O'Neill Property Fall 08

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Hostile/Adverse (AP): Use must be non-permissive. Showing that the TO has permitted the use will defeat the claim. (See MINORITY and MAJORITY tests).
Equitable Servitude: "A land use restriction running with the land if (1) the purchaser of the servient estate was on notice at the time of acquisition, (2) original parties intended for the restriction to run with the land, (3) the restriction ""touched and concerned"" the land. Usually a written requirement exists, but this can be enforced through equitable estoppel. Remedy is in equity (injunctive relief)."
Vertical Privity: Privity comprising the relation between the original covenanting parties and their successors in interest.
Possession of a wild animal: Pierson v Post (Majority). Mortal Wound + Continued Pursuit ;OR Deprivation of Natural Liberty (trap); OR Actual Corporal Possession
Implied Reciprocal Negative Easement: "Doctrine establishing that early buyers were intended beneficiaries of covenants made by later buyers if all their lots were part of a common plan or scheme of development, with all lots in the plan obligated to comply with the uniform plan of restrictions for the benefit of all other owners in the area."
Bundle of Entitlements: Privilege to use the property; Right to exclude others; Power to transfer title; Immunity from having the property taken or damaged without your consent
Mislaid Property: "Property the TO intentionally placed in a given location and then left, or intentionally left intending to return for it later. Belongs to the owner/possessor of the premise unless and until the TO is located."
Treasure Trove: "Gold, silver, currency intentionally concealed or underground with indications that it has been so long concealed that TO has died. Finder's keep."
Actual Possession (AP): "Ordinary use to which the land is capable and such as an owner would make of it; fence OR building, living, business, farming, clearing the land"
Termination of Easement: "The agreement may come to an end (1) by agreement in writing, (2) by terms in the agreement (i.e. limits set in deed), (3) merger of the servient and dominant estates, (4) abandonment, or (5) adverse possession or prescription by owner of the servient estate."
Tensions in the Bundle: Right of access (cannot exclude); Security from harm (cannot harm neighbors); Powers of ownership (no unreasonable detriment to future owners); Power to acquire (your immunity from loss is limited by public/neighbor's interests; eminent domain)
Incomplete possession of abandoned personal property: "Popov v Hayashi. WHERE ACTOR UNDERTAKES SIGNIFICANT BUT INCOMPLETE STEPS TO ACHIEVE POSSESSION OF A PIECE OF ABANDONED PERSONAL PROPERTY AND THE EFFORT IS INTERRUPTED BY THE UNLAWFUL ACTS OF OTHERS, THE ACTOR HAS A LEGALLY COGNIZABLE PRE-POSSESSORY INTEREST IN THE PROPERTY. THAT PRE-POSSESSORY INTEREST CONSTITUTES A QUALIFIED RIGHT TO POSSESSION WHICH CAN SUPPORT AN ACTION FOR CONVERSION."
Certainty: "An argument a court may make in casting a decision, making things more efficient, reducing admin cost, reducing number of disputes. Does not allow for contextual adjustment or evolution of social norms or mores"
Express Easements: A right to do specific acts on land owned by someone else ordinarily created by agreement of the parties; various state statutes of frauds require them to be in writing.
Good Faith/Bad Faith (AP): Some jurisdictions require that adverse claimants intend to dispossess the TO (bad faith) or are ignorant of the existence of TO (good faith). See Adverse/Hostile MAJORITY and MINORITY tests.
Instrumentalism: "Law to encourage a certain result (in Pierson v Post - foxes are bad, law should encourage killing foxes most efficiently)"
Open and Notorious (AP): "Must be sufficiently visible and obvious to put an owner on notice that property is being occupied by a non-owner; fence, structure, (jurisdictions differ on clearing the land, laying down a driveway, mowing grass, combination of using for parking, storage, picnicking, crops, grazing)"
Servient Estate: Property that is burdened by a servitude relationship.
Hostile/Adverse (AP) Majority: Objective test - possessor state of mind irrelevant - only ACTS matter
Easement by Estoppel: "Created when an owner gives someone else permission to use her property in a particular way and the licensee invests substantially in reasonable reliance on that permission and revocation of the license would work an injustice. Created by faulty deed, by an orally granted easement, or by court finding what the owner thought to be a revocable license irrevocable."
Commodification: The transformation of goods and services (or things that may not normally be regarded as goods or services) into a commodity or something with monetary value.
Hostile/Adverse (AP) Minority: "Jurisdictions differ (a) objective test based on acts and call it ""claim of right"" (b) require intent to dispossess and call it ""claim of right"" (c) require intent to dispossess ""bad faith"" (d) require ""good faith"" possessor lacks knowledge of true ownership"
License: Limited interest in land; permission is revocable at the will of the grantor and is limited in terms of purpose and duration
Implied License: A limited interest in land that is not express but understood by other means (an open door to a store)
Fiduciary Duty: The trustee has a heightened obligation to manage the assets always in the interest of the beneficiary. Beneficiary can call upon the trustee to report on his/her actions.
