Finders/Exclusion/Trespass/Concurrent Estates

Question 1

Lost Property

Answer 1

Accidental misplacement, is still the owners property

Question 2

Mislaid property

Answer 2

Owner intentionally leaves property and forgets, is still the owners property.

Question 3

Abandoned Property

Answer 3

Owner forms the intent to relinquish rights and has no intention to coming back to the property. The finder of this abandoned property can become the next owner.

Question 4

When will finders lose ownership of property?

Answer 4

When the property is lost or mislaid by the rightful owner.

Question 5

When will finders get ownership of property

Answer 5

When rightful owner abandons the property. Finders generally prevail against all subsequent possessors of the property.

Question 6

If someone is trespassing on an owner’s property and finds a lost/mislaid/abandoned object on the owner’s property, who prevails as owner of the object?

Answer 6

The owner of the property when trespassing. IF the finder has permission to be on the property, the courts are divided.

Question 7

If someone finds a lost/mislaid/abandoned object in a place open to the public, who prevails as the owner of the object?

Answer 7

Some courts grant ownership to the finder, some courts to the landowner.

Question 8

If one finds an object inside a private home who prevails as owner of the object?

Answer 8

Typically the homeowner.

Question 9

Trover

Answer 9

P to prove D committed the act of conversion (D wrongfully exercised dominion or control over chattel)

Question 10

Writ of Replevin

Answer 10

Where the owner of the converted chattels can sue only for damages.

Question 11

Relativity of Title

Answer 11

Title to property that may prevail over some people, but is not absolute and will not prevail against another who has a superior claim.

Question 12

Constructive Possession

Answer 12

Grants the owner the right to obtain physical control and/or a variety of rights over someone else’s physical control of that property.

Question 13

Tenancy in Common

Answer 13

• 2 or more
• The equal right to possess the WHOLE property
• Created explicitly by conveying property to more than one party
• Cotenant only has authority to transfer THEIR interest.

Question 14

Partition

Answer 14

A division of concurrent interest in land so that each owner may enjoy and possess their interest in severalty.

Question 15

Joint Tenancy

Answer 15

Each owner (2+) has an undivided interest in the property that creates a right of survivorship. REQUIRED unities are:
1. Possession
2. Interest
3. Title
4. Time

Question 16

Right of Survivorship

Answer 16

When one owner dies, the other owners absorb the deceased owner’s interest. The last surviving party owns the property outright.

Question 17

Unity in Possession

Answer 17

All joint tenants must possess the entire parcel.

Question 18

Unity in Interest

Answer 18

All joint tenants must possess equal fractional undivided interests in the property and their interest must last the same amount of time.

Question 19

Unity in Time

Answer 19

The interest of each joining tenant must be created at the same moment in time.

Question 20

Unity in Title

Answer 20

ALL joining tenants must acquire title by the same instrument or title.

Question 21

Popov v. Hayashi

Answer 21

A person acquires a qualified (NOT absolute) pre-possessory interest in abandoned property if they took significant steps toward achieving possession but is prevented from completing attempt bc of unlawful acts of others.

Question 22

Pierson v. Post

Answer 22

H: Pierson gets ownership of fox when he killed it
F: Pierson gets Fox, Post in pursuit of fox
R: mere pursuit is NOT enough to give the pursuer property rights.

Question 23

Armory v. Delamirie

Answer 23

H: The finder of lost property has a superior interest in that property over other except for the original owner.
F: Chimney sweep boy finds jewelry in chimney.
R: Abandoned property - owner forms intent to relinquish all rights to the property.

Question 24

Charrier v. Bell

Answer 24

Items in graves are not considered abandoned.

Question 25

Wilcox v. Stroop

Answer 25

Possession creates a presumption of ownership and that presumption may be rebutted. Chain of title.

Question 26

Right to Exclude

Answer 26

*Stick in Bundle* Allows the owner of property to prevent the use of their property by others.

Question 27

Exception to Right to Exclude:

Answer 27

Public or Private Necessity may justify entry upon the lands of another

Question 28

State v. Shack

Answer 28

Exception to right to exclude: Representatives of govn't/charitable organizations may enter upon a farmer's premises to a migrant worker's living quarters to aid them as long as worker consents.

Question 29

US v. Bhagat

Answer 29

Exclusion of immigrants to US soil - targeted individuals migrating from Asia.

