)?

A
  1. Manifests an intent to capture an animal; and
  2. Deprive the animal of his liberty; and
  3. Brought the animal within certain control.
    Applies to both private and public property.
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9
Q

Which theory applies to capturing wild animals in Pierson v. Post?

A

Utilitarian in encouraging people to eradicate foxes. Labor (theory) was not rewarded.

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10
Q

What is the right of publicity?

A

Grants individuals an exclusive right to control the commercial value of their identity. Note identity is the BROAD term - goes beyond name and likeness.

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11
Q

What are the elements for right of publicity?

A

i. Defendant’s use of plaintiff’s identity;
ii. Appropriation of identity to D’s advantage;
iii. Lack of consent; and
iv. Resulting injury.

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12
Q

What is the downside of the right to publicity?

A

The First Amendment and free speech. It can impede creativity and limit access to use information that some consider is public domain.

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13
Q

How do the property theories apply to the right of publicity?

A

i. First possession theory: Celebrity first person to take possession of their celebrity status.
ii. Labor theory: The celebrity’s status is largely the result of their own labor.
iii. Utilitarian theory: Incentivizes celebrities to engage in socially-useful activities; the use of celebrity endorsements helps consumers distinguish between competing products
iv. Civic republican theory: The law incentives celebrities to work; working empowers people and grants them independence from the government
v. Personhood theory: Supports the celebrity’s right to safeguard her personhood

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14
Q

Why doesn’t SNL violate the right of publicity?

A

Parody and artistic expression is protected under first amendment.

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15
Q

Why isn’t a book on MLK a violation of right of publicity?

A

Because it is promoting history.

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16
Q

What is the rule on body parts being a property right?

A
  1. Once it is excised, the original person cannot profit.
  2. Remember, human cells ARE in blood, sperm, hair. So if it replenishable, it can be sold. If it is not (spleen), cannot be sold.
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17
Q

Why do we study race and property?

A
  1. Recognition needs to occur of past injustices
  2. Social change needs to occur
  3. Legal change has to occur; legislative change in all aspect of property must occur – taxes, fair housing, discrimination in land ownership, and how do we do this? Making sure we are objectively looking at who is running for elected positions.
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18
Q

What are the four rights in the bundle of rights?

A
  1. Right to use
  2. Right to transfer
  3. Right to exclude
  4. Right to destroy
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19
Q

What are the exceptions to the right to use?

A

Use of your property cannot injure others.

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20
Q

What are the exceptions to the right to destroy?

A

Might be limited by public policy

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21
Q

What are the exceptions to the right to exclude?

A
  1. Consent
  2. Necessity
  3. Public policy
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22
Q

What are examples of exceptions in the right to transfer?

A
  1. You can’t transfer your gun to a former felon.

2. You can’t refuse transfer of property based on race.

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23
Q

What is the Discovery Rule?

A

i. Discovery gives discoverer’s nation right of ownership of the land.
ii. Can be confirmed by conquest or purchase as against all other European countries.

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24
Q

What theory supports not having property rights to excised cells from your body?

A
  1. Protect health and safety.
  2. Promote research and innovation. Advance science. Do not threaten innocent parties engaged in good science such as researchers.
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25
Q

What is the Uniform Anatomical Gift Act?

A
  1. Permits adults to give all or part of his body for certain designated purposes which include research and science.
  2. The Act does NOT permit donor to receive money
  3. You CANNOT sell your body.
  4. You CAN sell parts of your body that can be replenished (like hair)
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26
Q

What is the Doctrine of Accession?

A

A mode of acquiring property that involves the addition of value to property through labor or the addition of new materials.

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27
Q

What are the elements of trespass?

A
  1. Intentionally enter land; (note you don’t need to have ANY bad will or bad faith, you only needed purposeful knowledge that you entered the land. Mistakes count as trespass. If someone pushes you onto someone’s land, that is not trespass because you didn’t voluntarily walk onto the land.
  2. Owned by another;
  3. And no exception/privilege applies.
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28
Q

What are the exceptions to where you are not liable for trespass?

A
  1. Entry is done with the consent of the owner; or
  2. Entry is encouraged by public policy; or
  3. Entry is justified by the necessity to prevent a more serious harm to persons or property
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29
Q

What is the Shack Standard/Rule?

