john marshall law school chapter 1: real versus personal property a. real property...
TRANSCRIPT
PERSONAL PROPERTY PROFESSOR SCOTT SHEPARD
JOHN MARSHALL LAW SCHOOL
CHAPTER 1: REAL VERSUS PERSONAL PROPERTY
A. Real Property versus Personal Property
Real property is _______________________ or __________________________. It is usually the
ownership of or a use right in _______________________________.
Personal property is movable.
1. Annexation and Severance
o Personal property can be ______________________ or __________________ to real
property by attaching it to the real property so that it, too, becomes
____________________________.
o Generally, one can sever the personal property from the real property if:
1) There is no intent to make a _______________________________ annexation;
2) The severance occurs during the tenant’s ____________________________; and
3) It can be severed without ______________________ to the remaining real property.
2. The Leasehold Quirk
a. Leaseholds
Leaseholds are ___________________________, even though they are also estates in
land.
Example 1: Testator devises all her real property to her son and all her
personal property to her daughter. One of the pieces of property she owned was
the remaining interest in a 5-year lease on a residential apartment. Who
receives the interest in the 5-year lease?
Answer:
_________________________________________________________________
b. Crops
Wild crops are __________________________; cultivated crops are
________________________.
When conveying land, both types of crops will pass with the land, unless otherwise
agreed.
2 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
Exception: Doctrine of Emblements
o Tenants or the heirs or assigns of holders of life estates may re-enter to take the
crops that cultivated during their tenure, if the tenure was:
(a) For an ___________________________________, and
(b) If the tenancy was terminated for reasons other than the
____________________________ or the _______________________ of the
tenancy.
Example 2: Farmer Bob holds Blackacre for life. In April, he plants the
summer wheat. In July, he dies. Who gets the wheat?
Answer: Bob’s heirs or assigns will take the wheat under the Doctrine of
Emblements because Bob’s life estate has an
_____________________________ and it was Bob’s labor and materials that
made the wheat grow.
Example 3: Instead, Bob has a 5-year fixed-term lease that ends on July 1. In
April, he plants the wheat. In August, he wants to harvest the wheat. Who
takes the wheat?
Answer: Neither Bob nor his successors may harvest the wheat. It passes to the
____________________ or to a ______________________.
3 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
CHAPTER 2: TRANSFER OF TITLE – PART 1
A. Summary: Transfer of Title to Personal Property
1. There are eight ways to acquire (or, sometimes, to lose) title to personal property:
1) Capture
2) Creation
3) Conversion
4) Find
5) Accession
6) Confusion
7) Adverse Possession
8) Gift
2. In addition to these eight, there are five ways to lose title:
1) Abandonment
2) Loss
3) Misplacement
4) Fraud
5) Conversion
B. Transferring Title of Property in More Detail
1. Capture of Un-owned Property
a. Wild Animals
Wild animals remained un-owned until someone __________________ them to
____________________________.
This happens when a party can exercise _______________________________________
over them.
b. Owned Animal Escapes
Owned animals that escape into the wild become un-owned again, unless:
4 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
i) The owner has ___________________ (e.g., tagged or branded) the animal, and
the owner makes diligent efforts to ___________________________ it;
ii) The owner is in the act of
______________________________________________ (e.g., hot pursuit); or
iii) The animal periodically leaves the owner’s property, but
_____________________________ (e.g., domesticated cats).
Trespassers do not take captured property for themselves. They capture for the benefit
of ______________________________________.
If capturing un-owned property violates a statute, there can be penalties imposed,
which include forfeiture of the right to title by capture.
Example 4: Imagine that you go hunting for bear on your own property (or on
another’s property with permission.) Do you own the bears wandering through
the woods?
Answer: ____________. You cannot make a consistent ownership claim to the
bears. To become the owner of the bear, you have to reduce it to your
possession and control.
Example 5: Imagine that you go hunting on your neighbor’s land without his
permission and bag a brace of pheasants. Do you own the animals you
captured?
