美国财产法讲义

SUBSEQUENT POSSESSION

Ownership: “title” to property; usually prove by showing docs by previous O (or 1st possessor) transferring title to present title holder.

Title, or ownership, is relative; lawyers conceive of property as referring to relationships among people w/ respect to things,

not to a relationship between a person and a thing.

An owner always wins against a mere possessor.

Possession is proved by showing physical control and the intent to exclude others. Possession is easier to prove than ownership.

First possession: Making an unowned thing, or previously enjoyed by all, one s own.

o First-In-Time Rule: The first person to take possession of a thing owns it.

Subsequent possession: something is already owned by someone else, A, and it comes into B s possession w/out A s

consent, B can become its owner w/out being declared owner, and be granted protection by the legal system.

Prior Possession rule: a prior possessor wins over a subsequent possessor in claims re both personal property and real

property; rule can be explicitly invoked only in support of honest claimants (unless between 2 wrongdoers)

Acquisition by Find

TO > Prior Possessor > Subsequent Possessor (; chimney sweep)

Entitled to trover ($ damages measured by value of object; forced sale) or replevin (return of the goods)

o For real property, equivalent is action for trespass (damages) or ejectment (possession)

Voluntary bailment: when one party gives temporary possession of her property to another; “a wrongdoer, having once paid

full damages to the bailee (has rightful possession of goods, but is not TO), has an answer to any action by the bailor (TO).”

o In voluntary bailment cases, bailor (TO) must go after bailee for recovery if bailee has already recovered from the

wrongdoer; so TO cannot get the item back from wrongdoer; but can try getting the money back from the bailee.

o By voluntarily bailing, you agreed to have bailee represent you (although really you didn t).

Involuntary bailment: the finder is usually the bailee; TO can go after wrongdoer, even if he already paid off finder, b/c

often does not know (thus cannot locate) the bailee. In such cases the courts will usually grant replevin to bailee who is not TO rather than trover/damages, to keep the item one step closer to TO.

When someone buys an item, obtains the title that prior possessor had to give them.

Public place: Lost property goes to finder; mislaid property goes to owner of premises.

Private home: Objects found usually awarded to Owner (constructive possession) unless has not moved in ().

Adverse Possession

1) 5-year SOL in CA; in most states 15-20.

2) Requirements:

a) Actual entry giving exclusive possession

b) Open and notorious,

i) enough to reasonably inform an attentive land owner that someone is on property (constructive notice)

c) Adverse and under a claim of right

i) or hostile: does not mean animosity; w/out permission and not subordinate to TO

(1) (a) State of mind is irrelevant; whether objective evidence shows AP is claiming land as own (“claim of right”).

(b) Can be AP though not actually claiming title against TO

(c) SOL begins running once there is an entry against TO, no matter the AP s state of mind.

(2) (a) knows he has no title, his possession is not adverse (thus a squatter cannot be an AP).

(b)

(i) But often those doing so in “bad faith” will lose nonetheless, supposedly on other grounds.

d) Continuous for the statutory period

i) Possession as ordinarily marks the conduct of owners in general; seasonal use ok if how TO would use property.

e) Some Western states (CA) also require AP pay property taxes on land (provides more notice for Owner, etc.)

3) which “” to date of the event that started the SOL running.

a) But AP will only get the same possessory estate that he entered against (might only be a life estate)

4) Color of Title: A claim founded on a written instrument (deed, will, court judgment) that turns out to be invalid.

a) land described in the doc.

5) Tacking:

a) b) Once AP has begun to run against O, it also runs against all of O s successors in interest (ailing title; buyer beware).

6) Disabilities: SOL is extended if specified disabilities are present (infancy/insanity/imprisonment); but a disability is immaterial if

it did not exist at the time when the C/A accrued; statutes often say can bring suit w/in 10 yrs after disability is removed.

7) For Personal Property: similar requirements, but often the “Discovery Rule” is applied instead of open/notorious req t.

Possessory Estates

“The law abhors forfeiture:” Restrictive language in conveyance will be interpreted as narrowly as possible:

Restraints on alienation

1) Types of direct restraints

a)

b)

c)

2) Rules for all types of fee simple

a) All direct restraints are void.

b) If restraint is partial, has a reasonable purpose and is limited in duration, Rest. and minority of states will uphold it.

c) Why aren’t direct restraints allowed?

i. Property unmarketable. Wasteful allocation of resources.

ii. Perpetuates the concentration of wealth.

iii. Discourages improvements on the land (no incentive if you can’t sell)

iv. Prevents the owner’s creditors from reaching the property, so hard to get mortgage/loans to make improvements.

v. Can’t rent the property.

vi. Dead hand control is repugnant to nature of a fee simple.

3) For life estates, disabling restraints are often struck down but forfeiture or promissory restraints may be ok, b/c life estates are

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