A

Property rights serve “human values” and are “recognized toward that end”. Thus, there must be a “fair adjustment of the competing needs of the parties”. E.g., employer’s purpose should not be to gain a commercial advantage by excluding someone.

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30
Q

What is a Spite Fence?

A

A useless structure erected with the sole purpose of spiting or annoying your neighbor

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31
Q

What elements are required for the structure to be a Spite Fence?

A
  1. Malicious intent; and
  2. Fence has NO USEFUL use (just needs to be useful to one person). Useful purpose includes security, boundary line, deadening noise, blocking for aesthetic reasons.
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32
Q

Which theory does the Spite Fence rule support and why?

A

Supports utilitarian theory. Economic efficiency – erect a useless structure means you’re not using the land in a way that is most productive.

33
Q

What are the two recurring themes in property law?

A
  1. RELATIVITY IN PROPERTY RIGHTS; AND

2. THE BALANCING OF COMPETING INTERESTS.

34
Q

What is the Rule to use when assessing whether someone has the Right to Destroy? What theory is employed?

A

BALANCING the rights of the neighbors/society versus that of the owner who seeks to destroy. UTILITARIANISM THEORY. If it creates a NET HARM, do not do it.

35
Q

What is the definition of adverse possession?

A

Allows somebody who possesses the land of another for an extended period of time to be able to claim legal title to that land without compensation. Generally, an occupant acquires title to land by adverse possession if the occupant’s possession satisfies five elements
b. Only applies to private property (NO government land)

36
Q

What are the elements of adverse possession?

A 
A Horse On Every Corner
Actual
Hostile
Open and notorious 
Exclusive
Continuous for the statutory period
37
Q

Define “Actual” in adverse possession using the Majority view.

A

Claimant must physically use the land in the same manner a reasonable owner would given its character, location and nature.
Needs to be some sort of improvement on the land. Depending on the nature and character of the land, this includes taking residence, cultivation, improvement, grazing, pasturing, hunting, fishing, timber harvesting, mining, or other economically-productive activities.

38
Q

Define “Actual” in adverse possession using the Minority rule.

A

Used in CA. You must enclose the property, cultivate it OR improve it

39
Q

Define “Hostile” in adverse possession.

A

Pass one of three tests:

  • Majority view: objective. No permission from original owner.
  • Good faith: subjective. You honestly believe you are the true owner of the land (you have a bad title but don’t know it)
  • Bad faith: You know the land isn’t yours and you want to take it from the owner.
40
Q

Define “Open and Notorious” in adverse possession

A
  1. The claimant’s acts of possession must be so visible that if the true owner were to inspect the premises would know there was a trespasser
  2. If you only use the land at night to stargaze and just leave some snacks behind. This would likely not alert the owner and this is not enough to satisfy this element.
  3. If passersby can see you clearing wood off the property, this element is satisfied.
41
Q

Define “Exclusive” in adverse possession

A

The possession cannot be shared with the owner OR with the public. Renting is OK because this is what a reasonable owner would do.

42
Q

Define “Continuous” in adverse possession.

A

Claimant’s acts of possession need only be as continuous (or sporadic) as those of a reasonable owner — will depend on the nature and character of the land (e.g., occupying a beach house every summer could constitute “continuous” use, even though the use is seasonal).
Do the math on number of days out of how many years (count days versus visits as days more easily to determine result)

43
Q

What is tacking?

A

An adverse possessor can tack on the time of possession of a prior adverse possessor to meet the statutory period requirement if the adverse possessors are in privity with one another (i.e., the transfer of land was voluntarily agreed upon), and there is a legal relationship between parties. Relationship that is needed for privity needs to be something that is a conveyance.

44
Q

What are three policy reasons supporting the law of adverse possession?

A
  • Limitation Model: Prevents frivolous claims. For example, after 30 years someone claims ownership but no evidentiary support exists at such a later period.
  • Administration Model: Supports correction of title defects.
  • Developmental Model: Encourages development. An owner doing nothing with property vs an industrious land pirate who produces crops on this farm. More economically viable use of property.
45
Q

What is color of title?

