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Final <3 Flashcards

1
Q

because the natives were first in time (and therefore first in right), but the Court did not want to grant Natives title, how did the court articulate the new rule for discovery?

A

b/c the indigenous did not discover the land (meaning they had not adopted the idea of discovery), they could not OWN the land, the natives were entitled only to OCCUPANCY

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2
Q

what is the rule for laboring raw materials

A

When one in good faith applies labor to the materials of another, courts generally award the final product to the owner of the raw materials unless the labor has transformed them

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3
Q

Pierson v. Post (fox case)
why is this not constructive possession?
RULE OF CAPTURE

A

Mere pursuit is not enough.
There is no way Post could guarantee that he was going to take possession of the fox. Once Pierson captured the fox, he became the rightful owner
- needed to mortally wound the fox

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4
Q

Keeble (shooting over neighbor’s duck pond case)

A

H: When a malicious/violent act is done to hinder the livelihood of another, there is an action for damages for the usage of the property
- R: Under Pierson, Keeble has no right of First possession of the ducks b/c there is no mortal wounding,
BUT in order to protect Keeble’s livelihood and the duck markets of the nation, the court found Keeble has a right to the usage of his property

  • “you have a property interest when the court says you do”
  • D could’ve legally set up his own decoy pond
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5
Q

what is constructive possession

A

“pretend” possession; discourages trespass & self-help

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6
Q

what is relative title

A

compares property interests between two (or more) people to see whose is stronger

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7
Q

Locke’s Labor Theory of property
(resource+labor)

A

When a person manipulates or uses some resource, he has acquired a property right in it because he has mixed his labor with the resource to make it his own

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8
Q

animus revertendi

A

when an animal will return back to the land of the owner, there is a property right

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9
Q

ratione soli

A

an owner of land has constructive possession of wild animals that are on his land

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10
Q

Popov v. Hayashi
- Bonds hits a baseball into the stands, P almost catches it but gets trampled. The ball rolls out and D picks it up. (MLB abandons) who has ownership?

A

the middle ground is equitable division, both P & D have equal interest in the ball
Popov does not have possession, but rather a right to it (which is the level below)
Ball was encumbered by P’s pre-possessory interest in the property, even if the ball bounced off 10 people, they all have an interest.

  • note: P cannot win on conversion b/c he did not do enough to reduce the ball to his exclusive dominion & control
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11
Q

what is an encumbrance

A

burden, obstruction, or impediment on property that lessens its value/ makes it less marketable
Any right/interest that exists in someone other than the owner of an estate & that restricts or impairs the transfer of the estate/ lowers its value

ex: A owns forest land but is prohibited from destroying it

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12
Q

Rule of capture applied to fugitive resources

A

Oil, gas & water: not considered owned by anyone (even if it’s under your land) until reduced to physical possession

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13
Q

Tragedy of the commons
- externalities
- free-riding
- hold-out

A

Commons = shared but can exclude outsiders
Tragedy = rational (self-maximizing) actors are compelled to exceed the limit of use while bearing only a share of the costs
- Externalities: Actor ignores some effects b/c they fall on others
Negative ex: not picking up after dog in neighborhood
Positive ex: neighbor X builds something that increases Y’s property value
- Free-riding: receives benefit at no personal cost
- Hold out: declines offer trying to get more $ (like the house in Miami)

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14
Q

legal realism

A

proper understanding of judicial decision-making is fact-centered
Public policy & social sciences should play a larger role
L + F + “X” = decision

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15
Q

legal formalism

A

judicial analysis that moved mechanically from category to conclusion
Law is self-referential
L + F = decision

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16
Q

right to exclude:
Jacque v. Steenberg Homes (transportation of mobile home over P’s land)

A

society has an interest in protecting the right to exclude; persons have right to exclusive enjoyment of their property for any purpose which does not invade the rights of another;
- nominal damages can support punitive here b/c state must protect

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17
Q

right to exclude:
Commonwealth v. Magadini
(homeless person taking shelter in businesses)

A

the lower court erred in excluding the defense of necessity
R: (1) the clear & imminent danger was established: extreme weather
(2) lack of lawful alternatives established: searched for apartments/shelters

LESSON: there is no absolute right to property b/c property rights serve human values

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18
Q

acquisition by find:
Armory v. Delamirie (jewel case)
- boy finds a jewel & takes to goldsmith, goldsmith refuses to return
who owns the jewel & why?
what is the value of the jewel?

