Term
| Six methods of establishing property rights |
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Definition
1) possession
2) discovery
3) conquest
4) creation/labor
5) capture
6) occupancy |
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Term
| What is "the most common and powerful incident and manifestation of ownership [of personal property]?" |
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Definition
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Term
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Definition
| Right of exclusive physical control + intent to posses |
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Term
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Definition
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Term
| Examples of taking original possession: |
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Definition
Abandoned property
estrayed animals
petroleum
driftwood |
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Term
Finders have right of possession against all but:
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Definition
1. the true owner
2. the landowner where the item was found in some circumstances |
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Term
| When does the landowner have a competing claim to possession against the finder? |
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Definition
a. mislaid item
b. item buried in or attached to the land
c. landowner exercises control over the land or the finder |
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Term
| What are the public policies behind finders' laws? |
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Definition
1. Maximize chance or returning the item to the true owner
2. Discourage trespassing on private property
3. Encourage openness and honesty by finders
4. Creation of statutes stabilizes ownership rights in lost times |
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Term
| If a finder (first finder) finds a valuable item on a public walkway, later loses the item, and then discovers that the item was found and retained by one who was not the original owner (second finder), as between first finder and second finder, who is entitled to possession of the item? Why? |
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Definition
First finder.
A finder has property rights second only to those of the original owner. |
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Term
| What two basic public policies are served by favoring the property owner as custodian of a lost item found by another on the owner's private property? |
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Definition
| Return item to the true owner, discourage trespassing |
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Term
| What basic public policy is served by favoring the finder as custodian of a lost item found on another's private properyt or while the finder is acting as the employee or agent of another? |
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Definition
| Encourage finders to reveal what they find, so true owners can be identified. |
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Term
| What are the basic elements of typical statutory finders' schemes? |
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Definition
1. Deposit with or notification to public authority
2. Notice (to find true owner)
3. Waiting period
4. Right to ownership if no true owner appears
5. State requirements: payment of property taxes or "color of title" |
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Term
| What is one of the requirements for tacking? |
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Definition
1. Successive adverse possessors must be in privity with each other.
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Term
| What two things may "tacking" refer to? |
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Definition
1. Combining of successive adverse possessors in privity
2. Adding one parcel of land onto another |
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Term
| True or False: Adverse possession may be asserted by a single adverse possessor against a series of owners |
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Definition
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Term
| What are the legal disabilities which may affect the adverse possession period? |
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Definition
1. Infancy
2. Incompetence
3. Incarceration |
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Term
| For adverse possession, a disability is immaterial unless... |
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Definition
| It exists at the time the adverse possession period begins to run. |
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Term
| If the owner is under a legal disability at the time a period of adverse possession begins, the owner may bring an action against an adverse possessor even after the adverse possession period, if... |
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Definition
| An action is brought within 10 years after the disability is removed. |
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Term
| Can there be adverse possession against a governmental entity? |
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Definition
| No (although there is a growing list of exceptions) |
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Term
| What is boundary by acquiescence? |
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Definition
| The boundary is clearly marked and has been tacitly accepted by both parties over a long period of time (generally 20+ years) |
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Term
| What is boundary by agreement? |
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Definition
| A boundary is marked and has been agreed upon and accepted by both parties over a long period of time (generally 20+ years). |
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Term
| Describe a situation in which it is clearly more fair or just to transfer title to the adverse possessor than to leave title in the absentee owner. |
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Definition
| One who for many years mistakenly occupies and develops land that one does not own, and the absentee owner is unaware. It would be unjust to require the mistaken occupant to leave the land. |
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Term
| List the four basic requirements of adverse possession that are found in all jurisdictions. |
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Definition
1. Open and notorious
2. Exclusive
3. Adverse or hostile
4. Continuous and uninterrupted for the required length of time |
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Term
| Which of the four basic requirements of adverse possession must always be defined by statute in each state? |
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Definition
| The required length of time. |
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Term
| What are the basic requirements of fixing a boundary between two adjacent properties under the doctrine of boundary by acquiescence? |