Question 30

Commonwealth v. Magadini

Answer 30

Necessity is a defense against trespass when the harm that would have resulted if complying with the law EXCEEDS the harm actually resulting from D's violation of the law.

Question 31

Elements of Necessity

Answer 31

D to show: 1. A clear and imminent danger existed 2. There was a reasonable expectation the D's criminal act would abate the harm 3. There were no legal alternatives available 4. The state legislature has not prohibited the defense

Question 32

Utson v. Resorts

Answer 32

Under the common law, places of amusement open to the public have a right to exclude but this case was rare and held that it was unreasonable to exclude Utson from the black jack tables.

Question 33

Glavin v. Eckman

Answer 33

Dealing with damages for trespass. Anyone who willfully cuts & carries away trees is 1. liable for 3x the amount of damages or 2. diminution in market value of property affected or 3. Restoration damages

Question 34

Jacque v. Steenberg Homes

Answer 34

A landowner, even w/o suffering actual harm, can be compensated for losing the right to exclude others from their land. -- Jury has discretion to award punitive damages for trespass w/o compensatory damages.

Question 35

D must prove what for establishing a discrimination claim for public accommodations?

Answer 35

1. Member of protected class 2. Tried to avail the services 3. Were denied, withheld or refused

Question 36

McClure Management LLC v. Taylor

Answer 36

A complete withholding of public accommodations isn’t necessary to prove a discrimination claim.

Question 37

Lloyd Corp.

Answer 37

An owner of a private shopping center has the constitutional right to exclude individuals from handbilling when they are unrelated to the center's operations.

Question 38

Three types of concurrent estates

Answer 38

1. Joint Tenancy 2. 3. Tenancy by the entirety

Question 39

Tenancy by the entirety

Answer 39

Between married partners with the right of survivorship

Question 40

Freely alienable

Answer 40

interest can be freely transferred during owner's lifetime.

Question 41

What does the P stand for in the acronym "PITT" under the 4 unities for Joint Tenancy & its meaning

Answer 41

Possession - Joint T's must have the right to possess the whole.

Question 42

What does the I stand for in the acronym "PITT" under the 4 unities for Joint Tenancy & its meaning

Answer 42

Identical Interests - Joint T's must have equal interests or shares

Question 43

What do the T's stand for in the acronym "PITT" under the 4 unities for Joint Tenancy & its meaning

Answer 43

Time - Joint T's must take their interest at the same time Title - Joint T's must take their interest in the same document (deed/will)

Question 44

For the creation of a Joint Tenancy, what must the grantor state in the document that lists the Joint tenants interests?

Answer 44

CLEARLY state the right of survivorship. Ex: To A & B as joint tenants with the right of survivorship.

Question 45

In what ways can a Joint Tenant sever their joint tenancy?

Answer 45

1. By sale 2. By Partition

Question 46

When a joint tenant sells their interest, do they need the other Joint tenant's permission/consent?

Answer 46

No, other Joint tenant's aren't even required to know about it. But buyer becomes a Tenant in common.

Question 47

What happens when A & B are joint tenants, C is a tenant in common and B dies?

Answer 47

A takes over B's interest and now both A and C are tenants in common.

Question 48

Three ways of partitioning joint tenancy?

Answer 48

1. By voluntary agreement 2. Partition in Kind 3. Forced Sale

Question 49

Partition by voluntary agreement

Answer 49

When the joint tenants mutually agree to split the property.

Question 50

Partion in Kind

Answer 50

In the best interests of all, the court orders to split the property between the parties in way that is equal to their interest. Typically happens when the land is physically able to be divvied up. (Acreage/farm land)

Question 51

Forced Sale

Answer 51

In the best interests of all, the court orders the sale of the property and the proceeds are split equally among the parties. (Typically when it's a residential property/commercial building)

Question 52

Can a tenant by entirety by themselves, unilaterally transfer their share to a 3rd party?

Answer 52

No - because both parties need to agree.

Question 53

Are tenancies in common alienable & inheritable?

Answer 53

Yes.

Question 54

What is the default Concurrent Estate?

Answer 54

Tenants in Common

Question 55

What Concurrent estate avoids probate? What one does not? Why?

Answer 55

Joint T's avoid probate bc the right of survivorship bypasses the system. Tenants in common have to go through probate because they do not have the right of survivorship.

Question 56

If A owns 10% and B owns 90% of property, what concurrent estate is this called? Can B split up 90% of the property for themselves? Why or why not?

