What is Property? o Property is the right to a thing against the world The right to exclude o Property is a collection of rights, a bundle of sticks

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1 What is Prperty? Prperty is the right t a thing against the wrld The right t exclude Prperty is a cllectin f rights, a bundle f sticks Prperty is the RIGHTS nt the thing Types f Prperty Real Prperty Land, plants, agricultural things, real estate, buildings Persnal Prperty Tangible Pen, tthbrush, laptp, bk Intangible Writing, music, ideas Ex. A bk is tangible but the stuff inside it is intangible Tw Cnceptins f Prperty Essentialist Seek single true definitin f prperty Penner- the right t prperty is a right t exclude thers frm things which is grunded by the interest we have in the use f things Skeptics Prperty means nthing until we define the rules in a given cntext Grey- N such things a prperty, it is just a bundle f rights, it desn t mean anything unless we define it Trespass, Right t Exclude Direct/Immediate Intrusin, Of a Physical, Tangible Object Jacque v. Steenberg Hmes, Inc.- J refused t let SH cut acrss their land t deliver a mbile hme, but SH did it anyhw, J received nminal damages plus punitive damages, Right t exclude is the mst fundamental right in the bundle f sticks and punitives are allwed fr intentinal trespass Hinman v. Pacific Air Transprt- intentinal trespass, PA planes flying acrss H land, H says plane was flying t lw Curt says yu d nt have the same strng rights abve the land as yu d belw, and yu must prve actual injuries fr trespass Ad Celum Dctrine Whever wns the sil wns als t the sky and t the depths Really the wner f the land wns as much f the space abve him as he uses, but nly s lng as he uses it Pile v. Pedrick and Glden Press, Inc. v. Rylands, in bth cases a wall was built just a little bit ver the prperty line, nt intentinally trespassing, and they were nt allwed t fix the prblem by entering the ther s land, bth plaintiffs were seeking injunctins

2 Pile Outcme- the defendant had t remve the wall and pay all csts within ne year, while the cst f remving the wall was split between bth parties, right t exclude was viewed as an abslute right Glden Press Outcme- It wuld be t expensive t remve the wall, s just mnetary damages were awarded, wall was cnstructed in gd faith, s why punish by making the wall cme dwn Baker v. Hward Cunty Hunt, hunds gt nt B s prperty, injured Mrs. B, they ntified HC and there were still trespasses f dgs cntinuusly entering their land, at cmmn law dgs are allwed t ram s lng as they are reputable, but since HC was warned abut dgs causing damage they were nt reputable Damages Prperty Rule Prtectin Emphasis n the right t exclude, results in injunctins Liability Rule Prtectin May nt enfrce the right t exclude, but rather cmpensate (mnetary damages) fr the lss f the right t exclude T decide yu must see whether r nt there is an adequate remedy at law (damages) In HC there was nt because experiments being dne n the land and were ruined by dgs were priceless Clean Hands are als required in rder t get Prperty Rule Prtectin B had clean hands because althugh he shut the dg, he was prvked t d s as they were attacking his chickens Injunctins are rarely used fr single trespasses, but mre apprpriate fr cntinuus trespasses that the wner wants t put t rest State v. Shack, Peple lking fr migrant wrkers they were trying t aid entered a farm and the wner wuld nt let them ffer their services unless they did s in the wner s ffice, they refused, and were tld t leave Prperty rights are butting heads with human rights and s the curt balanced them and said the right t receive basic service was mre imprtant than the right t exclude in this situatin Self Help Using reasnable frce t prevent r terminate an unlawful entry r ther trespass upn land r a trespass against the unlawful carrying away f tangible prperty Berg v. Wiley, landlrd rented a building fr use as a restaurant, there were disputes abut the building being in disrepair and health cde vilatins, gave her chances t fix prblems, she waited until the end f the perid, then he tried t lck her ut, she says n, then he secretly changed the lcks Self help at Cmmn Law requires a breach f the lease with a reentry clause r a lease that ended and the tenant did nt mve ut AND the reentry must be peaceable

3 Curt rejects this apprach and says if yu are a landlrd and yu want a tenant ut then yu must g thrugh a Judicial Prcess and g t curt, t ensure peaceful means Repssessin is a cmmn frm f self- help that is still allwed tday Williams v. Frd Mtr Credit Cmpany, wife gets car in divrce, husband stps making payments n it, the creditr came back and repssessed the car Curt says repssessin is peaceable Necessity (exceptin t the right t exclude) Plf v. Putnam, a strm cmes abut and they need t tie their slp t the dck, the defendant unties the slp and then it is ruined Curt says the entry n the land was justifiable under necessity Miller v. Fandrye, Necessity rights because he had dne as much as he culd in preventing his dg frm ging nt smene else s land Curt says if yu are exercising sme legal right that yu have and yu are ding everything yu can t cntrl it and there is a breach f trespass, then yu can make ut a necessity defense Yu have t d smething right nw, if yu dn t trespass n smene else s land right nw then there will be sme greater danger Necessity is a defense, it is wrngful but excused in a sense because f limited circumstances In general Privileging human life ver prperty Sudden and temprary cause A legal right t be there The harm yu are seeking t prevent is greater than the harm that yu will create Yu still have t pay damages if yu create damage while exercising necessity (cmpensatry nly) Yu cannt exercise the right t exclude when the persn is there n necessity Custm (exceptin t the right t exclude) McCnic v. Singletn, hunting questin, apparently hunter rde ver a prperty wners unenclsed and unimprved land, with explicit warning nt t d it Curt hlds that there is a right due t Custm f hunting because Peple need t hunt t eat Peple need t hunt t imprve their marksmanship Yu may nt even knw where the bundaries are if yur land is unimprved They are nt using the land, s they d nt need the full bundle f sticks Tday we have psting laws, and peple are permitted t hunt n rural land unless there is a N Hunting r N Trespassing sign that has been prminently psted

