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 PROPERTY
Study Guide

First Acquisition

01
Conquest

Discovery

"First in time, first in right"

  • Discovery by a subject of the Sovereign

  • Consummated possession

  • AND International Legitimacy 

Note

  • Indigenous persons were treated as mere occupants rather than true owners.

  • Applied as between the Colonizing European Nations.

Conquest

"Might makes right"

  • Annexation

  • Subjugation

  • AND International Legitimacy 

​Note

  • The court of the conqueror cannot deny its own title.

  • Applied as between the Colonizing European Nations and displaced indigenous persons.

  • Now (arguably) illegitimate under international law.

Examples

Agreement/Purchase

"Let's make a deal"

  • Agreement between one or more Sovereigns

  • AND International Legitimacy 

Examples

Tracing Chain of Title

  1. Identify the original grantor of title

  2. Identify each grantee asserting title

  3. Trace each chain in title back to the original grantor

  4. Determine the earliest transfer of title

  5. Nemo dat: the first grantee prevails.

02
Capture

Wild Animals

  • First possession creates title

  • Animal in a trap or net creates constructive possession

  • Mere pursuit insufficient, unless the animal is mortally wounded

 

Animus revertendi 

  • Loss of Title

  • Upon a wild animal’s escape 

    • Unless it periodically returns

    • OR If it is branded

    • AND the owner uses all possible effort to recapture

Note

  • A trespassing hunter forfeits title to the landowner 

  • A person who violates a hunting statute forfeits title to the Sovereign

Ratione Soli

Note

  • Mostly rejected by American Courts

Accessions

1.  Was there an addition or mixing of value?

  • Addition of value to a chattel

    • By the expenditure of labor;

    • OR the addition of new material (capital)

  • AND the addition cannot be separated from the original

2.  Was the trespass innocent or intentional?

  • If innocent

    • Owner can sue for conversion or replevin

      • UNLESS

        • Complete change or great increase in value of chattel

        • Accession is separable from original

        • Other equitable considerations

  • If intentional

    • Owner can sue for conversion or replevin

      • Amount of change or great increase in value of chattel irrelevant

Note

  • Generally, the trespasser recovers nothing

3.  Sale of improved items

  • A person who lacks title to goods cannot pass title to goods, even to a bona fide purchaser.

  • The true owner may maintain an action for conversion against a person who innocently purchased the item.

 

4.  Damages from innocent purchaser

  • Some courts: damages based on the fair market value (FMV) at the time of purchase

  • Some courts: award depends on intent

    • If innocent

      • Innocent purchaser liable for the original value only

    • If intentional

      • Some courts: Innocent purchaser liable for the original value only

      • Some courts: Innocent purchaser liable for the increased value

5.  Confusion

  • If the accession is separable from the original, the Court can order separation and return of the accession to its contributor

  • If however, the accession is inseparable, the intent of the accession matters

    • If the accession was innocent, the Court will award a pro rata share to the accessioner;​

    • If the accession was intentionally done in bad faith, the Court will not award title to a thief

Note

  • Accessions are based on Locke's Labor Theory of Property

    • According to Locke, we have a natural right in our own personhood​

    • When we mix our labor into unclaimed property held in the commons, we homestead that property and make it our own

    • The main counterargument to Locke's theory is that valueless labor should not create a property interest

The Commons

  • Cultural and natural resources that belong to the public, rather than a private individual

Note

  • The tragedy of the commons: if resources held in common can be capture through first possession, this incentivizes a race to exploit the resources, often leading to social, economic, and environmental externalities.

Additional Resources

The Tragedy of the Commons Explained in One Minute, One Minute Economics, YouTube.com

What is the Tragedy of the Commons, Harvard Business School Online, YouTube.com

Oil and Gas

  • First possession creates title

Water

  • Watercourses

    • ​​Riparian (Eastern states)

      • May not materially dimmish quantity, quality, or velocity.

      • Water belongs to the landowners adjacent to the water.

    • Prior appropriation (Western states)

      • First appropriation (first in time, first in right)

  • Ground Water

    • Jurisdictional Approaches

      • English rule: first appropriation (first in time, first in right)

      • American rule: reasonable use

      • Joint tenancy

      • Restatement: apply law of nuisance

      • Statutory allocation: e.g., the Colorado Water Compact

Note

  • Natural trumps artificial uses (e.g. Household consumption v. Industry)

Possession

  • ​​Intent to possess

  • AND dominion and control

 

Note​​: Possession can be either:

  • Actual (in fact)

  • OR Constructive (in law)

Relativity of Title

  • Older title is superior to earlier, junior title

    • (i.e. First in time, first in right)

