Kenya Property Law Question Paper

1. Explain the social utility theory of private property rights.

Private property rights should be protected so that the owners will be motivated to invest labor and money in it to bring it to its highest value use for society. The person who could make best use of a thing should be the one to own it. (pg. 37)

2. A subterranean cave lies directly below two separate farms. Dick owns one farm, and Jane owns the other. However, there is only one entrance and it is on Dick's farm. Dick has invested a great amount of effort in fixing up the cave into a tourist attraction. Jane, claiming that she owns the part of the cave beneath her property, seeks to exclude Dick from her portion of the cave. Should Jane be allowed to exclude Dick from the portion of the cave under her property? Why? What theories of property best describe your answer?

Jane should not be able to exclude Dick, because since the only entrance is on Dick's property, only Dick could make use of the cave. It is in best interest of society that Dick be awarded property rights to the cave because he is the only person who can make valuable use of it. A person should only own what he can take from the earth and use for his own profit or happiness. To allow Jane to take property rights to the cave would allow her to hold out indefinitely in any negotiations between the two because Dick has already expended great effort. Dick should be rewarded for taking a previously worthless cave and turning it into a profitable business, thus benfiting society in general. Under both the social utility theory and the labor theory, Dick should be allowed to continue to exploit the cave without trespassing on Jane's property. (Edward v. Sims)

3. Why should the finder of a meteorite be allowed to take possession of it from the owner of the land in which it fell and was buried?

Since it fell from the sky, it would be a new piece of property, which would not belong to anyone until it was found and claimed. The finder has expended effort to recover the meteorite, and probably only did so in expectation of being able to take the meteorite for his own profit. To encourage persons to discover previously unclaimed property and bring it to social use, the finder should be rewarded for his efforts. (Note 2 to Goddard v. Winchell, dissenting, pg. 95).

4. Explain the doctrine of accretion. What is the policy behind it?

If a person's land is bounded by a stream, gradual deposits of soil over time will both bring new soil to his land, and wash soil away to deposit it on another's land. As long as these deposits are gradual and not sudden, the soil becomes the property of the person who owns the land where it comes to rest. This doctrine promotes stability in property rights because it prevents landowners from making claims to soil which was moved as a result of natural forces against which they took no precautions. (Note 2 to Goddard v. Winchell, pg. 95)

5. (T/F) A valuable pool of oil lies partly under land owned by Dick, and mostly under land owned by Jane. Dick has the money to build an oil derrick, and drills straight down into the oil and begins pumping. As he pumps, the oil that was previously under Jane's land moves under Dick's land and gets pumped out. Dick has stolen Jane's oil.

False. Underground oil is mineral ferae natural and therefore not the property of anyone until it is reduced to possession. It is the nature of oil to move based on pressure and gravity. The person who expends the labor to extract it should be rewarded with possession. (Note 6 to Goddard v. Winchell, pg. 96).

6. While riding his motorcycle in the desert on the outskirts of Glamis National Park, Dick discovered a covered wagon partially sticking out of the side of a sand dune. Apparantly it had been buried by some hundred year old storm, and was only now being exposed due to constant wind erosion. In the back of the wagon was a locked chest which was so heavy, that Dick suspected it was full of gold. Unable to open the chest, Dick rode back to camp intending to come back with tools in the morning. Unfortunately, tools are hard to come by in the desert, and due to his work schedule, it was several weeks before he could return to get the chest. However, when he arrived at the wagon, Dick found Jane placing the chest in her dune buggy. Does Dick have title to the chest? Why or why not?

Dick does not have title to the chest because he only discovered the chest. In order to obtain title to lost, abandoned, or previously unowned property, a person must have intent to possess, and actual taking. Dick had intent, but he did not take action sufficient to be deemed actual taking. Dick should have expressed his intent by warning others away with some type of marking, and then made persistent efforts to reduce the chest to possession. By waiting several weeks to return, Dick was not making diligent or persistent efforts to reduce the chest to possession. (Eads v. Brazelton, pg. 96).

7. Why should the person who discovers lost, abandoned, or previously unowned property not obtain title to the property if he cannot reduce it to possession?

To reward mere discovery with the exclusive rights of ownership would provide no incentive for the discoverer to invest the time and effort required to actually reduce the property to possession, and return it to a socially useful purpose. (Note 4 to Eads v. Brazelton, pg. 100).

8. (T/F) Physical touching required to satisfy the requirement of actual taking when attempting to obtain title to newly discovered property.