A

the finder has absolute ownership against all but the rightful owner (finder = possessor)
F1 > F2 > F3 b/c first in time - first in right

  • Jewel came w/ encumbrance(risk) that the T.O. would find & re-claim the property (F1 only has value discounted by that risk)
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19
Q

policy rationale for adverse possession

A

Avoiding stale claims → SOL bars assertion of claims that are too old or rely on unreliable evidence by limiting time frame

Quiet titles → deeds/other docs contain errors that affect transferee’s title or deed may be ineffective b/c improperly executed or contains error

Protecting personal attachments → people regard loss of asset in hand as more significant than the opportunity to realize an apparent equal gain

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20
Q

adverse possession elements

A

(1) Actual entry → when person steps foot onto property (timer begins re: SOL)

(2) Exclusive possession → cannot be shared w/ TO

(3) Open and notorious → use the property as the TO
Sleeping principle = penalize the owner who is dormant and sleeping on his rights

(4) Hostile and adverse possession → “claim of title” = does not have the permission of owner to be there; state of mind test
MAJORITY: good faith or bad faith effort does not matter

(5) Continuous and uninterrupted → possession must be continuous for statutory period but not constant
“color of title” = invalid title

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21
Q

subrogation

A

buying your right to sue others (ex: insurance)

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22
Q

what are trover & replevin?

A

trover: forced purchase
replevin: return item (courts more likely to award b/c don’t want to calculate damages)

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23
Q

Hannah v. Peel hypo: what if soldier hannah was trespassing onto peel’s property?

A

Hannah would lose b/c court would give Peel constructive possession b/c of policy interest in discouraging trespass

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24
Q

what is the florida law for lost/stolen property

A

give to police & if no one claims in 90 days, F1 can claim it
if F1 just takes it, it’s theft

