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Gilbert Law Summaries on Property by James Krier z-lib.org.pdf | |
I | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Property by JAMES E. KRIER University of Michigan Eighteenth Edition Mat #41352266 | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
II West Academic created this publication to provide you with accurate and authoritative information concerning the subject matter covered; however, the content was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other profess... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
III | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Summary of Contents C APSULE S UMMARY A PPROACH TO E XAMS Chapter One. Acquisition of Property A. Introduction Introduction Introduction Introduction Introduction B. The Rule of Capture C. Acquisition by Creation D. Acquisition by Find E. Acquisition by Adverse Possession F. Remedies of a Possessor G. Rights of Owners ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Chapter Five. Concurrent Ownership and Marital Rights A. Tenancy in Common B. Joint Tenancy C. Tenancy by the Entirety D. Rights and Duties of Co-Tenants E. Marital Rights on Divorce F. Marital Rights on Death G. Community Property H. Rights of Unmarried Partners Chapter Six. Landlord and Tenant A. Introduction B. Type... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Chapter Ten. The Sale of Land A. The Contract for Sale of Land B. The Deed C. Delivery of the Deed D. Warranties of Title E. Warranties of Quality F. The Mortgage Chapter Eleven. Title Assurance A. Recording System B. Title Registration C. Title Insurance R EVIEW Q UESTIONS AND A NSWERS E XAM Q UESTIONS AND A NSWERS I ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
V | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Capsule Summary A PPROACH TO E XAMS Chapter One. Acquisition of Property A. Introduction 1. Property Rights Defined 2. First-in-Time Rule B. The Rule of Capture 1. General Rule 2. Discovery of America a. Native American right of occupancy b. Lessons from America 3. Capture of Wild Animals a. Rationale (1) Competition (... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(1) Reasonable use doctrine b. Surface water (1) Capture (2) Expelling (a) Common enemy doctrine (b) Natural servitude doctrine 1) Criticism c. Streams and lakes (1) Riparian land defined (a) Use on nonriparian land (2) Natural flow doctrine (a) Limitations (b) Criticism (3) Reasonable use doctrine (a) Domestic use pre... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
b. Surrogacy contracts D. Acquisition by Find 1. General Rule a. Prior possessor wins b. Relativity of title c. Prior possessor a trespasser d. What constitutes possession e. Constructive possession 2. Finder vs. Owner of Premises a. Finder is trespasser b. Finder is employee c. Finder is on premises for a limited purp... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
VII e. Possessor's rights before acquiring title 2. Requirements of Adverse Possession a. Actual entry giving exclusive possession (1) Constructive possession of part (2) Exclusive possession b. Open and notorious possession (1) Definition (a) Possession of farmland (b) Possession of wild, undeveloped land 1) Comment (... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(1) Continuous possession (a) Purpose (b) Seasonal use (c) Abandonment (2) Tacking by successive adverse possessors (a) Privity of estate 1) Rationale (b) Ouster by third party 1) Reentry by A (c) Abandonment (d) Tacking on the owner's side (3) Interruption by true owner (a) Objective test e. Payment of property taxes ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(3) Trover (a) Trover distinguished from trespass b. Actions to recover possession (1) Replevin of chattels (2) Ejectment c. Modern law 2. Defense of Jus Tertii a. Actions to recover possession b. Actions for damages (1) Minority rule (2) Allegation of ownership (3) Interpleader 3. Measure of Damages a. Life tenant as ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(2) Custody distinguished (a) Servants b. Intent IX (1) Mistake as to contents (2) Value undisclosed to bailee c. Involuntary bailment 3. Duties of Bailee a. Duty to exercise care (1) Bailment for sole benefit of bailee (2) Bailment for mutual benefit of bailor and bailee (a) “Mutual benefit” (3) Bailment for sole bene... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(b) Unsealed instrument 1) Distinguish impracticability of manual delivery 2) Exceptions—intangible interests (3) Delivery through third person (a) Gift to be delivered on death 1) Other contingencies c. Revocable gifts (1) Distinguish—revocable trust d. Goods in possession of donee e. Oral trusts (1) Transfer in trust... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
