Property I – Fall 1999, U of Iowa – Professor Kurtz
I.
Definition of Property
A.
Property is a relationship of two more
people to a thing.
B.
Connection with an object is necessary
for ownership.
1.
If expenses have been made in terms of time, money, and
labor, an ownership claim may be present.
2.
Administrative considerations may come into play in
deciding ownership of property.
3.
If property is an animal, its quality of life may be
considered in deciding who has a claim.
C.
Constructive possession is as good as
actual possession.
D.
Ultimately, might makes right (Robinson
Crusoe example)
II.
Property Rights by
Capture
A.
Rigoruous pursuit of a wild animal on
public land is not sufficient for aquisition of property right in animal.
Animal must be maimed or killed (Pierson v. Post - rogue killed fox pursued by
hunting party. Court held that fox was
property of rogue).
B.
Trapped animals that come under control
of owners of trap are property (State v. Shaw - Thieves of fishing net
possessed stolen property when they captured fish, even though fish had some
possibility of escape while net was in water ). “Nothing suceeds like sucess.”
III.
Property Rights by Find
A.
Common Law Distinctions (based on intent
of person who lost property)
1.
Lost Property: True
owner unitentionally parts w/ property, not knowing its whereabouts. Finder has title against all but the true
owner.
2.
Mislaid property:
True owner purposely placed chattel somewhere and then forgot about
it. Owner of locus in quo has claim
against all but true owner.
3.
Abandoned property:
Owner no longer wants property (could be lost intitially). Finder has claim against all.
4.
Treasure trove:
Coins and currency concealed by owner.
Must have element of antiquity - owner probably dead or unfindable. Finder has claim against all but true owner.
B.
Principles of Finders Law
1.
Adjustment of property rights between two non-owners is
made on basis of true owner showing up.
2.
We seek to protect true owners and reward finders.
3.
True owners are protected just as well without distinction
between lost & mislaid property
(Iowa still recognizes distinction, see Benjamin v. Lindner Aviation)
4.
We tend not to reward wrongdoers (Favorite v. Miller -
trespassor dug up statue that was unbegnost to property owners. Property owners won claim to statue.)
5.
Between two finders, 1st possessor wins, even if 1st
possessor is wrongdoer. Otherwise,
thiefery would be potentially endless.
6.
Commerce is to be protected. Buyers who buy from finders have claim over true owner
C.
Three Elements of Salvage Claim
1.
Marine peril
2.
voluntary rescue
3.
successful recovery of imperiled property
IV.
Property Rights by
Creation
A.
Right to Publicity
1.
An image that clearly conjures up the image of celebrity is
an appropriation of that celebrity’s identity (White v. Samsung)
B.
Pre-embyos a form of quasi-property (see
Kass v. Kass)
V.
Gifts
A.
Three Elements of a Valid Gift
1.
Intent of donor to make the gift
2.
Delivery - (3 kinds possible)
a)
Actual physical delivery (best), should
be done if practical
b)
Symbolic delivery: something that represents actual object,
e.g., a letter or note
c)
Constructive - object that provides
access to actual gift,e.g, the keys to a safe
3.
Acceptance by donee (presumed)
a)
Third Pary acceptors:
(1)
Agent (delivery not complete)
(2)
Trustee (delivery complete)
B.
Inter Vivos Gifts
1.
Possession Retained
by Donor Until Death; Donee receives residual use.
2.
“Bundle of Rights” goes to donee during life estate, except
for possession.
3.
Subject to estate taxes of donor
C.
Gifts Causa Mortis
1.
Gift made while in anticipation of imminent death.
2.
All three elements of gift still necessary Act of delivery
must be made by donor to validate gift.
Dominion must be sacrificed (Foster v. Reiss - letter instructing
husband as to whereabouts of property does not override statue of wills)
3.
Gift Causa Mortis is revocable if donor does not die from
anticipated peril.
4.