False. What is sufficient for actual taking depends on the nature of the discovery and the circumstances surrounding it. Generally, to satisfy the actual taking requirement a finder must have: 1) expressed intent to possess, 2) means to possess, and 3) persistent effort to possess. To require physical touching would encourage physical fighting as competing finders wrestled for the property. (Class notes 9/1)

9. Dick is an avid mountain biker. While riding through the Peñasquitos Canyon Preserve, Dick found what appeared to be a stolen VCR behind a bush. Thinking to himself, "finders keepers", Dick took out a classified ad in the newspaper offering it for sale. Jane replied to his ad, and came over to see it. While looking it over, Jane noticed that the serial numbers had been removed, and figured that it was stolen. Figuring that she had just as much right to the VCR as Dick, Jane refused to give the VCR back, and instead drove off with it. Which of the following is true:

A. Jane was right in taking the VCR because the original owner was unknown, and so she had just as much right to it as Dick.
B. Dick has exclusive rights to the VCR against the world because he found it in a public place.
C. Dick has exclusive rights to the VCR against all but the original owner because he discovered it and reduced it to possession.
D. Jane has exclusive rights to the VCR against all but the original owner because possession is 9/10ths of the law.

C is the correct answer. A person who finds lost property in a public area has exclusive rights against all but the original owner, even if the property is suspected stolen (Armory v. Delamirie and Bridges v. Hawkesworth, pg. 100, class notes 9/6).

10. Why should a person who has "found" a ring be allowed to possess it against all but the rightful owner, even if it suspected stolen?

The original owner is more likely to be able to track down his stolen property if the law prevents a string of thefts, and leaves possession with the original thief. Additionally, this prevents the possessor of property from having to take extra precautions to guard all property for which he does not have good proof of ownership, thus frustrating the transferrability of property to its highest value use.

11. If the owner of the ring in Armory v. Delamirie shows up after the court has given judgement for the chimneysweep, does the owner have an action against anyone? Who? Why?

The owner has an action against the jeweler. The chimneysweep was awarded title by judgment to the ring, however, his rights were imperfect. He did not have rights against the original owner. Thus, when the jeweler was forced to pay the value of the ring to the chimneysweep, he gained only the rights that the chimneysweep had. Therefore, the original owner can recover from the jeweler, and the jeweler ends up paying twice for the same ring.

12. Dick frequently takes the bus between San Diego and Los Angeles. One day as he is getting up from his seat, he notices an expensive watch on the floor at his feet. He asks around the bus, but nobody knows who the real owner is. Satisfied that he has done all he should do to find the owner, Dick pockets the watch. However, the bus driver refuses to let Dick leave the bus without turning over the watch to him, and says, "I'm the guy in charge of this bus. Whatever is found in it belongs to me." Who should retain possession of the watch? Why?

The issue here is whether the floor of the bus is a public place or a private area subject to the positive control of the bus line. Although the bus is privately owned, and only ticketed persons can ride in it, unless the bus line has a manifest intention to assert custody and control of lost articles, it is a public place because large numbers of the general public are passing through it on a daily basis. To award possession to the bus line, there must be some evidence that the bus line regularly searched for and recovered lost articles on the bus. If the bus driver has any right at all to the watch, it is only as an agent of the company. (Parker v. British Airways Board, pg. 104).

13. Why is it better to give possession of lost articles which have been found in private areas to the landlord of the premises as opposed to the finder?

The landlord who exerts positive control over his premises should be given possession of lost articles which are found there for two reasons. First, the original owner is more likely to be able to recover the lost property from the landlord because of reliance on the owner's good will towards his guests. Second, it creates a perverse incentive for persons other than the owner to rifle through the private possessions of the owner, looking for property to which the owner may not have a solid claim. (Class notes 9/13). In this arena, we value exclusivity of property rights of the owner of the premises over the rights of the finder.

14. Dick sells antique furniture at the swap meet. One day, a customer, Jane finds a Mickey Mantle rookie baseball card in mint condition which appeared to have fallen into a slot in between the drawers of a child's dresser. Jane, realizing the value of the card, attempts to slide it quietly into her purse, but Dick notices and demands the card back. The police come and take custody of the card pending a court determination of possessory rights between Dick and Jane. How should the court rule? Why?

