nra property outline fall 2010

8/3/2019 NRA Property Outline Fall 2010

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PROPERTY FALL 2010 OUTLINE Pg.1

Property is the relationship among persons with respect to things and resources.Not a relationship between you and the thing, but rather my thing and my relationto it, gives me power over someone else.

What are the bundle of sticks that come with property?y Right to usey Right to excludey Right to dispose

Policy Reasons for Rule

y Law protects the first finder because otherwise there would be a free for allof taking other peoples things and no claim of title for found objects

y Law protects the honest finder. If you honestly find it, you can keep.

y Law values those who find things & make them usable again.y Law provides incentives to report lost items. If finder reports it and the

owner never shows up, its theirs honestly.

Right to Exclude

y Essence of property rights- Should the owner of land have an absolute rightto exclude others?

Jacque v. Steenberg Homes Inc. Steenberg intentionallytrespassed breached a fundamental right of property law;state waswrong to reverse punitive damages because nominal damages were$1. Person has the right to exclusive enjoyment of his own landfor any purposeswhich does not invade the rights of anotherperson

y See also Loretto case in ED. Right to exclude is essential and when gov takesthat away- its a taking .

y Should not be regarded as incapable of being violated, public interest plays apart

o Limits on exclusion (human values):

State v. Shackthe essence of private property is always the right toexclude others, but should not be regarded as inviolable, to protectinterest of more vulnerable, to distribute resources earned by themore vulnerable party for contributions to joint effort. Tedescosright to exclude ended where the tenant workers need for

reasonable access by visitors begun. Rights are relative.


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THEORY

a. LABORi. John Locke, Second Treatise on Govt(1690):

1. God gave the world to all man in common to be used for the

best advantage of life and convenience; this requires thatland is appropriated from the common for beneficial use2. Every man has an exclusive property in his own person and

the fruits of his labor; whatever a man removes out of thestate of nature and joins with his labor is thereby hisproperty; this fusion of labor with property occurs at thefirst instance of labor (i.e., gathering the acorns) and doesnot require the consent of the common under whom theproperty was previously held (justification for taking landfrom NAs)

3. Acquisition is not without limits; one may only fix a

property in so much as he is able to use for advantagebefore it spoils and beyond that is not his and belongs tothose who can use it for advantage.

Haslem v. Lockwood(1871): the first party to occupy abandonedproperty and improve it with his labor has the legal right to thatproperty [ shoveled manure to side of road and left overnightbefore collecting came and carted manure away

a. UTILITY & EFFICIENCYa. Efficient response to scarcity.Efficiency is utilitarian; why waste

things? EXTERNALITIES (costs that are produced by an activity butnot borne by the person reaping the benefits of the activity) areINTERNALIZED (borne by their maker). This makes the productionof goods needed for human life more efficient. Few people would takethe time and effort to partake in activities like crop producing if theywerent able to keep the benefits. Recognition of a property right inthe crop internalizes the benefits.

b. NATURALLAW THEORIESa. Not popular- vary too greatly, but it is universal human trait to link

possession of an object with ownership.c. CUSTOM

a. Property rights can often occur by customs, that are intended tomaximize aggregate wealth of the customary participants.i. EX: Whalers, customs designed to deal with the uncertain

business of capturing whales and max the profits of theenterprise.

d. POSSESSIONa. Physical Act- you take possession of


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possession to encourage more hunting; intruder should not gainfrom labor of first person)

iii. Other reasoning: keeps the peace, decreases litigation (the end ofthe hunt is an objective measure whereas the beginning issubjective), clear and easy to administer

b. Dissent: pursuit should acquire property, also turn it over to tribunalsportsmen, encouraging the hunting of wild animals, instrumental end, ifwe want to promote hunting , let the pursuit claim property, but thisdefeats the idea that the whoever kills it get it (which killing is ultimategoal)

c. RELATIVE TITLE: one persons claimed property right is almost alwaysgood (or not good) only in relation to others. What if in Pierson, the foxwas on Posts land and Pierson had been the trespasser? Piersons actualpossession of the fox would have given him a property right in it, but onlyuntil or unless that right was trumped by Post, invoking his right toexclude others from his reale state.

i. Conflict between two different property rules FIRST POSSESSIONv. landowners RIGHT TO EXCLUDE others.

ii. Post, the landowner, would have a better claim to the fox, notbecause he was a PRIOR POSSESSOR of the fox, but because hewas entitled to DEPRIVE trespassers of their game taken fromhis estate. It would have been Piersons fox if Post has bagged iton Piersons farm. assumes society thinks its more important todiscourage trespass than to reward first possession of unownedobjects when the two values collide.

iii. Law rarely encourages trespassing because security of exclusivepossession is conducive to peace and order and investment of an

owners resource in that propertyiv. Even amongwrongdoers FIRST IN POSSESSION prevails.

2. Custom: when should customary rules pertaining to acquisition ofownership establish the legal doctrine? Individuals conform to these rulesout of self-interest: in the long run they will be better off, and in the shortrun, deviation from the customs will result in substantial informal sanctionsfrom the group.

Ghen v. Rich: Whaling group in MA has developed a way to distinguishwhose whales are whose, the device that kills them, makes them sick,rises in a few days, floats to another town, norm is that the person whofinds it calls the person whose device it is and notifies them- here theperson who found the whale, doesnt follow protocol. Court held thatcustom determined ownership because the nature of the fin-back whaleindustry was that the animals could only be killed without acquiringimmediate possession, and that a first=physical possession rule ofownership would eliminate all incentive to whale hunt, thus depriving thesociety of the benefits of a continued supply of whale oil and blabber.


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Why didnt court go with Pierson v. Post (mere pursuit is not enough),they followed custom here, problems with that 1)court doesntrepresent the whaling industy 2) third parties are bound to thecustoms of whalers for other industries 3) in most cases it doesntfollow to do a custom

How you decide a case matters3. POLICY ENDS & PROPERTY RIGHTS: as the law tries to serve human values thatare important to people of the society, they tinker with the doctrine to serve thosepolicy ends- trying to serve

01.Reward productivity and foster efficiency02.Create simple, easily enforceable rules03.Creat property rules that are consistent with societal habits and

customs04.Produce fairness in terms of prevailing cultural expectations of

fairness

y Sometimes these point to a single resolution, sometimes they point in

different directions.Keeble v. Hickeringill: Landowner had decoy pond that was designed totrap ducks to be killed and consumed as food. Keeble maintained the pond.Hickeringill, his neighbor, frightened the ducks away from the pond bydischarging a shotgun nearby. Courts ruled that such conduct was actionableon the grounds that H was maliciously interfering with Ks lawful activity.Distinguished form fair competition, nothing that it would be perfectly finefor a schoolmaster to lure students away from another school by offeringbetter instruction but unlawful to frighten them away. NOTION that faircompetition IMPROVES SOCIETY, (BETTER SCHOOLS)which Hs actionswas a dead-weight drag on societal improvement (FEWER DUCKS)

could be different in a society that sees the killing of ducks as unlawful.