Answer: ___________. You will have to turn over your capture to the
landowner; a trespass is a wrong, and the wrongdoer cannot profit from the
wrong done.
2. Creating New Personal Property
Exam Tip 1: The most tested example: ___________________________.
o Products of the mind are protected by common-law rule and especially by federal statute,
including the patent, trademark and copyright statutes.
o In order to gain a common-law copyright, the author must:
a) Show the work is actually __________________________ and is
___________________; and it obtains from the point when the creator
b) Converts the idea into a fixed, tangible medium of expression.
o The copyright will last for the author’s lifetime plus ________ years after the author’s death.
(Anonymous authors get either 95 years from publication or 120 years from the creation of
the work.)
o However, the copyright must be ____________________________ in order to permit a
__________________________________ and to receive federal statutory damages.
5 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
3. Conversion of Personal Property
o General rule: Someone who has converted the property of another, and who does not have
good title to it, generally cannot pass along good title to it to a third party.
o Exceptions:
Transfers of _____________________ or other negotiable goods from the converter to
an _______________________________________;
Transfers of goods that were obtained through ___________________ or
misrepresentation to an innocent third- party purchaser (good faith purchaser for
value).
o Passive conversion as a cause of action: An owner whose property has been misdelivered
to some third party or substantially damaged can bring a claim for conversion, and can force
the breacher to ___________________ the goods from the original owner and pay
_______________________________________________________________________.
6 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
CHAPTER 3: TRANSFER OF TITLE – PART 2
A. Transfer of Property (continued)
1. Finders Law: Abandoned, Lost and Misplaced Property
a. Abandoned Property
If someone expressly and intentionally abandons property, it becomes
_________________ and available for capture by the finder under the rules for capture.
If no one claims abandoned property for long enough, the property will
__________________, or be forfeited to the state.
b. Lost and Misplaced Property; Treasure Trove
A finder can take title to both lost and misplaced property, but does so subject to a
superior claim from the ______________________________.
Goods are lost when the original owner __________________________ puts them in
some place _______________________ to the owner.
Finders’ claims are ALWAYS inferior to:
The true owner, AND
The underlying _____________________________ if:
i) The finder is a ___________________________ on the land; or
ii) If the land is ______________________________ and the general public is not
invited there; or
iii) If the goods were __________________________________________ the land.
In most states (including Illinois), the finder must turn over the property to his employer
if he found it while performing his duties.
Goods are misplaced when the original owner _____________________ put them down
somewhere and later
____________________________________________________________________.
Finders’ interests are ALWAYS inferior to:
i) The true owner; and
ii) The rightful possessor of the land on which the goods are misplaced.
Goods are a treasure trove if they are intentionally concealed in anticipation of
retrieving them at a later date.
Common Law: Any finder, even a trespasser, could claim a treasure trove.
Modern Rule: Generally, the property is treated as if it were ____________.
7 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
Note 1: Whoever has the best title in each circumstance, other than the true owner, becomes a “_______________________” and can treat the property as if it were his own until the true property owner claims it. But the party has a duty to try to locate the true owner, and could be held liable if he fails to do so.
Uniform Disposition of Unclaimed Property Act
Illinois, like most states, has a statute dealing with the disposition of intangible
property (money, stocks, items in a safe deposit box) if the property goes unclaimed
through the statutory period after notice is posted.
2. Accession
o Definition: Accession occurs when some personal property is altered or improved by the
____________________ of ___________________________________________ to the
original property.
o The accession of materials to an owner’s goods, whether in the course of repair or
otherwise, generally transfers ownership of the materials accessed to
________________________________________________________.
o Two issues with trespassers
1) Innocent Trespasser
Genuinely, but wrongly, believes he is improving his own goods with his own
materials.
The preferred course, if possible, is to
___________________________________________________ without
_____________________________________________________________.
If this cannot be done, the default rule is that the original owner will
_________________________________, unless the original identity of the property
is _________ due to the accession, transforming the goods into a
_______________________________. The accessing party must pay the value of
the goods effectively converted.
