Book Notes Flashcards
1
Q
Federalism
A
-the division of governing power between the federal government and the sates
2
Q
Federal Supremacy
A
-federal law takes precedence over conflicting state law
3
Q
Federal Preemption
A
-right of federal government to regulate matters within its power to the exclusion of regulation by the states
4
Q
Judicial Review
A
-examination of governmental actions to determine whether they conform to the U.S. Constitution
5
Q
Separation of Powers
A
-allocation of powers among executive, legislative, and judicial branches of government
6
Q
State Action
A
-actions of governments to which constitutional provisions apply
7
Q
Federal Commerce Power
A
-exclusive power of federal government to regulate commerce with other nations and among the states
8
Q
State Regulation of Commerce
A
-the Commerce Clause of the Constitution restricts the states’ power to regulate activities if the result obstructs interstate commerce
9
Q
Federal Fiscal Power
A
- Taxation and Spending
- Borrowing and Coining Money
- Eminent Domain
10
Q
Taxation and Spending
A
-the Constitution grants Congress broad powers to tax and spend; such powers are important to federal government regulation of the economy
11
Q
Borrowing and Coining Money
A
-enables the federal government to establish a national banking system and to control national fiscal and monetary policy
12
Q
Eminent Domain
A
-the government’s power to take private property for public use with the payment of just compensation
13
Q
Contract Clause
A
-restricts states from retroactively modifying contracts
14
Q
Freedom of Speech
A
- Corporate Political Speech
- Commercial Speech
- Defamation
15
Q
Corporate Political Speech
A
-first amendment protects a corporation’s right to speck out on political issues
16
Q
Commercial Speech
A
-expression related to the economic interests of the speaker and its audience; such expression receives a lesser degree of protection
17
Q
Defamation
A
-a tort consisting of a false communication that injures a person’s reputation; such a communication receives limited constitutional protection
18
Q
Due Process
A
-fifth and fourteenth amendments prohibit the federal and state governments from depriving any person of life, liberty, or property without due process of law
19
Q
Substantiative Due Process
A
-determination of whether a particular governmental action is compatible with individual liberties
20
Q
Procedural Due Process
A
-requires the governmental decision-making process to be fair and impartial if it deprives a person of life, liberty, or property
21
Q
Equal Protection
A
-requires that similarly situated persons be treated similarly by governmental actions
22
Q
Rational Relationship Test
A
-standard of review used to determines whether economic regulation satisfies the equal protection guarantee
23
Q
Strict Scrutiny
A
-exacting standard of review applicable to regulation affecting a fundamental right or involving a suspect classification
24
Q
Intermediate Test
A
-standard of review applicable to regulation based on gender and legitimacy
25
Property
-interest, or group of interests, that is legally protected
26
Tangible Property
-physical objects
27
Intangible Property
-property that does not exist in a physical form
28
Real Property
-land and interests in land
29
Personal Property
-all property that is not real property
30
Fixture
-personal property so firmly attached to real property that an interest in it arises under real property law
31
Sale of Property
-transfer of property for consideration (price)
32
Gift
-transfer of property without consideration
33
Elements of a Gift
- delivery
- intent
- acceptance
34
Will
-right to property acquired upon death of the owner
35
Accession
-right of a property owner to any increase in such property
36
Confusion
- intermixing of goods belonging to two or more owners such that they can identify their individual property only as part of a mass of like goods
- -if due to mistake, accident, or agreement, loss share proportionally
- -If caused by an intentional or unauthorized act, wrongdoer bears act
37
Possession
-a person may acquire title by taking possession of property
38
Abandoned Property
-intentionally disposed of by the owner; the finder is entitled to the property
39
Lost Property
-unintentionally left by the owner; the finder is generally entitled to the property
40
Mislaid Property
-intentionally placed by the owner but unintentionally left; the owner of the premises is generally entitled to the property
41
Treasure Trove
-coins or currency concealed by the owner for such a length of time that the owner is probably dead or undiscoverable; the finder is entitled to the property
42
Insurance
-contractual arrangement that distributes risk of loss among a large number of members (the insureds) through an insurance company (the insurer)
43
Insurance Coverage
-provides protection against loss due to fire or related peril
44
Types of Fire
- friendly fire
| - hostile fire
45
Friendly Fire
-fire contained in its intended location
46
Hostile Fire
-any fire outside its intended or usual location
47
Co-Insurance
-insurance in which a person insures property for less than its full or stated value and agrees to share the risk of loss
48
Other Insurance Clauses
-if multiple insurers are involved, liability is distributed pro rata
49
Types of Policies
- valued policy
| - open policy
50
Valued Policy
-covers full value of property as agreed upon by the parties at the time the policy is issued
51
Open Policy
-covers fair market value of property as calculated immediately prior to the loss
52
General Contract Law
-principles of contract law apply
53
Insurable Interest
-a financial interest or a factual expectancy in someone's property that justifies insuring the property; the interest must exist at the time the property loss occurs
54
Premiums
-amount to be paid for an insurance policy
55
Defenses of Insurer
- Misrepresentation
- Breach of Warranty
- Concealment
- Waiver
