Hostile and adverse—the hostility requirement requires the adverse

 

W4 Lecture 1 “Personal Property”

Business Law I

Personal Property

This week’s lectures will focus on tangible property.  There are two main divisions in property: the law dealing with real property (land and items permanently attached to land) and the law dealing with personal property (all other items).   The essence of property law is ownership.  This ownership may be held outright, or it may be held in common with others as a joint tenant.  Ownership interests are acquired in many ways including by possession (in the case of wild animals hunted or finding lost and abandoned property), by production, or by gift. A gift is a voluntary transfer of property ownership not supported by consideration.

There are three elements to a valid gift: 

  • Donative intent- this is ascertained by the language of the donor and the surrounding circumstances.
  • Delivery- this requires giving up dominion and control of the item. With some items, constructive delivery may be applied. This is true, for example, in the situation where a key to a car is given symbolizing that the car has been given.  
  • Acceptance- the donee must accept the gift. This is generally assumed. 

Gifts are ordinarily unconditional. However, the gift may be conditional in some situations. A gift causa mortis, for example, is a gift given in anticipation of death. If the donor (gift giver) does not die, the gift becomes invalid.  
Mislaid, lost or abandoned property presents difficult challenges in the area of personal property law.   Mislaid property gives the owner—not a random finder—the first claim to the property. Mislaid property is property that the owner did not intend to lose. However, if the owner does not claim the property the finder may keep it.  Lost property is treated similarly. The owner has the first claim. However, the finder may keep it if the owner does not claim it (many states require the finder to seek out the owner).  Finally, property that has been intentionally abandoned is the finder’s, as the owner is presumed to have surrendered all rights in ownership in possession.  
The final area of law we need to discuss is bailments. Bailments are created when an owner gives possession (but not ownership) to another temporarily.  Most bailments are created by agreement. And although the elements of a contract may be present, this is not necessarily true except in the case of a commercial bailment, for example, where a patron gives a suit to a dry cleaner.  The bailment is created when: 

  • Personal property is; 
  • Delivered without title; 
  • Under an agreement that property be returned to the bailor or otherwise disposed of according to the owners instructions.

Delivery requires the bailee to surrender exclusive possession and control to the bailor who must accept the property.   The agreement does not need to be in writing for bailments lasting less than a year.  The bailment gives the bailee certain rights including the right of temporary control and possession of the bailed property, use of the property for the purposes of the bailment, compensation or reimbursement of expenses (or both), and limited liability for the bailed goods.  These rights come with certain duty. Chief among these are a duty of care (the bailee must care for the property during the bailment) and the duty to return bailed property (the bailee must surrender or dispose of the property).

W4 Lecture 2 “Real Property”

Real Property

The first lecture this week discussed personal property. This lecture will continue along the theme of property with a discussion of real property. 

Real property is land and vegetation and artificial structures on the land.  For these purposes, land includes the soil, artificial structures attached to it, minerals, and some amount of the air above the surface of the land.  

Ownership in land can be conceived as having a bundle of rights.  This bundle would include having the ability to exclude others from the land, to mine minerals located there, and sell the land among other interests.   The most common way land is owned is in fee simple. Owning land in fee simple means the owner has the greatest rights, privileges and power over the land in perpetuity. A person can also have a life estate in the land. The person with a life estate owns the land for the duration of their life. However, the life tenant must take care to not spoil or waste the interests of people that have a future interest in the land. 

One does not have to own land in order to have an interest in the land. One nonposessory interest, an easement, allows a person to use land without taking anything from it.  For example, a land owner may allow a neighbor to have an easement to cross the land owner’s property to reach the road.  A license is similar to an easement except that it is revocable by the property owner.  

Of course, land can also be transferred. The instrument of a transfer of ownership is a deed. To make an effective conveyance of property, the deed must contain the names of the grantor and grantee (the person giving and receiving the land respectively), words evidencing intent to convey, a legally sufficient description of the land, the grantor’s signature, and delivery.  Most often deeds are exchanged for money. And the purchaser of land will likely desire some assurance that the grantor has valid title in the land to convey. Thus, most buyers of land require a warranty deed. These deeds contain several covenants that protect the buyer of land from defects in title.

For example, the covenant of quiet enjoyment provides that the buyer will not be disturbed in his possession of land. This means that the buyer is warranting the seller that no one will come around later claiming that he or she actually owns the land.   In some situations, a quitclaim deed may be given. These deeds contain no warranties. It merely passes whatever interest that grantor has to the grantee. These are often involved in gifts of land or in inheritance situations. 

Adverse possession is another way that ownership of land may be changed. This method does not require a deed. It occurs where possession of the land is:

  1. Actual and exclusive- This means that the one seeking to gain land through adverse possession must actually possess the land. And the adverse possessor must do so exclusively. 
  2. Open, visible and notorious—This requirement protects owners of the land by requiring the adverse possessor to make their presence on the land knowable. Ordinarily, this requires the adverse possessor to use the land in a manner that it is customarily used.  
  3. Continuous and peaceable for the requisite time—This requires a certain continuity. The amount of time differs from state to state. It is anywhere from 5-20 years ordinarily, and this time is set by statute. 
  4. Hostile and adverse—The hostility requirement requires the adverse possessor’s interest to be inconsistent with the owner’s interest. In practice, this means that the owner has not given the one claiming adverse possession permission to be on the land (as in the case of a tenant/landlord situation).  

This doctrine is important to provide security to people that buy land from the adverse possession. The ownership of land may be disputed, but if the adverse possessor meets the requirements, a potential buyer will know that they can acquire title from the adverse possessor.  

W4 Video Lecture 3 “Property”

Business Law I

Property

(SEE ATTACHED VIDEO)

W4 Discussion “Eminent Domain”

Eminent Domain

Read the following article: http://www.washingtonpost.com/wp-dyn/content/article/2005/06/23/AR2005062300783.html.  Do you think the government has too much power to seize property under the doctrine of eminent domain?      

W4 Assignment “Adverse Possession” ESSAY

Adverse Possession

Lisa and Danny are neighbors that live on Guerrero Street. Fifteen years ago Lisa built a gazebo. She frequently used the gazebo, but she was not aware that actually the gazebo was on property belonging to Danny. A month after the gazebo was built Lisa built a fence between her and Danny’s yard, and the gazebo was on Lisa’s side of the fence.   Fifteen years later, Danny has a survey done, and he discovers that the gazebo is on his land. Danny brings a suit to evict Lisa from the land. Does Lisa have a defense?  Assume that the state in question has an adverse possession period of ten years. 

Attachments area
 

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