b. Types of estates (1) Fee simple (2) Fee tail (3) Life estate (4) Leasehold estate c. Freehold and nonfreehold estates (1) Seisin d. Hierarchy of estates e. Estates in personal property f. No new estates may be created B. The Fee Simple 1. Fee Simple Absolute a. Words of purchase and words of limitation b. Creation o... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(b) Other names for fee simple determinable (2) Creation (a) Motive or purpose (3) Transferability (4) Correlative future interest b. Fee simple subject to condition subsequent (1) Definition XI (a) Does not automatically end (2) Creation (3) Transferability (4) Correlative future interest (5) Distinguished from fee si... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(2) American law 7. Disentailing a. Disentailing by deed 8. Status Under Modern Law a. Fee tail still exists in a few states b. Fee tail abolished in most states (1) A has a life estate (2) A has a fee simple (3) A has a fee simple conditional c. Drafting D. The Life Estate 1. Definition 2. Types of Life Estates a. For... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
c. Statutes E. The Rule Against Restraints on Alienation 1. Introduction 2. Types of Restraints a. Forfeiture restraint b. Disabling restraint c. Promissory restraint 3. Restraints on a Fee Simple a. Total restraints (1) Rationale b. Partial restraints (1) Sale with consent of another (2) Sale to a member of the club (... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
A. Introduction 1. Future Interest Defined 2. Categories Limited 3. Future Interests in the Grantor a. Reversion b. Possibility of reverter c. Right of entry d. Correlative estates 4. Future Interests in Grantees a. Remainder XIII b. Executory interest 5. Legal or Equitable Interests B. Reversion 1. Definition a. Quant... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
b. Must follow a fee tail, life estate, or term of years c. Must be capable of becoming possessory on natural termination of preceding estate (1) No remainder divesting a fee simple 3. Estates in Remainder 4. Classification of Remainders a. How to classify (1) Why classify? b. Vested remainders (1) Definition (a) Condi... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(b) Preference for vested remainders 1) Condition subsequent must be read carefully (5) Alienability (a) Modern law (b) Creditor's rights F. Executory Interests 1. Historical Background of Uses a. Origin of uses (1) Development of equity (a) Equitable remedies (b) Conflict with law courts (2) Development of the “use” (... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
G. Rules Restricting Contingent Remainders (Mostly Abolished) 1. Purpose of These Rules 2. Destructibility of Contingent Remainders a. Statement of rule (1) Rationale for rule b. Elements of the rule (1) Preceding freehold (2) Termination of life estate (a) Natural termination of life estate (b) Artificial termination ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(2) “And purports to create a remainder” (a) Contingent remainder 1) Note (b) Executory interest (3) “In A's heirs (or the heirs of A's body)” (a) Indefinite line of succession (b) Words meaning indefinite line of succession (4) “And the estates are both legal or both equitable” (5) Application of the Rule on a delayed... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
a. Reason for period 3. Interests Subject to Rule 4. What-Might-Happen Is Test a. Rule is a rule of proof (1) Possibility of vesting in time not sufficient (2) Vest or fail 5. Lives in Being a. Relevant lives b. When lives in being determined (1) Comment (2) Child in womb (3) Illustration—validating life (4) Illustrati... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
b. Wait-and-see for ninety years c. Criticism d. Drafting 11. Cy Pres Doctrine a. Cy pres coupled with wait-and-see 12. Abolition of Rule I. The Trust 1. Trust Defined 2. Creation of a Trust a. Trustee (1) Fees b. Testamentary trust c. Inter vivos trust XVII (1) Revocable trust 3. Powers of a Trustee 4. Duties of a Tru... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(3) Term of years b. Executory interest (1) Fee simple (2) Fee tail (3) Life estate (4) Term of years Chapter Five. Concurrent Ownership and Marital Rights A. Tenancy in Common 1. Nature of the Tenancy a. Right to possession b. No right of survivorship c. Equal shares not necessary d. Same estates not necessary 2. Alie... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(a) Husband and wife (2) American law (a) Husband and wife (b) Distinguish—executors and trustees b. Overcoming presumption of tenancy in common (1) “To A and B as joint tenants” (2) “To A and B jointly” (3) “To A and B as joint tenants, and to the survivor and his heirs” (a) Difference in effect (b) Where joint tenanc... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