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Definition
1. The observed boundary must be accepted as the boundary by both parties.
2. The observed boundary must be respected as a boundary for a very long time, usually two or more decades
3. The boundary must be apparent |
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Term
| In what sense may the possession by an adverse possessor by considered constructive (or, in other words, what is the difference between actual and constructive possession?) |
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Definition
| One may be considered in constructive possession of land that one does not actually occupy if one has fenced or otherwise improved the land in connection with land that one actually does occupy. |
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Term
| If Edith enters land owned by the county, hoping to gain title by adverse possession, will she succeed? Why or why not? |
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Definition
| She will not succeed, because one does not gain title by adverse possession against a governmental entity. |
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Term
| Since US law denies that a thief can obtain or pass title to stolen property, how can one who buys stolen property, such as a painting, eventually gain good title to that item? |
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Definition
| Title to chattels, or persona property, including stolen personal property, can be obtained by meeting the requirements of adverse possession. |
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Term
| When does accession occur? |
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Definition
| Accession occurs if one takes personal property of another and adds significant value to it or incorporates it into the taker's own valuable property, so that it would be unjust to require the taker to return the improperly taken item to its true owner. |
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Term
| Requirements for accession to occur: |
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Definition
1. It must be personal property
2. Taken by non-owner, but not willfully, fraudulently, or wrongfully.
3. Property's separate identity is lost, if the property has been incorporated into the taker's property
4. Great value has been added
5. Disparity in value renders return unjust |
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Term
| T/F: If accession occurs, then title shifts by operation of law to the taker. |
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Definition
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Term
| Has accession occured: A mistakenly takes timber belonging to B, worth $100, and saws it into lumber worth $1,000. |
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Definition
| Yes, accession has occured |
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Term
| Has accession occured: A mistakenly takes lumber belonging to B, worth $1,000, and uses it to frame a new house worth $10,000. |
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Definition
| Yes, accession has occured |
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Term
| Has accession occured: A mistakenly takes a lawn mower owned by B, worth $200, and gives it a tune-up, including a new spark plug and filter, so it is worth $250. |
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Definition
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Term
| Has accession occured: A mistakenly takes a lawn mower owned by B, worth $200, and buys a new grass catcher bag, which attaches as an accessory. |
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Definition
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Term
| After accession has taken place, who owns the title to the property that was added to or incorporated into or transformed into other property owned by the taker? |
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Definition
| The taker (not the original owner) |
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Term
After accession has taken place (if it has in fact taken place), who owns the title to the property that was added to or incorporated into or transformed into other property owned by the taker, if the taking was deliberately wrongful instead of simply mistaken?