4. ESCAPEES AND DOMESTICATED ANIMALS: when a wild animal escapes, it isUNOWNED, belongs to the next first possessor. Domesticated animalsare not wild, so they continue to belong to their prior possessor whenthey wander off. A wild animal becomes domesticated when, as amatter of fact, it demonstrates the propensity to return home(animus revertendi).Ex: Silver Fox, native to Canada but not to Mississippi (where it wasconfined by its owner- possessor), which escaped and was killed by a

hunter,D

octrine says hunter wins. Should a hunter have a reasonableexpectation of acquiring ownership of a wild animal not native to theregion? it being silver would have put the hunter on notice- look atthe effort for importation, cant say this animal had a propensity toreturn to Mississippi, so capture rule? BUT lets look at the underlyingprinciples.


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5. OILAND GAS

y Fugitive in nature as it wanders place to place. Court has decided that likethey decide wild animals, rule of capture, they reasoned that ownership of oil

and gas should be determined in the same manner. They belong to the ownerso long as they are on it or in it. When they ESCAPE the title of the former isGONE.

y HOW TO BEST FOSTER PRODUCTVITY by the EFFICIENT EXPLOITATION OFOIL AND GAS

o Underground reservoir of oil open to all drillerso BUT other suggest that overexploitation of the unowned resource

might be susceptible to an injunction tragedy of the commons(tendency to over exploit a common resource because the full costs fothe exploitation are not borne by each user, while the former is anuncritical application of the first possession doctrine to circumstances

where sound public might warrant a different approach.o Hammonds v. Central Kentucky Natural Gas Co. natural gas

injected into natural underground reservoirs is no longer owned bythe injector, is a mechanical application of doctrine with little thoughto its policy consequences. this denies the society at large thebenefits of economical underground storage, and also makes theowner build tanks, and spend money

o *PROPER POLICY CONCLUSOINS & the DOCTRINE that derivesfrom them, varywith their circumstances, such as the chameleon

changes colorwith the background.

Externalities

Acquisition by Creation

Many intangible property rights are created. Your image, your novel but notalways (Silk Patterns with Cheney Bros. v. Doris Silk Corp.

y Comes from Lockes Labor Theory- the product should be yours alsofairness

y If you create something its yours to exploitfoundation is the

expenditure of money and labor, past efforts (INS v. AP)y Copyright: the right to control reproduction and distribution of the

creation.y Patent/Trade Secrets: protection of discoveries (Intellectual Property)

y EXCLUSIVITY: the problem of imitation: what is the degree the propertyowner has in exploiting the intangible right. The law of


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misappropriation= the branch of unfair competition law that protectsnew ideas- tries to answer the question of when imitation is permissibleand when it is not because it destroy the incentive to create.

International News Service v. Associate Press: SCOTUS held it wasmisappropriate for INS to copy APs news and release it before AP could.

AP expended money and efforts to gather the news; the Court though thatINS was attempting to reap what is has not sown AP has stuff inrelation to INS but not the pubic, because the news is not property, butbetween INS and AP , there is a quasi property right, reminds us whatproperty is- relationship among persons with respect to things, dependson who you are standing with

y BUT Imitation of Perfume/Seasonal fabric is not misappropriation

Cheney Bros. v. Doris Silk Corp. : their cant be too harsh of a line or itwill hurt the incentive to create. P manufactures silks, many patterns, nosuch originality as worthy of design patent,D coped the design andundercut the price- you can go ahead and copy, larger issues are at stake,to prevent any imitation creates a monopoly, gives a party too muchpower- P relied on INS SCOTUS, but court says that case was morespecialized.

Smith v. Chanel, Inc. : court held that a perfume company could claim inadvertisements that its product was the equivalent of the more expensiveChanel No. 5 (trademark)- Imitations are good for society and to havepublic benefit . Spending money/investment doesnt mean youll getproperty right at the end of the say, imitation is the lifeblood of oursociety

*Conflict between the inefficiencies produces by a monopoly overcreation (higher prices, less accessibility to a desired good) and both thesense of unfairness of allowing copycats to reap what they havent sownand the fear that , without protection, creators will not create.

Personal Image as Property

y the ability to exploit your image for profit is recognized as a valuableproperty right because we have created a culture of celebrity in whichmoney can be made from selling image. Law evolves to protect newlycreated cultural expectations.

Wh

ite v. Samsung ElectronicsA

merica: The court concluded thatSamsungs depiction of a robot clad in a blonde wig, dress and jewelsposing in front of the wheel of fortune infringed Whites common lawright of publicity , DISSENT: this is classic overprotection- because itextended the publicity to preclude even image, name, likeness, or


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signature.Overturned the balance between protection of creativeendeavors and leaving room for new innovation.

ACQUISITION BYFIND

a. General Rule: Finderhas titlesuperiortoeveryone except the rightfulowner. Apropertyownercontinues toownitspropertyevenafterhe losesormisplacesit.Finders claim to thepropertydepends on who the rival

claimantisandwhether the property was lost, mislaid or abandoned

by the TO.

b. Finder has relative title.c. Policy Objectives 1) torestoreproperty to the TO 2) rewardhonest

finders 3) deliverthereasonableexpectationsoflandowners 4) discourage

trespassersandotherwrongdoers 4) encourage theproductiveuseoffoundproperty

d. Abadoned Property: property to which the TO has voluntarily given upany claim of ownership, generally a finder of abandoned propertyacquires title, but this rule is not invariable, trespassers arent rewarded,and owners of land where abandoned property is discovered may haveexpectations of ownership of such property. Statutes can also modify this.

i. EX: TOplaces his laptoponsidewalkinfrontofhis housewith cardthatsays free-take me. TO hasabandonedhisownership, thefirstpossessorbecomes thenext TO, butifitwasundera bed,notso clear

thatitwasabandoned, conclusionusually has to be made by

circumstantialevidencee. Lost and Mislaid Property: general rule a finders title is good against

the whole world except the TO, prior finders and (sometimes) the owner

of the land where an object is found.i. Lost property:slipsoutofyourpocketii. Mislaid property: the TOplacessomewherewith theintentionof

returningforit, butwhich cannotnowbe located.

iii. Prior Finders PrevailOver Later Finders:a. Ex: TO loses hiswatch,foundbyFF,FFthen loses thewatch,

which isfoundby SF.FFprevailsoverSFon the basisofprior

possession. TO would,ofcourse,prevailoverFF.