2. Creation of Tenancy by the Entirety a. English common law b. Modern presumption c. Conveyance to unmarried persons 3. Rights of Tenants During Marriage a. English common law (1) Husband's rights (a) Right to possession (b) Right of survivorship (2) Wife's right of survivorship (3) No right to partition (4) Not uncon... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(c) Ouster 1) Definition 2) Remedies (2) Minority rule (a) Rationale (b) Carrying charges 3. Accounting for Rents Received from a Third Party a. Time of accounting 4. Exploiting Natural Resources a. Minerals (1) Amount payable (2) Distinguish—farming b. Timber 5. Actions by Co-Tenant to Protect Property a. Taxes (1) Ex... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
XX a. Alimony b. Property division (1) Professional degrees (a) Not divisible property (b) Reimbursement alimony given (c) Divisible property (2) Goodwill F. Marital Rights on Death 1. Common Law a. Dower (1) In land seised during marriage (2) In land inheritable by issue (3) Rights during husband's life (a) Release of... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
c. Gifts 7. Rights at Dissolution of Marriage 8. Uniform Marital Property Act 9. Migrating Couples a. Elective share b. Choice of law H. Rights of Unmarried Partners 1. Common Law Marriage 2. Contracts Between Unmarried Partners a. Express contract (1) Contract not enforceable b. Implied contract c. Partnership theory ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(1) Hotel guest (2) Apartment hotel (3) Rooming house e. Legal differences between leases, licenses, and easements B. Types of Tenancies and Their Creation 1. Tenancy for Years a. Definition (1) Tenancy of no fixed period terminable on some event (2) Term of years determinable (3) Day of beginning and ending b. Termina... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
b. Termination (1) Termination by assignment 4. Statute of Frauds a. Short-term lease exception XXII (1) No short-term lease exception b. Oral lease to commence in the future c. Option to renew oral lease (1) Minority view d. Entry and paying rent under an invalid lease (1) Year-to-year tenancy (2) How rent is calculat... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
c. Familial status (1) Exemption d. Disabilities (1) Reasonable accommodation 6. State Statutes a. Marital status 7. Admission to Public Housing a. Eviction D. Landlord's Duty to Deliver Possession 1. Legal Right to Possession a. Paramount title b. Tenant's remedies prior to entry c. After tenant enters into possession... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(b) Tenant's knowledge (c) Notice to landlord (2) Tenant must vacate premises (a) Declaratory judgment (b) Damages after vacation (c) Restatement view (3) Fault of landlord (a) Acts of landlord (b) Acts of other tenants 1) Exceptions 2) Modern trend d. Covenant not to compete (1) Dependent covenant analysis F. Landlord... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(1) Rationale (a) Commercial leases (2) Scope of warranty (a) Housing code (b) Fit for human habitation (3) Notice to landlord (4) Remedies for breach XXIV (a) Terminate lease (b) Continue lease and recover damages 1) Pay-for-premises-as-is rule 2) Loss-of-bargain rule 3) Damages for discomfort and annoyance (c) Contin... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(6) State statutes G. Landlord's Tort Liability 1. Introduction a. Contract and tort liability compared 2. Dangerous Condition Existing at Time of Lease a. Concealed dangerous condition (latent defect) (1) No liability after disclosure to tenant b. Public use (1) What is public use (2) Liability limited to persons ente... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
2. Duty to Occupy Premises a. Percentage leases 3. Duty to Repair a. Death and decomposition of tenant b. Tort liability c. Covenant by tenant to repair 4. Duty Not to Damage Premises a. Changes in the premises 5. Duty Not to Disturb Other Tenants 6. Acts of Third Party Relieving Tenant of Duty a. Use becomes illegal (... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(b) Liquidated damages (c) Penalty for not accounting (3) Distinguish—“bonus” (4) Distinguish—“prepaid rent” d. Rent acceleration clause (1) Landlord cannot terminate lease and accelerate rent e. Waiver of service and confession of judgment 2. Eviction of Tenant a. Termination for breach of covenant (1) Lease provision... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(2) Recent trend (3) Rent acceleration clause c. Landlord repossesses and relets J. Assignment and Subletting 1. Assignment a. Privity of estate (1) Privity of contract 2. Sublease Distinguished from Assignment a. Reversion retained b. Right of entry retained (1) Application (a) Common law view (b) Modern view—right of... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(a) Criticism (b) Exceptions 1) Covenant binding lessee and assigns 2) Landlord's limited consent 5. Covenants Running to Assignees a. Introduction (1) Intention (2) Privity of estate (3) Touch and concern (a) Two ends to covenant—burden and benefit (b) Generally both burden and benefit touch and concern leased land (c... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