If not substantially altered, but the owner feels the goods were damaged by the
accession rather than improved by it, the owner can seek compensation.
Example 6: Bob and Sally are neighbors with a backyard not cut by a fence.
In that back yard has long stood a grill that both parties have used without
complaint – in fact, after all these years, both think they own it. Bob goes out
one day to do some work on the grill. He solders and makes other repairs that
cannot easily be removed from the grill. Sally thanks him the next day and Bob
asks why she is so happy. They realize that Sally is actually the owner of the
grill. Does Bob have any claim under these circumstances to the grill or its
improvements? Why or why not?
8 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
Answer: __________________________________________________________
_________________________________________________________________
_________________________________________________________________
Example 7: Same situation as above, except this time, Sally collects 2x4s
from the back yard thinking they are hers and builds a birdhouse to put in the
yard. Bob, who owns the wood, realizes what she has done with it. Who owns
the birdhouse? What other consequences arise?
Answer: __________________________________________________________
_________________________________________________________________
_________________________________________________________________
2) Willful Trespassers
A willful trespasser gets nothing, and owes for any damages caused.
Example 8: Assume a thief stole a beat up car that barely ran. After he steals
it, he gets it running like new. He is then arrested and the car is returned to the
original owner. Who gets the car? Can the thief seek compensation?
Answer: The car will be returned to its original owner, and the thief cannot
request compensation from the owner.
3. Confusion
o If everyone has an unquantified claim to an undifferentiated mass of the same goods, all
mixed together in the same place, no one will be able to discern her property from that of
the other property owners.
o The law declares all the property owners to be
“__________________________________________” of the mass in proportion to their
contribution to the property pile.
If the parties don’t know how much they each contributed to the mass, proportionally,
and no one wrongly contributed to the confusion, then everyone shares out the mass
___________________________.
If someone wrongly contributed to the confusion, he must demonstrate his proportional
contribution. If unable to do so, he takes _________________________ and the other
owners divvy up the mass equally between themselves.
4. Adverse Possession
o Adverse possession requires the possessor to maintain possession that is:
9 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
1) _____________________________
2) _____________________________
3) _____________________________
4) _____________________________
5) ________________________________________________________
Note 2: This possession must continue throughout the _____________________________________________________________ period; this is usually much shorter for personal property than for real property.
Note 3: Courts are particularly wary of adverse possession of personal property because of the ___________________________________ requirement; it is much easier to conceal possession of personal property than of real property.
Example 9: You come into possession of a precious oil painting, and hang the
painting over the mantel. However, the true owner of the painting never comes
to your house. If the true owner of the painting had no other reason to know of
your possession, then your possession could not qualify as adverse possession. It
is difficult to prove the ______________________ element.
o Separate trespassers may tack as long as there is privity between the trespassing parties.
o Tolling works the same as with real property.
10 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
CHAPTER 4: TRANSFER OF TITLE – PART 3
A. Transfer of Property (continued)
1. Gifts
o Definition: Voluntary transfer of ownership of property without _________________ or
_______________________________.
o A promise to make a gift of personal property in the future is not binding unless:
1) There is ___________________________; or
2) There has been reasonable ________________________.
a. Inter vivos gifts. Three elements/requirements:
1) Donor’s intent
Requires the ___________________________ to intend something, and
May be ___________________________.
Example 10: Bob and Sally plan to get married, and receive a large number of
wedding gifts. They decide to call it off two days before. Will they be able to
keep the gifts?
Answer: _________________________________________________________
________________________________________________________________
2) Delivery
Delivery provides a clear manifestation of the donor’s intent to relinquish her title
and possessory interest. The decisive factor is whether the putative donor has the
power independently to re-claim the property.
Four ways to deliver the gift:
i) Physical (preferred)
Example 11: Sally decides to give Bob a present and leaves it on her back
porch while he is at work. Sally changes her mind and retrieves the present
before Bob gets home. If Bob returns later and discovers Sally’s actions, could
he reclaim the gift?
