Chapter 48 Property Outline

The key points in this chapter include:

1. The difference between personal and real property.

2. Fixtures.

3. Different types of property ownership.

4. Ways in which property can be acquired.

This chapter covers the attributes of personal property, the ways in which rights in both personal property and real property can be held, and ownership rights in personal property.

I. PERSONAL PROPERTY AND REAL PROPERTY
Personal property can be tangible (a television set) or intangible (stocks, computer program). Real property consists of land and everything permanently attached to it.

II. FIXTURES
Personal property so closely associated with certain real property that it is viewed as part of it (such as plumbing in a building). Fixtures are included in a sale of land if the contract does not provide otherwise.

A. FACTORS IN DETERMINING WHETHER AN ITEM IS A FIXTURE
The intent of the parties, whether the item can be removed without damaging the real property, and whether the item is sufficiently adapted so as to have become a part of the real property.

B. TRADE FIXURES
Installed for a commercial purpose by a tenant, whose property it remains, unless removal would irreparably damage the real property.

III. PROPERTY OWNERSHIP
Ownership can be viewed as the rights to possess property and to dispose of it.

A. FEE SIMPLE
A person who holds all of the rights is an owner in fee simple (see Chapter 50); on death, the owner’s interest descends to his or her heirs.

B. CONCURRENT OWNERSHIP

1. Tenancy in Common
Each of two or more persons owns an undivided interest (each has rights in the whole if each had rights in specific items, the interests would be divided. On death, a tenant’s interest passes to his or her heirs. Most states presume that a co-tenancy is a tenancy in common unless there is a clear intention to establish a joint tenancy.

2. Joint Tenancy
Each of two or more persons owns an undivided interest in the property; a deceased joint tenant’s interest passes to the surviving joint tenant or tenants. Can be terminated at any time before a joint tenant’s death by gift, by sale, or by partition (divided into equal parts).

3. Tenancy by the Entirety
Created by a transfer of real property to a husband and wife; neither spouse can transfer separately his or her interest during his or her life. In some states, this tenancy has been effectively abolished. A divorce, either spouse’s death, or mutual agreement will terminate this tenancy.

4. Community Property
Each spouse owns an undivided half interest in property acquired by either spouse during their marriage (except property acquired by gift or inheritance). Recognized in only some states, on divorce the property is divided equally in a few states and at a court’ s discretion in others.

IV. ACQUIRING OWNERSHIP OF PERSONAL PROPERTY

A. PURCHASE
Outlined in Chapters 21, 22, 23, 24 and 25.

B. POSSESSION
An example of acquiring ownership by possession is the capture of wild animals. (Exceptions: (1) wild animals captured by a trespasser are the property of the landowner, and (2) wild animals captured or killed in violation of statutes is the property of the state.)

C. PRODUCTION
Those who produce personal property have title to it. (Exception: employees do not own what they produce for their employers.)

D. GIFT
A gift is a voluntary transfer of property ownership not supported by consideration.

1. The Three Requirements for an Effective Gift

a. Delivery

1) Constructive Delivery
If a physical object cannot be delivered, an act that the law holds to be equivalent to an act of real delivery is sufficient (a key to a safe-deposit box for the contents of the box, for example).

2) Delivery by a Third Person
If the person is the donor’s agent, the gift is effective when the agent delivers the property to the donee. If the person is the donee’s agent, the gift is effective when the donor delivers the property to the agent.

3) Giving Up Control
Effective delivery requires giving up control over the property.

b. Donative Intent
Determined from the language of the donor and the surrounding circumstances (relationship between the parties and the size of the gift in relation to the donor’s other assets).

c. Acceptance
Courts assume a gift is accepted unless shown otherwise.

2. Gifts Inter Vivos and Gifts Causa Mortis Gifts inter vivos are made during one’s lifetime. Gifts causa mortis are made in contemplation of imminent death, do not become effective until the donor dies, and are automatically revoked if the donor does not die

E. WILL OR INHERITANCE
Outlined in Chapter 53.

F. ACCESSION
Occurs when someone adds value to a piece of personal property by use of labor or materials. Ownership can be at issue if
1. Accession Occurs without Permission of the Owner Courts tend to favor the owner over the one who improved the property (and deny the improver any compensation for the value added).

2. Accession Greatly Increases the Value or Changes the Identity
The greater the increase, the more likely that ownership will pass to the improver (who must compensate the original owner for the value of the property before the accession).

G. CONFUSION
Commingling goods so that one person’s cannot be distinguished from another’s. frequently involves fungible goods. If goods are confused due to a wrongful act, the innocent party acquires all. If confusion is by agreement, mistake, or a third party’s act, the owners share as tenants in common.

V. MISLAID, LOST, OR ABANDONED PROPERTY

A. MISLAID PROPERTY
Property that has been voluntarily placed somewhere by the owner and then inadvertently forgotten. When the property is found, the owner of the place where it was mislaid (not the finder) becomes the caretaker.

B. LOST PROPERTY
Property that is involuntarily left. A finder can claim title against the whole world, except the true owner. Many states require the finder to make a reasonably diligent search to locate the true owner. Estray statutes allow finders, after passage of a specified time, to acquire title to the property if it remains unclaimed.

C. ABANDONED PROPERTY
Property that has been discarded by the true owner, who has no intention of claiming title to it. A finder acquires title good against the whole world, including the original owner. (A trespasser does not acquire title, however; the owner of the real property on which it was found does.)

D. TREASURE TROVE
Money, gold, silver, or bullion hidden in some private place, owner unknown. In the absence of a statute, a finder (who was not trespassing) has title to treasure trove against all but the true owner.