f. Distinguish—license (1) Construction (2) Irrevocable licenses (a) License coupled with an interest (b) Estoppel 1) Criticism 2) How long irrevocable 3) Minority view—estoppel rejected (3) Theatre tickets (4) Assignability 2. Creation of Easements a. Creation by express grant XXVIII (1) Statute of Frauds (2) Duration... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(a) Implied only over landlocking parcel (b) No existing use required (c) Location of easement (d) Easements other than ways (e) Termination of necessity 1) Distinguish—quasi-easement d. Creation by prescription (1) Historical development (a) English law (b) American law (2) Elements of prescription (a) Open and notori... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(2) Restatement view f. Use by servient owner g. Division of easements in gross (1) Nonexclusive easement (2) Exclusive easement (a) Overuse of profit in gross (b) The “one stock” rule (c) Restatement of Servitudes 4. Transfer of Easements a. Easement appurtenant b. Easements in gross (1) Commercial easements in gross ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(2) Distinguish—equitable servitude (3) Distinguish—condition 2. Creation a. Writing required b. Grantee bound without signing 3. Enforcement By or Against Assignees a. Requirements for burden of covenant to run at law b. Requirements for benefit of covenant to run at law c. Intention of the parties (1) Necessity of wo... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(1) Remedy (a) Remedies compared (2) Creation (3) Privity of estate (4) Touch and concern and notice (5) Restatement of Servitudes position 2. Creation a. Negative servitude implied from a general plan (1) The circumstances (a) General plan required (b) Evidence of general plan (2) Kind of servitude implied (3) Covenan... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(a) English rule (b) American law—equitable servitudes 1) Rationale 2) Minority view (c) American law—real covenants d. Notice (1) Actual notice (2) Record notice (3) Inquiry notice 4. Construction of Covenants a. Single-family dwelling (1) Group homes (a) Fair Housing Act (2) Commercial use b. Whether residential use ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(a) Owners' association (b) Management (c) Owner's fraction (2) Rules of conduct (a) Restrictions in originating documents (b) Restrictions subsequently adopted c. Administration of common areas (1) Expenses of maintenance (a) Enforcing payment (2) Tort liability d. Restrictions on transfer (1) Restraint on alienation ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(1) Character of the harm (a) Depreciation of property value (b) Discomfort 1) Sunlight 2) Spite fences (c) Fear of harm (2) Character of the neighborhood (a) Use authorized by zoning ordinance (3) Social value of the conflicting uses (4) Priority in time c. Distinguish—trespass (1) Air pollution d. Economic analysis (... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
XXXIII (d) Refuse B any remedy 3. Public Nuisance a. Definition b. Enforcement by private persons (1) Standing to sue c. Use authorized by statute B. Right to Support 1. In General 2. Right to Lateral Support a. Right to support of land (1) Retaining walls b. Right to support of buildings on land (1) Majority view (a) ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(2) Commercial and industrial districts (3) Principle of cumulative uses b. Density controls 2. Source of Zoning Power a. Delegation of power 3. Constitutional Limitations a. Due Process Clause (1) Procedural due process (2) Substantive due process (a) Strict scrutiny standard (3) State due process requirements b. Equa... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(b) Must show public need c. Variances (1) Standards for variances (a) Distinguish—use vs. bulk variance (2) Runs with the land (3) Conditions attached d. Special exception (1) Standards for special exception e. Discretionary or non-Euclidean zoning (1) Contract zoning (2) Density zoning (3) Floating zones (a) Criticis... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(2) Excluding traditional family b. Low-income persons XXXV (1) Validity of density controls (a) Rational relationship test (b) Enabling act violation (c) Fair share test (2) Growth controls c. Racial exclusion (1) Fair Housing Act d. Federal courts (1) Fair Housing Act B. Subdivision Control and Maps 1. Subdivision Re... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