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Definition
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Term
| If, in accession, the taking of the property was deliberately wrongful, and the property was enhanced in value before being returned to the victim, must the taker be reimbursed for the value added? |
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Definition
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Term
| T/F: According to recent cases, if a house is mistakenly built on the lot of another, the owner of the house can either get the house back or be paid for its value. |
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Definition
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Term
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If one whose goods were mistakenly incorporated into the more valuable goods of another (and who is thus the victim of accession), chooses to seek money reimbursement rather than recovery of the taken goods, may the claimant in some cases recover the enhanced value of the goods, less the expenses of the taker in improving the goods? |
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Definition
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Term
| What are the elements of a valid gift? |
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Definition
1. Delivery of the gift
2. Donor must have the intent to make the gift
3. The donee must accept the gift |
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Term
| What is actual delivery of a gift? |
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Definition
| The donor gives the donee the actual item that is being gifted. |
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Term
| What is constructive delivery of a gift? |
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Definition
| Gives access to the gift itself (i.e. keys to a car, keys to a safe deposit box) |
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Term
| What is symbolic delivery? |
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Definition
| Delivering something that represents or symbolizes the gift (e.g. a writing describing the gift, deed to land) |
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Term
| What are inter vivos gifts? |
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Definition
| Literally, a gift between the living. Of or relating to property conveyed not by will or in contemplation of an imminent death, but during the conveyor's lifetime |
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Term
| What are gifts causa mortis? |
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Definition
| Gifts given in consideration fo or in anticipation of death |
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Term
| Why are gifts causa mortis less readily accepted in some jurisdictions? |
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Definition
| Many states look at gifts causa mortis as attempts to circumvent the formalities and requiremetns of testamentary gifts, and are very relunctant to recognize them to minimize the chance that fraud will take place. |
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Term
| A's lost wallet was returned to A, and A was told -- erroneously--that B had found and returned the wallet. A voluntarily gave B a reward of $20, which B accepted. A later learned that C had been the one to find a return the wallet, and A asked B to return the reward money. Did A make a valid gift to B? If not, what element of the gift is missing? |
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Definition
| Not a valid gift: missing intent. No intent when donor made a mistake as to identity of the intended donee. |
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Term
| Actual, symbolic, or constructive delivery? A gives cash to B. |
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Definition
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Term
| Actual, symbolic, or constructive delivery? A, an invalid, intends to give B some cash in a safe deposit box and gives B the only key to the box. |
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Definition
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Term
| Actual, symbolic, or constructive delivery? A gives to B the title to a car that is broken down and located in another state. |
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Definition
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Term
| Actual, manual delivery of personal property no longer enjoys some of its medieval justifications as a requirement for the validity of gifts, but what are some modern justifications for continuing to favor actual delivery? |
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Definition
| Actual delivery gives to the actual witnesses positive proof of the gift, impresses upon the donor the finality of the gift, and gives prima facie evidence of the gift to those who were not present when the gift was made. |
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Term
| Gift inter vivos or causa mortis? A, who is terminally ill, gives a car to B with the understanding that A can continue to use the car until A dies. |
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Definition
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Term
Gifts causa mortis are governed by more strict requirements in most jurisdictions because...
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Definition
| they are too much like testamentary gifts, but without the protections against fraud and misconduct afforded by the requirements for testamentary gifts. |
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Term
| T/F: In most jurisdictions, one who intentionally trespasses on the property of another, and remains in possession of that property long enough to meet the requirements of adverse possession, will not obtain title, because the initial entry was in bad faith. |
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Definition
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Term
| Several states add by statute an additional requirement for adverse possession, the payment of property taxes during the period of adverse possession. In what part of the country are most of these states located, and what purpose is served by imposing the requirement? |
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Definition
| Most states requiring the payment of taxes are in the west, and this reflects a perception on the western frontier that it was too easy for squatters to take the land of others by adverse possession. |
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Term
In a state that imposes a 7-yr requirement for adverse possession, Angie mistakenly believes that she owns Blackacre and is in adverse possession of Blackacre for 5 yrs. Then Angie sells Blackacre to Brenda, who is in adverse possession of Blackacre for an addtional 5 yrs.