Dick never knew that the card existed until Jane found it, so any possession that he had was solely by possession of the dresser which contained it. Such a possession does not itself confer a right. Furthermore, Dick cannot claim that the swap meet was a private area under his positive control, and it is very unlikely that the original owner will return to claim the card. Jane brought the lost item back to valuable social use. (Durfee v. Jones, pg. 107). However, in this particular case, since Jane attempted to steal the card, we should not reward her with any rights.

15. Dick is 10 yrs old. While walking through an alley on his way home from school, Dick notices a plain envelope on the ground. He picks it up and opens it, and finds several one hundred dollar bills inside. Because he is afraid that he will get in trouble, he hides it in a trash can and then runs back to school to ask his teacher what he should do. The teacher asks to see the money, and Dick leads him to it. The teacher helps Dick to bring the money into the police station according to the local estray statute. If the money goes unclaimed, who should get the money?

Both Dick and his teacher should share equally in the money. Although Dick originally found the money by himself, and the teacher would not have found it if Dick had not shown him where it was, it was the teacher's help that brought the money back into social use. Therefore, the money was not "found" in a legal sense until it was taken from the trash can by both the teacher and Dick as joint finders. (Edmonds v. Ronella, pg. 107).

16. How does mislaid property differ from lost property, and what policy implications does the difference have on the possessory rights of the finder?

Mislaid property is different from lost property in that "the former is property which the owner intentionally places where he can again resort to it, and then forgets." It is more likely that the owner of mislaid property will remember where he put it, and return for it later. Thus, the owner is more likely to be reunited with his property if possession is given to the owner of the premises where it was mislaid, rather than to the finder. Even though the finder brought the property back to good social use, it is likely that the owner would have returned anyway. (Schley v. Couch, pg 111).

17. Match the following bailments with their respective duties of care:

A. Gratuitous bailment
1. Diligent care

B. Bailment for benefit of bailee
2. Reasonable care

C. Bailment for mutual benefit
3. Slight care


Gratutious bailment = Slight care
Bailment for benfit of bailee = Diligent care
Bailment for mutual benfit = Reasonable care.

18. Dick and Jane are shopping at Nordstrom during their Christmas break. While shopping, Jane inadvertently leaves her purse near the piano player. When the piano player goes on break, he notices the purse and takes it to the lost and found where it is put in a cubby hole behind the counter to await claiming. Near the end of the day, Jane comes to the lost and found and sees her purse. At first she is relieved that it has not been carried off by strangers, but soon she is horrified because the gold nuggets that she had found in the desert (back in question 6) were missing. Should Jane be able to recover against Nordstrom for the missing gold? Why or why not?

A voluntary bailment for the mutual benefit of both Nordstrom's and Jane was created when the piano player turned the purse over to the lost and found. Nordstrom attracts business in part by providing the lost and found service to ease customer's fears of losing personal property which is inadvertently left behind. Nordstrom therefore owns a reasonable duty of care to protect the purse and any reasonably foreseeable contents until the purse is reclaimed. Although it may not be reasonable care to put a purse in a cubbyhole behind a counter, gold nuggets are not reasonably foreseeable contents of a lost purse. To hold Nordstrom liable would motivate them either to rummage through all purses they find to determine what the actual contents were so that they could be adequately protected, or to cancel their lost and found policy altogether. Thus, for privacy and security reasons, Nordstrom should not be held liable. (Shamrock Hilton and notes pg. 124).

19. (T/F) Dick and Jane go to the beach. Dick gives Jane a ring to hold while he goes surfing. Jane, however, is unaware that the stone is a valuable opal, and so lays it on Dick's beach towel while she goes for a walk. When Jane returns, she notices the ring is gone just as Dick comes in from the surf. However, Jane has nothing to fear; she is not liable for the loss because she did not know the ring was valuable.

False. (Peet v. Roth Hotel, pg. 124). "One who accepted possession of a ring...was a bailee even though he was unaware that the ring was very valuable." A voluntary bailment was created. Although it may have been entirely gratuitous, Jane still owed a duty of slight care. By placing the ring in full view, and then leaving it unattended while she went for a walk, Jane probably did not exercise even "slight care" of the ring.

20. Dick is too shy to propose to his girlfriend Jane in person, so he hands the diamond engagement ring to his friend Bob to deliver to Jane on his behalf. Bob has never seen Jane before, but Dick says, "There are two blond girls named Jane at the ∆∆∆ house. She's the prettier one." Bob apparently has a different idea about beauty than Dick because he gives the ring and the proposal message to the wrong Jane, who promptly accepts. Dick sues Bob for conversion. Should Bob be liable even though he was innocent in his intentions?