Thieves

  • Title from a thief is void

03
Ownership

The Bundle of Rights

  • Possession

  • Control

  • Enjoyment

  • Disposition

  • Exclusion

Trespass

  • An intentional, unprivileged, and nonconsensual encroachment on real or physical property

  • Possession by owner at time of encroachment

  • Lack of necessity

    • Clear and imminent danger​ outweighs other potential harm

    • Reasonable expectation of abatement

    • No legal alternatives

    • AND Legislature has not precluded the defense

  • AND not otherwise justified as a matter of public policy

Note

  • Actual damages not required. Jacque v. Steenburg Homes

  • The Sovereign cannot criminalize homelessness. Commonwealth v. Magadini

  • The Sovereign can limit or alter property rights without taking them under the Takings Clause of the Fifth Amendment. 

    • Andrus v. Allard (limiting disposition or free alienation of protected bird feathers) 

    • Commonwealth v. Magadini (limiting exclusion of homeless when necessary to protect human life)

    • Eyerman v. Mercantile Trust (limiting testamentary destruction of property)

    • Moore v. Regents (limiting alienation of body parts)

Public Trusts

  • Certain cultural and natural resources held in the commons belong to the public

  • Those resources are held from time immemorial in the public trust

  • Public Trust doctrine creates an easement for the public

Beaches (Matthews v. Bay Head Improvement Ass'n)

  • The land underwater and comprising the foreshore (wet sand) is held in the public trust

  • Private landowners can own portions of the backshore (dry sand)

  • That ownership is curtailed by the public's right of access to the backshore

  • Private landowners lose title to land that erodes into the ocean.

  • The Sovereign may restore title, but without express action the land reverts to the Public Trust

04
Crea
tion I

(Intellectual Property)

Tangible Property

  • Tangible property: real (land) and physical (chattel) property

  • Intangible property:​ non-physical assets

Economics of Property

  • Rivalrous property: ​one's possession or enjoyment does not prevent others from enjoying it

  • Excludable property: cannot be controlled by one person to the exclusion of

Examples

  • Land and chattels held in private ownership

  • Land and chattels held under Sovereign ownership to the exclusion of the public

  • Non-rivalrous property: ​one's possession or enjoyment does not prevent others from enjoying it

  • Non-excludable property: cannot be controlled by one person to the exclusion of others.

Examples

  • Land and chattels held in the commons or in the public trust

  • Intellectual property

  • Digital assets

  • Financial assets

  • Privacy rights

  • Contractual rights

Misappropriation

  1. Substantial investment of time, skill, or money by the plaintiff in developing some property;

  2. Appropriation and use of that property at little or no cost by the defendant;

  3. The appropriation and use done without authorization or consent from the plaintiff;

  4. Proof of injury to the plaintiff due to the defendant’s action.

Note

  • Applies Locke's Labor Theory of Property to create a quasi-property right in the first publication of news stories under a theory of unfair competitionINS v. AP News (majority).

  • The quasi-property right measures the relationship of the competitors, not either party to the public. (Thus, neither has a right of exclusion to the detriment of the public).

  • Common law misappropriation is now heavy disfavored or abrogated in most jurisdictions.

Incentivizing Creative Works

  • The law carves a delicate balance between overprotecting and underprotecting the creation of new intangible works.

  • Overprotection results in monopolization. Monopolization creates deadweight losses to the economy which ultimately harm the consuming public. 

  • Underprotecting results in a lack of incentives to create works that advance the arts and sciences.

Privacy Rights

  • Intrusion upon seclusion

  • Public disclosures of private facts

  • False Light

  • Publicity

    1. Uses another person's name or likeness;

    2. Without their consent; 

    3. For their own benefit or the benefit of a third party;

    4. AND injury.

Note

  • Does not require literal or actual appropriation of name or likeness, just enough to invoke the person's name or likeness. White v. Samsung Electronics.

  • Society should reward plaintiff's sweat of the brow in cultivating the celebrity.

05
Crea
tion II

(Intellectual Property)

Patents

Public Policy

  • Patents are a grant of a limited duration monopoly in exchange for public disclosure.

  • The monopoly incentivizes innovation, as without the monopoly:

  • This is counterbalanced by:

    • Full disclosure to the public.

    • Limitations on the types of ideas that may be taken from the public domain (i.e., the commons).

U.S. Const. Art I § 8 π 8 (“the Progress Clause”)

The Congress shall have the power…

 

To promote the Progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

U.S. Const. Art IV (“the Supremacy Clause")

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Federal Patent Preemption: “[The Supreme Court’s] decisions have made clear that state regulation of intellectual property must yield to the extent that it clashes with the federal patent statute's balance between public right and private monopoly designed to promote certain creative activity.” – Bonito Boats, Inc. v. Thunder Craft Boats, Inc.