A

i. Refers to a claim to title that appears valid but may be legally defective
ii. You need color of title AND adverse possession to obtain constructive possession.
iii. Example: You buy land from someone who never owned it, 200 acres worth. It is NOT a valid title. You weren’t aware it was faulty. You make good use/live in 50 acres of the 200 acres. Now you have color of title. Because of this, you also get title to the rest of the entire 200. He is in constructive possession of the entire 200. If owner returns to live on 50 acres, you have to give that to him. Remember person with color of title only gets ownership rights to the lot they are on, not the next one too.
Note: If you had a faulty title, but you never even partially possessed the property, it is not yours because the Actual element is not satisfied.
Note:
i. Constructive Possession
ii. May shorten applicable SoL
iii. The “adverse and hostile” element is presumed

46
Q

What happens if you own land and don’t know it?

A

No adverse possession, because you have to know you are holding it adversely. So, you need intentional trespass against the true owner. This is seen through the “hostile” element of adverse possession.

47
Q

What are the five disabilities?

A
  1. Insanity
  2. Imprisonment
  3. Insane / lack of mental capacity
  4. Minority
  5. Armed services
48
Q

What are the six rules related to adverse possession and disabilities?

A
  1. Extends the statutory period.
  2. Death ends all disabilities.
  3. Disabilities cannot be tacked (e.g., child with disability dies, then mother is in armed forces – they cannot be tacked; don’t get confused if she throws in a second person with a second disability)
  4. Suit must be brought within a limited time after the disability ends.
  5. Disability must exist at the beginning of the adverse possession period.
  6. Disability never shortens the statutory period.
49
Q

What is the rule of capture of chattel?

A
  1. An intent to possess on the part of the possessor (you cannot have abandoned it)
    a. Abandonment: When the piece of property is abandoned, the first person to take it up is the new owner and has possession of that property.
  2. Actual control of property
50
Q

What are the three exceptions to the rule of capture of wild animals?

A
  1. Domestic animals
  2. Location—a wild animal is on land so far from native habitat that capturer should know the animal already belongs to another
  3. Minority Rule: wild animals with an indica of ownership like a camel with a collar.
51
Q

What happens when a wild animal you captured escapes back into the wild?

A

Your ownership rights end.

52
Q

What if you trespass onto someone’s land and you capture a wild animal?

A

You have no capture. A landowner is in constructive possession of everything on their land. Ex: If P kills a deer on O’s land, O now owns the deer.
However, the landowner needs to capture it himself in order to acquire title to that animal.

53
Q

What happens with fisherman who catch fish in a net? Do they own the fish?

A

When he has confined them in a private enclosure, where he may subject them to his own use at his pleasure, and maintains reasonable precaution to maintain escape, then that IS enough to convey property rights. In other words, absolute control is not necessary.
[Complements Pierson, but Pierson preferred more action on the spectrum of control such as wounding]

54
Q

What is pre-possessory interest?

A

You take significant steps to possess a piece of abandoned property (like a baseball in stadium), but your efforts are interrupted by the unlawful acts of others. You have only a pre-possessory interest. (Split ball proceeds with the person who takes possession)

55
Q

What are the 3 types of property when looking at the rights of Finders?

A
  1. Lost
  2. Mislaid
  3. Abandoned
56
Q

What is lost property and who gains rights to it once its found?

A

a. Property is lost when the owner unintentionally and involuntarily parts with it (two types of intent)
b. GOES TO FINDER subject to specific rules re employers and unless true owner shows up (or any prior possessor)

57
Q

What is mislaid property and who gains rights to it once its found?

A

a. Intentionally lay it somewhere but then unintentionally forget about it
b. GOES TO OWNER OF LOCATION (not the finder) unless true owner shows up.

58
Q

What is abandoned property and who gains right to the property once its found?

A

a. Property is abandoned when the owner knowingly relinquishes all right, title, and interest to it.
b. If any attempt to reclaim the property, then no abandonment.
c. GOES TO FINDER against all others, including true owner

59
Q

What two elements do you need to satisfy to be considered a “finder”?

A
  1. Ain intent to control the property;

2. An act of control

60
Q

Who owns an item embedded in soil?

A

Landowner.

61
Q

Hierarchy of ownership

A

Tenant over Resident owner over owner over invitee over employee over trespasser

62
Q

Who wins over who?

A
  1. Trespassers vs. landowners Trespassers will never have possessor rights over landowners.
  2. Tenants vs. landowners. Tenants have superior rights here because the stuff is going to the tenant not the owner of a skyrise in NYC.
  3. Employees vs. employers. Employers have rightful possession because employees are acting as agents.
  4. Employees/independent contractors vs. landowners. Landowners win.
63
Q

Relativity of Title

A

i. O v. A = O wins
ii. A vs. D = A wins
iii. D vs. E = D wins
iv. The prior possessor always has better ownership rights than the subsequent possessor the relativity of property rights.