Yes. When Bob accepted the ring, a voluntary bailment was created. A voluntary bailee has the duty to deliver the bailed article to the right person. Delivery to the wrong person is not excusable by any showing of good faith or innocence on the part of the bailee. (Cowen v. Pressprich, pg. 125).

21. (T/F) An involuntary bailee is not liable for intentional damage to the bailed property.

False. Both voluntary and involuntary bailees have an absolute duty not to intentionally damage the bailed property.

22. Which of the following is NOT a characteristic of a bona-fide purchaser?

A. The purchase must be in the ordinary course of business from a person who deals in the sale of that commodity.
B. The purchaser must have no knowledge that the property has voidable title.
C. The purchaser must take reasonable steps, based on the surrounding circumstances, to verify the title before buying.
D. None of the above.

D is the correct answer. Each of A-C is a characteristic of a bona-fide purchaser. (UCC §2-403, and definition of "good faith").

23. Dick grew tired of the watch that his father gave him 20 years ago, and wished to buy a new one. Dick went to Jane's Watch Shop to purchase a new watch. He was so excited about the new watch that he bought, that he forgot to take his old watch with him when he left the shop. Jane discovered the watch on the counter, and immediately realized that it was a valuable antique. She placed it in the sale display case, and it was bought by Bob, a customer, the next week. Later on that month, Dick's new watch broke, and it was then that he realized that "the good old watch that Dad gave him" was missing. When he returned to the shop, Jane offered him the money she made from the sale, but Dick demanded the watch. Can Dick recover the actual watch from Bob? Why or why not?

Assuming that Bob is a bona fide purchaser, he would have good title to the watch if Dick had entrusted the watch to Jane. However, when Dick left the watch in Jane's shop, it became mislaid property. "Entrusting" requires delivery and acquiescence in retention of possession. Dick did not deliver the watch to Jane, he mislaid it. Furthermore, Dick did not acquiesce in Jane's possession. When he realized the watch was missing, he returned to the shop to get it. Jane only acquired rights against all but the original owner, and even if Bob was a good faith purchaser, he could not acquire good title from Jane. Thus, Dick can recover the watch from Bob. (UCC §2-403).

24. Jane owns a baseball card shop. Dick enters the shop as a customer and charges $500 to a MasterCard to buy back the Mickey Mantle rookie card of question 14. The following day, Jane finds out that the credit card had expired, and feels foolish for not validating Dicks credit at the time he "bought" the card. She goes to the swap meet and finds Dick, who says that he already sold the card to the car audio guy who sets up next to him. Can Jane recover the card from the car audio guy? Why or why not?

Assuming that the car audio guy is a bona fide purchaser, he would have good title to the card. The car audio guy was under no obligation to verify the title of the card before he purchased, and swap meet vendors sell all kinds of miscellaneous items, including baseball cards. When Dick defrauded Jane, he gained a voidable title to the card, which was then perfected upon sale to a good faith purchaser. (UCC §2-403). It is better to let the title remain with the bona fide purchaser, because Jane was in a better position to avoid the loss. Futhermore, the smooth functioning of commercial transactions seems to require that bona fide purchasers be protected from claims of ownership by third parties.

25. How do recording statutes affect rights between original owners who were defrauded and subsequent purchasers?

A recording statute protects the original owner from losing out to a subsequent purchaser who has not verified proper title by examining the title record. It does not add any requirements to the UCC definition of good faith purchase, but helps define what a good faith purchaser is under those circumstances. Recording statutes are common for land because they promote stability and security in real-estate. They are also common among autos because they are easy to steal and very mobile. (Sheridan Suzuki, pg. 134, and class notes 9/15).

26. Jane inherits an antique chair from her grandmother. Assuming it to be valuable, she takes it to Dick's Antique Furniture Store to have it appraised. Dick says he's busy, but that she should leave it out on the floor where he can take a look at it later. Jane does so, and leaves to get her hair done. Bob, one of Dick's salesmen, sees the chair and assumes that it is part of the delivery that came in this morning, and happily sells it to a customer. When Jane returns, she sees the customer walking out of the store with "her" chair. Can Jane recover the chair from the customer?