4 Custms evlve based n the different nrms in sciety, the changed circumstances change the custm Antidiscriminatin Law (exceptins t the right t exclude) Shelley v. Kraemer, neighbrs wh signed a restrictive cvenant that the prperty in their neighbrhd wuld nly be signed t white peple, African American buys a huse, neighbrs sue t enfrce cvenant Curt says this cvenant cannt be enfrced because the fundamental rights f the Cnstitutin allws everyne the freedm f enjyment f prperty 14 th amendment and Equal Prtectin Clause, Equality in the enjyment f prperty rights Fair Husing Act Federal law that impacts prperty acrss the cuntry Sectin A, sales and rentals (cannt refuse t rent based n grup) Cannt deny a dwelling based n race, clr, religin, sex, familial status, r natinal rigin Sectin B, same grups but discriminating in terms f rentals (cannt ffer different terms) Sectin C, this ges further, nt just having a preference, but advertising indicating a preference is nt allwed Can advertise services yu perfrm (things that are ffered by the premises) but cannt say things yu prvide Newspapers/publishers are liable fr running discriminatry ads, but craigslist is nt because they are nt the publisher Sectin D- abut lying that husing is unavailable Sectin E- inducement abut representatins abut entry int the neighbrhd Sectin F- is abut discriminatin tward disable, handicapped peple, refusal t permit reasnable mdificatins f the existing premises ccupied, may hwever include an agreement t restre the premises t the cnditin it was befre the mdificatin Exceptins (d nt apply t sectin c(advertising)) Single family hmes, sld r rented by an wner N mre than 4 unites and the wner lives in ne f them (Mrs. Murphy exceptin) Exceptins are based n the right f assciatin, yu cannt frce smene t live r be assciated with peple that they d nt want t States have their wn versins, which are even mre restrictive and prtect mre classes f peple Attrney General v. Desilets, unmarried cuple turned away frm renting based n landlrds religius beliefs, sued under Mass. Fair husing act (n federal because marital status is nt prtected)

5 Curt balances the freedm f religin with the rights f the cuple t get husing, they decide it was a sincere practice f religin and was allwed Abandnment f Prperty Determine the intent f the wner t abandn smething based upn the facts and surrunding circumstances Pnc Springs Civil Assciatin, Inc. v. MacKenzie, Claims that they abandnded their prperty and shuld nt have t pay hmewners fee, n ne wants the land Curt says that yu are NOT allwed t abandn real prperty because there is certain prperty that is harmful t public plicy t just be abandned and it creates prblems with liability n the land Nuisance Harm resulting frm an unreasnable interference with use r enjyment f prperty (private r public) Balancing test t decide Entitlement Reasnableness Scial Utility Harm Lcatin Cming t the Nuisance Remedy- Damages r Injunctin Case Therem If there is a substantial harm then we lean tward injunctin We prefer permanent damages ver temprary damages because we d nt want peple t keep cming back and having t g t curt again Nt a trespass, yu have t right t be ding what yu are ding n yur wn land, but neighbrs are in cnflict with each ther fr disturbing ne anther The persn with superir right t use the land has the entitlement Measured by a balancing test lking at the gravity f the harm created and the utility f the actr s cnduct Hendricks v. Stalnaker, H wanted t install a septic system, but S had a well dug within 100 feet f where it was t be, preventing the septic system, but H put the septic system in anyhw and sued t have the well remved s it culd be used, bth are claiming nuisance n each ther Private nuisance because nly between the tw private parties and their private use and enjyment f their land, Public nuisance affects the general public as a whle Nuisance will have: 1. a balancing test lking at the reasnableness t determine wh has the entitlement 2. a remedy in the frm f an injunctin t stp ding the act that is a nuisance r in the frm f damages a cmpensatin fr the nuisance If the hmewner has the entitlement

6 Prperty Rule: Injunctin t stp farmer frm farming Liability Rule: damages as a frm f cmpensatin but the farmer keeps farming If the farmer has entitlement Prperty Rule: Farming cntinues unless hmewner pays him ff Liability Rule: Damages, but they might nt be able t farm, n ne will give them the prtectin that they can farm (VERY RARE) Case Therem In the absence f transactin csts entitlement des nt matter t the utcme f the dispute The parties will actually negtiate t achieve the best utcme fr bth f them, this will maximize the resurce fr bth parties This is imprtant because the curt shuld d ne f tw things, either figure ut where t put the entitlement where it wuld fall withut transactin csts r figure ut a way t decrease the transactin csts and let the parties negtiate Prblems with the Therem: The valuatin f pieces f prperty are nt necessarily based upn ecnmic values Ecnmic uses are nt always the best scial use f the land Adams v. Cleveland- Cliffs Irn Cmpany (difference between trespass and nuisance), living in a neighbrhd next t an irn cmpany, spewing dust cause hmes t need repainting Curt says Trespass is the invasin f the plaintiffs interest in the exclusive pssessin f his land (must have a direct r immediate invasin with a physical r tangible bject f anther s land in which the ffender knew r reasnably shuld have knwn wuld result in the physical invasin f the plaintiff s land Nuisance is the interference with a persn s use and enjyment f their land, must shw a significant harm and an unreasnable interference St. Helen s Smelting Cmpany v. Tipping, nuisance in fact v. nrmal nuisance, suing fr damages t trees and crps frm the smelting cmpany, the smke frm this cmpany was mixing with smke frm ther cmpanies and they culd nt determine which was causing the damage The curt says an actinable injury is ne that prduces sensible discmfrt, that everyman, unless enjying rights btained by prescriptin r agreement, was bund t use his wn prperty in such a manner as nt t injure the prperty rights f his neighbrs. They end up deciding that this was nt the prper place fr a Smelting Cmpany Luensmann v. Zimmer- Zampese & Assciates, Inc., nuisance per se, racing strip that was build by plaintiffs hme, cars were racing in the middle f the night and it was bthersme, seeking injunctin t stp races The curt says this is nt a nuisance per se because it is nt a nuisance at all times (nt when it is clsed) and it is nt under any circumstances and at all lcatins and there was n law preventing the racing