Patentability

  • Patentability: is it protectable patent subject matter? §101

  • Utility: does it offer some benefit to humans? §101

  • Novelty: is it not found in the prior art? §102

  • Nonobviousness: is it enough of an advancement? §103

  • AND Enablement: do the written disclosures allow the person having ordinary skill in the art (the “PHOSITA”) to reduce the patent to practice?

Patent Subject-Matter

35 U.S.C. § 101, the Patent Act

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

05
Crea
tion II

(Intellectual Property)

Copyrights

Public Policy

  • Utilitarian: Copyrights are a grant of a limited duration monopoly designed to incentivize the creation and distribution of expressive works. (U.S.)

  • Personality: creation is an extension of the author’s being. Creates moral rights. (E.U.)

  • Labor Theory/"sweat of the brow": an artist mixes their mental labors into their creation, creating a property right. Rejected in Feist Publications, Inc. v. Rural Te. Serv. Co., 499 U.S. 340 (1991) ("the 1976 revisions to the Copyright Act leave no doubt that originality, not "sweat of the brow," is the touchstone of copyright protection. . . .").

U.S. Const. Art I § 8 π 8 (”the Progress Clause”)

The Congress shall have the power…

 

To promote the Progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

17 U.S.C. § 102, the Copyright Act

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 

Originality

  • Independent creation of the author;

  • A modicum of creativity;

  • A “spark in the mind of the inventor”

Works of Authorship – 17 U.S.C. 102

  1. literary works;

  2. musical works, including any accompanying words;

  3. dramatic works, including any accompanying music;

  4. pantomimes and choreographic works;

  5. pictorial, graphic, and sculptural works;

  6. motion pictures and other audiovisual works;

  7. sound recordings; 

  8. AND architectural works.

Fixation – 17 U.S.C. 101

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. . . 

U.S. Const. Art IV ("the Supremacy Clause")

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Federal Copyright Preemption – 17 U.S.C. § 301: “As long as a work fits within one of the general subject matter categories (of federal statutory copyrights), the bill prevents the states from protecting it even if it fails to achieve federal statutory copyright because it is too minimal or lacking in originality to qualify, or because it has fallen into the public domain." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 51, 131 (1976).

The Idea-Expression Dichotomy

17 U.S.C. 102(b) 

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Copyright Infringement

  • Valid copyright

  • Defendant copied the work

  • Copying was an improper appropriation

  • Actual copying

  • OR Access

  • AND Substantial similarity

Fair Use

  • Purpose and Character;

  • Nature;

  • Substantiality of use in relation to the work as a whole;

  • AND Marketplace displacement

05
Crea
tion II

(Intellectual Property)

Trademarks

Public Policy

  • Brands and branding, which trademark law protects, are an ancient commercial practice dating back to as early as 2000 BC.

  • Trademarks protect against a form of consumer fraud called consumer source identification confusion. This fraud creates deadweight losses.

  • Trademarks also help enforce standards of fair dealing and commercial morality.

  • Like Copyrights, Trademarks favor protecting the public, over enriching the right holder.

U.S. Const. Art I § 8 π 3 (“the Commerce Clause”)

The Congress shall have the power…

 

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

No Federal Trademark Preemption

  • Common law trademarks

  • State law trademarks (based on intrastate trade

Trademark Subject-Matter

15 U.S.C. §1127

The term “trademark” includes any word, name, symbol, or device, or any combination thereof

(1) used by a person, or

(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,

to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

Common Law Trademarks

  • Distinctiveness

  • Non-functionality

  • AND Seniority of Use (first in time, first in right).

Abercrombie Spectrum

Protectable:

  • Arbitrary & Fanciful

  • Suggestive

  • Descriptive (requires acquired distinctiveness/secondary meaning*)

Not protectable:

  • Descriptive (mark lacks acquired distinctiveness/secondary meaning)

  • Generic (not protectable)

15 U.S.C. 1052(a) - Immoral Trademarks

No trademark [shall register if it]:

 

(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. . . 

