PROPERTY OUTLINE

I. ACQUISITION OF PROPERTY

DISCOVERY
Definition = sighting or finding unknown or uncharted territory
 Discovery through first possession but limited to any land not already discovered by
European powers (driven by first in time)
 Labor Theory minor justification: effort of discovery
 Any non-Christian territories were considered a discovery not a conquest

CONQUEST
Definition = Taking of possession of enemy territory through force followed by formal
annexation of the defeated territory by the conqueror
 Labor Theory justification: fought and died for the land

CAPTURE
Definition = when a person takes occupancy of that property meaning mortally wounding or
capturing from a distance and at most physical possession
 Mere pursuit is not sufficient
 Rights only conferred upon capture

CASES:
 Ghen v. Rich = applied local custom theory (incentivizes social/community benefits)
 Pierson v. Post = policy considerations (efficiency, fairness, certainty)
o Analyzed five theories of capture
 pursuit alone
 actual corporal possession
 killing
 within reach/reasonable prospect
 local custom
 Johnson v M'Intosh  title transfers for land are valid under the reigning government

FINDER’S LAW
Involuntary transfer of property rights (**NOT A GOOD RULE**)
 Armory exception = The title of the finder is relatively superior to the whole world but
the true owner
 First in time, first in right justification:
o Protects and privileges possession
o Certainty
o Wealth Maximization
o Labor theory
o Promotes honesty + transparency

A) Lost =
 Finder wins WITH Amory exception
 Hannah v. Peel - Rewarding the honesty of the finder who did everything right rather
than punishing the owner
B) Mislaid = property that the owner voluntarily placed somewhere then neglected to remove
 Property owner holds for true owner claims (bailment situation)
 Mislaid property is not subject to the rule that a finder of lost property has a valid claim
against all but the true owner
 i.e. McAvoy (for shop owner) + Bridges (for customer)

C) Abandoned = items intentionally or voluntarily relinquished with no intent to reclaim

 If the true owner has abandoned the property, then the finder has a better right to the
property than the world including the true owner
 NO Armory exception

ACQUISITION BY GIFT
A) Gift Requirements
I. Present donative intent (question of fact - looks to words, context, relationship)
II. Delivery (question of law - legal conclusion)
 Manual (physical/actual) required for those items that by size or weight
can be delivered
 Constructive (access/key i.e. A car key)  where it plainly appears to be the
intention of the donor to make the gift and where the things intended to be
given are not present or where present are incapable of manual delivery
from size or weight
 Symbolic (paper/image representing the thing you're giving)
 If something is possible of being physically handed over then it has to be (i.e.
no constructive or symbolic delivery allowed)
 Possible = feasible and accessible
III. Acceptance

B) Death Bed Gifts (Donatio Causa Mortis)

 Intention to make the gift
 Delivery of the thing given
 Likelihood for fraud because it requires no writing or will and only requires one
witness
 Revocable if no death

CASES
 Newman v. Bost – failed on delivery because the decedent was capable of instructing
someone to retrieve the insurance policy
 Guen v. Gruen -- failed because gift was a future gift and should have been
designated in a will or trust

PROPERTY IN ONE’S PERSON

A) Moore v. Regents of CA  tried to claim his stem cells as his property
 Litigation lottery - had to draw the line at some point for researchers in the future
 Property rights should be viewed as a flexible bundle of rights and deciding what
rights go into that bundle is decided by societal values (dissent)

THEORIES OF ACQUISITION
A) Doctrine of Relative Title = conceptual framework that says property rights are always
relative between the people claiming it / the actors

B) First in time, first in right = first occupancy/position

CASES: Johnson v. M’Intosh

C) Labor Theory = Take something that didn’t belong to anyone and we transform it with our
work, effort, and ingenuity and it becomes a new form of property and that's how
something comes into the property system
 Right to be protected in the work and output and creativity of our own bodies
 Modern Application = IP will not be protected unless there is an element of new
invention
CASES: Johnson v. M’Intosh (effort Europeans put into discovering America)

How to tell if a property rule is good:

1) Certainty
o Does it advance certainty? Is it easy to tell who owns what

2) Predictability
o Is it predictable? Are people going to be following it?
o Does it advance peace and order? - incentives people to exercise order