Armory v. Delamirie- chimney sweep finds jewel and carries overto jewelry to get appraised, jeweler keeps it and boy sues- boyswins money damages for value of jewel because he found it firstand true owner was never determined- it the jewler had been theTO, the chimney sweep would have lost. Finders only have relativetitle.


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possession to someone else (bailee) for limited time and limitedpurpose.

f. Found on Private Propertyi. Conflicts frequently arise between a finder and the owner of the

land upon which the property was found (often called the ownerof the locus in quo) There is no conflict if the landowner alsoowns the found object. If the TO is neither the finder nor thelandowner, conflict erupts

a. Trespassing Finders: As is true of abandoned property,trespassing finders of lost or mislaid property lose.

b. Employee Finders:Older cases tend to find that employeefinds must surrender the find to their employer if theemployee has a contractual duty to report findsor a carpenter employed by a hotel was allowed to keepproperty he found in a hotel guest room he was

redecorating, becaue his carpentry duties did not includereporting found property. *You should be combining a dutyto report with award to the finder when the TO nevermaterializes

c. Invitee Finders: landowners often invite workers andothers to their property for specifc and limited purposes,almost never to find property, an invitee who findsproperty in the course of doing what he or she was invitedto do must surrender it to the landlord

South Stafforshire Water Co. v. Sharman 1896 -landowner employed Sharman to clean out the Minsterpool, Sharman found two gold rings, the rings went to thelandowner, who conceded that the had been unaware oftheir existence until the find- landowner was treated asCONSTRUCTIVE POSSESSOR of the rings, a label thatsimply a legal conclusion that landowner should prevail.

d. Embedded Objects and Treasure Trove: when propertyis embedded in or under the soil, it is awarde to thelandowner, on the rationale that the landownersexpectations of owning things in the dirt itself areespecially strong.

e. Private Homes: homeowners are awarded objects found intheir homes. A homeowner has an especially strongexpectation of ownership of objects found insider her homeand, to the extent the property was mislaid, the odds of itsrecovery by the TO are increased by leaving it with thehomeowner. When the homeowner is an absentee owner-


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not in possession of the home- resolution of the questionturns on whether the homeowner was in constructivepossession of the home. If the homeowner is briefly absent,she is in constructive possession of objects found in herabsence.

Hannah v. Peel: Major Peel purchased house but nevermoved in. WWII broke out, the Crown took the house toquarter soldiers. Corp. Hannah found a brooch whileadjusting curtains. He reported the find. Two years later,the owner not having appeared, the brooch was turnedover to Perl, who then sold it. Hannah demanded the saleproceeds and won. Because Peel never moved in, he neverhad constructive possession of Houses unknown lostcontents.All or nothing Approach, poorly fitted to the goalsof finders law.Ownership in Peel punishes the honestfinder. Ownership in Hannah defeats Peels reasonable

expectation that he owns everything that came with theHouse. Perhaps the value should have been split.

g. Public Places: Lost Property: Lost property in public places goes to thefinder. Mislaid property found in public places goes to the landowner. Afinder of property acquires no rights in mislaid property, isentitled to possession of lost property against everyoneexcept the true owner, and is entitled to keep abandonedproperty. * The odds of restoring lost property to the TO are slim, butwhile the TO of mislaid property may return to the place where it was

mislaid, but TOs usually retrace their steps when items are lost.i. McAvoy v. Medina:walled is found on a barbershop counter, it

was probably placed there by a customer then forgotten. Asmislaid property, it goes to the barberhsiop owner. But if thewallet is foudnd on the barbers floor , it was probably droppedthere unintentionally by a customer. As lost property, it goes to thefinderBridges v. Hawksworth---the lost-mislaid distinctionrequires courts to surmise from circumstantial evidence (policiesof finders law might be served by a sharing rule)

h. Equitable Division : sometimes the all or nothing approach to foundproperty sometimes results in irreconcilable conflict between the goals offinders law, some argue that found property should be shared equitablyamong the competing claimants, each of who m have a claim as good asthe other claimant. Ex: Baseball of Barry Bonds- both claimants hadclaims better than anyone else, and neither claim was better than theother. CA trial court said both had equal interests in the ball and mustshare its value equally.


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ADVERSE POSSESSION

Gaining title by AP results from the operation of the statute of limitations for

trespass to real property. If an owner does not, within the statutory period,take legal action to eject a possessor who claims adversely to the owner, theowner is thereafter forever barred from bringing suit for enjectment and titleis vested in the possessor. Two requirements 1) expiration of the relevantstatute of limitations (this is determined by statute) and (2) adversepossession during the limitations period (common law elements concerningthe nature of the possession that must be proven.

3Major Justifications for AP:1) Sleeping Theory:

a. Slothful owners, who ignore people using their land in brazenviolation of legal right, deserve to be penalized. May bear the risk

of losing his property if he does not care enough to assert hisownership. Use it or lose it.

2) Earning Theory:a. People who use land productively and beneficially for a long time

ought to be rewarded. AP might have invested time and effort inmaking it productive. When coupled with the sleeping theory, thejustice of cutting off the true owners claim seems even stronger.AP DEVELOPS expectations of continued possession, whichexpectations are met by the doctrine of AP.

3) Stability Theory:a. AP enables disputes or doubts about land titles to be cleared

expeditiously by delivering title to the person who has occupiedthe land as if she were the owner for a long period of time withoutobjection

Elements ofAP: 1) actually enter and take exclusive possession that is 2) open andnotorious, 3) adverse or hostile to the true owners interestand under a claim ofrightand 4) continuous for the limitations period.

1) Actual and Exclusive Possession- actual physical concept of the landthat is exclusive, not being shared with the landowner, bicycling acrossthe land you are not excluding the land to anyone elsea. Owners cause of action accrues at that moment, and the clock on the

limitations period starts to run at the moment of actual entry.b. Exclusive Possession means that the professor has excluded the public

and the ownerc. A group of people adversely occupying may acquire a shared title-

concurrent ownership- by AP.d. Some states define actual possession by statute


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Van Valkenburgh v. Lutz: NY required adverse possessors occupyingwithout color of title to prove that they had substantially enclosed orusually cultivated or improved the property.Lutz had been on the land28 years, built garden and shack, court found it wasnt enclosed orimproved or that he believed it was his. Acquisition of title by AP requires

actual possession and (sometimes) improvement of the land. Dissenttakes the view that actual possession only means possession that will putthe owner on notice. Another goal of property law is to encouragehonesty. This is one way to explain why the majority requires that an APacquire title under claim of right. If a possessor honestly believes thatproperty is his, he may be eligible to receive title to it.

2) Open and Notoriousa. Occupation must be readily visible to any inspector of the property-

that the TO would know of any occupation if he visited his propertyb. Constitutes NOTICE to the owner that his rights are being violated.