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25
Fulkerson v. Van Buren (church case) - P obtained legal title to parcel of land that had church building; Progressive church + Van Buren (Ds) began using the parcel where the church was located; P asked Ds to leave the premises but they refused; **Church asked Fulkerson for a quit claim deed
Person who does not demonstrate a clear, distinct and unequivocal intention to hold a property adversely for the length of statutory period cannot take by adverse possession. - Mere possession for the statutory period is insufficient to gain title
26
Hollander v. World Mission Church of Washington, DC (Church sought to recover possession of land on the boundary line that adjoining property owner (Hollander) had mistakenly possessed) P had improved land to a definitive line - what element is satisfied?
Holding: The hostile/adverse element is met because mistake is not the only thing Hollander is basing her claim on, she also used deed descriptions of the property - there was a definite intention to occupy: P had claimed the land as her own + improved it to a definitive line (by continuously mowing)
27
A & B own adjacent lots, A has adversely possessed 3 feet of B's land b/c of improperly placed fence, however she moves it back when B asks her to. 3 years later (10 yr SOL), A wants the land back. who owns the 3 ft of land?
A has title because of adverse possession & therefore owns it. A wins despite the representations made to B (also, no SOF writing for transfer) - B could also eventually gain title back through AP, but not in this hypo b/c SOL is 10 years & it has only been 3 years since the fence was moved
28
Howard v. Kunto (vacation home; tacking) - how much possession is necessary - is there privity?
1. for AP purposes, possession is sufficient when the property is used in a manner that is natural & ordinary given the nature of the property. Here, summer home, so living on it year-round not required for AP 2. TACKING: REASONABLE CONNECTION successive owners may add their occupancy times together where they share PRIVITY in the ownership interest. Here, their common erroneous belief is sufficient to establish privity
29
disabilities + tacking when must the disability be present to affect tacking
disabilities CANNOT tack, even if it's the same person. - AND disability must be present when the cause of action arises (when SOL clock starts)
30
what possession is necessary for AP
ACTUAL, constructive pos. will not do
31
what question should you ask for AP problems
If I am the T.O., could I eject A? if not, A had not actually possessed my property
32
approaches to tolling if AP leaves under threat of force (doesn't abandon)
1. A tolls the 6 months (not included in SOL period) 2. A had constructive possession for 6 months (included in SOL period)
33
what does an adverse possessor acquire upon completion of SOL time period?
whatever title the T.O. has in that moment (could be years/life state/ fee simple)
34
how transfer of title & new category of title affect the AP clock
- transfers DO NOT interrupt AP clock - switching of title (A for life, then B in FS) DOES restart AP clock
35
distinction of who AP elements focus on: - hostile & adverse - open & notorious
- hostile & adverse: focuses on actions of adverse possessor (majority doesn't distinguish b/w g/bf) - open & notorious: must be enough notice to T.O. to bring forth a trespass action
36
chattels: how does the discovery rule alter AP - how do subsequent transfers affect SOL clock
shift focus from possessor's conduct to the TO. - T.O. can prevent SOL through diligence to recover property - note: subsequent transfers are part of same continuous dispossession (privity)
37
acquisition by gift elements
(PIDA) (MCS) (1) intent: present interest in property (2) delivery: (what circumstances permit) wrench of parting w/ property; can be constructive: manual is impractical, so instead give something that provides access (ex: car keys); can be symbolic (usually a writing) (3) acceptance (presumed if beneficial)
38
O gives B a check, but O dies before B cashes. Who owns the funds?
O does because death revokes check (which are revocable prior to actual payment/withdrawal)
39
gift: when are writings insufficient?
usually not enforceable for present transfer of small chattels; must physically hand over the chattel
40
are future gifts valid?
no
41
O says to X "I want to give you my life insurance" gift?
no b/c no delivery
42
O says to X "I want to give you my bureau" The bureau contains O's insurance policy. Has O gifted the ins.?
no b/c although delivery, no intent
43
Gruen v. Gruen why wasn't the gift of the klimpt painting an invalid future gift?
(1) intent: the donor intended to make an irrevocable present transfer of ownership (donor's FS interest) (2) the letters were a sufficient instrument of delivery b/c donor couldn't have "delivered" a future interest letter = transaction that created 2 interests (life estate & remainder in FS)
44
gift: donative intent test
whether the maker intended the gift to have no effect until after the maker's death, or whether he intended to transfer some present interest (established by evidence)
45
escheat definition
when a person dies intestate (and w/out heirs), property will be transferred to the state
46
fee simple: key characteristics
(1) Heritability: passes to O’s legal heirs (2) Alienability: able to convey the fee to another during heir’s life to another openly & without original O’s consent
47
words of purchase vs words of limitation
WOP = to who - "to A" WOL = what - "her heirs, for life, etc."
48
fee tail language + definition
"to A & the heirs of her body" (lineal descendants); When A's bloodline ends, reverts to O **every fee tail has a remainder/reversion after it
49
how people get out of fee tails
"bar the entail" (common for devising prop among family) (1) common recovery: fictional lawsuit - gain title through default judgment (2) deed: giving deed in FS so that fee tail no longer exists
50
FL fee tail statute
cuts off at 1 generation "to A for life, then to A's issue, alive at A's death, and their heirs" (O no longer has reversion) - if no issue, escheats
51
3 ways fee tail is treated @ common law & in FL
(1): life estate, issue get FS (2): fee simple (3): fee simple, but if B has manifested other intentions--must follow those In FL: mixture of 1 & 3 (cuts off at 1 generation; following through with some of O's intent) "to A & heirs of his body" = A gets life estate; A's issue when A dies are remainderman thus, redrafted to "to A for life, then to A's usse alive @ A's death (F.S.) (O no longer has reversion interest) - if no issue, ESCHEATS