3) Fairness
o Is it fair? Aspects:
 Labor Theory
 Procedure: does it promote and protect expectations of that community

4) Efficiency/Wealth Maximization
o Does it create the correct incentives for human behavior
o Does it benefit society at large / create wealth that can trickle down

5) Does it create any perverse incentives that may look like externalities

POLICY
A) Property reflects cultural/societal values at the time
B) Social values = fairness, equality, certainty
 I.e. Johnson v. M’Intosh (certainty of title of American lands which came into
possession in very complicated ways justified the restriction that all title in the US
must come from the Fed Gov in order to est finality and certainty of property
records)
C) Law + Economics = promotes social incentives
 Balance
 Externalities argument
II. ADVERSE POSSESSION

ELEMENTS OF AP
 When you AP you are only AP the title of the land as it stands when you enter (i.e. if you
enter during someone's life estate of the land but another party has a remainder interest
you are only AP for the duration of the life estate)
 AP gain NEW title

1) Actual Entry Giving Exclusive Possession - starts the clock running on the SoL
o Put owner on notice + Neighborhood and people who might have an interest (i.e. lenders) on
notice
o Is it the sort of use of land that might ripen over time into adverse possession?
o Is the land being exclusive of the true owner and exclusive of the general public? (no sharing)
o Tacking: exception to this doctrine can occur in two ways
 People + Time = adverse possessor 1 tags on someone consensually to continue their
adverse possession
 Time

Policy?
 Certainty + Fairness
 Labor theory if improvements to the land are made (Lutz)

2) Open and Notorious - descriptive finding of fact that the use or entry must be of the type to put the
attentive true owner on notice that adverse possession is taking place (Was the owner sleeping on
their rights?)
o Constructive notice only -- do not need actual notice
o EXAM: When there are a lot of facts about how the land is being used then open and notorious
is the fact at issue
o If the use is said to be 'usual and customary' -- open and notorious is not at question (that
element is satisfied by virtue of usual and customary use)
o Includes seasonal use if that is what's normal (i.e. a summer house or ski resort)

Policy?
 Gives notice to the true owner
 Ensures the land is used in the way that is expected by the public and true owner

3) Adverse (Under Claim of Right, Claim of Title, Hostility)

State of mind requirements:
 MAJORITY  Irrelevant (objective)
 Encourages honesty (Otherwise would encourage lying)
 Difficult to ascertain
 Cares about putting the land to a good use (problem for conservationists)
 Colorado defaults to the innocent trespasser (which plays to both honesty and labor)
 Good faith/innocent trespass ('I thought I owned it')  could bring up Color of Title
 Aggressive trespass ('I thought I didn't own it but I intended to make it mine')
 Punishes lazy owners and rewards labor
 o EXAM: discuss all three in an essay in order

Policy?
 Puts owner on notice
 Courts don’t care about state of mind because of resource and benefits to society concerns 
could lead to a two tiered system of SOL

4) Continuous for the Statutory Period

o Entry + Use = meets SoL
o Varies from state to state
o Complicating Issues:
 Tacking
 Disabilities (of true owner)  21 years or 10 years past removal of disability – whichever
is LONGER
o Colorado = 18 years

Policy?
 Puts landv to best use
 Prevents sharing of possession
 Depends on usual and customary use of the land

INVALID/DEFECTIVE DEED – Color of Title

Color of Title Doctrine = refers to a presumptuously good faith adverse possessor who has an
invalid deed
o Even when you have color of title - the other four elements of adverse possession must be met
o If you honestly believe you own the land and have a bad deed to prove it then you don’t have to
use the land as often or as long as a normal AP  you have an easier claim in adverse
possession (and shorter statutory period. (7 years in CO)
o IF you're in a color of title jurisdiction then you meet the state of mind requirement
(presumption of innocent)
 The deed can be defective due to a bad survey, bad signatures, not notarized,
etc. Someone with a defective deed is an innocent trespasser, which satisfies the
state of mind element in all jurisdictions.

o Weakness: if color of title works you have constructive possession of any land in your deed
beyond the land the adverse possessor is actually using (augmentation doctrine/tacking of
land) -- weak doctrine because it gives way to any first in time prior possession
 Very rarely serves a purpose -- should be an obsolete doctrine