Occupation is open and notorious if it is the type of occupation a TOwould make (Would a reasonable person be notified by this?)

c. Boundary Disputes: some jurisdictions hold that encroachments byone neighbor onto the land of another are not open and notorious ifthe encroachment is of a small area and is not clearly and self-evidently an encroachment. The limitations statue does not begin torun until and unless the owner has actual knowledge of theencroachment.

Mannillo v. Gorski: Possession need not be knowingly andintentionally hostile, but it must be notorious enough to give the TO

actual or constructive notice of the encroachment. TheD

didnt knowher steps were on the Ps property (thats ok) BUT because it was 15inches court says that wasnt enough to give notice to TO of the AP.

3) Adverse or Hostile to the TOs Interest and under claim of righta. APossessor must occupy the land WITHOUT THE CONSENTOF THE

OWNER and with an INTENTION TOREMAIN. Often calledHOSTILITY, but it does not mean malice or ill will. Rather that thepossessor has NO PERMISSION to be there and ALSO CLAIMS THERIGHT TO BE THERE. Consent or permission means that the

possessor has occupied in some capacity subordinate to the ownerstitle. (a lease)

b. In deciding whether the possessor claims the right to stay there:(approaches)

i. Minority View: Subjective: good faith occupation: AP musthave a genuine, good faith belief that she owns the occupied


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property. If possessor knows that the property they areoccupying is not there own, they cannot acquire title by AP injurisdictions that apply this.

ii. Extreme minority view:Subjective: Aggressive trespass: oldcases that require the occupier to know the property isnt

theirs but intend to claim it nevertheless. no one uses thisview now, b/c it rewards deliberate trespassers.

iii. Majority View: Objective:State of Mind Irrelevant: Oftenclaimed to be the majority view, the state of mind of theoccupier is essentially not relevant. Instead courts focus on1)lack of permission (make sure that occupation isntsubordinate to the owners title) and 2) whether theoccupiers acts and statements objectively appear to be

claims of ownership. We dont care what you secretly believe,but have you acted like a TO would?

iv. Disclaimers of ownership: if AP disclaims ownership in orderto persuade the owner not to sue, the possessor has stoppedbeing adverse.

v. Boundary Disputes: If a landowner mistakenly occupies astrip of her neighbors land in the belief that is her own. Mostcourts apply an objective test of hostility to those cases. Doesthe encroachers actions appear to the world to be those of TO(she builds a fence), then she occupies adversely. A Minority ofstates apply a variant subjective test, often called THE MAINEDOCTRINE. Occupier is NOT possessing adversely if sheoccupied in good faith, but mistaken, belief that land is hers,but she would not have occupied if she had known the true

facts., encourages perjury Unlike ConnecticutDoctrine, whichdoesnt punish mistaken entrant.

vi. Color of Title NOT Claim ofRight:1. Claim ofRight: element describing hostility or

adversity2. Color of Title: if entered under this, one has a defective

deed or other writing that purports to deliver title tothe possessor, but which the possessor does not knowto be invalid. Possessors who enter under color of titlesatisfy the adversity element.

4) Continuous Possessiona. An AP must occupy continuously-without interruption- during the

limitations period, but need not STAY on the land for every moment ofthe 10 or 20 years of the limitation period.Rather, the AP mustoccupy the property as continually as would a reasonable & averageTO of the property. If the AP ever abandons or intentionally gives up


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possession with no intent of returning- continuity is destroyed. A laterreturn triggers a new cause of action and fresh limitations period.

Howard v. Kunto: Kunto occupied a summer residence under color oftitle (a defective deed). When Howard, the record owner, sought to ejecthim, Kunto countered that the limitations period had expired Howard

said Kunto hadnt occupied continuously (summer only), That was goodenough. A reasonable person would have used the property during thesummers and not at different times

b. Tacking-APi. Problems arise with whether one possessor can add-TACK- the

possession of a prior possessor to his own. IfPRIVITYOFESTATE exists between the prior possessor and the presentpossessor, tacking is permitted treating it as one continuousperiod. PRIVITYOF ESTATE_ means the VOLUNTARYTRANSFER form the first possessor to the second possessor ofEITHER an ESTATE in the land or ACTUAL POSSESSION of it.

c. Ouster if an AP is ousted from possession by a third party- the thirdparty may not tack the ousted APs period of possession onto his own.Privity is lacking because the transfer was not voluntary.

i. Re-entry, new clock on statute of limitations?ii. Calling third party a trespasser and treating the ousted

possessor as being in constructive possession during thirdpartys occupation

iii. Ousted possessor can tack her new possession onto her oldpossession but cannot take credit for occupation by the thirdparty. That period is tolled or suspended.

Extent of Property Acquired by AP

1) What is the physical extent of the occupied property?Depends onwhether the AP entered with or without color of title (a defective deed,but not knowing about that defect)a. Entrywithout color of title: AP without color of title acquire only the

land they have actually physically possessed for the limitationsperiod.

b. Entry under color of title:AP who enter under color of title aredeemed to posses all the land described in the defective deed, so longas it consists of a single parcel, and the possessor has occupied asignificant portion of the parcel.

Statutory Issues ofA

Py The owners cause of action to recover possession accrues when there is an

adverse entry of the land.

y Disabled Owner: Statutes of limitation typically provide for a suspension ofthe limitations time clock if the owner is disabled from bringing an action torecover possession at the time the cause of action accrues.


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o Insanity or other unsound mindo Imprisonmento The condition of being a minor

y *Statutes typically read thatIF THE OWNER IS DISABLEDAT THE TIMETHE CAUSEOF ACTION ACCRUES, THE OWNERMAYBRING SUIT FOR

SOME SPECIFIED PERIOD AFTER THE DISABILITY CEASES, EVENTHOUGH THE NORMALLIMITATIONS PERIOD HAS EXPIRED.

o EX: IfOwner was imprisoned when Possessor entered in 1970, and isreleased form prison in 1995, Owner has until 2005 to file suit torecover possession.

o *Holders of future interests- present ownership interest in propertyof a right to possession at some future time- are also not entitled topossession now- they must wait until they become entitled topossession- then his cause of action accrues and then the limitationsperiod starts running.

AP by tenants and co-owners

y tenants: rarely possible because their entry was permissive- subordinate tothe owners claim of title

y co-owners: may not usually AP against their co-owner because every co-owner has an equal right to possession- ouster would be needed.

AP of personal property

y Title to personal property can be acquired through AP, a different, usuallyshorter, statute of limitations applies- this isnt very OPEN and NOTORIOUS,traditional answer is that open and notorious possession is satisfied so longas the possessor uses the object in the way the average owner would.*Thestatute should begin to run when the TO discovers or should have discoveredthe whereabouts of the stolen property.