Property already in possession of donee is assumed
delivered
VI.
Rights of Possessors
A.
Same for real and personal property
B.
General Rule: Right of P to recover in ejectment “rests on strength of his own
title, and is not established by defects in” D’s title. (Tabscott v. Cobbs)
1.
Exceptions
a)
D enters under title of P
b)
D estopped to question P’s title
c)
Entry by stranger on prior peaceful
possessor
C.
Defendant cannot challenge title of
Plaintiff when D entered under P’s authority.
D.
A party that enters land claiming that
current possessor does not have good title may be ejected by possessor if party
is not entering under authority of who it claims is the true owner (D has no
claim of title whatsoever) (Tabscott v. Cobbs), thus
E.
Between two bad titles, first possessor
wins.
F.
Stranger entering under authority of 3rd
party who has superior title to current possessor cannot be ousted by current
possessor.
G.
Municipality has right to condemn
property. Inverse condemnation involves
payment after taking. When public has
to pay for inversion, P should have to show good paper title (Winchester v.
Stevens Point)
H.
Root of Title
1.
In IA, root of title is traced back to Lousiana Purchase
2.
Coveyances may be proven by
a)
Oral Testimony
b)
Grantor/Grantee Index
VII.
Powers of Possessors
A.
UCC
1.
Entrusting provision - Any entrusting of possession fo
goods to a merchant who deals in goods of that kind gives him the power to
transfer all rights of the entruster to a buyer in the ordinary course of
business.
2.
Buyer in the ordinary course of business who in good faith
and w/o knowledge that the sale to him is in violation of the ownershiop
rights...of a third party...buys in ordinary course from a person in the
business of selling goods of that kind.
B.
Equitable Estoppel
1.
Precludes P from denying or asserting material fact by
which “by his words or conduct...intentionally or through culpable negligence,
he has induced another who was excuseably ignorant of the true facts and who
had a right to rely upon such words or conduct, to believe and act upon them...”
(KH 140)
VIII.
Bailments
A.
Definition - entrusting of goods to
possession of another.
B.
Elements of Bailment
1.
Delivery
2.
Expectation of return
3.
Recipricol benefit
C.
Why re-delivery may fail (bailee presumed
negligent)
1.
Misdelivery - Delivery to wrong person. Strict liabliltiy applies to bailee. Exception is for finders who mis-deliver in
good faith.
2.
Acts of God, e.g. Fire, theft, casualty. These can be raised as defense to liablilty.
D.
Types of Bailments (and degree of care
required)
1.
Primarily for benefit of bailee (great care)
2.
Primarily for benefit of bailor (slight care)
3.
Bailement for mutual benefit (ordinary care)
E.
Element of Prima Facie Case for Bailment
Contract
1.
Prior possession
2.
Creation of bailment contract
3.
Non-return;
4.
On proof of these elements, D must
a)
Repond or face a default judgement
because P entitled to presumption of negligence.
b)
Respond w/ reason
c)
Burden of proof on D that D was not
negligent
F.
Comments
1.
In Peet v. Roth, degree of care required was said to match
character of property. Mistake as to
value of property was not an excuse for negligence, given that bailee knew
identity of property (D assumed risk of value)
2.
If owner cannot reasonably expect other party to take care
of property, bailment is not formed by placing it in other’s possession (Ellish
v. Airport Parking - D not responsible
for cars left at airport parking lot)
IX.
Adverse Possession
A.
Statute of Limitations
1.
Bars suits after some period of time after cause of action
accrues. Reasons for this policy:
a)
Eliminates stale claims
b)
Memory of witnesses fades
c)
Lack of seriousness on part of P
d)
Judicial administration
2.
Cause of action accrues at the time the wrongdoer enters
and takes possession of the property
3.
Differences between adverse possession and trespass
a)
In trespass, wrongful entry is involved,
but not wrongful possession
B.
Requirments for Adverse Possession[1]
1.