Subrogation: Succession to another's right or claim. Puts another in the place of a person originally holding the claim (in their shoes).
Positivism: Law does not equal moral rightness
Surface/Embedded Objects: Jurisdictions split. Some rule embedded is landowner's and surface is finder's; some rule that even embedded is finder's if not a trespasser.
Res communis: Thing owned by the community.
Ancient Lights: "The common-law principle by which a landowner acquired, after 20 years of uninterrupted use, an easement preventing a neighbor from building an obstruction that blocks light from passing through the landowner's window. "
Remedies at Law: Money Damages
Dedication: A gratuitous transfer of real property from a private owner to a government entity such as a city
Trustee: Middle party making payment on behalf of the Settlor; individual holding the res; has fiduciary duty to the beneficiary
Fungible Property: "Goods that are interchangeable with one another; goods that, by nature or trade usage, are the equivalent of any other like unit, such as coffee or grain"
Conversion: "An intentional tort, wrongful possession of personal property rightfully owned or possessed by another"
Remedies in Equity: Injunctions
Ownership of Human Genetic Material: Moore v UCLA (Majority). Humans do not have property interest in genetic material removed from their bodies if it is not unique to them (can be recreated as chemical formula) and has been altered by human ingenuity.
Easement in gross: Easements that are not intended to be attached to the ownership of particular parcels of land. (i.e. utility line right of way)
Prescriptive Easement: "An easement created when (1) there is a use of property belonging to another; (2) the use is ""open and notorious"" or visible; (3) that it be ""continuous"" and/or ""uninterrupted; and (4) that it last for the statutory period. Some jurisdictions add the requirement that the true owner ""acquiesce"" in the adverse use. ""Acquiescence"" is a statutory relic and has very little meaning in modern judicial opinions."
Easement: A right to do specific acts on land owned by someone else.
Real Covenant: "A land use restriction running with the land if (1) in writing, (2) the purchaser of the servient estate was on notice at the time of purchase, (3) original parties intended for the restriction to run with the land, (4) original parties were in privity of estate with each other, and (5) it ""touched and concerned"" the land. Remedy in damages."
Protecting Cultural Property: "Fundamental human rights, fundamental dignity of each person, universal agreement in respecting human remains, discourage grave robbery, group identity (cultural genocide), freedom of religion"
Negative Easements: "Generally disallowed though historically the English tradition reserved an owner's right to unobstructed light and air; in modern law some states have begun to recognize this kind of easement for solar power, historic preservation, or conservation."
Inalienability Rules: Assign entitlements and prohibit those entitlements from being sold or exchanged
Exclusive (AP): "The use is of a type that would be expected of a True Owner (TO) of the land in question and that the adverse claimants possession cannot be shared with the true owner , but occasional entry by TO does not defeat the claim."
Appurtenant Easement: "Easements that are intended to ""run with the land"" such that the benefit of the easement will pass to any future owner of the dominant estate. Enforceable if (1) they were intended to run with the land, (2) they are in writing, and (3) the owner of the servient estate purchased with notice."
Equitable Division: Popov v Hayashi. Court decides it can split the property between the parties
Liability Rules: Prohibit each party from interfering with the interests of the other unless the party is willing to pay damages determined by a court of law or court grants purchased injunction (court determines cost of injunction or damages)
Constructive Notice: The covenant is recorded in the registry of deeds as part of the deed or lease creating the covenant or if a declaration containing the restriction was recorded prior to the transfer of the property affected by the covenant.
For Statutory Period (AP): Elements of AP must have occurred for the period of time defined by statute (differs by jurisdiction)
Implied Easement from Prior Use: "An easement created by a court when (1) two parcels were at one time in common ownership, (2) one of the parcels had derived a benefit or advantage from the other parcel prior to the sale, (3) this use was both apparent and continuous, AND (4) continuation of the use is ""reasonably necessary"" or ""convenient"" to enjoyment of the dominant estate."
Nuisance: A substantial and unreasonable interference with the use or enjoyment of land
Unclean Hands: Covenant terminated because complaining party has violated the covenant himself.
Coase Theorem: "In the absence of transaction costs, it does not matter which legal rule is chosen because any legal rule will produce an efficient result. In the presence of transaction costs, the choice of entitlements by the courts may have an effect on efficiency. The courts may increase efficiency by assigning entitlements to the parties who would purchase them in the absence of transaction costs."
Prescription: The acquisition of title to a thing (esp. an intangible thing such as the use of real property) by open and continuous possession over a statutory period.
"First in Time, First in Right ": "Establishing a priority of rights based on the time of acquiring the right in question (all other things equal, first come first serve) (this is generally the case in water rights)"
Implied Easement by Necessity: An easement created when a parcel is landlocked and has no other access to a public road
Epstein on Servitudes: Servitudes are to be enforced as agreed to by parties EXCEPT where (1) it is against successors without notice or (2) the arrangement is illegal or an attempt to thwart public policy interests
Public Accommodation: "A business that provides lodging, food, entertainment, or other services to the public; esp. (as defined by the Civil Rights Act of 1964)"
Dominant Estate: Property that benefits from a servitude relationship.
