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BAR FINAL REVIEW > All Personal Property > Flashcards

All Personal Property Flashcards

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1
Q

When is personal property abandoned by the owner?

A

When the owner has voluntarily given up possession with the intent to give up title and control

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2
Q

When does a finder acquire rights in abandoned property?

A

If the finder has possession with the intent to assert title and control

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3
Q

What happens to personal property abandoned within a safe deposit box?

A

If it goes unclaimed for 3 years after the expiration of the lease, it is presumed abandoned and turned over to the state

If the owner doesn’t claim it within another 3 years, the property is sold and the proceeds revert to the general fund of the state

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4
Q

What is the distinction between lost and mislaid property?

A

Under the Lost and Unclaimed Property Act, Michigan makes no distinction between lost and mislaid property

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5
Q

What is the general rule under the Michigan Lost and Unclaimed Property Act?

A

The finder of personal property prevails over all others, including the owner of the property where the chattel was found, except the true legal owner

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6
Q

What must a finder of lost property do to obtain title, if it is not claimed by the true owner?

A
  1. Report and deliver found property to local enforcement authorities + provide finder’s name and address
  2. If true owner is found and claims the property, she takes

If true owner is not found within 6 months, it is returned to the finder

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7
Q

What is a lien on personal property?

A

A right or claim by a person to possess and retain personal property of another because the lienor has improved or enhanced in value or otherwise performed a service on it

If operates as security for the payment by the lienee for all charges related to the improvement or service

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8
Q

What is a general lien?

A

It gives the right to retain ALL of the property of another as security for a general balance that is due

If some of the chattels are released, the lienor may hold the unreleased chattels until the entire lien charge is paid

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9
Q

What is a special lien?

A

It gives the right to retain specific property as security for charges due to services to that specific property that adds value to it

If some of the chattels are released, the lien is waived to the extent of the chattels released

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10
Q

What is required for a special lien?

A

Lienor must have possession and must generally have added value to the chattel

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11
Q

Under the Garage Keeper’s Lien Act, when does a lien attach to a vehicle stored in a garage for a service (like repair, get a quote, maintenance, etc.)?

A

The last day labor or supply is furnished on the vehicle. It remains as long as the vehicle remains in the possession of the garage keeper.

They can charge $10/day for storage unless otherwise agreed upon

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12
Q

Under Garage Keeper’s Lien Act, what procedures must a garage keeper take in order to sell the vehicle to recover the amount owed?

A
  1. Public sale of the vehicle
  2. Application to the state for certificate of foreclosure within 105 days of lien’s attachment
  3. Detailed notice to owner, all lienholders, and State
  4. Lienee given 30 days after postmarked date of notice to pay and satisfy lien
  5. Sale can’t be more than 75 days after the date placed on the certificate of foreclosure
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13
Q

What is the Self-Storage Facility Act?

A

It grants the owner of a self-storage facility a statutory lien on all personal property held within the unit and permits the owner to sell the personal property as the exclusive remedy of enforcing a lien

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14
Q

What are the procedures for selling personal property within a self-storage unit under the Self-Storage Facility Act?

A
  1. A written demand for payment :
    a) made to the owner in person or by certified mail
    b) giving no less than 14 days to pay the debt owed
  2. Publication of an advertisement of the sale of a property
    a) once a week for two consecutive weeks
    b) in a newspaper in the general area where the facility is located
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15
Q

What are the requirements for a gift inter-vivos?

A
  1. Donative intent
  2. Valid delivery
  3. Vaild acceptance
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16
Q

What is donative intent for an inter vivos gift?

A

Donor must have present mental capacity and intent to pass TITLE gratuitously to donee

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17
Q

What is required for valid delivery of an inter vivos gift?

A

It can be actual or constructive

Donee has the burden that donor parted with dominion and control

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18
Q

What are the main ways an inter vivos gift is validly delivered to a donee?

A
  1. Handing the item over
  2. Attempting a gift when the donee already possesses the item
  3. Handing over soemthing that is representative of the object of hte gift (e.g. keys to a car)
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19
Q

What are the delivery rules for gifts of checks and promssory notes?