Actual Possession - person of ordinary prudence would
notice adverse claim.
a)
Use need not be highest and best use (KH
167)
2.
Open/Notorious
a)
diligent owner would be put on notice of
possession.
b)
Owner may not be expected to notice minor border encroachment (Manillo
v. Gorski.).
3.
Continuous
a)
Not necessarily constant. Seasonal use might be just as good.
b)
Tacking from one adverse possessor to
another is allowed if they are in privity with each other. Connections giving rise to tacking are:
(1)
Gifts, bequests, mortgages
(Oral/Written/Permissive)
c)
“The kind and frequency of the acts of occupancy, necessary to
constitute continuing possession, are dependent on the nature and condition of
the premises as well as the uses to which it is adapted.” (KH 168)
4.
Exclusive (others only entered under permission of adverse
possessor)
5.
Hostile and under claim of right -> I think its mine,
or; I claim its mine.
a)
If adverse possessor initially enters
with true owners permission, he/she must communicate intention to adverely
possess to true owner
b)
Different jurisdictions have diffrent
rules:
(1)
Maine - ill will required for hostility
(2)
Connetticut - state of mind irrelevent
(objective test)
(3)
Iowa - good faith required
c)
Color of title (e.g. mistyped deed, will)
preferable to mere claim of right
(1)
Better proof of good faith
(2)
statute of limitations may be shortened
(3)
If title is to larger tract of land than
that possessed, title may still be aquired to extra land (constructive
possession). Extra land must be
adjacent to possessed land.
(4)
Innocent improver may be in better
position.
C.
Two Policy Goals
1.
Punish owners for sitting on rights too long
2.
Reward possessor for using land in socially beneficial way
D.
Public lands
1.
Historically, it is easier to adversely possess wilderness
lands.
2.
Government will not allow foul-ups by buerocrats to result
in adverse possession of “the peoples’ land.”
3.
If munipality makes no use of land adversely possessed,
adverse possessor may be able to claim it (see Jarvis v. Gillespie - adverse
possessor of city land wins title over possessor of quitclaim deed from city).
E.
Tolling - excuse for not taking action on
adverse possession before statute of limitations runs. Typical disabilities that qualify:
1.
Minority (under age 18)
2.
Mental incapacity
3.
Imprisonment
4.
Soldiers and Sailors
F.
Innocent Improver Doctrine
1.
Typically, party mistakenly builds on land belonging to
neighbor.
2.
Under common law, neighbor could force builder to destroy
building.
3.
Modern courts look to relative hardship of parties.
4.
Possible options
a)
Neighbor sells land to builder
b)
Building gets moved
c)
Neighbor shares building (or builder must
sell to neighbor)
d)
Removal of building.
G.
Adverse Possession of Chattels
1.
True owner cannot be held to same expectations as in
adverse possession of land, because of movable/hideable nature of chattels.
2.
Possible policies for determining when statute of
limitations for adverse possession begins to run
a)
Discovery
b)
Cessation of diligent search
c)
Demand and Refusal
X.
Estates in Land and
Future Interests
A.
Classifications
1.
Possessory (present) - includes right to current possession
of property
a)
Freehold Estates - Possessory estate of
which holder was seized. Five types
(1)
Fee simple absolute - potentially infinite
in duration
(2)
Fee simple determinable - may
automatically expire upon the happening of a limitation
(3)
Fee simple on condition subsequent - may
be cut short by holder of power of termination if condition occurs.
(4)
Fee tail (successor of fee simple
conditional after De Donis, 1285) - essentially a series of life estates to
grantee and his lineal heirs. Grantee
could not transfer fee simple absolute. grantor has reversion; estate does not
escheat on end of line. If grantee’s
issue dies before grantee, and grantee dies w/o issue, estate ends. Four types:
(a)
Fee tail general
(b)
Fee tail male
(c)
Fee tail female
(d)
Fee tail special
(5)
Life Estate
(a)
measured by life of
grantee
(b)
if conferred by original
grantee to another, new grantee had life estate pur autre vie.
b)
Non-freehold estates (holder entitled to
occupancy only; not seisen)
(1)
Term for years (commercial leases)
(a)
must be absolutely
computable.