OKeefe v. Snyder: OKeefe had painting stolen, years later found for sale inan art gallery, Snyder, the gallery owner argued that his predecessor ininterest had acquired the title by AP. Answer hinges on whether thepossessors exhibition of the painting in his own home was sufficiently openand notorious. NJ Sup. Court said the law of adverse possession need notapply. Instead the limitations period for recovery of personal property startto run at the earlier of 1) when the loss occurs (except when there is fraud orconcealment) or 2) when the owner first discovers, or through reasonableeffort should have discovered, the cause of action (including the identity ofthe possessor). turns focus onto the owners conduct, and encourages

owners to report their losses and undertake reasonable investigation.Title Acquired by AP

y When AP acquire title, they acquire a new title, new title cannot be anygreater in scope that the former owners title (life estate, when person dies,the Ap title dies too)


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y APs new title cannot be recorded in the public land records, because there isno written record of it- must bring suit against the former owner to QUIETTITLE in the AP that can be recorded.

Acquisition by Gift

A gift is a voluntary transfer of property for NO CONSIDERATION. To accomplish agift or personal property, the donor must 1)INTEND TO MAKE A GIFT, the propertymust be 2)DELIVERED TO THEDONEE (the recipient of the gift) and the 3)doneemust ACCEPT the property.

y Gifts are commonly divided into:o INTER VIVOS GIFTS: during life, with no knowledge or threat of

impending death. These gifts are irrevocable.o CAUSAMORTIS GIFTS: in contemplation of death, made with knowledge

or under threat of immediate death and motivated by that fact. These giftsare revocable if the donor recovers from the illness or threat causing thecausing the donor to make the gift in contemplation of death (ANYTIMEBEFOREDEATH), or if the donor dies of some other cause that did notprompt the gift. viewed with skepticism because the donor is likely tobe dead, and the completed gift is a substitute for a will, a form of givingat death that is laden with formalities to be sure that the dead personswishes are accurately carried out.

1) Intent: The donor must intend to transfer title. If the donors intent is merely to

transfer possession, no gift has been accomplished.E

vidence on this is usuallycircumstantial, unless the donor executes a deed or some other writtenexpression of donative intent. Newman (owner knew what he was doing)

i. Gifts Causa Mortis: the donors intention here is presumed to makethe gift only because of impending death, but if the donor intends tothe gift to be irrevocable regardless of her impending death, it is not agift causa mortis (revocable) but is an irrevocable inter vivos gift.

2) Delivery: The subject of the gift must be delivered to the recipient in order forthe gift to be complete. The best form of delivery is actual physical possession,but that is not always requireda. When physical delivery is IMPRACTICLE or IMPOSSIBLE , delivery may be

accomplished by SYMBOL

ICDEL

IVER

YOR

CONSTR

UCTIVE

DEL

IVER

Yb. Rationale/ whatDelivery functions as:i. Making abstraction a reality: when a donor must part with a

possession, the idea of giving becomes realii. Objective Evidence of Intent: secondary check (this is objective)

iii. Objective Evidence of Acceptance: presumptive


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c. In looking at delivery other than ACTUAL PHYSICAL POSSESSION- must askwhat did the donor intend by her acts?

i. Delivery by Deed: delivery can be accomplished by a deed or gift orsome other writing under seal

ii. Symbolic Delivery: when actual physical delivery is impossible orimpractical, delivery can be accomplished by delivering some objectthat is symbolic of possession.

1. Ex: gift of a copyright (intangible)2. Handing over a written instrument declaring a gift of the

subject matter3. I give this piano to you , but b/c it wont fit in your apart. Ill

keep it here and you can come play it when you want and takeit when you can. symbolic delivery

iii. Constructive Delivery: When actual physical delivery is POSSIBLEBUT IMPRACTICAL, delivery so some object that is the MEANS OFOBTAINING POSSESSION of the property constitutes

CONSTRUCTIVE DELIVERY1. Courts find a constructive delivery adequate when the

evidence of donative intent is concrete and undisputed, whenthere is every indication that the donor intended to make apresent transfer of the subject- matter of the gift, and when thesteps taken by the donor to effect such a transfer must havebeen deemed by the donor as sufficient to pass the donorsinterest to the donee.

Newman v. Bost: On his deathbed (causa mortis) Jack gives to Julia allthe keys to the household furniture, saying that he intends for her tohave everything in the house. Delivery of the keys constitutes

constructive delivery of the furniture, because it is impractical tomake physical delivery under the circumstances. BUT delivery of thekeys does not constitute constructive delivery of a life insurancepolicy locked in a bureau drawer, because it was not impractical todeliver the intangible evidence of the life insurance right- the policyitself.

3) Acceptance- not really ever an issue4) Special Problems

a. Donee in possession: when a donee already has possession there is no needto perform the useless act of shifting the property back and forth to prove

delivery. It has been delivered.O

nce is enough.Gruen v. Gruen: Inter Vivos Gift. Father writes letter to his son, student incollege, telling him that for his 21st birthday he was giving his son a valuablepainting that was displayed in his home, but that he wished to retain possessionfor the remainder of his life. NY Court of Appeals- held that the letter constituteda completed and valid gift to son of a remainder interest in the painting, a


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property right that would automatically become possessory upon the fathersdeath. Father retained a life estate in the painting. The father manifested hisdonative intent at the time of the gift because the remainder interest was apresently existing property right . Letter was sufficient to constitute delivery.Son has also shown acceptance acknowledging the gift to his friends and

retaining the letter for 17 years.In order to make a valid gift there must be intent, delivery and acceptance.

The intent must be to make a gift of some interest in the gifted property at thepresent time, whether that interest be a present interest or a future interest. Adonor may gift a future interest and retain the present interest in the giftedproperty. Since the donor intends to retain possession of the painting until hisdeath, actual deliver of the painting to S would be inappropriate and inconsistentwith the nature of the gifted interest; a remainder interest in the painting

Eminent Domain

Governments power to take private property for public purposes, so long as to justcompensation is paid. Regulatory Takings, the point at which a governmentregulation of property becomes a taking requiring compensation. (5th Amendment= Just compensation)THE TAKINGS CLAUSE: limits takings to those for public purposes and requires justcompensation for all takings.

y

R

ationale: if you didnt require gov to pay that would make land a free input,putting a price makes better economic decisions, not just take

y Protects the owners expectations and investment in the property

y FED AND STATE can take in various ways:o Straightforward action brought by gov to condemn propertyo Permanent Physical Occupation authorized by Govo So-called Regulatory Takings

y Three Principal Issues that arise under the TC1) Public Use: is it for public use? Gov sometimes takes and conveys to a

private person in order to reap some alleged collateral public benefit2) Regulatory Takings: (restricting its use, possession or disposition) at

what point does it become so burdensome that is it is a defacto taking ofproperty, which triggers the constitutional requirement of justcompensation