Purpose:
o Provides a shorter statute of limitations for someone with color of title
o Gives you constructive possession of the entirety of the lot described by the invalid deed
(extremely weak - yields to expressive possession + yields to first in time first in right
always)

 Claim of title/claim of right = state of mind the adverse possessor has to have
 State of Mind
o Majority = objective (do not inquire)
 o BUT courts prefer innocent AP

TACKING + DISABILITIES
A) Tacking
 Tacking only occurs if there is privity
o Privity = legal contractual consensual relationship
 Has to be a relationship between the AP (could be familial or contractual)
 In the absence of privity there is no tacking of owners
 If tacking is allowed, the adverse possessor currently in possession may not have been
the one who MADE the “actual entry”
o This is what Howard v. Kunto was about, but keep in mind that the court was
trying to solve the problem in a way that satisfied policy, and so sacrificed the
requirement of some of the elements of tacking.

B) Disability
 Death removes all disabilities
 10 years from removal of the disability
 Regularly it's 21 years
 Only count if they were in existence at the time the AP entered
 General illness does not count - must be a recognized illness under the disability statute

PURPOSE OF AP
 Essentially a SoL on actions in ejectment (someone is already in possession and is in some
way using the land vs. quiet title) -- SoL from state law
 When successful - it vests a brand new title (proof of ownership) in the adverse possessor
relating back in time to the date of the original entry by that adverse possessor - by
operation of law without proof of purchase or deed

1) Arguments focused on Adverse Possessors

 Earned rights/labor theory (tension with conservation) -- common justification
 Attachment theory - once you see something is yours you will fight before you give it up
+ something you have enjoyed for a long time becomes part of you
 Focused on cleaning up bad records in title and creating certainty
 Wealth maximization
 Labor theory

2) Arguments focused on True Owner

 Sleeping on rights (English Theory)
 We have SoL because we want people to protect their rights within a certain number of
years
 Laches/fairness - 'unclean hands doctrine' your inaction creates expectations that you
will continue to be inactive
 Certainty argument
 Fairness argument
 Wealth Maximization

3) Arguments for neither

 Maximizing productive use of land
 Aging claims - finality of title  as time goes on it is more difficult to show true
ownership
 Certainty of land titles has to have strong societal value so that the land can be
improved, passed, and used
 Method for wealth re-distribution (Marxist Doctrine)
 Squatters rights that mature into property rights is a way to take land from the wealthy
who are not using it or the government
 Protecting expectations of neighbors and third parties (incentivizes casual lenders)
III. ESTATE SYSTEM

TERMINOLOGY
 Feudal
 Leasehold
 Primogeniture = passing of property through males in order of their birth (no longer used)
 Per Stirpes = applied to succession when divided in equal shares among the branches of the family -
the share of each branch being then subdivided equally among the reps of that branch
o Provides that the next generation will step in to the fixed per capita share their parent would
have received had they been alive
 Heirarchical
 Freehold
 Seisen = possessory rights
 Per Capita Distribution
 Assize of Novel – if someone was booted off their land, they had a right to a trial to determine if it
was rightful (possessory rights)
 Assize of Mort – gives male descendants of a property owner a right (inheritability of land)
 Words of Purchase = who gets the property
 Words of Limitation = what type of estate and for how long
 Fee Simple Absolute = highest ownership of property ownership (for infinity)
 "To A and her heirs" OR "to A"
 Total ownership (fee simple absolute) emerged from feudalism and the four stages of property
rights in English law
 Fee Tail = how you ensure primogeniture (so that the property only goes to your son)
 "To A and the heirs of his body"
 Life Estate = estate of limited duration
 Has the same powers of a fee simple only that it's limited to a lifetime
 "To A for life"
 Estate in Land =
 A present possessory property interest
 Bundle of rights (depends on circumstances and jurisdictions but all four base rights from
Feudalism are present)
 Defined in terms of relationship between persons with respect to the land
 Intangible interest
 Future Interest =
 Possessory rights and enjoyment come in the future (non-possessory interest)
 Magna Carta
 Created limitations on the king's ability to tax
 Habeas Corpus -- trial by jury

Passing Property at Death:

 Testator/Testatrix = will maker
 To Devise = term of giving in a will
o Sometimes a will maker can be referred to as a devisor and person receiving is referred to
as a devisee
 Intestacy = state of dying without a will and letting your property go down to your descendants
via a state intestacy statute
 Intestate/Intestatrix = term of giver who died without a will
 Devisee = receives land
 Legatee = receives real property
  Heir at Law = receives property from a person who has died without a will and is receiving
property by state law (a living person has no heirs)
o Heirs have NO property interest prior to the death of the original owner (cannot determine
until death of owner)
o Heir Apparent
 Issue = descendants (lineal blood descendants)
o Adoptive children can take from both adoptive parents and natural parents
 Ancestor =
 Collaterals = all people related by blood to the descendants who are neither descendants nor
ancestors (i.e. cousins, brother, aunt)
o Secondary blood relatives
 Escheat = when a person dies without a will and with no living relatives their property reverts to
the state

Passing Property during Life:

 Convey (conveyor/conveyee)
 Transfer (tranferor/transferee)
 Grant (grantor/grantee)

IV. FUTURE INTERESTS

TERMINOLOGY
 Term of Years  unit of calendar or chronological terms (for leaseholds)
 Reversion  property goes back to the original owner or their estate
 Remainder  goes to a named grantee (remainder in fee simple absolute)
 Contingent Remainder
o (can also have alternate contingent remainders i.e. if someone has children or not)
 Waste
 Life estate pur autre vie  a life estate for another's life
o i.e. if A has a life estate and sells their life interest to B it is still measured by A's life time (cannot
give what you don’t have)

LIFE ESTATE
 Life estate is always followed by a future interest
o The future interest that almost always follows a life estate is a remainder or reversion
o If you give away less than you started with (i.e. a life estate) -- presumption of a reversion
interest
 LE can be successive (i.e. to A for life then to B for life)
 Most common LE is a FSA
o Presumption in favor of a FSA (White)
o Court will look at intent of testator/testatrix – apply the “necessary for the best interest of all
the parties test” (Baker)

A) Restraints on Alienation
 Generally disliked:
o Market capitalism argument - prevents land from being made available for its highest price and
maximum use
o Perpetuates the concentration of wealth
o Discourages improvements (why invest in a property you're not allowed to sell)
 o Injustice to third parties (i.e. creditors)
 Effect?  Many Native American tribes use alienation today to restrict the sale of tribal land to
members of the tribe
 White v. Brown  restraint on alienation is void contrary to public policy and nature of the estate
devised

B) Types of Restraints
I. Disabling = voids any transfer
o If a condition of the restraint is performed, then that performance is nullifying it action.
o "Blackacre to A but any transfer by A of any interest in Blackacre shall be null and void"
o i.e. White v Brown
o If complete then void
o removes from the property bundle the ability to sell (not compatible with a fee simple
absolute)
o Absolute disabling restraints are invalid under CL when attached to a FSA and disfavored when
attached to a LE

II. Forfeiture = If a condition of the restraint is performed, the party forfeits their property interest.
o "Blackacre to A, but if A makes a transfer of any interest in Blackacre then to B"

III. Promissory = Parties promise not to perform an act

o "Blackacre to A, and A promises not to transfer Blackacre by any means"

IV. Testing a Restraint?

o Duratino
o Effect
o Purpose

C) Language Basics
 Words of Purchase  identify the grantee/transferee/etc
 Words of Limitation  What type of estate is being given?
o If none  FSA presumption (but keep in mind the highest estate that can possibly be given
based on what the grantor has – i.e. not always a FSA)

FEE SIMPLE
A) Fee Simple Absolute

B) Determinable

C) Subject to Condition Subsequent

D) Subject to Executory Interest

FUTURE INTERESTS
 All future interests are alienable (exception in Marinhold) -- I.e. the person who possesses a future
interest can sell it
 WHERE TO PUT:
 Privity of Estate = governs when the clock restarts (when an owner dies or relays property to
another that is privity of estate and the clock does not restart)
o Threshold for PE = voluntary transfer (i.e. death)
o Otherwise any owner would be able to defeat AP by transferring it to a straw person or
attorney and two days later getting it back (unfair to the AP who has put in work on the
property and does not know about those transactions)
i.e. Foreclosure =
involuntary
o transfer

White v. Brown + Baker