7 Nuisance per se is activity that is a nuisance at all times, in any circumstance, and in any lcatin OR it is a vilatin f law specific t prevent nuisance This des nt have a reasnableness inquiry fr the jury First thery is hard t prve because there is usually a place fr everything Bmer v. Atlantic Cement Cmpany, Inc., cement plant cause dirt, smke and vibratin that harms the peple living arund them Curt fund there was a nuisance and allwed fr damages but n injunctin The cement plant was wrth 45 millin and they awarded $185,000 in temprary damages Temprary damages allw yu t keep bringing suit if they cntinue t accrue damages ver time, and yu will be awarded mre mney (very inefficient) Permanent damages pay yu ff fr the full value f yur prperty since it will keep damaging it ver time and diminish all the prperty value (full value frecasted fr current and future damages) Injunctive Relief ceases the peratin temprarily until the prblem is fix that was causing the riginal damages Spur Industries, Inc. v. Del. E. Webb Develpment C., cattle feedlts are there and DW started building a subdivisin nearby which was impssible t sell because f the smell The curt says this is a public nuisance because the whle neighbrhd is being effected, but since DW came t the nuisance the farmer had the entitlement he shuld be cmpensated fr lsing his right t farm Values Subject t Ownership (things that we have been hesitant t give full blwn prperty rights) Persnhd Newman v. Sathyavaglswaran, children whse crneas were remved after their deaths, parents say it vilated their 14 th amendment rights, thinking their children were vilated after death withut ntice Curt analyzes the 14 th amendment, deprivatin f life, liberty, r prperty withut dues prcess 3 elements deprivatin (yes the crneas were taken), f prperty (were the crneas prperty?), under clr f state law (means smene was acting under a state law, and here the dctr was acting under CA state law in remving the crneas f the deceased) The issue was shwing prperty rights in the crneas, the curt says yes there is a quasi prperty right here (quasi meaning there is an intuitin that it is prperty, but yu cannt really explain why it is like prperty) Mre v. Regents f university f Califrnia, prperty rights ver cells that were taking during a medical prcedure and used fr research, did nt have cnsent frm the patient fr the research and they were prfiting greatly frm it Curt say in the claim f cnversin he must first shw it was prperty, and they decide it was nt because he culd nt have kept them (they wuld have just been

8 dispsed f anyhw) and they were nt unique t him in any way because everyne has this substance Hecht v. Superir Curt, guy cmmitted suicide and had sperm in a sperm bank, kids and girlfriend fighting ver what t d with the sperm because girlfriend wants t impregnate herself Curt says the sperm is prperty (which is imprtant t decide whether pwer f prbate extends t it) because it has the ptential fr human life Water Rights Different frm land and persnal prperty because it is a fugitive resurce and it mves where it wants t mve and there are scietal interest in peple needing water t survive Types f Water Diffuse and Surface = Rain water runff Defined Channel and Surface= Rivers and streams Diffuse and Undergrund= Perclating water Defined Channel and Undergrund- Rivers and Streams A water curse is a defined channel surface water that is flwing Water rights are based n use, if yu have n use fr the water, yu are nt entitled t bring a claim in regards t water n yur prperty Evans v. Merriweather, there are tw steam mills lcated n prperty adjacent t each ther, using water t run the mills, there is a dry seasn and nt enugh water t run bth mills, E is upstream and builds a dam s n water ges t M shutting dwn their mill The curt said it was nt k t cut ff ther peple since this was an artificial use English Rule- Natural flw Thery, yu cannt divert the water, yu must lk at where the water wuld naturally flw and yu cannt divert it away frm this natural flw Reasnable Use Rule- Riparian Rule, yu can use the running water as t d as little injury t thse belw yu as is cnsistent with a valuable benefit t yurself, and the use must be a reasnable ne This favrs Natural r Dmestic uses which are necessary fr life (drinking, watering small amunts f livestck, washing clthes, irrigatin in arid climates) ver artificial nes like the steam mill This is nly an issue if there is a shrtage f water Reasnableness is based n the purpse f the use, suitability f the water curse, ecnmic and scial values, harm caused, pssible accmmdatin techniques, prtectin f existing investments, adverse effects n ther riparians, and justice Cffin v. The Left Hand Ditch Cmpany, arid climate, irrigatin is cnsidered a natural use, water was flwing dwn the St. Vrain, LHD build a dam that cnnected it t the James Creek, the water then flwed int irrigatin ditches, C wh was dwnstream n lnger gt water, s he tre up the dam, and the water culd nt flw int the irrigatin ditches Curt applies the First Apprpriatin rules (first persn there wins) The irrigatrs win ver Cffin because they were there first

9 Few use the English Rule, sme use Reasnable Use east f the Mississippi and mst West use the first apprpriate rule First apprpriatin lks nly at beneficial uses as giving rise t these prperty rights, that will be a questin f fact whether r nt it is beneficial and they have a right t the water Mre f a prperty right because nce yu have it yu can use hwever yu want and can exclude peple Reasnable use is mre like nuisance being dependant n hw yu are using the water Original Acquisitin Ways t Establish Ownership First Pssessin Discvery Creatin Accessin Adverse Pssessin Finding Gifting First Pssessin (First in Time) We use this because it eliminates grey area, first ne here, it s yurs plain and simple Eliminates cmpetitin ver things Requires cmmitment, if yu put the effrt frth t be the first ne there Piersn v. Pst, a guy was hunting a fx, befre he can kill it, smene else shts, kills, and takes it, n ne wns wild animals s wh gets it? Majrity says when yu kill the fx is when yu get pssessin, but wunding the fx and staying in pursuit giving yu first pssessin is in the dicta Dissent says clsing in an getting clse t the fx cunts as pssessin Actual Pssessin Depriving the thing f its liberty (by killing r trapping the thing) Actins= Legal Pssessin Mrtal Wunding and Chase Custm, defines which actins give rise t legal pssessin in very limited situatins Wrecks, yu must be abve the salvage at the pint where yu have started wrking t get the salvage up Ghen v. Rich, whaling case, there was a whale that was sht, it washed up n shre, smene else claimed it and sld it, it was a custm fr whales t sink and a few days later be washed up n shre and whever finds it reprts it t the city and the hunter can g claim it Curt says the hunter wins because there were markings n the lampn and there was n ther way t get the whale after it sunk except t wait, that s why the custm was in place