Answer: _________________________________________________________
________________________________________________________________.
Example 12: What if Bob came home early, noticed the present on his back
porch, and took it inside?
11 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
Answer: Bob can keep the gift. Sally is now incapable of taking the gift back
without Bob’s consent. The gift is delivered because Bob took actual, physical
delivery.
ii) Constructive Delivery
(a) The law imputes actual delivery where circumstances make the physical
delivery impractical.
(b) A simple declaration is ___________________________ to establish
constructive delivery. It must be coupled with something more to
demonstrate delivery, particularly some action that transfers to the grantee
the ability to access the gift.
iii) Express Signed Writing
iv) Symbolic Delivery
(a) Giving someone a formal manifestation of inchoate goods, thus symbolizing
the gift. The most common examples of symbolic deliveries are of
_______________________________.
(b) Delivery of a ____________ is not complete until presented and cashed.
The value remains in the donor’s control until the check is cashed.
(c) Delivery of a stock certificate is complete upon delivery, because bearing
the stock certificate
_____________________________________________________.
3) Acceptance
Presumed. If a grantee wants to reject a gift, she must make this clear.
b. Gifts Causa Mortis
Definition: Gifts given ____________________________________________________.
Elements:
Intent
Delivery
Acceptance
_____________________________________
Such gifts are effectively __________________________________.
Example 13: Let’s assume that Bob is at death’s door. He gives his car to Sally.
We presume that he genuinely wants her to have the car, but also that he
wouldn’t have granted the car to her if he weren’t dying. Thus, the key
distinction – gifts causa mortis are:
12 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
Revocable (unlike inter vivos gifts)
Grantor can revoke until _______________ or ______________________.
Revoked by operation of law if the person recovers.
Gifts causa mortis may only be made involving _________________________, not
____________________________________.
c. Gifts to minors
The Illinois Uniform Transfer to Minors Act allows ____________________________ to
be given to minors before majority for tax-exclusion purposes, but the minor does not
receive the property until the age of majority.
The control of the gift property is given to a ____________________ who must act with
______________________ responsibility toward the property until handed over to the
minor.
13 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
CHAPTER 5: REMEDY ACTIONS & LIENS
A. Remedies of Personal Property Owners
Conversion:
______________________________________________________________________________
Replevin: ______________________________________________________________________
Trespass:
______________________________________________________________________________
Trover:
______________________________________________________________________________
B. Liens
1. Definition
o ___________________________________________________________________________
2. Parties
o Lienor – the person entitled to the goods until the debt has been paid (creditor).
o Lienee – the person who must pay to regain control of his goods (debtor).
3. Types of Liens
o General: allows the lienor to continue to possess the debtor’s property until the debtor has
satisfied all debts owed to the lienor arising from the same line of business.
o Special: lien lasts until payment is made for the work or service that put the goods in the
lienor’s possession.
o The more common kind of lien (by far) is the _________________________ lien.
o Statutory Liens - Illinois Mechanic’s Lien Law
o Common Law Liens – apply to artisan and tradesmen who repair personal property,
warehouses and other bailees which move or store goods, landlords who have a lien over
the tenant’s goods that are kept on the landlord’s property and hoteliers and inn keepers
who have liens over the possessions of their guests
4. Discharge of Liens
o Satisfaction of Debt
o Waiver or Release without satisfaction (expressly or implied by behavior)
o Conditional return without a waiver of the lien.
Example 14: Sally is a repair shop owner. Bob is a famer and has brought his
tractor in for repair. Bob hasn't paid off the repair work, and lacks the money to
pay. In fact, Bob needs tractor in order to bring in the harvest so that he can sell
it to earn the money to pay for the tractor repairs and satisfy the lien. Sally can
14 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
"lend" his tractor back to Bob, for the limited purpose of harvesting the crop,
without waiving her lien.
15 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
CHAPTER 6: BAILMENTS
A bailment occurs every time someone passes _____________________________ of his/her
property to someone else without passing ______________________________.
