Chapter 5 Flashcards
What guarantees do the 5th and 14th Amendments extend to property?
5th: guarantees no person should be deprived of property, nor shall private property be taken for public use
14th: extends those guarantees against the states.
Define “unjust enrichment.”
A contract implied at law requiring a person to make restitution to the extent he has been unjustly enriched.
• The person must be unjustly enriched.
What are the two general classes of property?
Real property and personal property
Be able to describe the difference between types of property that are tangible and intangible.
Intangible property: patents, bongs, and copyrights.
Important for tax and estate-planning purposes
What is - real property dealing with the nature or quality of a person’s possessory interest - called?
Estates in land
What kind of estate does a person with an ownership interest (a “possessory interest”) in real property have?
freehold estate
Identify and describe the highest ownership interest in real property and the three specific rights it entails.
Fee simple absolute (fee simple) – full ownership
a. Right to sell
b. Give as a gift
c. Or devise (dispose of)
What sort of possessory interest is there when more than one person owns the same land at once?
Tenancy in common and joint tenancy
Describe both a tenancy in common and a joint tenancy.
Tenancy in common: when one owner dies, that person’s interest passes to his or her heirs
Joint tenancy: when one dies, his or her interest passes to the other(s)
Be able to define a tenancy.
The tenant gets to use the land, but does not own it; the landlord has ownership right but not the right to use, which is possessed by the tenants
Be able to define and distinguish easements, profits, and licenses.
Easement: holder hast the right to some nonconsumptive use of another’s property
Profit: allows he holder the right to remove some resource such as oil, timber, coal etc.
License: allows the holder to go upon another’s real property, like attending a movie at a theatre
What two general ways may real property interests be transferred?
Voluntary or involuntary
What does “title” to real estate describe?
Describes a legal interest in the land legitimately acquired from the previous owner
Describe two ways property is voluntarily transferred, How are these transfers formalized?
gift or sale, By a written document – the deed.
Identify two ways property is transferred on the death of its owner.
By the will, or if there was no will- passes to the logical heirs by intestacy
Be able to describe foreclosure.
If a person borrows money and real estate is put up as a collateral for security for the loan- that person has mortgaged their property.
If they don’t repay the loan, the mortgage may be foreclosed
What is eminent domain?
The power of the government to take private property for public use
Describe adverse possession.
If one person makes use of another persons real property, for a long-enough time, the ownership and title shift.
• This is to encourage productive use and attention to ones ownership
Be able to describe what property right is protected from unreasonable intrusion.
The right to use one’s property for “quiet enjoyment”
• A person has rights when another person is disrupting them/their property (airplanes over houses making noise).
• Trespass and nuisance are two types that apply to this (they are torts)
How is personal property defined?
Everything other than
• real estate and
• that which is firmly affixed to real estate
It includes both tangible and intangible property.
What is “personalty?”
Personal property (another name for it)
What is the law of personal property substantially the same as?
The same as the law of real property.
What is the subject of the law of estates and trusts?
The transmission of property from one generation to the next being a cherished right
What do prudent people do to plan for their property when they die?
They plan what they want to happen to their property – so they make a will
What does it mean if a person dies intestate?
One who dies without a will
What is it called when the property of a person who dies but has no heirs reverts to the State?
Escheats (the property escheats to the state)
What three protections does intellectual property law include?
Patent, copyright, and trademark protection
What part of the US Constitution gives Congress power over intellectual property law and how is it worded?
Article 1, section 8 of the constitution
“to promote the progress of science and useful arts, by securing for limited times to authors and inventors exclusive right to their respective writings and discoveries”
What does patent law involve?
The securing and enforcement of the exclusive right to profit from the ownership of an invention
What is patentability?
Ownership (kindof)
You cannot claim violation of a property interest in an idea unless you can demonstrate ownership
Be able to list and identify the categories of patentable inventions.
Assuming an invention falls into one of these categories, what three other requirements are there for an invention to be patentable?