10 Custm gverns because it is such a limited applicatin and culd nt be fr general use Limits as t when custms can shw legal pssessin: When applicatin is limited Custm is lng standing and recgnized ver years N laws cntradict the custm It is recgnized by everyne in the industry There is n better way t d what it des Custm nly gverns until actual pssessin ccurs Keeble v. Hickeringill, guy has decy pnd t get ducks, neighbr shts a gun t scare ff the ducks, and the guy gets mad because he cannt prfit frm the ducks that were scared away, n ne wns the ducts and their actins have n gtten t the pint f legal pssessin Curt says K wins because this was cnsidered an interference with the right t hunt, a disturbance, tday this wuld be a nuisance case Open Access versus Cmmn Prperty versus Private Prperty Open access are areas pen fr all t use an n ne has the right t exclude, n rules are gverning it (pen grazing, wild animals, fishing n the pen seas, upper atmsphere Cmmn Prperty is a grup f insiders that has the right t exclude everyne else and there are privileges, regulatins, custms, and scial nrms that gvern the prperty (fishing in a natinal park, picnic tables in a park, ideas that are patented but pened t the public, dmain names_ Semi- Cmmns are when there is private prperty that has been pened up fr the public t use Anti- Cmmns are situatins where t many peple have the right t exclude peple that the land becmes unusable (yu have t get t many permissins t use it s n ne in essence can use the prperty) (if n ad clumn rule then flying in the air wuld be an anti- cmmn) Private Prperty is where the wner has the right t exclude thers and the wner has the right t gvern it defining the use f the prperty (patented ideas, hmes) These distinctins matter when lking at first pssessin because they define whether smene already has wnership ver what yu are trying t pssess Prblems using first pssessin in pen access: N incentive t d anything except fr taking, yu dn t care abut thers lsses because f yur taking N prtectin f resurces N ne cares abut the maintenance f the prperty N incentive t build infrastructure If yu d nt want pen access, cvert it t private prperty r add regulatins making it cmmn prperty

11 Eads v. Brazeltn, B tracked dwn a bat that sung in the Mississippi, mst f the carg was left, he marked the shre where the bat was in the river, due t financial reasns he culd nt get the bat yet, E came in and gt it up and tk the bat Curt says the bat was up fr first pssessin since it had been abandned, and that if yu want t take pssessin f a wreck yu need t give ntice that yu are ging t dig it up and pssibly start the act f retrieving it, but marking the trees was nt enugh Hme run baseballs, a hmerun was hit, smene caught it, peple jumped up, and catcher drpped the ball, smene nt in the crwd jumped in and tk the ball after it fell The curt splits it saying they bth had equal rights against everyne else and their rights against each ther just negated Guy wh tried t catch the ball had pre- pssessry interest ad he shuld have been allwed t cmplete the pssessin withut interference Discvery Gives yu a right t pssess smething, but yu dn t yet pssess it, it is like a pre- pssessry interest when yu find smething Jhnsn v. M Intsh, J bught land frm the Indians, M bught the same land frm the US gvernment Curt held that Indians nly had a right t ccupy the land, but n title in it and certainly culd nt transfer the land, s J s claim failed Yu can nly transfer what yu wn, if yu have already sld yur rights t land then thse rights are gne Creatin Typically refers t prperty rights in infrmatin, the rights in the idea Want prperty rights in infrmatin t give incentive t create new things and it prtects peple when infrmatin is new and is mst valuable Quasi Prperty Right In Ht News Internatinal News Service v. Assciated Press, INS wuld take AP s news frm the east cast and sent it t their newspapers in the west, news f current events may be cnsidered cmmn prperty The curt said there was n prblem with INS reading APs newspaper, the prblem is that they were prfiting ff the news and wrk that AP did, they plagiarized the exact stry and didn t d their wn wrk The right f Publicity Midler v. Frd Mtr Cmpany, FM culdn t get M t sing a sng fr their cmmercial, s they hired smene else t sing it and sund as much like M as pssible Curt said vices are nt cpy- rightable, but this was held t be a trt in CA because the sellers apprpriated smething that is nt theirs in rder t sell a prduct Intellectual Prperty- 3 main types Patents- rights in inventins

12 Cpyrights- rights fr wrks f authrship (bks and music) Trademarks- als has sme cmmn law fundatins, identifying marks (marks t identify surce) These are heavily statutry laws and have limited prperty rights fr a term f years Adverse Pssessin N adverse pssessin against the gvernment and n adverse pssessin against future interest Adverse pssessin is when the wner sleeps n his right t exclude, he then lses them after a certain amunt f time A way a current wner can lse title by failing t bring a claim t eject smene wh is merely a pssessr Elements f Adverse Pssessin (OCEAN) Actual Nt mere use fr a specific purpse, this wuld just be a prescriptive easement Exclusive Open and Ntrius Cntinuus 5-21 years fr land r 3-5 years fr chattel Adverse/ Hstile under a claim f right (clr f title) (N permissin) Clr f title means yu have the title r paper indicating that yu are the wner f the land Yu can have claim f right thrugh Gd faith belief that the land belngs t yu Smetimes required Bad faith belief Never Required Mental state maybe irrelevant, they d nt care whether yu believe in gd r bad faith that that the land belngs t yu This is the majrity f jurisdictins Lessee f Ewing v. Burnet, Chain f pssessin, S sells it t F wh gives it t W wh dies leaving it t E, but B cmes int the picture because S sld the land t B, F was the true wner at the time because he was the first ne t buy it, making E the true wner f the land nw, which means B wuld be an adverse pssessr Curt says that yes he fulfilled all the factrs, actual use in digging sand and gravel, exclusive because giving permissin t sme but nt thers t use, pen because a lt f peple knew f it, adverse because althugh nt in gd faith still satisfied, and yes cntinuus fr mre than 20 years Difference between uster and trespasser is that an uster has the intent t take the land and t be the wner, they keep peple ff the land and such, trespassers are usually just wandering thrugh