1) Reciprocal advantages and disadvantages 2) Investment-backed expectations (3) Exactions (a) Distinguish—impact fees (b) Note d. Remedies for regulatory takings e. State constitutional law 4. What Is Just Compensation? a. Market value (1) Justification for market value test (a) Criticism (b) Exception—special purpose... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(a) Acts of “unequivocal reference to a contract” 1) Variations on part performance 2) Injurious reliance theory (b) Suit by seller (c) Contracts to devise 1) Uniform Probate Code (2) Estoppel (3) Revocation 4. Time of Performance a. Effect of “time of essence” provision 5. Marketable Title a. Implied in contract (1) C... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(b) Exception—good faith of seller b. Remedies of the seller (1) Rescission (2) Specific performance (a) Defenses XXXVII (3) Damages (a) Liquidated damages 8. Equitable Conversion a. Statement of doctrine b. Devolution on death (1) Early history (2) Modern law c. Right to possession d. Risk of loss (1) Majority—buyer h... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(1) Modern deeds c. Consideration d. Parts of the deed (1) Granting clause (2) Habendum clause (a) Inconsistency (b) Not used in statutory forms (3) Grantor's covenants (4) Signature and acknowledgment e. Description of the grantee (1) Sufficient description required (2) Grantee's name left blank (a) Implied authority ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(a) Conditions relating to death of grantor 1) Surviving grantor (b) Grantor retains power to revoke (c) Criticism b. Oral condition 3. Deed Given to Third-Party Custodian (Escrow Agent) a. Donative escrow (1) Grantee's rights (2) Writing not required (3) Effect of grantor's reserving power to revoke (a) Criticism b. C... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(3) Covenant against encumbrances (4) Covenant of quiet enjoyment (5) Covenant of warranty (6) Covenant of further assurances c. Merger of contract into deed (1) New trend 2. Breach of Covenants a. Covenants of seisin, of right to convey, and against encumbrances XXXIX (1) What constitutes breach (a) Grantee's knowledg... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
E. Warranties of Quality 1. Builder's Liability a. Tort or contract? b. Subsequent purchasers c. Disclaimer d. Commercial buildings 2. Seller's Liability F. The Mortgage 1. Why a Mortgage Is Used 2. Nature of the Mortgage Transaction 3. Terminology a. Mortgagor b. Mortgagee c. Equity d. Deficiency judgment e. Purchase ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
b. Judicial decisions Chapter Eleven. Title Assurance A. Recording System 1. Common Law Rule—Prior in Time a. Exception in equity 2. Recording Acts—In General 3. Mechanics of Recording a. Filing copy b. Indexing (1) Grantor and grantee indexes (2) Tract index c. Title search (1) Tract index search (2) Grantor-grantee i... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(a) Indexing under misspelled name 1) Diminutives (b) Mother Hubbard clauses (2) Recording unacknowledged instrument (a) No acknowledgment (b) Defective acknowledgment 1) Criticism 7. Who Is Protected by Recording Acts a. In general b. Purchasers (1) Purchasers and mortgagees XLI (a) “Shelter rule” 1) Rationale (2) Don... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
(2) “Wild deeds” b. Grantor not connected to chain of title c. Deeds recorded before grantor obtained title—estoppel by deed (1) Majority—limited search required (2) Minority—extended search required d. Deeds recorded late (1) Limited search required (2) Extended search required e. Deeds from common grantor of adjacent... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
a. Defect in initial registration (1) No notice given (2) Fraud (a) Subsequent transfer b. Bona fide purchasers (1) Possession as constructive notice C. Title Insurance 1. In General a. Lawyer-title policies b. Title-plant policies 2. Who Is Insured 3. Extent of Coverage a. Record title insured (1) What is record title... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
XLIII | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Approach to Exams Property is basic to the social welfare. People seek it, nations war over it, and no one can do without it. The function of Property law is to determine who among the competing claimants gets what, when, and under what conditions. Given the complexity of the world today, that is a tall order. Just try... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
heritage (the common law inherited from the English), there are far more similarities than differences in Property law among the various states; Property law in Florida is likely to be based on the same principles as Property law in Massachusetts. Of course, the legislature may modify the common law (subject to the con... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
things. As Justice Harlan said in the Civil Rights Cases, 109 U. S. 3 (1883): “The letter of the law by rote—by memorization and drill—weeks, even months, may pass without your ever getting the feel of what you are doing. In this Summary, as each new term is introduced—and there are a lot of them—the term is defined. A... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
1 | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Gilbert Law Summaries on Property by James Krier z-lib.org.pdf | |
