EXAM II Flashcards
6 bundle of rights of property
Property - general concepts
- Liberty to use (use the property in any way you want, so long as your use of it doesn’t violate someone else’s rights)
- Right to exclude (to determine who else can and cannot use the property, so long as you are not violating anti-discrimination laws in a business open to the public)
- Power to transfer (to sell or give the property to someone else, except that laws regulate some contractual relationships )
- Power to devise or bequeath (to leave it to someone in your will, except that you must pay estate taxes and some states require that a surviving spouse gets some property)
- Immunity from damage (to not have your property damaged by others except that some things others do may impact the value of your property and yet be permitted)
- Immunity from expropriation (to prevent others from taking it from you against your will except that the government can take a property in some instances by paying just compensation)
Personal/Real Property
Property - general concepts
Real - The earth’s crust and all things firmly attached to it
Personal - everything else (running shoes, stocks, art)
Tangible/Intangible Property
Property - general concepts
Tangible - Has a physical existence (Hammers, cars, bracelets, soda cans, iphones)
Intangible - Has no physical existence. The value lies in the rights that go with the property. (Rights under a patent or copyright. Stocks. Right to sue on a contract).
Public/Private Property
Property - general concepts
Public - Owned by the government, or some unit of the government.
Private - Owned by an individual, a group of individuals, a corporation or other business organization.
Abandoned Property
Personal Property
The owner intentionally placed the property out of his possession with the intent to relinquish ownership of it.
Finder becomes the owner. This means the finder has better rights to the property than anyone else in the world – including the original owner.
*Purple couch example
Lost Property
Personal Property
The owner did not intend to part with possession of the property.
Original owner has better rights than the finder; the finder has better rights than anyone else (other than the original owner).
In some states, if the finder knows who the true owner is, he is required to return it.
*Jayhawk sweater example
Mislaid Property
Personal Property
The owner intentionally placed property somewhere but then accidentally left it there, not intending to relinquish ownership.
Finder has no rights in the property.
The person in possession of the real property on which the personal property was mislaid has better rights to it than anyone other than the original owner.
In most states, the owner of the real property holds onto the property for the true owner until some amount of time has passed and the owner has not returned to pick it up.
*golf club example
Gift
Personal Property
Voluntary transfer of property to the donee from the donor.
Elements to transfer title by gift
Personal Property
- The donor must intend to make the gift.
- The donor must make the delivery of the gift.
- The donee must accept the gift.
A promise to make a gift in the future generally is not enforceable
Bailment
Personal Property
One party holding property of someone else, for a while, but with a duty to return it to the owner. Must express or implied contract that the bailee (the person holding the property) has control of the property and a duty to return it to the bailor (the person who owns the property).
*Bike example - storage lockers - warehouse - borrowing tools etc
Donor
Personal Property
Person who gives the gift.
Donee
Personal Property
Person who receives the gift
Testamentary gift
Personal Property
A gift made through a will
Bailor
Personal Property
The person who owns the propery
Bailee
Personal Property
The person holding the property
Bailee’s duty of care
Personal Property
- For benefit of bailor - If the bailment is “for the benefit of the bailor” (for the benefit of the owner), then the standard of care for the bailee is relatively low.
- For benefit of bailee - If the bailment is “for the benefit of the bailee,” then the standard of care for the bailee is much higher. Bailee is very likely in breach of the duty of care if she cannot return the object to the bailor in proper condition.
- For mutual benefit - Many bailments are for the mutual benefit of both parties (like a rental agreement). Bailee has a duty to return the object and to take “reasonable care” of it.
Real Property
Real Property
Real Property is not just land…
- Land
- Buildings
- Trees, crops, and other vegetation
- Water and groundwater
- Minerals below – but there are limitations..
- “Law of Capture” in many states
- Airspace above – but only to the extent you can use it
Airspace
Real Property
You own the airspace above your property only to the extent you can use it
Minerals - the rule of capture
Real Property
Rule of capture states that the first person to capture a natural resource owns that resource
Adverse possession & the 3 ways it occurs
Real Property
If someone is continuously trespassing on your land and you fail to put a stop to it – eventually that trespasser will own the land.
Adverse possession occurs when:
- A person wrongfully (without permission of the owner) occupies land in an open and notorious manner;
- In a way that is actual, exclusive, and continuous (can do this with a fence or constructing something on it or just stay there continuously)
- Possession must be continuous for a prescribed period of time (10-20 years, depending on the state).
True owner must take steps within a statutory time limit to eject possessor from the land or forever lose the right to eject the possessor.
Easier solution: Just give them permission to be there
Fixture - what it is and why it matters?
Real Property
A permanent fixture is a personal property that has become attached to or connected to real property in such a way that it ceases being personal property and becomes part of the real property.
Fixtures belong to the owner of the real property.
Negotiating when selling a house
Easements
Real Property
the right to make a certain use of another person’s property - often the right to go across the land
- By necessity - someone must be allowed to use land he does not own out of necessity (e.g. there is no other way to get to the land that person does own);
- By grant - written grant that says the property owner that says the other person has the right to use some part of the land in some way, either because of a gift of a sale
- By reservation - owner sells the land but reserves some use of a part of it for himself
- By prescription - someone conducts an open and continuous use of another person’s land over a long period of time and the owner fails to stop that use
Concurrent ownership
Real Property
Each person’s ownership is UNDIVIDED.
No one person owns a specific piece or portion of the property – instead all the concurrent owners own the whole thing together.
- Joint tenants - all own equal shares; if one person dies, they have the right of survivorship & can take the third parties portion
- Tenants in common - can own difference shares & do not have the right to survivorship
- Action to partition - Owners, or creditors of an owner, can force a division of the property through an “action to partition”
Writing Required
Real Property
Agreements dealing with real property generally must be written (unlike most other contracts).