Week 1 Flashcards
Five theories of property
(1) Protect first possession – unowned things become owned by the first person to possess them
(2) Encourage labor – assuming unlimited supply of labor, a person acquires property rights when a person mixes labor with natural resources (which are unowned)
(3) Maximize societal happiness – the purpose of property is to maximize the overall happiness of society (utilitarian); distribute property in a manner that best promotes welfare for all (not those who own property); encourage use of property that promotes common good; ensure owners use resources efficiently
– Jeremy Bentham, John Stuart Mill interested in maximizing happiness; later translated into ‘maximize wealth’ by economists
(4) Ensure democracy (civic republican theory) – prevent “rotten boroughs” where landowners control votes of tenants; right to own property shapes citizen-state relationship; create independence from government and stake in system
(5) Facilitate personal development (personhood theory) – property is necessary for a person’s development; people venerate property as extensions of themselves; personhood property should be protected over non-personhood property (e.g., apartment should be protected for a tenant over a rental company)
What is property
Bundle of rights
– Typically include (among others) the rights of: transfer, to exclude, to use, to destroy
– This view has come under attack in recent years
o Rights defined by government
o Not absolute
o Divisible
o Evolve as law changes
Two categories of property
Real property: land and things attached to land (e.g., houses and fossils in land)
– Fixtures such as chandeliers generally treated as real property
Personal property: moveable and intangible items (e.g., shares of stock and patents)
Adverse Possession
if A occupies Bs land for a long enough period while meeting certain conditions, A acquires title to the land without B’s consent
Six Elements
(1) Actual: physically use real property in the manner that a reasonable owner would OR using the real property more intensively than a reasonable owner would
(2) Exclusive: hold possession of land for oneself and not for another
(3) Open & notorious (such that if owner made reasonable inspection, they would become aware of adverse claim)
(4) Adverse & hostile: must not be authorized by owner
– also must view land as one’s own or intend to take ownership of land (depending on jurisdiction)
– hostility will be assessed by actions of adverse possessor, not by subjective state of mind (Tioga Coal) –> don’t need to know who owner is to adversely possess
(5) Continuous: as continuous as a reasonable owner’s would have been
(6) For statutory period (ranges from 5 to 40 years)
NOTES
– real property can be divided if only a portion is under exclusive possession of adverse possessor
Majority rule for “Adverse and Hostile” requirement of adverse possession
No intent requirement, just need to show lack of permission/consent
OR
Go beyond bounds of limited consent (e.g., if A has consent to enter land but not to build a house, then A building a house would be adverse and hostile)
Color of Title (Adverse Possession)
Most states provide enhanced protection for adverse possessors whose claims are based on color of title, which is an invalid written document such as a deed or title that purports to give ownership to land
Some states shorten statutory period for adverse possession if occupant holds color of title
Can establish constitutive possession of entire tract or portion of tract with color of title
Two common procedural situations for adverse possession claims
(1) Adverse possessor brings quiet title action (e.g., Gurwit)
– Goal is to enter ownership in public record
(2) Adverse possessor raises doctrine as a defense in a lawsuit intended to recover possession of land (“active ejection”)
Tacking
adverse possession periods of two or more successive occupants may be added together to meet statutory period if successive occupants are in privity
“the requirement of “privity” is no more than judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or the trespasser.”
Owner’s Rights in Adverse Possession
In general, adverse possessors receive owner’s claim to land (which may not be full rights (fee simple absolute), but may instead be partial rights (e.g., life estate (right to land until death))
Adverse possession not available against person who does not hold current rights to land (e.g., future rights)
– In most jurisdictions, adverse possession cannot be asserted against land held by state and local governments
– Some states permit adverse possession of land owned by state/local governments if the land is used for a proprietary, nonpublic purpose (e.g., timber production)
Disabilities in cases of adverse possession
Most commonly recognized disabilities are imprisonment, minority, and lack of mental capacity
– States differ on how a disability affects adverse possession statutory period. Some jurisdictions suspend running of period until disability is removed. Others provide a limited period of time after disability ends within which a suit may be brought
Suspending statutory clock is called “tolling” (period is “tolled”)
– Disabilities cannot be tacked, death ends all disabilities, and a disability does not shorten standard period for adverse possession
Size types of freehold estates
(1) Fee simple absolute
– Owner owns all rights
– Duration potentially infinite
– Alienable, devisable, and descendible
– NOTE: no longer required to use words “heirs” to create fee simple (ruling following Cole)
(2) Life estate
– Conveyed to person for their lifetime. After that person dies, the estate terminates.
– Creates future interest that becomes possessory for new owner after life estate owner dies
– Can be constructed to last a different amount of time than a single person’s life (e.g., “to B for life, then to C”, in which case C is entitled to “remainder”)
– Cannot be conveyed to corporation (attempt to convey life estate to company creates fee simple absolute
(3) Fee tail
(4) Fee simple determinable
(5) Fee simple subject to a condition subsequent
(6) Fee simple subject to an executory limitation
Means for transferring estates and future interests
(1) Transfer by deed (alienable)
– Living person transfers real property by a deed (completed transfer = ‘conveyance’ or ‘grant’)
(2) Transfer by will (devisable)
– Property of decedent transferred by a will (completed transfer = ‘device’)
—Different terms apply to transfer by will vs deed
(3) Transfer by intestate succession (descendible)
– For decedent without will, property transferred according to state statutes (usually to closest living relatives)
– If a person dies without heirs, a state will typically distribute property to:
a) Lineal descendants (‘issue’, e.g., children, grandchildren) and spouse
— Shared among issue and spouse when both exist
b) Parents and their issue
c) Ancestors and collaterals (all persons related by blood who aren’t spouse, issue, parents, or ancestors)
d) Escheat – property goes back to state if decedent has no living relatives