A

If donor makes the check to donee, or makes promissory note to donee, and gives it to donee, no delivery until check is CASHED or promissory note is PAID

If donor gives donee a check or note made out to donor by a third party, it is a valid delivery even if donor has not endorsed the check or note to donee

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20
Q

What are the delivery rules for gifts of stock certificates?

A

If donor hands donee a stock certificate, representing chares in a corporation, there is a valid delivery EVEN IF donor has not endorsed the stock over to the donee nor has told the corporation of the transfer

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21
Q

What are the delivery rules for an inter vivos gift transfered via middle person?

A

If the middle person is donee’s agent, then there is a valid delivery when donor hands the item to that middle person

If the middle person is donor’s agent, then there is a valid only when middle person hands it to the donee

If facts are unclear, construe middle person to be donor’s agent (opposite for when donee is a minor)

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22
Q

What is required for valid acceptance of an inter vivos gift?

A

Only by explicit rejection

Silence –> acceptance presumed.

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23
Q

What are the requirements for gifts causa mortis (when donor is about to die)?

A
  1. Donative intent (w/ present mental capacity)
  2. Valid delivery
  3. Valid acceptance
  4. Donor’s belief that s/he is facing imminent death
  5. Gift is personal property
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24
Q

What degree of certainty of death is required for a gift causa mortis?

A

Fair degree of certainty or likelihood that imminent death will occur

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25
Q

How can a gift causa mortis be revoked?

A
  1. Voluntarily – can revoke at any time before death
  2. Donee predeceases donor
  3. Donor recovers (AUTOMATIC revocation)
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26
Q

Rules regarding gifts in contemplation of marriage

A

Engagement rings: ALWAYS conditional upon the marriage taking place; if it doesn’t, must give it back

Other: consider factors including

  • Donor’s intent
  • Type of property given
  • Whether there was any fraud or conditions attached to the gift
27
Q

What is a bailment?

A

A legal relationship created by the physical transfer of possession of an item of personal property by the bailor (owner) to another party (bailee) in trust for a specific lawful purpose

28
Q

What are the elements for a bailment?

A
  1. Custody of a chattel, and items typically found within it
  2. Consent + intent to serve as bailee
  3. Knowledge (actual or constructive) of chattel’s presence
29
Q

What happens if an unknown item is concealed within a bailed object?

A

If typically found within the bailed object, bailee is responsible for it

If unknown article is concealed in bailed object, no bailment of unknown item

30
Q

When is a car within a parking lot or garage bailed?

A

When the parking lot or garage keeps the keys (e.g. valet parking)

The car is not bailed if it is a self-park lot where the driver keeps the keys

31
Q

When is a bailee strictly liable for the bailment?

A
  1. Unauthorized use of the bailment
  2. Misdelivery (bailee misdelivers the chattel, even to someone using a forged instrument), except if misdelivery is of a vehicle in a parking lot or garage
32
Q

What is a gratuitous bailee and when are they liable for damage or loss of a bailment?

A

The sole benefit is to the bailor

Bailee has a duty to exercise slight diligence and will only be liable for gross negligence

33
Q

What is a gratuitous bailor and when are they liable for damage or loss of a bailment?

A

Sole benefit is to the bailee

Bailee has a duty to exercise great diligence and will be liable for even slight negligence

34
Q

What is the standard of care for a mutual benefit bailment?

A

The standard is ordinary care

35
Q

Who bears the burden of establishing liability for lost or destroyed personal property?

A

Damaged or destroyed while in possession of bailee –> rebuttable presumption of negligence

BOP on bailee to produce evidence to show that bailee met appropriate standard of care based on the type of bailment

36
Q

What contractual limits on liability may be placed on the bailment?

A

A bailor can limit liability for bailee’s ordinary negligence so long as bailor received effective notice of the limitation

The exculpation clause will NOT hold bailee harmless for gross negligence, recklessness, or intentionally tortious conduct

37
Q

What are the possible remedies for damages to bailed property?

A
  1. Replevin (recover the property)
  2. Statutory conversion (money damages)
38
Q

What interest in the property does a bailment confer?

A

It only temporarily transfers possession – no title is transferred

Any subsequent good faith purchaser of bailed personal property lacks title against true owner

39
Q

Who is liable for statutory conversion in the event of damaged bailed property?