13 Carpenter v. Rupert, peple are using the back field, but they knw it is nt theirs, the true wners never say anything t them, the issue here is that they are claiming the land in bad faith The curt says gd faith is required, but this is a minrity rule Hward v.kunt, everyne lived in a neighbrhd, did surveys f the lts, everyne bught the lt ne ver frm where they build their hmes, everything was shifted, here there were issues with the cntinuus element being nly seasnal use Curt says seasnal use is enugh if it is uninterrupted as t the nrmal use, if the nrmal use is nly fr 5 mnths then seasnal use fulfills this element Tacking is nly allwed (adding previus wners time int yurs t make the statutry limit) if there is privity r a cnnectin between the tw wners This is t prevent a series f squatters trying t make a claim Quick Claim Deed- if in fact there is a title, then I just passed it. It passes al the rights yu have t the extent that yu have rights I can sell a quick claim deed t the Brklyn Bridge, but I wuld nly be selling the zer rights I have t the bridge Warranty Deed- warrants that yu actually wn the prperty and have full prperty rights fr what yu are selling Finders (sequential pssessin issues) Finders have enugh rights t win ver anyne else, but nt against the rightful wner The true wner has the mst rights, but the finder can ward f everyne else and n ne can then take it frm the finder Armry v. Delamirie, chimney sweeper finds a jewel, brings it t a jeweler, apprentice takes it apart, ffers t pay fr it, sweeper says he wants it back, apprentice nly gives setting back Curt says they must replace the jewel r they we him fr the best quality jewel pssible, yu presume the strngest against the persn wh unrightfully tk it Als N jus tertii- there is n defense that yu shuld nt give it t the finder because it belngs t a third party, because the third party is nt part f the case Clark v. Malney, smene fund lgs, tied them up, left them then smene else fund the lgs and claimed them, and the first finder sued t get the value f the lgs Curt uses the same rule, the first finder is the true wner visa vi everyne else in the wrld besides the real true wner wh we d nt knw in this case If we d nt give it t the first finder it wuld create a bad incentive fr peple t take ther s prperty and claim they fund it T be a first finder yu must exercise sme type f cntrl ver the item, aka yu must have First Pssessin against everyne in the wrld except fr the true wner Andersn v. Gudberg, he cuts lgs n smene s land, nt his wn, tk them t a mill, smene else tk the lgs, then he sued t get their value back Curt says A wins because they were bth cnverters and the first cnverter shuld win

14 Gifts A gift is a transfer f prperty withut cnsideratin Intervivs, within yur life, this is the type f gift yu give each ther while yu are alive Nn- revcable Causa Mrtis, a gift yu give in expectatin f death, nce yu die yu cannt rescind, but if yu d nt die yu can take the gift back Three elements fr a gift Intent t make a gift Delivery f a gift Actual delivery Letter under seal- frmal legal way f transferring smething, I hereby give yu G thrugh a legal prcess t deliver the gift Symblic delivery- delivery f a symbl f the gifting item because physical transfer is impractical, giving a piece f a hrses mane t shw they yu nw pssess the hrse Cnstructive delivery- delivery f sme means f cntrlling the bject that yu are giving, giving keys t a car r a title t a car Acceptance f the gift Irns v. Smallpiece, father has sme hrses, gives them t sn, but keeps pssessin f them because he has a barn, when father dies the executr f the estate says the hrses are nt his because there was n delivery The curt says there was n change f pssessin and n transfer in the way the hrses were being pssessed, s they becme part f the estate We require delivery because it evidences the dnrs intent, it makes sure the persn getting the gift actually wants t accept it, and it avids multiple claims n the same piece f prperty N delivery fr sales f gds because there is cnsideratin Fster v. Reiss, wman n death bed, rights a nte t husband giving him mney and stuff, leaves it in hspital table, he receives while she is in surgery, and ges back and takes pssessin f the mney, but if we were t rely n her will he wuld nly get $1 The majrity says that there was n gift because there was n delivery, she was in the hspital and nt able t give him anything and there needs t be actual, unequivcal, and cmplete delivery during the lifetime f the dnr, whlly divesting him f the pssessin, dminin, and cntrl f the prperty Accessin Ownership f sme unclaimed r cntested resurce is assigned t the wner f sme ther resurce that has a particularly prminent relatinship t the unclaimed r cntested resurce Increase In the absence f an agreement t the cntrary, is that the ffspring r increase f tame r dmestic animals belngs t the wner f the dam r mther Why the mther, nt the father?