64
Q

What are the policy rules supporting finders?

A

i. Reward expectations
ii. Protect ownership
iii. Facilitate bailments: we want finders to keep property until owner comes
iv. Maintain peace and order: don’t want people to steal others’ possessions

65
Q

What is the Peel Rule regarding an item found on someone’s property?

A
  1. A landowner has constructive possession of ANY lost chattels on her real property IF:
    a. General intent to exercise dominion over their real property (they have to spend time in the house for some period of time, or have a manager who does it for them)
    b. Engaged in substantial acts of control
  2. Otherwise, the finder is in rightful possession.
  3. If it was a trespasser, landowner always wins. Remember relativity.
66
Q

What are the two types of property and define them.

A

i. Real Property (includes all of the land and fixtures on land i.e. homes, trees, fences etc.)
ii. Personal Property (any tangible movable object not attached to the land)

67
Q

What are the implications of the bundle of rights?

A

i. Property Rights are Defined by Government
ii. Property Rights are NOT absolute
iii. Property Rights can be divided
iv. Property Rights evolve as law changes

68
Q

Can body parts be sold?

A

Body parts that cannot be replenished may not be sold. remember hair, sperm, etc., can be replenished

69
Q

Does adverse possession apply to government land or just private property?

A

Adverse possession only applies to private property.

70
Q

What are the only types of color of title?

A
  1. Person who conveys title does not actually own the land it purports to convey
  2. The document may lack a signature
  3. The document may describe the land incorrectly
  4. Procured through a faulty procedure
    NOTE: If you have color of title, you still need to satisfy the adverse possession elements
71
Q

What is animus revertendi?

A
  1. The term animus revertendi is a Latin phrase that means “with intention to relocate”. It can refer to an animal that is under the care of another, which distinguishes it from an animal ferae naturae. It is a type of ownership right recognized by property law.
  2. Any animal that strays from owner’s property onto public land cannot be taken and killed without compensation to the owner
72
Q

What is replevin?

A

Lawsuit to recover property

73
Q

What is trover?

A

Lawsuit to be awarded damages for someone taking your property.

74
Q

What phrase do we use to indicate someone has better property rights over another?

A

Person X has “superior property rights” over Person Y.

75
Q

What are the three types of statutes of limitation regarding recovering your chattel prior to it being adversely possessed?

A

i. Traditional Rule – starts at point it’s stolen;
ii. Demand and Refusal Rule – starts from when original owner demands it back and finder refuses it;
iii. Discovery Rule – starts when owner knew or should have known it was stolen; has to prove they made effort to find it
iv. Concealment – anything that would make chattel less likely to be found by its true owner – statute of limitations is tolled – you need intent to conceal

76
Q

What is an intervivos gift?

A

Gift made during donor’s lifetime. NOT revocable unless it’s an engagement ring

77
Q

What are the 3 elements to an intervivos gift?

A
  1. Intent to make an immediate transfer of property
  2. Delivery - Donor parts with dominion and control
    a. Three types of delivery
    i. Manual (required if practical) look at nature of gift
    ii. Constructive delivery (an object that provides access to the gifted item (if manual delivery is not possible). If already in the donee possession no need to redeliver.
    iii. Symbolic Transfer an object that represents or symbolizes the gifted item (if manual delivery is not possible)
  3. Acceptance: Mostly presumed by donee
78
Q

What if a diamond is in a car and someone gifts you the car keys?

A

If a diamond ring is locked in a car and you are gifted the keys to car, the ring is not a gift because it itself was not manually delivered and it could be. However if donor is paralyzed it is impractical to manually deliver so everything in the car is a gift

79
Q

What is a gift causa mortis?

A

vii. Gift causa mortis: A revocable gift of personal property in anticipation of the donor’s imminently approaching death. Four elements – just add following element to above gift elements
1. Anticipation of imminent death
NOTE:
Still effective even if person doesn’t die. So, if you end up living within a reasonable time, you can revoke the gift.
Note: Unlike a revocable gift, these gifts are REVOCABLE.
Note: These gifts override a will.

property midterm (3 decks)

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