Property Rights and Violations
What is a trespass? (elements)
(2) remains on the persons land, OR
(3) fails to remove a tangible item off the land that the actor is responsible for
what is the rule of capture?
people can acquire resources by being the first to possess them.
what are the requirements of a custom?
(1) longstanding usage
(2) peaceable and historically uncontested
(3) character of use (reasonable and public acceptance)
(4) the custom is not optional and does not conflict with laws or other customs
what is a fee simple?
owns the land forever
When can you utilize self help?
allowed for chattels if it can be acomplished without creating risk or actual violence.
never allowed for real property
What is the right to exclude?
the property owner has a right to control access to their land or property.
what does discovery establish?
it establishes a unique right to possess a thing unlike first possession which requires you to actually possess it. if you discover it you own it.
what are riparian rights?
you have a right to use it because you live next to it/on it.
everyone has equal rights to the water and use must be reasonablewhat are the 3 types of fee simples and their definitions?
fee simple determinable: gets the land in a fee simple for as long as the condition is satisfied (POR)
Fee Simple subject to condition subsequent: land in fee simple as long as they satisfy the condition BUT gets to stay until kicked out
fee simple subject to executory limitation: land in fee simple as long as a condition does/does not occur when shifts to a 3rd party
what is a building encroachment and what is the remedy?
a building encroachment is a object/structure etc that is on another's property.
Remedies:
if encroachment is innocent, minimal, and/or does not effect the land --> the plaintiff can recover $$ but the defendant does not have to remove it.
if encroachment is not innocent: structure may have to be removed, torn down even if it is minimal.
(1) How do courts decide whether something is a nuisance and (2) what are the elements of a nuisance?
(1) a utilitarian balancing test is used. the courts will weight the gravity of the harm against the social utility or benefit of the activity causing the harm.
(2) the invasion is either: (a) intentional and unreasonable, OR (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
What is accession?
an owner of ones resource being able to claim ownership of related subordinate resource.
owner of tree owns the fruits.
what is prior use (water)?
first in time first in right. Basically the first person to put them use gets to use them.
What are the 3 interest that are subject to rap and their definations?
executory interest: a future interest in a transferee that divest or cuts a previous interest.
vested subject to open: class of person with at least 1 qualified person to take possession but member amount isnt fixed.
contingent remainder: not vested, unascertained person, condition precedent--expressed condition to occur BEFORE remainder becomes possessory.
what is a bailment and what is its duty of care?
Bailment: arises when the owner of property (the bailor) temporarily transfers custody of the property to another (bailee)
duty of care: reasonable care under the circumstances. if delivering: strict liability.
When is injunctive relief granted for trespass/nuisance?
when monetary damages are inadequate for compensate for the damage caused to the land or the injury/threatened injury is irreparable or repeating
what is the fixture element test?
(2) adaption
(3) intent-->objective
Groundwater use: East v West
East: you can pump whats under your land as long as it reasonable and being used on your property.
West: you get a proportional share based on how much land you own over the aquifer, still must be reasonable.
What is the interest that follows a life estate for the grantor?
reversion
What are the 3 types of waste and their definations?
affrimative waste:occurs when the life tenant/leasee undertakes soem affirmative act on the property that is unreasonable and causes excess damage to the revertor or remainder.
permissive: occurs when the life tenant or leasee fails to take some action with regard to the property and the failure to act is unreasonsable and causes excess damager to the revertor or remainder.
ameliorative: an affirmative act by the life tenant/leasee that significantly changes the property but results in an increase rather than a diminution in its market value.
What is the coase theorem?
it cares about what is best for society, and what is the highest value/best use of the land.
what is the difference between accretion and avulsion?
accretion: if the water serves a boundary line between proeprty owners, when the water moves so does the boundary lines (gradually)
avulsion: this is a rapid change in the loss or addition of land caused by a natural force, and the boundary line does not change.
What is the rule of reasonable use?
each land owner must use their own property as to not injury another and each landowner is restricted to a reasonable exercise of his own rights and reasonable use of their land.
difference between a springing executory interest and a shifting executory interest?
shifting: shifts from original grantee and cuts prior interest short if the prior holder breaks the condition
springing: jumps from original grantor cuts prior interest short by meeting the condition.
difference between Tendency in common and joint tendency?
what are the elements of joint tendency?
TIC: each tenante has a seperate interest, no right of survivorship, and they does not have to have equal shares.
JT: have the same interest, right of survivorship and all have a right to possess the whole.
JT elements:
(1) time
(2) title)
(3) interest
(4) possession