Cultural Property: "Movable and immovable property that has cultural significance, whether in the nature of antiquities and monuments of a classical age or important modern items of fine arts, decorative arts, and architecture"
Property Rules: Assign entitlements (in nuisance to be free from harm or inflict it) and allow parties to choose whether they want to keep or sell their rights (parties can bargain around with rights w/o court)
Privity of Estate (simple privity): Original covenanting parties each have a simultaneous interest in the land at the time the covenant was created and that the burdens and benefits of the covenant would pass to successors to those interests.
Corpus: The property for which a trustee is responsible; the trust principal
Custom: "Allowing a legal resolution to come from general rules of a social subset (hunters should decide Pierson v Post, baseball enthusiasts Popov v Hayashi)"
Public Trust: "The principle that navigable waters (and certain other elements) are preserved for the public use, and that the state is responsible for protecting the public's right to the use"
Radin's Property as Personhood: "A subjective concept suggesting applying value to personal property taking into account its ""personal"" value"
Horizontal Privity: Privity comprising the relation between the original covenanting parties.
Continuous (AP): "Exercise control of the property in a way customarily pursued by by owners of that type of property (holding, managing, and caring for property of like nature and condition). See TACKING."
Institutional Competence: The capacity of an official body to do something (court punts the ball to the legislature or vice versa)
Servitudes: "A non-possessory interest in land, a ""right or obligation that runs with the land"""
Tacking (AP): Used in determining continuous element - prior adverse claimants pass title (create privity) allowing current adverse claimants to add all prior claimant's possessory period to their own in order to meet Statutory Period and Continuous elements. Privity is necessary for tacking.
Possession of a wild animal: Pierson v Post (Dissent). Pursuit + Reasonable Prospect of Capture + Within Reach.
Express License: A limited interest in land that is communicated by the property owner
Abandoned Property: "Property the TO intentionally and voluntarily relinquished, with the intent to no longer own the object, and without transferring his rights to another person. Now belongs to the finder. To establish intent we must look to acts as manifestation."
Actual Notice: Proof that the purchaser is actually aware of a covenant
Multi-Factor Balancing Test: "Putting factors ""into the hopper"" and weighing them to see who should have rights or entitlements to that property"
Property Standard of Proof: Clear and Convincing. Higher burden of proof than preponderance of evidence because case may involve transfer of personal property.
Equitable Division: Remedy that divides lost or mislaid property between two parties (usually finders and landowners) with competing valid claims
Normative Property Rights: "Socially defined/formed property rights (i.e. calling ""shotgun"" to get the front passenger seat in a car)"
Property Law: "Divided into three schools - real, personal, and intellectual"
Color of Title (AP): "Claiming ownership through a written document that is somehow defective. Inaccurate survey or description, missing signature, title reads as though claimant has possession but through defect he does not."
Payment of Property Taxes (AP): Some jurisdictions require as an element that adverse possessors pay prop taxes on the claimed property for the statutory period
Res Derelictae: "Once owned, lost (stuff, personal prop)"
Acquiescence: complaining party has tolerated previous violations of the covenant by the owner of the servient estate
Terms of Trust: What the trustee can or cannot do
Private Trust: " A property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary) - Title DOES transfer"
Liquid Property: Capable of being readily converted into cash
Beneficiary: Party receiving the corpus
Elements of Adverse Possession: "Actual Possession, Open & Notorious, Exclusive, Hostile/Adverse, Continuous, For Statutory Period"
Inquiry Notice: Conditions of the premises indicate that the property is encumbered by a covenant so that it is an observable condition putting a reasonable buyer on notice.
Laches: Covenant terminated because it has been ignored or breached for a substantial period of time.
Res Nullius: Thing of no one (game/fish)
Termination of Covenant: "The agreement may come to an end (1) if conditions have been found to have changed substantially, (2) if the restriction creates relative hardship in enforcement, (3) if abandoned, (4) if dominant estate owner acquiesced, (5) if dominant estate owner has ""unclean hands,"" (6) by estoppel, (7) by laches, or (8) by the same means with which one terminates an easement."
Lost Property: Property the TO unintentionally and unknowingly drops or loses. Belongs to the finder unless and until the TO is located.
"""Out of the loop"" Privity": "A relaxed form of traditional privity, it allows owners of property interests to be free to agree to contractually based restrictions on land use designed to burden one or more parcels for the benefit of other property owners in the vicinity and that the benefits and burdens of such agreements pass to owners who purchase those parcels with notice of the original agreement."
Covenant: Land use restrictions intended to run with the land.
Finders Law: TO's rights trump Finder's rights which trump 3rd party rights

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