PERSONAL PROPERTY

Everything that is the subject of ownership that does not come under the denomination of real property; any right or interest that an individual has in movable things.

Personal property can be divided into two major categories: (1) corporeal personal property, including such items as animals, merchandise, and jewelry; and (2) incorporeal personal property, comprised of such rights as stocks, bonds, patents, and copyrights.

Possession

Possession is a property interest under which an individual is able to exercise power over something to the exclusion of all others. It is a basic property right that entitles the possessor to (1) the right to continue peaceful possession against everyone except someone having a superior right; (2) the right to recover a chattel that has been wrongfully taken; and (3) the right to recover damages against wrongdoers.

Possession requires a degree of actual control over the object, coupled with the intent to possess and exclude others. The law recognizes two basic types of possession: actual and constructive.

Actual possession exists when an individual knowingly has direct physical control over an object at a given time. For example, an individual wearing a particular piece of valuable jewelry has actual possession of it. Constructive possession is the power and intent of an individual to control a particular item, even though it is not physically in that person's control. For example, an individual who has the key to a bank safe deposit box, which contains a valuable piece of jewelry that she owns, is said to be in constructive possession of the jewelry.

Possession of Animals

Animals ferae naturae, or wild animals, are those that cannot be completely domesticated. A degree of force or skill is necessary to maintain control over them. Gaining possession is a means of obtaining title to, or ownership of, wild animals.

Generally an owner of land has the right to capture or kill a wild animal on her property and upon doing so, the animal is regarded as belonging to that individual because she owns the soil. The traditional legal principle has been that one who tames a wild animal is regarded as its owner provided it appears to exhibit animus revertendi, or the intent to return to the owner's domicile. Conversely when a captured wild animal escapes and returns to its natural habitat without any apparent intent to return to the captor's domicile, the captor forfeits all personal property right and the animal may be captured by anyone.

Lost, Mislaid, and Abandoned Property

Personal property is considered to be lost if the owner has involuntarily parted with it and is ignorant of its location. Mislaid property is that which an owner intentionally places somewhere with the idea that he will eventually be able to find it again but subsequently forgets where it has been placed. Abandoned property is that to which the owner has intentionally relinquished all rights.

Lost or mislaid property continues to be owned by the person who lost or mislaid it. When one finds lost goods, the finder is entitled to possession against everyone with the exception of the true owner.

The finder of lost articles on land belonging to someone else is entitled to possession against everyone but the true owner, unless the finder is guilty of trespass. The finder of misplaced goods has no right to their possession. The owner of the place where an article is mislaid has a right to the article against everyone but the true owner. Abandoned property can be possessed and owned by the first person who exercises dominion over it with an intent to claim it as his or her own. In any event, between the finder of a lost, mislaid, or abandoned article and the owner of the place where it is found, the law applies to whatever rule will most likely result in the return of the article to its rightful owner.

Ordinarily when articles are found by an employee during and within the scope of his employment, they are awarded to the employer rather than to the employee-finder.

Treasure trove is any gold or silver in coin, plate, or bullion that is hidden by an unknown owner in the earth or other private place for an extended period. The property is not considered treasure trove unless the identity of the owner cannot be ascertained. Under early common law, the finder of a treasure trove took title to it against everyone but the true owner. This doctrine was altered in England by a statute granting title to the crown subject to the claims of the true owner. The U.S. law governing treasure trove has, for the most part, been merged into the law governing lost property. However, certain cases have held that the old treasure trove law has not been combined into the lost property statutes. In some instances, the early common law of England has been held to apply in the absence of a statute governing treasure trove. Regardless of which principles are applied, however, in the absence of contrary statutory provision, the title to treasure trove belongs to the finder against all others with the exception of the true owner. If there is a controversy as to ownership between the true owner and the state, the owner is entitled to treasure trove.

Confusion and Accession

Confusion and accession govern the acquisition of, or loss of title to, personal property by virtue of its being blended with, altered by, improved by, or commingled with the property of others. In confusion, the personal property of several different owners is commingled so that it cannot be separated and returned to its rightful owners, but the property retains its original characteristics. Any fungible (interchangeable) goods can be the subject of confusion.

In accession, the personal property of one owner is physically integrated with the property of another so that it becomes a constituent part of it, losing any separate identity. Accession can make the personal property of one owner become a substantially more valuable chattel as a result of the work of another person. This transformation occurs when the personal property becomes an entirely new chattel, such as when grapes are made into wine or timber is made into furniture.