Assuming that the customer is a bona fide purchaser, Jane is prevented from recovering it under the doctrine of bona-fide purchase. Jane entrusted the chair to Dick, who is a dealer in that commodity. Therefore he could transfer good title to a bona fide purchaser. (UCC §2-403 and class notes 9/15).

27. (T/F) A person who has lost the ability to recover property due to adverse possession still has the right of "self-help" to retake by peaceable means if he can.

False. The adverse possessor, after satisfying all the elements of adverse possession, obtains good title to the property against the original owner. The statute of limitations not only extinguishes the right of recovery of the original owner, but also vests good title in the adverse possessor.

28. Name the requirements of adverse possession.

1) Actual possession; 2) Uninterupted possession; 3) Open and Notorious; 4) Hostile and Exclusive; 5) Statute of Limitations must have run; 6) (Optional) Good faith claim of right (Class notes 9/22).

29. Why should an adverse possessor be given good title to a property?

By allowing adverse possession, property which would otherwise go unimproved or abandoned can be brought to valuable social use. Additionally, it promotes long-term security and repose in property rights by putting an end to latent lawsuits. It frees up otherwise encumbered property to be freely transferred. (Class notes 9/20).

30. Every morning for the past 20 years, Dick has driven his beat up old VW-bus onto Jane's beachfront property in San Clemente. He eats breakfast, changes clothes, and goes for a 2 hour surf session. When he returns, he eats lunch, brushes his teeth, and goes to law school. One day, Jane becomes tired of waking up every morning to the sound of his car, and decides to block his access across her land to the beach. Dick brings her to court claiming that he has good title to the access way by adverse possession. Assume the statute of limitations in California is 15 years. Should Dick win? Why or why not?

Dick would lose. To gain title by adverse possession, the possession must be continuous. Dick only possesses the property for a short period of every day. Furthermore, it must be hostile and exclusive. Under these facts, one could argue that Dick's possession was not exclusive because it did not prevent Jane's use of the same land during the same time period, and it may not have been hostile because Jane may have permitted it. It was also not under a mistaken claim of right. Additionally, as a matter of policy, Dick did not add any value to the land or bring it to a better social use.

31. Dick is a reclusive hermit. He would rather spend time alone than suffer the inconveniences of society. He hatches a slick plan to build himself a cabin in the middle of a forest owned by Jane. According to his calculations, if he can come and go under the cover of darkness for the next 20 years, although it may be inconvenient, he can obtain title to the land in and around the cabin by adverse possession. Is Dick correct?

Probably. By building a cabin, Dick's possession would be open and notorious, even if Jane did not have actual notice of the cabin. The court would probably say that she had constructive notice because a cabin is something that a property owner should notice. Even though Dick, the person, may be hiding, the cabin is not hiding. Under these facts we can assume that his possession was hostile and exclusive.

32. Old Mac Riley owns an avocado grove in Fallbrook. For as many years as he can remember, groups of migrant workers have camped in the southwest corner of his grove year-around while they work the avocado harvest in the general area. Being a compassionate man, Riley never took any action to remove them, and even brought them extra clothing every year during the winter. One day, Riley got an offer to sell his land for a large profit, and so he did. The new owners were not as tolerant, and ordered the sheriff to have the workers removed. Assuming the statute of limitations has run, can the workers avoid ejectment by claiming adverse possesion?

No. Under these facts, the migrant worker's possession of the land was permissive. Futhermore, there may have been several successive possessors who were not in privity with each other.

33. About 20 years ago, Riley owned a pair of garden gnomes that he set out in his garden, near the edge of his property. He always liked those cute little gnomes, and was disappointed the day he discovered that they were missing. He reported them stolen to the police, but that was the end of his search. One day last week, while walking through the neighborhood, he noticed out of the corner of his eye that Amber, whose house was across the street from his, had his gnomes set up in her garden. He brought suit to recover the gnomes. Amber claimed that although she could not remember where the gnomes came from, she should have title by adverse possession because she had displayed them in her garden for the last 20 years. Assuming the statute of limitations is 6 years, should Riley be able to recover the gnomes?

Amber's possession was actual, continuous, and hostile and exclusive for 20 years. However, under the discovery rule, a cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, the identity of the adverse possessor. By diligently pursuing their goods, owners may prevent the statute from running. When the property is of moderate value, such as in the case of garden gnomes, filing a police report is sufficient. Assuming that the gnomes were not stolen, the critical issue in this case is whether displaying the gnome in her garden put Riley on constructive notice of her adverse possession. If the gnome