Chapter One Acquisition of Property CONTENT Chapter Approach A. Introduction B. The Rule of Capture C. Acquisition by Creation D. Acquisition by Find E. Acquisition by Adverse Possession F. Remedies of a Possessor G. Rights of Owners 2 Chapter Approach Most Property courses begin with problems in the acquisition of pro... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
b. Finding property The fundamental issue here is when a finder should be entitled to the value of the find against other claimants, such as the owner of the thing found, the owner of the land where the thing is found, and a prior finder. This may turn on whether the property was lost, mislaid, abandoned, or treasure t... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
B. The Rule of Capture 1. General Rule A person who first captures otherwise unowned resources is entitled to the resources. Another way of putting this rule is: Whoever is prior in time wins. This rule has been applied to many different kinds of resources. 2. Discovery of America “In the beginning all the world was Am... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
If wild animals (sometimes called animals ferae naturae ) are captured, usually they belong to the captor. But capture is required ; merely chasing the animal is not enough. [ Pierson v. Post, 3 Cai. R. 175 (N. Y. 1805)] Example: Post and his hounds are pursuing a fox. Pierson spots the fox and shoots it, killing it. P... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Example: A has driven a school of fish into a net and is in the process of encircling them, but the fish could still turn tail and escape. A has not captured the fish. Until the net has closed, another person, B, can sweep in with a net and take the fish. [ Young v. Hichens, 6 Q. B. 606 (1844)] (1) Unfair competition A... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
6 d. Custom While the general rule is that the captor must acquire physical control over the animal, in some hunting trades, a custom, which is thought more effective in getting animals killed, may dictate a different result. Among American whalers, e. g., the custom was to award the whale to the ship that first killed... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
the animal for himself. [ E. A. Stephens & Co. v. Albers, 256 P. 15 (Colo. 1927)] g. Limitations on capture of wild animals The common law, assuming wild animals were plentiful, placed no limit on the number that may be captured. Today, game may be scarce and some species endangered. Statutes have been enacted by state... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
5. Rights to Oil and Gas The rule of capture has been applied by courts to oil and gas. Some courts have characterized oil and gas as “fugitive” resources, analogous to wild animals, which might wander from a space under A's land to a space under B's land. The most persuasive reason for applying the rule of capture to ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
In most western states and some eastern ones where water is scarce, the rule of capture is limited by the reasonable use doctrine. A surface owner may capture percolating ground water only to the extent that the use of the water is reasonable. The test of reasonable use is similar to the reasonable use doctrine applied... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
More often the landowner will try to get rid of surface waters by changing the natural drainage. Liability to the landowner's neighbors depends on whether the state follows the “common enemy” doctrine or the “natural servitude” doctrine. (a) Common enemy doctrine Under the common enemy view, surface water is a common e... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
definite course. Riparian rights include rights in the quantity, quality, and velocity of the water. Riparian owners have swimming, boating, and fishing privileges, as well as the right to use or take the water onto riparian land. The extent of riparian rights depends on whether the jurisdiction follows the natural flo... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
11 (b) Criticism The natural flow doctrine severely limits the use of water for irrigation and commercial use. It inhibits the full use of water because, even though no one is harmed and the water would otherwise be wasted, a riparian owner cannot deplete the natural quantity of water. Because it is not utilitarian, th... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
there is enough water for the domestic wants of all. To the extent that water is in excess of everyone's domestic needs, it can be used for commercial purposes. Irrigation of a large farm is deemed a commercial riparian use, not a domestic use. In some reasonable use jurisdictions, especially in the arid West, irrigati... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Co., 6 Colo. 443 (1882)] (a) Economic justification The prior appropriation doctrine is a rule of capture and has the advantages of such a rule: It encourages development of water uses and is predictable; it is efficient in that it permits the transfer of a prior appropriation right to a user who puts a higher value on... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Acquisition by accession comes into play when one person adds to the property of another either labor or labor and new materials. A person whose property is taken and used by another is always entitled to the value of the property taken, but that person may lose title by the accessions (“additions”) of the other. If th... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