(b)
Not considered a seised
estate. Treated as chattel for estate
purposes.
(2)
tenancy at will
(3)
periodic tenancy (residential leases)
(4)
Tenancy at sufferance
2.
Future - right of possession is postponed into the future
a)
Grantor’s future interests:
(1)
Possibility of Reverter - future interest
a transferor keeps when he transfers an estate whose maximum potential duration
equals that of the estate he had to start with and attaches a special
limitation operating in his own favor.
(2)
Right of entry for condition broken (or
power of termination) - created by transferor in himself when he transfers an
estate and attaches a condition subsequent that operates in his own favor.
(3)
reversion - future estate kept by owner
who transfers a lessor interest
b)
Grantee’s future interests:
(1)
Remainders - future interest created in
someone other than transferor that will
become a present estate immiediately upon the expiration of all prior
possessory estates created simultaneoulsy with it. Remainder may not follow estate which has possibly infinite
duration.
(i)
Indefeasibly vested remainder - person is
certain to aquire present interest at some time in future (may not follow a
contingent remainder) (capable of cutting short reversion upon vesting, but not
any other interest) May follow estate
in fee tail.
(a)
Limited in favor of:
(i)
born person or
(ii)
acertained person
(b)
no condition precedent
other than expiration of prior estates.
(c)
if surivorship is
necessary to gain possession solely due to durational character of remainder
(e.g., remainder for life), no condition precedent exists
(ii)
contingent remainder (may follow another
contingent remainder). Limited in favor
of:
(a)
unborn person
(b)
unascertained person
(c)
person whose interest is
subject to occurance or nonoccurance of condition precedent.
(iii)
contingent or vested remainder subject to
open (or partial divestment). Limited
in favor of a class. Classifications
such as “subject to divestment” may attach. remainder is not destroyed once one
member meets condition precedent, but members failing to meet a condition
precedent can fall out of class.
(b)
vested remainder subject
to complete divestment. Subject
condition subsequent. Followed by
shifting executory interest upon termination.
(2)
Executory Interests (any future interest
created in person other than the transferor that is not a remainder)
(a)
Shifting executory
interest (cuts short vested estate created simulataneously with it)
(automatically cuts prior estate off
upon happening of condition, if prior estate was conditioned)
(i)
May follow fee simple determinable, in
which case it follows prior estate on happening of a limitation)
(b)
Springing executory
interst (cuts short estate of grantor) - becomes possessory only after some
period of time in which there is no other transferee entitled to a freehold
estate
c)
Rules affecting validity/success of
future interests:
(1)
Rule of Destructibility - if contingent
remainder did not vest before, or at time of termination of the preceding
freehold estate, it was destroyed and the property reverted to the
grantor. Abolished in most states.
(2)
Doctrine of Merger - If next vested estate
and life estate come into the same hands, they merge into fee simple and
contingent remainders are destroyed.
Exception is if same instrument creates life estate and next vested
estate simulataneoulsy with contingent remainder. Then, destruction does not occur.
(3)
Rule in Shelley’s Case - if grantor
conveys life estate to one grantee and remainder in same grantee’s heirs,
remainder goes to original grantee.
Estates must be both legal or
both equitable
(4)
The Doctrine of the Worthier Title -
(a)
Inter vivos branch -
conveyance of remainder or executory interest to heirs of grantor is void.
(b)
Testamentary branch -
devise void if it gives devisee interest of same quantity/quality that devisee
would take as heir
(c)
Distribution of
remainder
(i)
Per Capita - all heir share equally
(ii)
Per Stirpes - living descedants of closer
degree take to the exlusion of other heirs, not necessarily equally