Any new and useful process, machine, manufacture or composition of matter.
Any new original and ornamental design for an article of manufacture.
Any asexual reproduction of a new plant
(part 2 of question):
Useful
Novel
“unobvious” from devices in the “prior act”
What was Justice Noah H. Swayne’s famous phrase he used to describe patentable inventions?
The invention must reflect a flash of though, not something that would be though of by the ordinary mechanic acquainted with the business
If a patent is issued, how long is the applicant entitled to its exclusive use and enjoyment?
20 years
What do inventors usually need the services of in order to work through the patent process and how long does that process take?
Patent attorneys, could take up to 3 years
When does patent infringement occur?
When nonconsensual use is made of the patented idea
What are patent owners entitled to if they succeed in proving patent infringement?
Damages plus court costs and interest
• treble damages (three times the amount proven) and injunctive relief may be ordered.
• Infringement is a tort
How is copyright ability distinguishable from patentability?
Patentability requires a work to be “novel”
Including the 1976 Copyright Act, what types of works are given legal protection by copyrights?
Anything original that is fixed in some tangible form. (music, drama, choreography, film, art, sculpture)
What affords better protection for securing copyrights?
When an application is filed with the copyright office with two copies of the work.
• this creates “prima facie” evidence of ownership and date of creation
Since 1998, what is the length of copyright for works created by identified natural persons?
From creation until 70 years after the authors death.
What is the length of copyrights if the work was written anonymously, is a pseudonymous works, or was a work made for hire?
95 years from publication or 120 years from creation, which ever expires first
What types of things can become a protectable trademark or service mark?
Any unique trademark, brand name, symbol or device – even a picture, slogan, shape of container – any detail that identifies a product as the property produced by a certain company and offered by that company for sale
What affords trade marks some limited protection?
What affords wider protection?
Common law, in localities where they are used
If they are registered under the system provided by the Lanham act of 1946 which is: • “prima facie” evidence of ownership • validity of the registered mark • continuing use of it • exclusive rights to use it
RULE OF LAW: Law of Marriage
Application of this rule of law determines the distribution of property, the setting of financial obligations, and the placement of any children following the dissolution of a marriage
- marriage is a civil contract between two people.
- all 50 States follows the doctrine of “no-fault divorce”, which requires nothing more than the bare assertion that a marriage be “irretrievably broken.” No other assertion of misconduct is relevant.
- divorce is not final until a waiting period has passed and the court has entered an Order of Dissolution.
- for order of dissolution, decisions on division property and such are based on the Doctrine of Equitable Distribution:
- Application of the doctrine of equitable distribution can result in an unequal distribution of property
- In community property States, such as the State of Washington, property acquired during the life of the marriage is jointly owned by both spouses and upon final dissolution courts will divide property equally between the two spouses.
- Upon legal separation, minor children will be placed in primary residency with a particular parent according to the doctrine of “the best interests of the child.”
RULE OF LAW: First Statue of Frauds
- All contracts for the transfer of any interest in real property must be in writing, and signed by the grantor, or the transfer is void.
- Application of this rule of law determines whether or not a grantee takes title to, and can claim ownership of, any interest in real property.
RULE OF LAW: Adverse Possession Rule
A person who, for a period not less than 10 years, openly occupies land owned by another, and in a manner that is hostile to the original owner’s interests, may claim ownership of, and quiet title to, the land.
Application of this rule determines who has ownership of, and who can claim title to, an interest in real property.
RULE OF LAW: Testamentary Transfer Rule
- Following death, estates are passed to a decedent’s heirs according to the terms of a decedent’s last written will.
In most States, including Washington State, two minimal conditions must be met in order to form a will
1) It must be signed and dated in front of two disinterested witnesses,
2) At a time when a person is over the age of 18 and “of sound mind.”
Otherwise, a court may determine the will fails.
If there is no will, estate is passed to decendent’s heirs
-if no heirs, the estate escheats to state property
Application of this rule determines the dispositiong and ownership of a person’s property after death