15 Yu always knw wh the mther is, but yu dn t necessarily knw wh the father is The ffspring is dependent upn the mther Yu re putting mre resurces in t the develpment f the ffspring by taking care f the mther Accessin (dctrine) When smene mistakenly takes smething frm smene else and transfrms it int smething fundamentally different Equitable decisin, the persn wh is suing and wins is always ging t get at least the value f the material that the defendant tk Wetherbee v. Green, Transfrmatin f trees int hps, G is suing fr replevin, he wants t the wd back, because the wrth f the hps is a lt mre than the wd f the tree riginally, Willful cnversin is knwing that yu re taking smething frm smene else but yu re ging t take it anyway, what yu have t d in rder t keep it under accessin, if yu re a willful cnverter, yu will mst likely nt get accessin at all, intent matters, it s the I m ging t take it and then pay them ff later mentality, Gd faith misapprpriatin is taking smething that s nt yur right t take it, but yu really thught yu did have the right t take it, curt are primarily cncerned with the degree f transfrmatin, What t d t get it t be highly transfrmed is change its type r change its value The labr that ges int the transfrmatin may be where all f the value is, if that s the case then it is accessin Ad Celum When yu wn the sil, yu wn t the sky and dwn belw the prperty Accretin Gradual change in the banks f the river ver time Nebraska v. Iwa, Omaha river changes which causes a change in the bundary line between the tw states, taking ff chunks f Iwa, cntrasts this with avulsin, Avulsin is where everything changes very quickly, In this case, it s partly accretin and partly avulsin, Mre accretin because even thugh large chunks were cming ff, it was still the same srt f thing that accretin des., There were large chunks cming ff, but there is als a slwer perid where it is being depsited dwn stream Why this is a part f accessin It s cming frm a resurce, the river and ging t anther place Minr changes ver time, nt like avulsin where it s majr changes in a shrt perid f time Fixtures Smene s prperty that has becme s strngly attached t the real estate that it becmes part f the prperty Imprtant when it cmes t selling a huse, renting an apartment

16 Althugh riginally a mvable chattel, is by reasn f its annexatin t, r assciatin in use with land, regarded as part f the land Strain v. Green, tk varius items ut f the huse when G mved ut f the huse, Mirrrs sme were fund t be fixtures and thers nt s much, tw f the three mirrrs were screwed int the plywd while the ther was hung n a wire, the tw were fixtures because there was permanent attachment t the wall, there needs t be sme bjective way t decide what a fixture is, it can t be n a case by case basis, hwever, there is n real rule but it instead depends n hw yu argue it t the curt Tw tests Items are in a class that wuld be included in the huse, they are indeed fixtures Example: Light fixtures They change ver time, n real bright line, basically a custm argument Blted t the wall test Hw securely is it attached t the real estate If yu remve it, yu take away a lt f cnnectins Ex: Furnace In rder t prevent all f this, change it befre yu put the huse up fr sale r in the cntract, reserve certain bjects fr yurself s that the buyer knws what his/she is getting Ex: fridge, chandelier What we cnsider when we determine if smething is a fixture (nt dispsitive) Permanent attachment Valuatin t the verall huse Smething built specifically fr the huse vs. smething yu can swap ut easily Ratine Sli Establishing Ownership, what trumps what? Fisher v. Steward, swarm f bees, wanders nt land, find the hney, wants it, tells the prperty wner that they want it, the prperty wner says n, and the trespasser ges back and cuts dwn the tree and takes the hney Curt says F has claim f Discvery since he fund the bees but S has claim f accessin, ratine sli, where wild animals are n the land wned by smene and are caught they becme the prperty f the wner, and thrugh increase since he wns the bees the bees make the hney and he then wns the hney t Curt held since this was a trespass, it nullifies his right t be n the prperty and find the bees, he has n right t smething he shuldn t have been ding in the first place Bad actrs and trespassers are unlikely t trump landwners in rights t their land and things n their land

17 Gddard v. Winchell, G wns the land, E is the tenant and has the grass rights, E gives permissin t H t cme n and dig up a meterite that fell, H sells the meterite t W G s claim was accessin because it fell and became part f his prperty, W has discvery/ finding claim because he is the ne via H that carried it ff the land Curt held that G wins Hannah v. Peel, a sldier was staying in a manr, cleaning ut a cbweb, fund a brach, went hme, gave it t plice, they didn t find the wner, then plice gave it t P, the wner f the huse, wh sld it t cmpany in Lndn H was a finder, P had accessin because it was fund in his huse and n his land Curt says that H wins because finder trumped landwner, P wuld never have fund the brach had H nt been there The place where smething is fund is nt an exceptin t the fact that the first finder generally gets the piece f prperty Finder wins except when fund by an emplyee r agent f the landwner Finder wins except when prperty is attached t r buried in the land Finder wins except when finder is a trespasser Distinctin between lst and mislaid, lst is when the wner is unaware f lsing pssessin f the prperty (falls ut f the wners pcket) mislaid is when the wner intentinally places it smewhere and then frgets it (placing a wallet n a stre cunter and then leaving withut it) If jurisdictin cares abut this distinctin, lst prperty ges t the finder and mislaid prperty ges t the wner f the land where it is fund Estates and Future Interests (LAND) Blackacre- the steretypical piece f land that is always at issue Basic Types f Estates Pssessry Fee Simple Abslute Life Estate Fee Tail Leasehld r Term f Years Nn- Pssessry Easement Real Cvenant Equitable Servitudes Pssessry Estates Present Pssessry interest, estate itself, wh has it right nw Future interest, wh will r may get it in the future, each type f present pssessry estate has a specific set f future interests which fllw Fee Simple Abslute Grant f all pssible rights Duratin- Ptentially infinite (until land is destryed) Bradest type f land and rights, all prperty rights that g with a piece f blackacre

18 Base estate that all thers are carved ut f, smene always has this! O t A and his heirs If A is alive then yu d nt knw wh his heirs are, yu find ut when they die The and his heirs is what deems them the pprtunity t give it t whever they want when they die O t A (prir t 1500 s gives yu a life estate) O t A in Fee Simple N future interest because there are n heirs until yu die, if yu wn it, when yu die yu can give it t anyne yu want t Life Estate Grant f full rights during life f grantee Duratin, life f the grantee When the persn having a fee simple abslute, carves ut full rights f the estate but nly fr the life f the grantee Grantee can d anything they want with the prperty during the grantees life, after the death it will be given back t the fee simple abslute hlder O t A fr life Yu nly get it fr yur lifetime At the death f A there are tw chices Back t Owner (O) Reversin T a third party (B) Fee Tail Grant f successin f Life Estates Passed frm initials grantee t his r her ffspring Duratin- until riginal grantee has n mre lineal descendants Ablished in mst f the cuntry If smene gives yu a fee tail, then yu have a life estate which transfers t the ffspring, it keeps ging until there are n mre ffspring t pass it n t O t A and the heirs f his bdy His bdy, aka his ffspring At death f A s grandsn withut child, tw chices Back t Owner Reversin T a Third Party Remainder Leasehld r Term f Years Grant f rights during the term Duratin- specified number f years If yu rent, this is what yu have, duratin is whatever the lease term is fr O t A fr 5 years At the end f 5 years, tw chices

