Property: Unit 2

Real property refers to rights in land and things attached to the land (buildings, fences, trees).

Items of personal property that are physically attached to real property which are generally treated as real property. (ex: chandeliers, smoke alarms)

The removal of something from real property

In most jx, an occupant may obtain title to the land if their possession is: actual, exclusive, open and notorious, adverse and hostile, and continuous for the required period. Some jx also require that the occupant pay the taxes assessed against the land.

The claimant must physically use the land in the same manner that a reasonable owner would, given its character, location, and nature. In most jx, minimal activity is enough (Gurwit). In some jx, even extensive activities may not be enough (VV v. Lutz).

The claimant’s possession cannot be shared with the owner or with the public in general.

The claimant’s possession must be visible and obvious, so that if the owner made a reasonable inspection of the land, they would become aware of the adverse claim.

Across all jx, this element requires that there is an actual invasion of the property owner’s rights.

The claimant’s possession must be as continuous as a reasonable owner’s would be, given the character, location, and nature of the land.

Adverse possession

An adverse possessor can bring either 1) a quiet title action to confirm their title, or 2) raise adverse possession as a defense to an owner’s suit to recover possession

The title owner may convey title to the land to the adverse possessor by deed.

True

Clear and convincing

Some jx require an over 50% liklihood that the claimant will meet all of the elements of their adverse possession claim. Where the court presumes that the claimant's possession of the land isn't automatically hostile, the presumption can break the tie where evidence is balanced on both sides. (Fulkerson).

-Prevents firovolous claims
-Corrects title defects
-Encourages development
-Protects personhood

Giving a length of time/SOL bars frivolous claims with stale evidence. Adverse possession also provides the occupant security of title, encouraging productive land use.

Sometimes technical mistakes occur in the process of conveying title to the land, so courts may find that giving title to the person who is actually occupying the land is more practical.

Courts value the reallocation of the title of land from an idle owner to an industrious squatter promotes productive use of the land.

When someone enjoys and uses land for long enough, courts sometimes value this sense of personal development.

-Allocation of land between the parties: An adverse possessor may only be using a portion of the land, rather than the whole parcel, and the title holder might use the remaining portion of the land. In these situations, the court may allocate land accordingly.
-Permission to use the land: Most jx find that if the adverse possessor excludes others from the land, but then invites others onto the land for a specific purpose, this supports exclusive possession.

In most jx the claimant’s state of mind is irrelevant. In some jx, the adverse and hostile element is met only if the claimant believes in good faith that they own the land. A few jx require bad faith, where the claimant must intend to take title from the owner. If there is a mutually mistaken belief as to who owns the land, then whoever has been idle likely doesn't own the property anyway if they wouldn't meet the other elements.

Whoever is idle to the land probably doesn’t own it. The squatter will likely succeed if they tend to the land and promote its development.

The "clock" on the claim resets.

Tacking allows an adverse possession claimant to add their predecessor's possession period to their own when the predecessor transferred their rights (ex: by deed or will). Most jx require privity between the parties (ex: by sale or lease). Tacking doesn't apply to successive trespassers.

False

An owner is generally entitled to the airspace immediately above their property, and may transfer or subdivide that space. However, the precise upward and downward limits of real property are unclear, with the exception of near-surface scenarios.

A landowner owns as much of the space above the ground as they can occupy or use in connection with the land, though this is remains relatively undefined and unfixed.

Takings: Pursuant to the 5th Amendment of the Constitution, private property cannot be taken for public use without “just compensation”.

An easement for airplane transit rights through a landowner’s airspace.

You would pursue a takings claim, not a nuisance claim. You cannot sue the government for nuisance because it is immune.

Courts typically recognize subsurface rights within 100 feet below the ground of a land, but beyond this, jurisdictions differ.

True

Building foundations, tree roots, or giving a mining company the right to extract coal just below the surface of your home.

Landowners not using the subsurface land at issue had no absolute right to it.

Use any facts in a hypo that demonstrate whether the party is actually using the land. Choose a conclusion for one side.

Ownership of land includes the right to have the land supported in its natural condition by adjoining parcels of land. If a landowner’s land has buildings on it, the adjacent owner is strictly liable for damage to that land and its buildings only if it is shown that the land would not have collapsed in its natural state. Otherwise, the adjacent owner is liable for such damage only if they acted negligently (such as during an excavation).

You would have to rule out that some characteristic of the land, or the weight of its buildings, were not a cause of the damage or collapse to the adjacent property.

Each landowner has the right to have their land in its natural condition supported by the Earth immediately below it. An underground occupant of the land must support the surface of the ground and any buildings that were on the ground when they started occupying the land. If the underground occupant leaves the ground unsupported and causes a collapse, they are strictly liable. If any buildings were added to the property after the underground occupant's occupation began, then they are only liable if they were negligent.

True

Riparian rights are not fixed in quantity or amount, but they are subject to reasonable use. They are subject to equal priority, meaning no one riparian rightholder is entitled to more water than another.

Riparians will be expected to equally share whatever water is available during a water shortage, regardless of need, use, seniority, etc.

Courts consider the reasonable use of the landowner's water on the land, method of use, method of diversion, and whether there is any unreasonable interference with a riparian neighbor.

False, riparian water rights are of equal priority

Appropriative rightsholders in a shared water source must actively use water to maintain their right, and such use must be beneficial. Beneficial use is broad and may extend to recreational use.

Utilitarianism, because appropriative rights holders have to actively use the water to sustain their rights to it

True

True

The oldest appropriative rightholder takes priority in an appropriatie rights system, such that junior rights are superceded by senior rights.

True, because senior rights take priority in the appropriative rights system

Senior rights would still supercede junior rights, even if that meant the junior rightholders would get nothing despite the amount they are entitled to on paper.