Subject to the doctrine of accession, personal property can become real property through its transformation into a fixture. A fixture is a movable item that was originally personalty (personal property) but which has become attached to, and associated with, the land and is, therefore, considered a part of the real property.

Bailments

A bailment is the rightful, temporary possession of goods by an individual other than the true owner. The individual who entrusts his property into the hands of another is called the bailor; the person who holds such property is the bailee. Ordinarily a bailment is effected for a designated purpose upon which the parties have agreed.

The word bailment is derived from the French term bailler, "to deliver." It is ordinarily regarded as a contractual relationship since the bailor and bailee—either expressly or implicitly—bind themselves to act according to specific terms. The bailee receives only control or possession of the property, and the bailor retains the ownership interests therein. While a bailment exists, the bailee has an interest in the property that is superior to all others, including the bailor, unless she violates some term of the agreement. When the purpose for which the property has been delivered has been accomplished, the property will be returned to the bailor or otherwise disposed of, according to his instructions.

A bailment differs from a sale, which is an intentional transfer of ownership of personal property in exchange for something of value, because a bailment involves only a transfer of possession or custody not of ownership. For example, a bailment is created when a person leaves his or her car and car keys at a parking garage. The parking garage receives a fee to hold the car in its custody.

Gifts

A gift is a voluntary transfer of personalty from one individual to another without compensation or consideration or the exchange of something of value. There are two main categories of gifts: inter vivos gifts, a voluntary, unconditional transfer of property between two living persons without consideration, and causa mortis, one that is made by a donor in anticipation of imminent death. The three requirements of a valid gift are delivery, donative intent, and acceptance.

Bona Fide Purchasers

A basic common-law principle is that an individual cannot pass a better title than she has, and a buyer can acquire no better title than that of the seller. A thief does not have title in stolen goods, so a person who purchases from the thief does not acquire title.

A bona fide purchaser is an individual who has bought property for value with no notice of any defects in the seller's title. If a seller indicates to a buyer that she has ownership or the authority to sell a particular item, the seller is prevented (estopped) from denying such representations if the buyer resells the property to a bona fide purchaser for value without notice of the true owner's rights. At common law, such an estoppel did not apply when an owner brought an item for services or repairs to a dealer in that type of goods and the dealer wrongfully sold the chattel. The bona fide purchaser, however, is now protected under such circumstances by the uniform commercial code (UCC).

A buyer who induces a sale through fraudulent representations acquires a voidable title from the seller. A voidable title is one which may be vacated by the seller, upon discovery of the buyer's fraud, at his option. The seller has the authority to transfer a good title to a bona fide purchaser for value without notice of the outstanding equity. The voidable title rule is only applicable in situations where the owner is induced to part with title, not merely with possession, as a result of fraud or deception.

further readings

Burke, Barlow. 2003. Personal Property in a Nutshell. 3d ed. St. Paul, Minn.: West.

Huss, Rebecca J. 2002. "Valuing Man's and Woman's Best Friend: The Moral and Legal Status of Companion Animals." Marquette Law Review 86 (fall).

Jordan, Robert L., William D. Warren, and Steven D. Walt. 2000. Secured Transactions in Personal Property. 5th ed. New York: Foundation Press.

Miller, Kathleen. 1995. Fair Share Divorce for Women. Belle-vue, Wash.: Miller Advisors.

Sykas, Abigail J. 2001. "Waste Not, Want Not: Can the Public Policy Doctrine Prohibit the Destruction of Property by Testamentary Direction?" Vermont Law Review 25 (summer).

cross-references

Accession; Bailment; Chattel; Possession.

Personal Property ★★½ The Man in Possession 1937

Taylor tries every trick in the book to win Harlow over in this MGM romantic fluff. Not that big on laughs, but plenty of good shots of Harlow and a beefcake scene of Taylor in a bathtub, who was the darling of the MGM lot and worked with every leading lady. This was the only film Harlow and Taylor made together. Remake of the 1931 film “The Man in Possession.” 84m/B VHS . Robert Taylor, Jean Harlow, Reginald Owen, Una O'Connor, E.E. Clive, Henrietta Crosman, Cora Witherspoon; D: Woodbridge S. Van Dyke; W: Hugh Mills.