At the end of that time, is the record owner of Blackacre entitled to eject Brenda and take over possession of Blackacre? Why or why not? |
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Definition
| No, because Brenda's 5-yr period of occupancy can be "tacked" onto Angie's 5-yr period of occupancy to easily meet the 7-yr requirement. |
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Term
| If Brenda were successfully ejected from Blackacre because she had not been there long enough to fulfill the requirements of adverse possession, but Brenda had in the meantime built a house and other improvements on the property, would Brenda, according to the technical operation of adverse possession rules, be forced to leave the house and the other improvements behind? |
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Definition
| Yes. Until adverse possession requirements are fulfilled, the erstwhile adverse possessor is simply a trespasser. |
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Term
| C was the owner of Greenacre, but was incarcerated. While she was in jail, D entered as an adverse possessor. After D had been in possession long enough to qualify for title as an adverse possessor, which she sought through a quiet title action, she was denied. Explain why a court would deny the adverse possessor's claim in these circumstances. |
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Definition
| An owner under a disability, such as incarceration, is immune to adverse possession so long as the disability lasts. |
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Term
| A, a 68-yr-old widower with several adult children, gives to B, age 19 and his live-in girlfriend of the last six months, the only key to a box containing his extremely valuable gem collection. The box reposes unsecured in a room in A's house. What good social purpose would be served by a court's refusal to uphold this gift in the face of a challenge from the donor's children? |
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Definition
| Delivery; Helps avoid fraud and misconduct, such as undue influence by the girlfriend which operates to deprive the presumptive heirs of their expected inheritances. |
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Term
| If D enters as an adverse possessor a month before C is arrested, and then meets the requirements of adverse possession, explain why, under these circumstances, D would succeed in obtaining title. |
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Definition
| The protection from adverse possession afforded by legal disability is effective only if the disability exists at the time the adverse possession begins. |
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Term
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Definition
| A bailor gives possession of property to a bailee who typically hold the property for eventual return to the bailor. |
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Term
| I take my stereo to a repair shop and leave it there for repair, having been given a receipt and a copy of the work order. Bailment? |
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Definition
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Term
| A neighbor borrows my rake without asking me or any member of my family. Bailment? |
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Definition
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Term
| A hotel guest leaves her watch in the room as she checks out. Later in the day, an employee of the hotel finds the watch while cleaning the room and then turns the watch over to a supervisor. Bailment? |
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Definition
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Term
| I take my stereo to a repair shop and leave it there for repair, having been given a receipt and copy of the work order. What degree of care is the bailee responsible for? |
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Definition
| Ordinary (bailee is holding for the mutual benefit of the bailor and bailee) |
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Term
| A neighbor borrows my rake without asking me or any member of my family. What is the bailee's duty of care? |
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Definition
| High. (bailee is holding the property for the sole benefit of the bailee) |
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Term
| A hotel guest leaves her watch in the room as she checks out. Later in the day, an employee of the hotel finds the watch while cleaning the room and then turns the watch over to a supervisor. What is the level of care associated with the bailment? |
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Definition
| Ordinary or low--bailees holding for the sole benefit of the bailee |
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Term
| You park your car in a commercial parking garage and are given a claim ticket by a machine, with all the printing in a small font and in a single color, black. After valuable contents are taken from your care while it was parked there, and you make a claim against the parking garage owner, you are reminded by the defendant that a liability limit of $100 is printed on the claim ticket. What is the probable outcome of the claim? |
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Definition
| You will win, because the garage owner (the bailee) attempted to limit liability, but it was not brought to your attention forcefully enought to imply your consent to the limit. |
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Term
| In what respect does the obligation of care imposed on a bailee that is common carrier differ from the ordinary bailee duty of care? |
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Definition
| The common carrier usually also has the liability of an insurer of the goods. |
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Term
| T/F: Usually a bailee who misdelivers or fails to redeliver the bailed good will be held liable only if negligent. |
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Definition
| False. The liability is strict liability. |
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Term
| Is a bailee usually entitled to use the bailed goods even without the explicit authorization from the bailor? |
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Definition
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Term
| If a bailee recovers from a third party (not the bailor) money damages because of the third party's misconduct relating to the bailed goods, and the damages recovered are in excess of the amount of liability the bailee owes to the bailor, does the bailee get to keep the excess? |
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Definition
| No. The money is held in trust for the bailor. |
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Term
| Can a bailee limit their standard of care? |
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Definition
| Yes, if the bailor is aware of the limitations and consents to the limits. It cannot be changed unilaterally. |
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Term
| Gift inter vivos or causa mortis?A, who is terminally ill, gives a car to B, but the car must be given back if A does not dies as expected from the present illness. |
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Definition
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