19 Back t Owner Reversin T a Third Party Remainder Defeasible Estates Once yu have basic estates then yu can play with them and create this Fee Simple Determinable O t A s lng as the land is used fr farming, while the land is used fr farming, until the land is n lnger used fr farming Yu get the land until the cnditin is n lnger met Estate terminates when the land ceases t be used fr farming, and hten wner may enter t re- claim the land at any pint after that (s lng as within the statute f limitatins) O has a pssibility f reverter Fee Simple Subject t a Cnditin Subsequent O t A but if the land is n lnger used fr farming, n the cnditin that the land is used fr farming, prvided that the land is used fr farming Once A takes pssessin, if sme cnditin happens, then A will n lnger have gd title Estate terminates when the Owner cmes in ad says that the terms f the grant have been breached - O has right f re- entry Fee Simple Subject t an Executry Limitatin Based n either a FSD r FSSCS but with the future interest in a third party O t A s lng as the land is used fr farming, then t B O t A but if the land is n lnger used fr farming, then t B Terminates in the same manner as the base estate B has an executry interest Future interest can always be sld Remainders Remainders- future interests in third parties fllwing a life estate Has the interest Vested? Deals with the amunt f uncertainty abut wh will take the prperty Indefeasibly Vested Identity f the future takers is knwn O t A then B, yu knw wh the future is It will eventually g t B N cntingency ther than natural terminatin f prir estate is required Cntingent Uncertainty abut wh the persn is that will be taking the land in the future If the taker is unbrn O t A fr life, then t A s children, but A has n children

20 Identity f the taker is unknwn O t A fr 10 years, then t whmever is the then Dean f Michigan State Cllege f Law Dn t knw wh will be the dean in 10 years Sme express cntingency must be fulfilled befre the taker can take pssessin O t A fr lif, then t B and his heirs if B is married Only if B is married, it is expressly stated Vested Subject t Cmplete Defeasance Identity f the taker is knwn Sme ccurrence in the future culd cause the taker t lse the right t take O t A fr life, then t B but if B fails t graduate frm law schl by the age f 30, then t C We knw B will get it after A, but nly if they meet the cntingency Vested Subject t Partial Defeasance (Subject t Open) Identities f sme f the takers are knwn N cntingency ther than natural terminatin f prir estate Other peple may becme additinal takers O t A fr life then t B s children and their heirs- B is living and has children C and D wh each have a 50% interest in the remainder f Blackacre B culd have anther child, E in which case C and D wuld each nly have a 33.33% interest in the remainder f Blackacre The class f B s children is pen because mre peple culd jin Cntingent remainder, if yu dn t knw wh it will be Vested Remainder, if yu knw wh will be taking the land Williams v. Estate f Williams, he wants t leave his farm t his three daughters s lng as they are nt married, they d nt cntest the will, r if they die, questin f whether this was a life estate r whether it was a fee simple abslute, debating what was Williams intentin in writing his will Curt is bjectively lking at the writing and trying t figure ut what the subjective intentin f the writer was, Supreme Curt decided it was a Life Estate Defeasible and since it was a life estate when Ethel dies, it must have reversin back t the estate f Williams because that is where the fee simple abslute is Judge lks t the intent f the testatr/drafter f the grant, and the end result we must have the cnservatin f the estate (whatever it starts in, it must als end in) Rule against Perpetuities A future interest is vid unless it must vest, if at all, within twenty ne years after the death f sme life that was arund at the creatin f the interest Lk at the time the interest is created Determine whether it must vest

21 When the future interest is created, it is certain t vest r terminate n later than 21 years after the death f an individual then alive (Michigan rule) RAP nly applies t: Cntingent remainders Vested remainders subject t pen Within this there are cntingent remainders that may cme in and jin the grup at sme pint, s the subject t pen peple culd lse part f their interest if ther jin the grup Executry interests All ther interest are already full vested O t A and her heirs s lng as nt liqur is served, then t B and his heirs. This grant des nt end until liqur is sld But let s say A dies, then B dies, but liqur is nt sld fr anther 600 years Then it will fail the Rule against perpetuities O t A s lng as A des nt serve liqur, then t B and his heirs The grant des nt end until A serves liqur, if A never serves liqur it ges t his heirs in FSA because nly A cannt serve liqur The cntingency must vest during A s life, s there is n RAP MORE EXAMPLES SEE NOTES 3/16 City f Klamath Falls v. Bell, Cmpany gives land t the city s lng as it was used as a library, then t smene else, it is n lnger being used as a library, s it shuld g t heirs this wuld be vid under rule against perpetuities, s since it is vid, the future interest is gne, but since the cnditin was met the issue is wh gets the land nw Curt can chice t give it t the city in FSA, give it t the crpratin with pssibility f reverter (crpratin is disslved s give it t sharehlders, they died, s give it t the heirs f sharehlders), let the state take the land They decide it shuld g t the heirs f the sharehlders thrugh pssibility f reverter because they can t let the city keep it because they failed t keep it as a library Hw curts treat vided grants O t A and her heirs s lng as n liqur is served, then t B and his heirs O t A and her heirs s lng as n liqur is served O t A, but if A r A s children serve alchl t B and his heirs O t A O t A fr life, then A s first children t reach age 25 and his r her heirs O t A fr life Find the cmma and take everything ut after the cmma State Rule against Perpetuities Laws Tday RAP applied at time f grant (cmmn law) Certain t vest within 21 years f death f persn alive at time f grant Wait and See apprach Des it actually vest within the 21 year perid