- Estoppel
56
Misrepresentation
-false representation of a material fact made by the insured that is justifiably relied upon by the insurer; enables the insurer to rescind the contract within a specified time
57
Breach Warranty
-the failure of a required condition; generally an insurer may avoid liability for a breach of warranty only if the breach is material
58
Concealment
-fraudulent failure of an applicant for insurance to disclose material facts that the insurer does not know; allows the insurer to rescind the contract
59
Waiver
-an insurer intentionally relinquishes the right to deny liability
60
Estoppel
-an insurer is prevented by its own conduct from asserting a defense
61
Termination
-an insurance contract may be terminated by due performance or cancellation
62
Bailments
-the temporary transfer of personal property by one party (the bailor) to another (the bailee)
63
Classifications of Bailments
-For the Bailor's Sole Benefit
-For the Bailee's Sole Benefit
For Mutual Benefit
64
Essential Elements of a Bailment
- Delivery of Possession
- Personal Property
- Possession, but not Ownership, for a Determinable time
- Restoration of Possession to the Bailor
65
Bailee's duty to exercise due care
-the bailee must exercise reasonable care to protect the safety of the property and to return it to the proper person
66
Bailee's Absolute Liability
-occurs when (1) the parties so agree; (2) the custom of the industry requires the bailee to insure the property against the risk in question, but he fails to do so; or (3) the bailee uses the bailed property in an unauthorized manner
67
Bailee's Right to Limit Liability
-certain bailee's are not permitted to limit their liability for breach of their duties, except as provided by statute
68
Bailee's Right to Compensation
-entitled to reasonable compensation for work or services performed on the bailed goods
69
Bailor's duties
-in bailment for sole benefit of bailee, the bailor warrants that she is unaware of any defects; in all other bailments, the bailor has a duty to warn of all known defects and all defects she should discover upon a reasonable inspection
70
Pledge
-security interest by possession
71
Warehouser
-storer of goods for compensation; warehouser must exercise reasonable care to protect the safety of the stored goods and to deliver them to the proper person
72
Carrier of Goods
-transporter of goods; a common carrier is an extraordinary bailee, and a private carrier is an ordinary bailee
73
Innkeeper
-hotel or motel operator; is an extraordinary bailee except as limited by statute or case law
74
Documents of Title
-an instrument evidencing ownership of the record and the goods it covers
75
Types of Documents of Title
- Warehouse Receipt
| - Bill of Lading
76
Warehouse Receipt
-receipt issued by person storing goods
77
Bill of Lading
-document issued to the shipper by the carrier (1) as a receipt for the goods, (2) as evidence of their carriage contract, and (3) as a document of title
78
Negotiability
-a document of title is negotiable if, by its terms, the goods are to be delivered to bearer or to the order of a named person
79
Due Negotiation
-delivery of a negotiable document in the regular course of business to a holder, who takes in good faith, for value, and without notice of any defense or claim
80
Warranties
-a person who negotiates or delivers a document of title for value, other than a collecting blank or other intermediary, incurs certain warranty obligations unless otherwise agreed
81
Ineffective Documents
-in order for a person to obtain title to good by negotiation of a document, the goods must have been delivered to the issuer of the document by their owner or by one to whom the owner has entrusted actual or apparent authority
82
Types of Freehold Estates
- Fee Estates
- Life Estates
- Future Interests
83
Fee Estates
-right to immediate possession of real property for an indefinite time
84
Fee Simple
-absolute ownership of property
85
Qualified Fee
-ownership subject to its being taken away upon the happening of an event
86
Life Estates
-ownership right in property of the life of a designated person, while the remainder is the ownership estate that takes effect when the prior estate terminates
87
Future Interests
- Reversion
| - Remainders
88
Reversion
-grantor's right to property upon termination of another estate
89
Remainders
-two kinds: vested remainders (unconditional remainder that is a fixed, present interest to be enjoyed in the future) and contingent remainders (remainder interest conditional upon the happening of an event in addition to the termination of the preceding estate)
90
Leasehold Estates
-
91
Lease
-both (1) a contract for use and possession of land and (2) a rant of an estate in land
92
Landlord
-owner of land who grants a leasehold interest to another while retaining a reversionary interest in the property
93
Tenant
-possessor of the leasehold interest in land
94
Duration of Leases
- definite term
- periodic tenancy
- tenancy at will
- tenancy at sufferance
95
Definite term
-lease that automatically expires at the end of the term
96
Periodic tenancy
-lease consisting of specific terms that continue in indefinite succession
97
Tenancy at will
-lease that is terminable at anytime
98
Tenancy at sufferance
-possession of real property without a lease
99
Transfer of Tenant's Interest
- Assignment
| - Sublease
100
Assignment
-transfer of all of the tenant's interest in the leasehold
101
Sublease
-transfer of less than all of the tenant's interest in the leasehold
102
Tenant's obligations
-the tenant has an obligation to pay a specified rent at specified times or, if none is specified, to pay a reasonable amount at the end of the term
103
Destruction of premises
-under the common law, if the premises are destroyed, the tenant is not relieved of his obligation to pay rent and cannot terminate the lease
104
Eviction
-if the tenant breaches one of the covenants of her lease, the landlord may terminate the lease and evict (remove) her from the premises