Definition: The delivery of personal property by the bailor (i.e. owner) to another person, the
bailee, for a period of time without ownership of the property passing to the bailee. These
arrangements can be by contract or can be ________________________________.
Elements:
1) Actual ____________________________ of the goods by the bailee;
2) _____________________ of exactly what is possessed by the bailee; and
3) _____________________ to possession.
Example 15: Sally is going on vacation and she wants Bob to look after her
car. If they make the agreement and Sally delivers the car, then the bailment
has been created. However, if she just parks the car in the driveway, a proper
bailment will not be created until Bob notices and agrees to serve as a bailee.
Even if they had agreed previously as to the car, but Bob did not know that Sally
had left a box of vinyl records in the trunk, Bob would not be a bailee of those
records – and would not be liable if they melted in the heat while Sally was
gone.
A. Conditional Bailments
Bailor gives the bailee possession for a specific purpose; these conditions can be
___________________ or _______________________.
Consignment: Bailment for the conditional purpose of the bailee’s _____________ of goods.
Pledge: The bailor gives the bailee/creditor a pledge of collateral goods against the
__________________ they are contracting.
A bailee is __________________________ to the bailor for damages resulting from a violation
of the bailment conditions.
B. Duties of the Bailee
If the bailment is entirely for the benefit of the bailor, the bailee owes only a
___________________ duty of care.
If the bailment is mutually beneficial, the bailee owes an __________________ duty of care.
(Consists mostly of ___________________ bailments, e.g., to ________________________.)
If the bailment is entirely for the benefit of the bailee, the bailee owes a ______________ duty
of care.
Example 16: Bob's car breaks down and is in the shop. He needs a car to get
to work, and Sally has an extra car. Bob borrows Sally's extra car to get to
16 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
work. Because the bailment is solely for Bob’s advantage, Bob owes a
_________________ duty of care.
o Even a bailment for the sole benefit of the bailee does not create strict liability.
o Strict liability is reserved for cases in which the bailee
_________________________________________________, including delivery and re-
delivery.
The bailee is NOT an ______________________ for the goods, except innkeepers.
C. Rights of the Bailee
Steps into the bailor’s possessory interest to the extent of the terms of bailment, and can
therefore bring the same ____________________ a bailor can, and may be subject to creditors
of the bailor.
Bailor will pay for ________________________________________ arising during the bailment,
and the bailee can put a lien on the property.
Example 17: Sally keeps Bob’s car at her house while he goes out of town.
Sally has to move Bob’s car to get her own car out of the garage, but it won’t
start. Bob is unreachable. Sally has to call a tow truck to move Bob’s car. This is
an extraordinary expense, not Sally’s (bailee’s) fault, so Bob (bailor) must pay
the expenses, and Sally has a lien on the car until he reimburses her.
D. Rights and Duties of Bailor
Action based on _________________________ occurring during the bailment (if conditions
followed, a type of negligence will apply; if they were violated, strict liability).
Action based on breach of _______________________________.
Action against ___________________________ who interfere with the bailment.
The bailor must inform the compensated bailee of any _________________ in the personal
property.
E. Termination of Bailment
According to terms
Conduct of the parties
Example 18: A homerun ball is caught by a young fan. The fan hands the ball
to his father for safe keeping until they return home. The ball is stolen by a
thief. The thief takes it to a memorabilia shop, gets the ball valued, and sells
the ball to the shop for about 1/8th of its value. Three questions:
(1) What legal relationship arose when the son handed the ball to his father?
17 | © 2013 Themis Bar Review, LLC | Illinois Personal Property
Answer: __________________________________________________________
_________________________________________________________________
_________________________________________________________________
What happened to the baseball team’s ownership of the ball?
________________________
How did the son get ownership? __________________________
(2) What is the cause of action the son could bring against the thief and the
contours of the action?
Answer: _________________________________________________
(3) Can the memorabilia shop that bought the ball from the thief keep it? And
can it use the belief that the thief owned the ball as a defense against the son?
Answer:__________________________________________________________
_________________________________________________________________
________________________________________________________________
[END OF HANDOUT]