22 90 years The interest actually either vests r terminates within 90 years f its creatin Other Estates Dctrines Merger, grant t A fr life and separate grant f O s reversin interest becmes a FSA fr A O t A fr Life O s reversin in FAS t A This becmes O t A and his heirs, nt allwed t have this artificial break up Shelley s Case, grant t A fr life, then t A s heirs becmes Fas fr A O t A fr life Then t A s heirs r A s estate This becmes O t A and his heirs, yu cannt break it up and blck A f his rights Cannt give A a life estate and then give everything t his heirs, yu must give everything t A Brkaw v. Fairchild, a will was left fr the children t live in these mansins, ne f them culd nt rent ut their mansin s she wanted t tear it dwn and build and apartment building, the ther did nt want this t happen because they had a future interest in the building when she dies Curt says that she des nt have the right t remve the present structure n r affecting the real estate in questin because there is a future interest beynd her life Waste Affirmative waste- take sme actin and cause the waste t happen Amelirative waste, type f affirmative waste, where the tenant changes the prperty increasing its mnetary value (a minrity will allw this type f waste) Permissive Waste- n actin taken Mst jurisdictins d nt allw any type f waste Yu can bring a waste claim anytime there is anther interest in a piece f prperty, reversin t an wner r remainder in smene else Nt impairing the estate if smene else has an interest in it The lnger yur estate lasts then the mre authrity yu have t d this Leasehlds Fur Types f Leases: Term f Years Fix time Steretypical apartment lease Peridic Tenancy Can elect t renew n a peridic basis, year t year, mnth t mnth, and there must be ntice given befre terminatin by either party

23 Ntice must be given within the rllver perid, unless it s a year lease then yu can give nly 6 mnths ntice Typically if it is a residential lease it is nly ne mnth and is fixed nw by statute Tenancy At Will Lasts nly s lng as bth parties wish t cntinue, they can terminate at any time fr any reasn Must give ntice Ntice must be given as far ut as the rent perid is, if yu pay rent every mnth, yu must give a mnths ntice befre terminating Tenancy at Sufferance Lease has ended and instead f getting ut like yu are suppsed t, yu stay and hld ver lnger Evictin des nt require ntice because they are a trespasser If landlrd accepts an extra mnth s rent then it turns int a peridic tenancy If yu cannt prve yu have a certain type f lease, thrugh a written lease, then it defaults t a peridic tenancy Paradine v. Jane, the land being leased culd nt be used because an army had taken ver the land, s the tenant tried nt t pay rent The curt ruled that he had t cntinue t pay because the landlrd did nt breach his agreement because he never ffered t prtect the tenant frm invading armies Independent Cvenants Mdel f Leasing, the landlrd is giving yu an implied warranty f quiet enjyment (they will nt interfere with the tenants use) and in return the tenant will pay rent Even if the ther des nt fulfill their prmise, yu must cntinue ding yurs, but yu might be able t bring the ther t curt n the cntract Blackett v. Olanff, leases ut a night club with music and the apartment abve it, the music frm the lunge interfered with the quite enjyment f the apartments abve The curt said that this was cnstructive evictin, the tenants were nt frced ut, but it is the legal fictin f an evictin since the actins the landlrd tk f leasing ut the nightclub had the natural and prbable cnsequence f having tenants disturbed by his breach f the implied warranty f quiet enjyment Cnstructive Evictin (exceptin t independent mdel), tw things yu need are the landlrd must cmplete and affirmative act that intentinally deprives the tenant f the enjyment f their leasehld OR the tenant can d smething r lack f smething that will have the natural and prbable cnsequence f disturbing the cnditin f the tenant (intent des nt matter fr this ne, it is just incmpatible with tenants use) The prblem des nt have t be s bad as t frce the tenant t mve ut f the building

24 Dependent Mdel, if the landlrd cmplete an act with the intent t deprive the tenant f quiet enjyment f if the breach f quiet enjyment naturally flws frm the landlrd actin then the tenant n lnger has t pay rent Implied Warranty f Habitability, this cannt be waived by a tenant, measured by standards set ut in husing regulatins Javins v. First Natinal Realty Crp, there were husing cde vilatins that were being sued upn, the questin was des the tenant have t pay rent if husing vilatins arise after they sign the lease Curt says there is an implied warranty f habitability Curt distinguishes between rural and urban leases, rural land usually valued based ff the land while urban leases are signed based ff a need t use the building (this makes different standards fr upkeep) If prblem arises frm nrmal wear and tear then landlrd is respnsible, if tenant willingly causes the prblem then they are respnsible fr the csts Duty t Mitigate Damages (by the landlrd), if a tenant mves ut they need t try and get a new tenant t cme in, they must try and re- rent the apartment if it is abandned Assignment v. Sublease Sublease, start ff with the landlrd having Fee Simple, then they give a leasehld t the tenant (term f years fr 10 years) then during that term f years they say they are ging t give sme prtin f what they have in their leasehld t anther party Assignment, start ff with the landlrd having Fee Simple, then they give a leasehld t a tenant (term f years fr 10 years), then during that term f years the tenant wants t get rid f it, giving up all the time they have that remains in the leasehld, nt just part f it Difference is what is transferred, part f the remaining time r the entirety f the remaining time Liability is why this matters fr the landlrd t sue smene they must have privity f cntract r privity f estate Privity f cntract is when the bligatin f the party is arising ut f a signed cntract Assumptin- Nvatin- when the landlrd, the tenant and the new tenant all get tgether and sign an agreement where the landlrd and the new tenant say they are the nly tw in the agreement and the ld tenant n lnger has liability Privity f estate nly applies t assignment and ne part must have pssessin If a landlrd give a leasehld, nce the tenant gives the lease t a new tenant, then the riginal tenant is n lnger in pssessin and s the landlrd and the new tenant are in privity f estate (if an assignment) Landlrd tenant prblems see ntes n day 3/30