3) Compensation: Fair Market Value, includes any reasonable expectationsthat a buyer may have about possible future uses. An owner is not


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entitled to any additional value that is subjective and peculiar to theowner (i.e. sentimental value)

PUBLIC USE REQUIREMENT: is satisfied so long as there is a conceivable publicpurpose for the taking (local gov. can decide this)

y A literal reading in the text would limit governmental power to take private

property to instances where the property will actually be used by the public(park, school, road) BUT what about seizures of private land conveyed to aprivate corporation in order to construct a factory that will provide economicbenefits to the community SCOTUS has eliminated the need for actual publicuse and instead , required it to be RATIONALLY RELATED TOANYCONVEIVABLE PUBLIC PURPOSEpublic use iswhatever the legislaturerationally thinks is conducive to the publicwelfare

y Ends Test: focus on the contemplated ends of an act of condemnation, if theends are sufficiently public

y Means Tesst: if power ofED is really necessary to accomplish whatever aimthe government has in mind, then is passed

Kelo v. City of NewLondon: Takings of private property for use by otherprivate citizens pursuant to an economic development plan intended for apublic purpose are valid under the 5th Amendment. Issue as to whetherconveying these peoples land to private company to make a corporation andpark area qualified as a public use within the takings clause of the 5thAmendment. The court had ruled in Berman v. Parker that an urbanrenewal scheme in which blighted property was condemned andtransferred to a private developer was a public use. In Hawaii HousingAuthority v. Midkiffthe court upheld as a public use the forced transfer offee titled to long-term lessees of the ground on which their residences werelocated, given the monopoly the landowners had land oligarchy- Courtsaid they would defer to the judgment of the local government officials whosay its a public benefit. RAISED the possibility that anyones property couldbe taken so long as the government could offer some plausible possibilitythat the new private user would make it more economically productive.

y JUST COMPENSATION:o Satisfied by payment of FMV-o If the gov taking makes the remainder of your property value goes

down, the gov will usually pay you for the reduction in value.o What if it increases your value? Gov doesnt require you to pay back

o Zoning rules impose restrictions on the use of land. Then the land istaken by ED. Is JC determined based onteh value of the land takinginto account the zoning rules or not? Have to look at it when andwhere it is taken. TROUBLEOTHERWISE_ they would regulateeverything- making it cheaper.


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y HOWMUCH REGULATION IS TOOMUCH- at some point governmentregulation of property becomes so extensive that it amounts to a de factotaking, even though the government denies that it is taking the property.Regulations can interfere with an owners right to use, dispose, or possessproperty.

o PERMANENT DISPOSSESSION: when a government regulationpermanently dispossess an owner of her property, the regulation is ataking. For REAL PROPERTY: a taking has occurred if a regulationproduces a permanent PHYSICALOCCUPATION of all or a part of theproperty. Temporary Occupations are not per se takings.

o PER SE: does not constitute a taking

Loretto v. TeleprompterManhattan CA TV Corp.: NY requiredlandlords to permit cable tv to install cable facilities on their property.Loretto, landlord, claimed that was a taking of her property, even thoughit was a half inch in diameter along the roof. SCOTUS says a permanentphysical occupation authorized by government is a taking without regard

to the public interest that it may serve. Permanent loss of the ability toexclude others is destructive of property expectations. the characterof the invasion is qualitatively more intrusive than perhaps any othercategory of property regulation. EXCLUSION GOOD , protects our abilityto use and to enjoy our prop EXCLUSION BAD, excludes people, couldcause problems with tenant/landlord, rent control

3. Estates4. The Life Estates

5. Future Interests

Co-ownership and Martial Interests

Ownership can be shared or mutual,a. Common Law Concurrent Interests (3)

i. Tenancy in Commona. Separate but undivided interestin the property (the holder of

the interest is entitled to possess it in whole, but it is a share)b. Each own half, share the half, but can possess the wholec. Is descendible (can be passed to the heirs, wills or intestate)d. Subject to claims of the tenants creditorse. No survivorship rights.f. T to A & B (A & B are TIC)

g. If A transfers to C, then C & B are TICh. If B dies intestate, Bs heirs are TIC with Ci. TIC can possess the entire property if no other cotenant objects

ii. Joint Tenancya. Right of survivorship, regarded together as a single owner, each

owns the undivided whole of the property; when one dies


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NOTHING passes to the surviving JT, rather estate continues insurvivors freed from the participation of the decedent.

b. Requirements for JT, TTIP (if not then its a TIC)1. Time: interest must be acquired at the same time2. Title:Each joint tenant must acquire title by the same

instrument (will, deed, decree quieting title) or by a jointadverse possession, never by intestate succession

3. Interest: each joint tenant must have equal shares in theproperty 1) each JT must have the same share of theundivided whole and 2) each JT must have the samedurational estate.

4. Possession:Only unity that the JT has in common with theTIC- each tenant has the right to possess the whole

*state statutes mess with thesec. Severance of JT Mutually or Individually

Most begin with some voluntary act of a JT that immediatelyimplicates the four unities and thus, JT. Two instances in which thelaw operates to sever a JT even without voluntary acts:Homicide/SimultaneousDeath

Conveying his interest to a third party, this severs the JT asbetween the third party and his cotenants because it destroys oneor more of the unities. (dont need to put the other person onnotice)

1. Riddle v. Harmon: court held that P could validly sever theJT with her husband by conveyance from herself as JT toherself as TIC, California had already had a statute allowing

creation of JT by a conveyance from A to A & B and jointtenants- this is a realistic view of severance and elevatesthe intent of the grantor to prominence.

Mortgages: Jurisdictions are split as to whether a JT is severedby the act of one JT mortgaging his interest. Depends on thenature of the banks interest:

y Title Theory:view a mortgage as a transference of titleto the bank, or the lender

y Lien Theory: Mortgage doesnt give title to the lender,but rather a lien on the property, to the extent the

borrow doesnt fulfill its obligation to pay the debtHarms v. Sprague: When J executed mortgage onbehalf of the Simmons, JT is still in tact) - free of themortgage b/c mortgage only burdened Js interest andthat because Js interest died with him, mortgage haddied too.