entitled to the car; B will only have to pay A the value of the stripped car body. [ See Ochoa v. Rogers, 234 S. W. 693 (Tex. 1921); Capitol Chevrolet Co. v. Earheart, 627 S. W. 2d 369 (Tenn. 1981)] c. Confusion of goods Confusion differs from accession in that no labor is added to the goods. Confusion involves an inte... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
full explanation must await a course in 15 copyright, but in a nutshell a person can imitate another's work to some extent, but not too much. d. Unfair competition Courts have sometimes protected labor and investment under the law of unfair competition ( compare supra, p. 5). For example, it has been held that a news a... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
b. Surrogacy contracts Suppose that H and W want a child, but W is infertile. They contract with A, a woman, to be fertilized by H's sperm through artificial insemination. A agrees to give up the child to H and W after it is born. Should the contract be enforced if, after the child is born, A refuses to give it up? In ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
purposes that ought to be encouraged. For example, in the previous example, the jeweler is a bailee, who must surrender the goods to a prior possessor. Imagine a person not getting her clothes back from a dry cleaner, or a neighbor not having to return a lawn mower, unless the person or neighbor could prove ownership. ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
d. What constitutes possession For the finder to become a prior possessor, the finder must—like the captor of wild animals—acquire physical control over the object and have an intent to assume dominion over it. Example: Brazelton discovers a shipwreck at the bottom of the Mississippi River. The ship sank some 27 years ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
18 e. Constructive possession A person is in “constructive possession” when the law treats him as if he is in possession although, in fact, he is not or he is unaware of it. Constructive possession is a fiction that permits judges to reach a desired result. The owner or occupant of premises may constructively possess s... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
for” an employer in the course of his duties. Others emphasize that the employee has a contractual duty to report the object to the employer. This duty is usually imposed, e. g., by hotel owners on the people who clean the rooms in order to facilitate the return of the object to the hotel guest who left it. But if the ... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
strong expectations that all objects located in a highly private place—including those of which he is unaware—are “his. ” Example: Guest, who is at a party in Homeowner's home, finds a diamond ring under the sofa which no one claims to own. Homeowner is in constructive prior possession of the ring and can keep it until... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
of the object to the true owner: Because it is assumed the object was intentionally placed where it is found, it is likely that the true owner will remember where she placed it and will return to the shop to claim it. Example: Adrian finds a wallet on the floor of a beauty shop and a ring on the counter in the same sho... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
If there are multiple finders of lost or abandoned property, a court may choose to apply the rule of equitable division — i. e., order the property sold and divide the proceeds among the claimants. Example: Barry Bonds's record-setting home-run baseball was caught by Fan A, who then lost control of the ball when he was... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
Unable to resolve the matter, the judge invoked the rule of equitable division, ordered the ball sold at auction, and divided the proceeds ($450,000) between the two claimants. [ See Popov v. Hayashi, No. 400545, 2002 WL 31833731 (Cal. Super. Ct. Dec. 18, 2002)] 4. Statutory Changes In some states, statutes have been e... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
was swept away by the statutory reform. 23 E. Acquisition by Adverse Possession 1. Overview a. Theory of adverse possession The basic theory of adverse possession is simple: If, within the number of years specified in the state statute of limitations, the owner of land does not take legal action to eject a possessor wh... | Gilbert Law Summaries on Property by James Krier z-lib.org.pdf |
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