Overview Traditional Property Law Chart

Basic Property Concepts

Ownership/Title: A person owns prope if he or she has a legal right to dispose of it. Person who owns property has title to it (not necessarily written). 

Possession:  actual or constructive (legal) control of the property with intent to possess it and right to exclude others from possessing it.  

Custody: have physical control over property,  for short period of time/limited purpose.  

Abandoned: Property is abandoned if person w title to it relinquishes all interest in the property.  not owned or possessed by anyone.  

Bailment:  relationship between person & property.  contractual transfer of possession for a limited purpose.  Bailor transfers possession and physical control of property to bailee for specific purpose, not giving them title. Bailee has special obligations of care for item.  Usually a contract.  Bailment creates possession of bailee.

1. Trespassory: get prop w/o the consent of the victim or w/o some other legal justification .  

2. Taking or caption: D has to seize and possess the item.  Must have actual control over it

3.Asportation:  carrying away.  D must remove the item.   involves the slightest movement of the property. movement need not be a complete or successful removal of the property from teh premises. 

4.Personal property: must be tangible and capable of being possessed. (excludes crops, undomesticated animals, trees, fish: led to special laws of larceny of fish etc.)

5. Belonging to another (means possessed by another)

6. Intentional deprivation of prop from possessor (mistake can negate this mens rea)

7. permanently (borrow is not larceny)

Larceny, but not TRESPASSORY.  Instead, it is fraudulent taking or taking by deceit or trick.   Still required:

taking

asportation

personal prop

intent to deprive

permanently

*Larceny by trick not mutually exclusive from bailment. 

Taking title (not merely possession) by using fraud or deception. Misrepresentation re past or current facts in order to obtain possession. 

Two mens rea elements: 1.) knowledge the fact is false and 2.) intent to defraud.

The victim MUST RELY on the false statement which MUST BE MATERIAL to the transaction.  

Omission can be false pretense if have duty to make the disclosure and the disclosure is material to the transaction.

Mistake, puffery or opinion can negate the crime, facts must ACTUALLY be untrue not just the thief thinking the;y are untrue.  

1. Bailment: bailor transfers possession and physical control of prop but not title to bailee for a particular purpose (ex parking lot owner bailee and car owner = bailor)

2. Larceny by bailee is when one already in possession of another’s prop by consent decides to keep it (and owner did not consent to the keeping).

3. Important: bailee acting with CLEAN MIND gets possession, so if he/she later decides to steal the property it is not larceny (because no intent at the time), not larc by trick or false pretenses b/c no deceit at the time (got possession legally) but larceny by bailee b/c later changes mind and wants to keep it.

False pretenses only covers misrepresentation of PAST or PRESENT facts.  False Promises covers promises to do something in the future like pay for an item or perform a future service in exchange for immediate payment. 

Statutory crime (not common law).  Thieves in positions of trust (employees and agents) who acquire possession of property rightfully then convert the property.  Ex: bank clerk given money to deposit in bank, clerk takes it with a clean mind but then decides to  keep it for himself. 

specific intent

to fraudulently convert

the property of another

to personal use

(need not be to permanently deprive, might intend to return the money).  violation of entrustment and abuse of otehrwise lawful possession. 

Someone with the intent to defraud, alters or executes a document that is not the document it purports to be. Some jurisdictions say this is false pretenses, others have separate crime = forgery. Distinction is often that D does not receive any property. Ex: if teller spots it is a fake check before giving the money, still guilty of forgery.

Theft crimes punish ppl who directly acquire property from victim.  This crime reaches those who receive property with knowledge that it was stolen and with intent to deprive owner of the property. 

Property received = when D obtains actual or constructive possession of it. Some jurisdictions expand it to those who conceal property with knowledge it was stolen and intent to deprive owner of it (covers those who find out later it was stolen and try to keep it). 

Ppl who buy known stolen property  professionally called a "fence"

Modern Consolidated Theft Approach

MPC Theft

Just THEFT (not larceny, etc) Elements of CO statute:

-Knowingly

-Obtain or exercise control over (corresponds to “taking”)

-Anything of value

-Of another

-w/o authorization, or by threat or deception (corresponds to consent “trespassory”)

-intent to deprive

-knowingly uses conceals or abandons thing of value

-uses conceals abandons

-Demands any consideration to which he is not legally entitled as a condition of restoring the thing of value to the other person

Theft is graded based on VALUE of the ITEM

Modern statutes: many problems resolved, reflect importance of receivers in motivating thefts, may include:

1. Knowledge: proof of knowledge that the property = stolen

2. Corroboration: corroboration of accomplice testimony in some states but is removed as requirement for receiving, thief’s testimony is enough

3. Record keeping: many statutes require it for pawn shops/2nd hand dealers. Absence of records = presumption of knowledge

4. Stings by law enforcement: even if the property isn’t stolen the offense is complete if receiver believes a law officer who tells him it is (some jurisd limit this b/c of entrapment defense)

5. Must have mens rea of intending to deprive owne

r 6. Also based on actual value, not what perp thought value was

Gap Fillers

gets rid of distinctions based on custody, possession, title, when you had the evil mind, asportation, trespassory. Enacts unitary indictment and jury instruction + analysis of facts conform to traditional crimes. ALSO includes receiving stolen prop and add concealing. 

Elements of the CO consolidated theft laws: removes carry away, no movement required, covers dirty mind at any point beginning or later