Some jx use only appropriative, or only riparian rights. Some jx recognize both appropriative and riparian rights, and issue permits.
-Easten US: Riparian
-Western US: Appropriative
-Mid US: Both
-CA: Both, permit system
-OG: Both, permit system

-Absolute ownership: The owner of the land surface could remove as much groundwater as they wished even if this process caused severe injury to neighbors
-Reasonable use: A surface owner may use groundwater only for a reasonable use on the overlying land
-Correlative rights: The surface owner is entitled to a proportional share of the groundwater beneath their land
-Permit system: Title to groundwater is vested in the state, so the surface owner can obtain water rights by securing a permit

Under the absolute ownership groundwater rights system, whatever is under an owner’s property is controlled by them, and the owner can use however much of the groundwater that they want, even if it takes from their neighbors.

Under the correlative ownership groundwater rights system, a landowner must use their shared water source in a way that is not excessive.

When a resource is shared, an individual’s personal share of profit from exploitation of the resource is usually greater than the individual’s share of the resulting loss. This theory presumes that everyone will act within their own self interest.

1) Coercion or enforcement of regulation
2) Privatization of land

Rights in moveable items (chairs, pens, computers) and intangible things (patents, shares of stock, a song you wrote).

-Abandoned property
-Mislaid property
-Lost property
-Treasure trove

Abandoned property is the intentional relinquishment of property. Generally, abandoned property that is found becomes the property of the finder.

True, because they havea. high value

If property is mislaid, it means the owner 1) knowingly/voluntarily placed the property somewhere but then 2) unintentionally forgot about it.

When property is lost, the owner has unintentionally/involuntarily parted with it.

The finder of a lost item does not have absolute property rights, but has the strongest claim to the property against all except the true owner and earlier finders.

Treasure trove property refers to property concealed in a hidden location so long ago that the true owner is likely deceased. Most jx give treasure trove rights to the landowner, particularly if it was found in their soil. Some jx give treasure trove property to the finder.

Gold, silver, coins, currency

A generally unsuccessful defense in which a litigant argues that a person other than one of the litigants has superior title to personal property.

A thief or trespasser who wrongfully acquired property has title superior only to subsequent wrongdoers, and not against the true owner. This prevents an endless cycle of theft by discouraging continuous unlawful seizures.

A finder may have rightful possession to a property, but not unqualified ownership. A finder is considered a “bailee” for the true owner, and therefore must 1) keep the property safe, and 2) return it to the true owner on demand.

Bailment refers to the rightful possession of goods by one who is not the true owner. The bailor delivers the chattel, and the bailee receives the chattel.

-Mutually beneficial: Bailee owes reasonable care
-Primarily benefits the bailor: Bailee is only liable for gross negligence or bad faith
-Primarily benefits the bailee: Bailee owes extraordinary care

A gift is an immediate transfer of property rights from a donor, who makes the gift, to a donee, who receives the gift, without any payment or other considerations.

True

An inter vivos gift is the ordinary gift of personal property that one living person makes to another, which require 1) donative intent, 2) delivery, and 3) acceptance.

Under donative intent, a donor must intend to make an immediate transfer of the property to the donee.

Property must be delivered to the donee, so that the donor parts with dominion and control.

Donee must accept the property, although acceptance of a high-value item is usually presumed.

-Manual delivery: Manual delivery, which is traditionally required if the gift can be practically delivered, occurs when the donor physically transfers possession of the item to the donee.
-Constructive delivery: Constuctive delivery, which is generally permitted if manual delivery is impractical or impossible, occurs when the donor physically transfers to the donee an object that provides access to the gifted item.
-Symbolic delivery: Symbolic delivery, which is generally permitted if manual delivery is impractical or impossible, occurs when the donor physically transfers to the donee an object that symbolizes or represents the gifted item.

An immediate right to possession

A right to possession at a future date

True, as seen in Gruen v. Gruen where symbolic delivery was the present transfer of a future interest in the painting.

Most jx hold that no gift occurs until the check is cashed, as the donor retains the dominion and control of the funds, whereas the check itself is an instrument merely authorizing the bank to pay a specified amount. The donor can stop payment, write another check to the same funds, or die before the check is cashed, thereby preventing any gift.

Most jx hold that engagement rings are subject to an implied condition that the marriage will occur, and thus the gift is not absolute until the marriage ceremony. Many jx adopt the no-fault approach in which the ring gets returned to the donor regardless of whoever is “at fault” for termination of the marriage ceremony. Some jx determine whether the donor or donee is to keep the ring based on who is “at-fault” for the termination of the marriage ceremony.

Testamentary gifts are gifts made by will. A testmantary gift must satisfy the Statute of Wills, meaning they require a signed writing by the donor and at least two witnesses.

Inter vivos gifts are transferred now, and testamentary gifts are transferred in the future when the owner dies. Testamentary gifts must satisfy the Statute of Wills.

Causa mortis gifts are given in fear of, or in anticipation of, death. Elements that must be met are: 1) donative intent, 2) delivery, 3) acceptance, 4) donor's anticipation of imminent death

Court found that the claimants had adversely possessed the land even though it was a wooded brush area and they only tended to it infrequently.

Court found that the claimants had not adversely possessed the land even though Lutz grew vegetables on it, built a house for his brother, and built other structures on the property. This was because of an additional statutory requirement.

True in most jx

Jurisdictions that use the permit system for water rights require a permit for the diversion of surface water. Under this system, the government effectively regulates the amount of water that may be withdrawn.

Capture, find, adverse possession, gift

Money found on the ground goes to a finder if it was found in a public space

Finder's keepers, even if it's found on another's land, if the owner was not aware of it

True

True

True

The father intended a present transfer of ownership and retained a possessory interest for the rest of his life.

True

True