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Lien on titleis what the majority of states recognizethe mortgage as and one JTs execution of a mortgage onher interest does not by itself cause a severance.*severance occurs only if the mortgage is foreclosed andthe property sold.

y Leases: Most jurisdictions today do NOT regard a JT severedby one JTs lease of his interest. The survivorship rightcontinues but, as with mortgages, the problem is presented ofwhether the lease survives the death

y Judicial partition- If TIC or JT cannot solve problems by mutualagreement, any one of them can bring an action for

a. Court will either physically partition (Partition In-Kind)the tract of land into separately owned parts or orderthe land sold and divide the proceeds among thetenants

b. Partition in Kind: physical division, court will orderunless 1) that physical partition is impossible orextremely impractical or 2) that physical partition isnot in the best interest of all the parties - (economiccosts, look at the deal, sentimental attachment)

Delfino v. Vealencis: partition by sale should onlyhappen if interests of all owners would better bepromitied by parition by sale- wasnt the case for Ms.Vealencis and her time there and her business

c. Partition by Sale: most common method, b/c of thehardships that come with dividing most real property,after the sale the net proceeds are divide among the co-owners in proportion to their ownership interests,would get more out of it and would probably result in aone owners who might manage and use the propertybetter

d. Owelty: When implementing partition in kind, courtsstrive to divide property so that the value of eachdivided parcel (as a fraction of the value of the entireproperty) is equal to the ownership share of therecipient. If not, the recipient of the disproportionately

valuable parcel is obligated to payowelty/compensation- enough cash to the othertenant(s) to equalize values.

y JT BankAccounts: There can be a variety of reasons for creating abank account is established in JT


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o Present Gift: of an undivided interest in the account ( itsyours and min together from now on) A and B or A or B

o Will Substitute: a payable on death or POD account (itsmine until I die, and then its yours) A, payable on deathto B

o Convenience: to permit the other owner to manage thedepositors money, much like giving a person power ofattorney ex: Widower opens up a JT with his niece Ally,telling her I want your name on this account so if I get sickyou can get the money for me. No present gift wasintended ; this was a convenience account. A, in trust forB

o AFTER DEATH: A majority of jurisdictions hold that thesurviving JT takes the sum remaining on deposit in a jointaccount unless there is clear & convincing evidence that aconvenience account was intended. *Burden of proof is

put on the person challenging the survivingJT/Survivor. In some jurisdictions, to avoid litigation, thepresumption that survivorship rights were intended in ajoint bank account is conclusive.

o DURING THE LIFETIME: litigation may arise over whatpresent rights the parties to a joint account have in the sumor deposit/PRESUMPTION is that the joint account belongsto the parties in proportion to the net contributions of eachparty.

y Rents, Profits & Possessions

o Each co-owner has the right to possess the entire property,

and no co-owner may exclude his fellow co-owners. If co-owners cannot agree on how they share possession, thedefault rules apply.

o A co-tenant out of possession has a right to share in rentsfrom third parties and in profits derived from a use of theland that reduces its value (e.g. removal of minerals)

o Exclusive Possession by One Co-Owner: is valid: b/c eachco-owner has a right to possess all of the property. IF not byagreement, the cotenant in exclusive possession has thefollowing obligations to this cotenant.

Rental Value of exclusive possession:

jurisdictions split on the question of whether thecotenant in exclusive possession is liable to hiscotenants for their share of the fair rental value ofhis exclusive possession has the followingobligations to his cotenants. Two views:

y No liability absent ouster or special duty:


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o the majority rule is that a cotenant inexclusive possession has no liabilityfor her share of the rental value ofpossession unless:

o 1) the other cotenants have been

ousted or 2) the cotenant inpossession owes a fiduciary duty tothe other cotenants or 3) the cotenantin possession has agreed to pay rent.

o Fiduciary duty/agree to pay rent=cotenant in possession has voluntarilyassumed a duty to his cotenants orouster- has prevented his cotenantsfrom exercising their equal right topossession

o Ouster: occurs if the tenant in

exclusive possession either 1) actuallyprevents or bars physical entry by acotenant or (2) denies the cotenantsclaim to title.

Spiller v. Mackereth: Spiller took possessionof the entire building and used it as awarehouse. M demanded that he vacate halfthe building or pay rent, M sued for rentalvalue of half the building, Alab. Sup. Courtdenied award of rent, saying S neither deniedthat M was an owner or prevented M from

actually moving in. Ms demand letter that Svacate or pay rent was insufficient to triggerouster, needed to prove she actually soughtto occupy building and was denied. Min View:Cotenant is not liable for rent without a cleardemand to vacate or pay rent,

y Liability for Rent: Minority rule is that thecotenant in exclusive possession is liable tocotenants out of possession for their share of

the fair rental value of the occupied premises,unless there has been an agreement amongthe parties to excuse the tenant in possessionfrom this obligation

y Rents from third parties: a cotenant whoreceives rents on the property from a third


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party is obligated to account to his cotenantsfor those rents. If the rents or other incomereceived by a cotenant are greater than thecotenants share, he is obligated to pay theexcess to the other cotenants.

y Accounting for the costs of ownership: each cotenant is liablefor his proportionate share of the costs of ownership- mostlymortgage payments, taxes, repairs and maintenance

o Mortgage Payment: interest: each cotenant is obligated topay his proportionate share of mortgage interest. Principle:each cotenant is obligated to his proportionate share of themortgage principal

o Taxes:Each cotenant is obligated to pay his proportionateshare of the taxes, and a cotenant who pays more than hisshare can recover the excess from his fellow cotenants atany time during the tenancy, upon partition, or within the

limitations period after cessation of cotenancy.o Repairs: Cotenant has NO obligation to repair his property,

but contribution may be compelled for excess repair costsin two situations.

Accounting for Rents: if the one repairing is undera duty to account for rent (whether from thirdparties or the reasonable rental value of exclusiveoccupancy) the repairing cotenant MAYDEDUCTfrom the rents due the other cotenants share of therepair costs the incurred)

Partition: upon partition a repairing cotenant is

entitled to be reimbursed for the repair costs inexcess of her share.

o Improvements: No cotenant has duty to improve- uponpartition or if the improving cotenant is under a duty toaccount to cotenants for rent, the improving cotenant isentitled to rec over only the value added by theimprovement, not the costs of the improvement. No valueadded? No recovery

y Adverse Possession: Cotenants CAN AP to their fellow cotenants,but it takes more than possession, because every cotenant isentitled to be in possession, a cotenant must give his cotenants

ABSOLUTELY CLEAR AND UNEQUIVOCAL notice that he claimsexclusive and sole title in order for AP to begin. NOTHING less willdo.

y Unhappywith the actions of fellow cotenant


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Swartzbaugh v. Sampson: H and W owned land in JT, H leased 4acres to Sampson, who constructed a boxing pavilion on the site,W did not join in on the lease, sought to cancel the lease Ca. Courtof Appeals denied her claim, reasoning a lease made by a single JTto a third party is not nullity but is a valid..contract so far as the

interest of the lessor in the joint property is concerned.