A
  1. A person who steals or embezzles the property for her own use

AND/OR

  1. The person who buys, receives, or aids in the concealment of stolen, embezzled, or converted property

**BUT actual knowledge is required

40
Q

What are the damages for damaged bailed property under statutory conversion?

A

3x amount of actual damages sustained + reasonable attorney fees

41
Q

What are the possible remedies for damages to lost or destroyed property?

A

Only statutory conversion (money damages)

42
Q

What is accession?

A

When someone takes the property of another, either wrongfully or not, and then does something to make that property more valuable

43
Q

What rights does a person who made a chattel more valuable have?

A
  1. If willful trespasser, cannot keep the chattel, not compensated for increase in value
  2. If innocent trespasser:
    a) Increase in value is very substantial –> keep chattel but liable to owner for damages
    b) Increase in value is not so substantial –> must give it back
44
Q

Who owns wild animals in Michigan?

A

The state

Landowners may acquire limited property rights in wild animals by acquiring a proper license

45
Q
A
46
Q

When is a common carrier liable for any loss or damage to goods?

A

A common carrier is an insurer of the goods and is liable except for damage or loss caused by:

  1. Act of god
  2. Act of a public enemy
  3. Act of state
  4. Act of shipper
  5. Inherent nature of the goods
47
Q

What is the standard for liability when a bailee improperly delivers a bailed chattel to someone other than the bailor?

A

Absolute liability (misdelivery = breach of bailment, conversion of the bailed chattel)

48
Q

When will a court uphold a provision which excuses a bailee from liability for her own negligence?

A

When it clearly manifests the intent to waive bailee liability (it must specifically state that the bailee is not liable for damage caused by her negligence).

General exculpatory clauses saying bailee is not responsible for any loss or bailor is responsible for all loss will not exempt bailee from liability for her own negligence.

49
Q

Who is responsible for theft of an item from a bailee?

A

If it happened through no fault of the bailee, the loss falls on the bailor

50
Q

What lien does a warehouser have for goods stored?

A

He has a lien to secure him for the time and labor expended upon chattel, and for his storage charge.

51
Q

What conditions are required for a lienor to have a right to possess a piece of property that is subject to a lien?

A
  1. The debt arose form services performed on the item
  2. Title to the item is in the debtor/lienee
  3. Possession of the item is with the creditor/lienor
52
Q

What standard of knowledge must a defendant have to be liable for statutory conversion?

A

Actual knowledge, provable by circumstantial evidence

53
Q

When a business owner has possession of mislaid property, what must he do?

A

Report the finding of the item to law enforcement authorities

54
Q

What is the effect of a reward, offered by the true owner, to the finder of lost property?

A

A lien is created that entitles the finder to detain the property from the owner until the reward is paid.

The finder is under no legal obligation to relinquish possession to the owner, or to give it to anyone else until he is paid.

55
Q

When is property considered mislaid?

A

When, judging from the place where it was found, it can be reasonably determined that it was intentionally placed there and thereafter forgotten

56
Q

How may wild animals be constructively possessed?

A

If they are caught in a trap or net, they belong to the one who owns and has set the trap or net

57
Q

What is the right of emblements and what are its requirements?

A

It is the right of a former tenant to enter upon property to cultivate, harvest, and remove crops planted by her prior to ther termination of her estate

Requirements:

  1. Tenancy was for an uncertain duration
  2. Tenancy terminated without fault on part of tenant
58
Q

When is property considered lost?

A

When the owner has accidentally and involuntarily parted with his possession and does not know where to find it

59
Q

What is confusion?

A

Intermixture of goods owned by different persons such that the property of each can no longer be distinguished

60
Q

What is the result when there is a confusion and the contributions of each party are unknown?

A

If it is innocent confusion, all owners take as tenants in common, sharing equally

If it is wrongful confusion the wrongful owner must identify her portion; if not, the entire mass belongs to the innocent owner

61
Q

Which special lienors do not have to add value to a chattel to have a lien?

A
  • Private carrier
  • Warehouser
  • Ordinary bailee
  • Trustee
  • Arbitrator
  • General agent
  • Special agent
62
Q

To what does an innkeeper’s lien attach?

A

Any property brought into the inn by the guest, even if it is stolen, unless the innkeeper knows it is not rightfully in possession of the guest

63
Q
A

BAR FINAL REVIEW (8 decks)

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