Answer 56

This is a tenancy in common - B cannot split up because each co-owner has the right to use & enjoy the whole property, irrespective of their individual shares.

Question 57

Ouster

Answer 57

The act of wrongfully excluding someone, especially a cotenant, from real property. Acts such as changing the locks, posting “no trespassing ” signs, or physically denying a cotenant admittance to a piece of property are all considered ousters.

Question 58

Do co-tenants in exclusive possession have to pay rent to other co-tenants that do not have exclusive possession?

Answer 58

No. Limitation: Ouster.

Question 59

What is required to sever a Tenancy by Entirety?

Answer 59

A divorce agreement/decree

Question 60

Is a co-tenant who makes a reasonable or necessary repair entitled to contribution by the other co-tenants for that repair?

Answer 60

Yes as long as they told the others about the need for that repair.

Question 61

Is a co-tenant who makes an improvement toward the property entitled to contribution by the other co-tenants?

Answer 61

No - BUT at the time of partition, improver gets a credit equal to any increase in value they caused.

Question 62

Can a Co-tenant adversely possess the property when they have exclusive control? Why or why not?

Answer 62

No because AP cannot exist w/o hostility (owner not giving consent)

Question 63

At partition, if the "improver" ended up making an "improvement" that dropped the value of the property, what happens?

Answer 63

"Improver" bears full liability for any drop in value they have caused.

Question 64

Who has the right to bring an action for partition?

Answer 64

Any joint tenant or tenant in common

Question 65

Does a co-owner/tenant of a property have a duty to NOT commit waste?

Answer 65

Yes.

Question 66

Can a co-tenant bring an action for waste immediately or have to wait until partition?

Answer 66

A co-tenant can bring an action for waste at anytime of the co-tenancy.

Question 67

When there's a tenancy in common and one co-tenant rents out their share to a 3rd party, what does that 3rd party become?

Answer 67

The third party then becomes a tenant in common with the others but for the duration of their lease.

Question 68

Carr v. Deking

Answer 68

H: A tenant in common may lease out their own interest in the land and the other co-tenants cannot eject the leasee from the land if they aren’t joined in the lease. F: Tenants in common (father & son) - leased land to 3rd party, where the men received ⅓ of the annual crop as rent. Son wanted cash the next crop year but 3rd party contacted dad to continue the crop as rent and put in writing for 10 years. R: A co-tenant can lease out their interest w/o consent of other AND w/o the other co-tenants joining in the lease.

Question 69

Tenhet v. Boswell

Answer 69

H: A lease does NOT sever joint tenancy BUT expires upon the death of the lessor, therefore any surviving JTs are entitled to sole possession. F: Johnson & Tenhet acquired land as Joint tenants. After divorce - Johnson leased land w option to purchase to Boswell w/o Tenhet’s knowledge. Johnson passed away soon after. Tenhet demanded Boswell leave the land & sued to have lease declared invalid. R: Generally - Leases are not enough to terminate a joint tenancy unless one of the joint tenants clearly & unambiguously express their desire to terminate Joint tenancy.

Question 70

Ark Land Co v. Harper

Answer 70

H: Partition by sale should be ordered with restraint and that court should consider various reasons to partition in kind before deciding to partition by sale. F: A lot of members of the Caudill family owned property together and some refused to sell to Ark land but many sold to Ark. Ark filed a lawsuit seeking partition by sale. R: Court should consider: 1) Monetary considerations & economic value 2) Emotional Interest 3) Familial Ties to property - land was to be partitioned in kind. (minority view-majority will only look at economic value & inability to partition in kind.)

Question 71

A party desiring to compel partition through sale is required to demonstrate:

Answer 71

1. That the property cannot be conveniently partitioned in kind 2. That the interests of one or more of the parties will be promoted by the sale, and 3. The interests of the other parties will not be prejudiced by the sale. (Ark Land)

Question 72

O’brien v. O’brien

Answer 72

H: A professional license to practice that was acquired during marriage is marital property that is subject to equitable distribution. F: Husband/wife - future doctor-wife supports husband, puts aside her goals to support. Husband cheats. Wife wants $ for partial ownership of the doctor’s license. R: In NY, all marital property is subject to equitable distribution. (like pensions) → wife invested time & effort towards husbands degree.

Question 73

CONSTRUCTIVE OUSTER

Answer 73

Where the property cannot feasibly be possessed by all cotenants. Examples: A bank becoming a single family home or 5 room cottage where multiple families live together.