Held unconstitutional on First Amendment Grounds. Matel v. Tam, 582 U.S. ____ (2017)

Secondary Acquisition

06
Finders

Bailments

  • Bailments: transfer possession but not title

  • Bailor: person who delivers the chattel

  • Bailee: person who receives the chattel

  • Voluntary Bailment: consensual delivery to bailee

  • Involuntary Bailment: nonconsensual delivery to bailee

Lost Property

  • Owner has 

    • Accidentally and involuntarily parted with possession

    • AND Does not know where to find it

Mislaid Property

  • Owner has 

  • Intentionally placed the property aside

    • AND Forgotten about it

Abandoned Property

  • Owner has 

  • Voluntarily relinquished ownership

    • AND Had an intent to give up both title and possession

Finder of Lost v. Mislaid Property

  • English courts: no distinction, apply first in time, first in right

  • American courts

    • Mislaid property: usually goes to the owner of the locus in quo

    • Lost property: usually goes to the finder

      • Embedded in soil: owner of the locus in quo

      • Lying on the surface: finder

Trove

  • Trove: gold, silver, or currency that was lost in the distant past

  • English rule: Crown owns it

  • American rule: finder or owner of locus in quo takes (if finder is a trespasser)

07
Adverse Possession

Adverse Possession

  • Open, Visible and Notorious 

  • Actual

  • Exclusive

  • Hostile and Under a Claim of Title or Right

  • AND Continuous for the Statutory Period

Public Policy

  • Avoid stale claims to land

  • Quiet title or correct title errors

  • Protect personal attachments to property

  • Utilitarian maximization of productive uses of resources and land

  • Utilitarian maximization of tax revenues to the Sovereign

Hostility

  • The objective standard: state of mind is irrelevant

  • Good-faith standard: “I thought I owned it”

  • Aggressive trespass standard: “I thought I didn’t own it, but I intended to make it mine.” 

Color of Title

  • Claim is based on 

    • A written instrument (i.e., a will or deed)

    • OR A judgment or decree that is defective and invalid

  • Majority rule: color of title is irrelevant for adverse possession

  • Minority rule: color of title is required

  • Minority rule: claims lacking color of title require additional steps, like paying taxes, giving notice to the County or making improvements to the land

Mistaken Boundaries

  • Objective Standard: possession is hostile so long as the possessor intends to claim the land as her own, even if the possessor is unsure as to the location of the boundary. Connecticut view

  • Subjective Standard: the possessor must actually know that she has crossed over the boundary. Maine view

Continuous

Tacking

  • American Approach: permitted if the adverse possessor and successors are in privity of estate

  • English Approach: privity not required

Privity of Estate

  • Voluntary transfer of an estate or possession from one occupant to the other by descent, by devise, or by deed purporting to convey title

Seasonal Use

  • Intermediate occupancy insufficient

  • However, seasonal use is permitted if that is the best use of the property

Legal Disabilities

  • Majority Approach: a legal disability extends the time to bring an action to quiet title until a defined period after the disability is removed

  • Disability includes childhood, incompetency and imprisonment

  • Disability must exist at time of entrance of the adverse possessor

  • If the owner has more than one disability, apply the longest

Governmental Property

  • Common Law/Majority Approach: no time runs against the king (nullum tempus occurrit regi)

  • Minority Approach: same as private land

  • Minority Approach: longer continuous period required

  • Minority Approach: only applies to proprietary holdings (e.g., intangible interests or estates)

Thieves

  • Conversion approach: action accrues at the time of the theft or conversion

  • Discovery approach: action accrues when the true owner discovers, or by exercise or reasonable due diligence should have discovered, facts which form the cause of action

  • Demand approach: action accrues when the true owner demands return

Bona Fide Purchasers and Title to Stolen Goods

  • Common law: a thief cannot pass good title, only void title

  • U.C.C. approach: the U.C.C. attempts to balance the need for marketability of goods generally against the rights of the true owner through the entrusting provisions of U.C.C. § 2-204, which permits curing of voidable title

Innocent Third-Party Purchaser

  • An innocent third-party purchaser is one who lacks notice, actual or constructive, of the circumstances of stolen property

Void Title

  • A seller with void title cannot convey good title to an innocent third-party purchaser

  • The innocent third-party purchaser must return the property upon demand to the true owner

Voidable Title

  • A seller with voidable title can convey good title to an innocent third-party purchaser See U.C.C. §2-204

08
Gift

Gifts

  • Intent: present intent to convey property

  • Delivery: transfer of possession

  • AND Acceptance: presumed but can be refused by donee

Delivery

  • Manual/Actual Delivery: donor physically transfers possession to done

  • Constructive Delivery: donor physically transfers the means of access or control to done

  • Symbolic Delivery: donor physically transfers to the done an object that represents or symbolizes the subject or matter of the gift

Public Policy Rationales

  • Make the donor feel the “wrench of delivery”

  • Provide unequivocal evidence of the gift

  • Create prima facie evidence in favor of the gift

Types of Gifts

  • Inter vivos: made during lifetime

    • Irrevocable

  • Gift causa mortis: made in contemplation of death

    • Requires an understanding of the nature of the gift

    • Requires an apprehension of imminent death

      • If donor does not die from the apprehension, the gift is automatically revoked

        • Gift remains revocable at anytime

      • If donor dies from the apprehension, the gift becomes irrevocable

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