ii. Tenancy by the Entirety (not recognized in comm. prop states)1. Husband and Wife ONLY2. All 4 unities of JT required, plus must be husband and wife-

must hold as own as one-3. If they want to sever they must act together

a. Death of either spouse (leaving the survivor soleowner of the fee)

b. Divorce (leaving parties as tenants in commonwith no right of survivorship

c. Mutual agreementd. Execution by a joint creditor of BOTH husband

and wife (a creditor of one or the other cannotexecute

4. Divorce severs TBE5. Modern Operation of the tenancy by the entirety:

Treats both spouses as equal, Married Womens Act , 1) womenacquired equal rights with the man to alienate her possessionand survivorship rights or 2) neither spouse was permitted toalienate their possession and survivorship rights

Equal right toAlienate : 6 dozen states provide thateither spouse may alienate their possession orsurvivorship rights in a tenancy by the entirety. Theprincipal effect of this version of equality, which givesthe wife the same rights the husband had at commonlaw, is to enable her creditors to seize her possessoryinterest in the tenancy but not the survivorship right.(indestructible survivorship rights)Neither Spouse may Alienate: the majority of statesrecognize this, places husband on same footing as thewife at common law with respect to a tenancy by the

entirety, is that it prevents the creditors of eitherspouse from seizure of their interest in the tenancy

Sawada v. Endo: H & W own home in TBE. H is sued byM and H Sawada by his negligent operation of an auto.Before the suit was brough, H & W conveyed their hometo their sons. This conveyance would be a fraud on Hs


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creditors IF they were entitled to seize his interest inthe TBE to satisfy their claims. BUT Hawaii Sup Courtsays property held in TBE may not be subjected toclaims of creditors against only one spouse. /Protectionof family unit

iii. Presumptions1. Statutes now saw that a grant or devise to two or more persons

creates a TIC unless an intent to create a JT is expresslydeclared

2. To A & B as Joint Tenants with right of survivorshipB. Marital Interest

y Old Common Law:o Single woman had power to use, dispose and possess her own

property but a married woman had almost none of those rightso Husband: upon marriage he had right to possess, or convey all of

his wifes property, for the duration of their marriageo Wifes rights: had no legal control over her property, but had

Support from her husband Right ofdower: right to life estate in one-third of each and

every possessory freehold estate the husband enjoyed atany point during the marriage, which was capable ofinheritance by children born of the marriage.

Dower could only removed by divorce or with the wifesconsent

If a property was not susceptible to division (for her third)then the wife received a third of the rents or profits from

the land for the remainder of her life. In most states Dower has been abolished and replaced with

SPOUSAL ELECTIVE SHARE: entitles a surviving spouse totake a specified portion of the decedents probate estateeven if the decedent spouse left a lesser share by will to thesurviving spouse.

Curtesy- gave husband who survived his wife a right similarto dower, called curtesy- attached all possessory interestsin land of the wife- no longer exists in the US

y Modern Law: common law: statutes vary considerably, but set forthbelow are the major themes of these statutory alterations.

o Rights on Divorce: Differences in what is defined as maritalproperty that is subject to equitable distribution (some statesauthorize a court to divide all property owned by the spouse,regardless of the time and manner of acquisition

1. All property owned by either spouse: whenever andhowever acquired


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2. Property acquired during marriage:not matter how3. Property acquired by the earnings of the marital

partners: based on the principle underlying communityproperty- that marriage is a partnership and propertyacquired form earnings of the spouses during marriage

should be equally divided upon dissolution of partnership 10 states

4. *Alimony:rehabilitative alimony, limited period of timealimony

y Professional Skills and Credentials:o Not property: some states hold that professional

degrees and sklls are not property but simplypersonal accomplishments that may ormay notproduce property, and thus not subject to equitabledistribution

o In Re Marriage of Graham: Court concluded that

Hs MBA was not property because it could not betransferred or inherited but was simply anintellectual achievement , no other marital assetswere accumulated during their marriage, you cannotsell an MBA degree, but is this fair?Dissent: courtsshould go beyond narrow concepts of property toprevent injustice.

o Property Subject to Equitable Distribution: NewYork treats professional degrees and enhancedprofessional skills as property subject to equitabledistribution

o Elkus v. Elkus: Husband sued for her new operastar status to be property divided, since henourished it and coached it, NY appellate court ruledthat the contributions to her career and careerpotential made by her husband entitled him to sharein the increased earnings power acquired by vonStade during their marriage.

o ReimbursementAlimony:Mahoney v. Mahoney

middle course requiring the degree-enhancedspouse to reimburse the supporting spouse for the

financial supporty Rights on Death

o ELECTIVE SHARE: In place of the dower, moststates give the surviving spouse the right to receivein fee simple a fraction of all property owned by thedeceased spouse at his or her death. Surviving


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spouse may elect his share OR take under thedeceased spouses will, BUT CANT TAKE BOTH

Differences between dower and elect share-elective share applied to ALL PROPERTY ofthe deceased OWNED at his death or her

death (not just freehold property) butnarrower in that (only property owned atspouses death)

Spouse can avoid this by transferring all hisproperty to a trust, and vesting a remainderin someone other than his spouse

y Community Property: influenced by French or Spanish law, treatshusband and wife as an economic unit- marriage is a partnership ofequals and that the property acquired during the marriage by the effortsof either spouse belongs to that marital community. Each spouse hasequal claim of the assets of the marital community.

o Definition: the earnings during marriage of either spouseand all property acquired form such earnings.

Excludes property acquired before marriageor acquired during marriage by gift, devise,or inheritance.

That property is SEPARATE PROPERTY andis owned soley by that spouse

Can only exist between a husband and wife Conveyance of share: neither spouse acting

alone can convey his or her undivided one-half share of community property, except to

the other spouse, neither spouse can changecommunity property into separate propertywithout the consent of the other.

At death: each spouse has the power todispose by will of one-half the communityproperty at death. If spouse dies intestate incommunity property, his shares of comm.Prop pass to surviving spouse, no right ofsurvivorship

Sale After Death: ? STEPPED UP BASIS Buy house for lower

price, husband dies, want to sell house, in taxworld-you get to only be taxed on what thevalue was

y Management of Community Property:o Can be conveyed ONLY as an UNDIVIDED WHOLE


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y Commingling of Separate & Community Property: avariation of principles occur when a partially paid-for assetis brought to a marriage and the remainder of the purchaseprice is paid with community funds

o Inception of right: (Texas) holds that the character

of the property is determined at the inception of thelegal right of the property.

o Time of Vesting: Holds that the character of theproperty is determined when title passes

o Pro-rata apportionment: holds that the percentageof the purchase price paid prior to marriageestablishes the portion of the property that isseparate, and the percentage of the purchase pricepaid with community funds establishes thecommunity interest in the property.

y Migrating Couple: once property has been initially

characterized, the ownership does not change when theparties change their domicile unless both parties consent.

nra property outline fall 2010

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