105
Abandonment
-if tenant abandons property and the landlord reenters or relets it, tenant's obligation to pay rent terminates
106
Quiet enjoyment
-the right of the tenant to have physical possession of the premises free of landlord interference
107
Fitness for use
-most courts impose for residential leases an implied warranty of habitability that the leased premises are fit for ordinary residential purposes
108
Repair
-unless there is a statute or a specific provision in the lease, the landlord has no duty to repair or restore the premises
109
Concurrent ownership
- Tenancy in common
- Joint tenancy
- Tenancy by the entireties
- community property
- condominium
- cooperative
110
Tenancy in common
-co-ownership in which each tenant holds an undivided interest with no right of survivorship
111
Joint tenancy
-co-ownerhsip with the right of survivorship; requires the presence of the four unities (time, title, interest, and possession)
112
Tenancy by the entireties
-co-ownership by spouses in which neither may convey his or her interest during life
113
Community property
-spouses' rights in property acquired by the other during their marriage
114
Condominium
-separate ownership of an individual unit with tenancy in common with respect to common areas
115
Cooperative
-the corporate owner of the property leases units to its shareholders as tenants
116
Easement Types
- Appurtenant
| - In Gross
117
Easement
-limited right to use the land of another in a specified manner
118
Easement Appurtenant
-rights and duties created by the easement pertain to and run with the land of the owner of the easement (dominant parcel) and the land subject to the easement (servient parcel)
119
Easement in Gross
-rights and duties created by the easement are personal to the individual who received the right
120
Creation of easements
-easements may be created by (1) express grant or reservation, (2) implied grant or reservation, (3) necessity, and (4) prescription (adverse use)
121
Profits a Prendre
-right to remove natural resources from the land of another
122
Licenses
-permission to use the land of another
123
Formation
-a contract to transfer any interest in land must be in writing to be enforceable
124
Marketable title
-the seller must transfer marketable title, which is a title free from any defects or encumbrances
125
Quality of Improvements
- common law rule
| - implied warranty of habitability
126
Common Law Rule
-under caveat emptor ("let the buyer beware"), the seller is not liable for any undiscovered defects
127
Implied Warranty of Habitability
-in a number of states, the builder-seler of a dwelling
128
Deeds
-a formal document transferring any type of interest in land
129
Types of Deeds
- Warranty deed
- Special deed
- Quitclaim deed
130
General Warranty deed
-the grantor (seller) promises the grantee (buyer) that she has valid title to the property without defect
131
Special warranty deed
-the seller promises that he has not impaired the title
132
Quitclaim deed
-the seller transfers whatever interest she has in the property
133
Deed Requirements
1. written
2. contain words of conveyance and property description
3. signed with the signature of the grantor, a seal, and an acknowledgement before a notary public
4. must be delivered
134
Delivery
-intent that the deed take effect, as evidenced by acts or statements of the grantor
135
Recordation
-required to protect the buyer's interest against third parties; consists of delivery of a duly executed and acknowledged deed to the appropriate recorder's office
136
Elements of a secured transaction
-involves (1) a debt or obligation to pay money, (2) an interest of the creditor in specific property that secures performance, and (3) the debtor's right to redeem the property (remove the security interest) by paying the debt
137
Mortgage
-interest in land created by a written document that provides security to the mortgagee (secured party) for payment of the mortgagor's debt
138
Deed of Trust
-an interest in real property that is conveyed to a third person as trustee for the benefit of the creditor
139
Transfer of Interest
- Assume the mortgage
| - Subject the mortgage
140
Assume the mortgage
-the purchaser of mortgaged property becomes personally liable to pay the debt
141
Subject the mortgage
-purchaser is not personally liable to pay the debt, but th property remains subject to the mortgage
142
Foreclosure
-upon, default, sale of the mortgaged property to satisfy debt
143
Adverse Possession
-acquisition of title to land by open, continuous, and adverse occupancy for a statutorily prescribed period
144
Adverse possession must be:
actual and without intervening by the true owner
145
Zoning
-principle method of public control over private land use, involves regulation of land but may not constitute a taking to the property
146
Zoning Authority
-the power to zone is generally delegated to local authorities by statutes known as enabling acts
147
Variance
-a use differing from that provided in the zoning ordinance and granted in order to avoid undue hardship
148
Nonconforming use
-a use not in accordance with, but existing prior to, a zoning ordinance; permitted to continue for at least a reasonable time
149
Judicial Review
-zoning ordinances may be reviewed to determine if they are invalid or a confiscation of property
150
Eminent Domain
-the power of a government to take (buy) private land for public use
151
Public Use
-public advantage
152
Just Compensation
-the owner of the property taken by eminent domain must be paid on the fair market value of the property
153
Private Restrictions on Land Use
-private restrictions on property contained in a conveyance
154
Covenants running with the land
-covenants that bind not only the original parties but also subsequent owners of the property
155
Covenants in Subdivision
-bind purchasers of lots in the subdivision as if the restrictions had been inserted in their own deeds