52
"to A forever" effect at CL? now?
when A dies, will revert to O b/c "forever" is not the standard word despite the intent to convey FS Today, would be construed as fee simple
53
"to A & her heirs" does B (A's child) have an interest?
NO! B has a mere expectancy b/c A can do anything w/ the property before A dies
54
CL heritability distributes in what way?
goes down, not up - children shared equally - coparcenary = division among daughters
55
O has a fee simple. if B (O's child) dies before O, does it go to B's wife? or B's children (O's grandchildren)
B's grandchildren b/c W is not O's heir - however if O died first, then B could transfer his entire interest to W
56
fee tail heritability? "to A & the heirs of his body"
(a) first born son (b) wife's male heirs (c) property passes to female heirs
57
in determining whether to conduct a judicial sale of property, what should equity courts consider?
can order sale only if it is NECESSARY; considering BOTH: (DWIP) 1. Deterioration/waste if not sold 2. interests of all the parties (including beneficiaries w/ remainder interest)
58
AP of chattels
(HAVEC) hostile actual visible exclusive continuous
59
does a trustee in fee simple have more than a mere expectancy?
yes. trust life estate is EQUITABLE. the remainderman = manager of the property
60
the right to exclude is not absolute. what is the defense to criminal trespass used in the case about criminal trespass?
(1) clear & imminent danger (2) lack of lawful alternative
61
doctrine of waste application to remainderman
protects remaindermen by not allowing life tenant to use the property in a manner that unreasonably interferes w/ expectations of remainderman
62
FSD related interest & definition
- possibility of reverter - ends automatically on the happening of an event
63
FSCS related interest & definition
- right of entry - does NOT end automatically; grantor MAY terminate
64
may either FSD / FSCS be conveyed intervivos? what was the distinction in Mahrenholz?
No - in Mahrenholz, if HEH had a right of re-entry, he hadn't exercised it & therefore could not have conveyed the property - but if he had a possibility of reverter, then the property did in fact revert to him & he could convey the property intervivos
65
FL law for reverter/forfeiture provisions
prov's of unlimited duration = unreasonable restraint on alienation - such prov's (post-1951) will only be valid for 21 years
66
are exec interests alienable?
yes
67
if a party acts inconsistently with a covenant, what are the consequences?
- damages - enjoinment NOT subject to forfeiture
68
to A for life, then to B & her heirs, but if B does not survive A to C - what interests are created?
A = LE B = VR subject to divestment C = shifting exec interest
69
to A for life, then to B & her heirs if B survives A, & if not to C - what interests are created? what are B & C's interests called?
A = LE B = alternate CR C = alternate CR O = reversion
70
LE + FI1(CR) + FI2(?)
CR
71
LE + FI1(VR) + FI2(?)
executory interest
72
vested remainder rule
(1) ascertained person, AND (2) not subject to a condition PRECEDENT (may be sub to cond sub)
73
contingent remainder rule
(1) unascertained person, OR (2) subject to a condition precedent
74
then to A's children - if children alive? - if no children?
- VR subject to open - CR
75
rule in destructibility of CRs
if R doesn't immediately vest, reverts to O
76
rule in shelleys case & FL stat
shelley: "then to A's heirs" = R in FS in A Fla: A's heirs @ creation of interest = R in FS subject to open
77
doctrine of worthier title & FL state
WT: "then to O's heirs" = O has a reversion Fla: O's heirs = R in FS
78
rule against perpetuities & FL state
must vest 21 years after some life in being @ creation of interest Fla: wait & see / 90 years
79
tenancy in common (default) elements
- descendible - no survivorship rights
80
joint tenancy elements
TTIP - must vest @ the same time - acquire title by same instrument / joint AP - identical interests - right to possession of whole JT > decedent's wishes
81
how does a JT become a TIC
- by destroying any one of the unities = severance - conveying to someone else = severance (which defeats survivorship)
82
tenancy by the entirety elements & difference from JT
- TTIP + marriage - CANNOT sever; need spouse's consent - CANNOT defeat survivorship through conveyance
83
does mortgage = severance?
not under lien theory - which FL follows
84
rule for partition
PBS should be only ordered when: (1) PBK is impracticable/ineq; & (2) PBS would better promote parties' interests
85
TIC are each entitled to entire property - ouster rule
one cotenant depriving the other of her right; 'deprived' party must have made a demand/attempt IOT claim ouster
86
term of years elements
- fixed period of time - can be unilateral
87
periodic tenancy
- duration continues until either terminates - notice = one period - can be unilateral
88
tenancy at will
lonudt - endures as long as LL/T desire - CANNOT be unilateral; either may terminate - death terminates
89
tenancy at sufferance
T wrongfully remains LL can: - evict - consent to new tenancy
90
SOF requirements
- signature - description - price
91
SOF: estoppel exception rule
(1) changed positions based on a reasonable belief that the agreement was valid, & (2) injustice would result if relief not granted
92
SOF: part performance exception rule
(1) possession by purchaser (2) subst'l improvement by purchaser (3) payment of purchase price
93
marketable title is
one free from exposure to the hazard of litigation
94
encumbrances per se
covenant & easement
95
zoning is an encumbrance when?
only in violation
96
is a building code an encumbrance?
no unless substantial
97
duty to disclose rule
- before transfer of title: if seller creates a condition that materially impairs value of K & unlikely to be discovered by prudent purchaser, nondisclosure = basis for rescinding K
98
merger (K & deed)
K merges into deed: buyer is deemed to be satisfied that all K obligations have been met - buyer now can only sue on warranties
99
define: - general warranty deed - special warranty deed - quitclaim deed
- gen: title against all defects - special: only against grantor - quitclaim: no warranties
100
present vs future covenant
present = broken @ delivery future = grantor promises to do some future act
101
constructive eviction
owner must take some action to exercise superior title
102
mortgagees obligations
good faith & due diligence - bf: purposeful disregard of duty / intentional harm - due diligence: must act as a RP would w/ respect to the sale
103
mother hubbard clause
conveys all of grantor's prop in a specific county - instruments must describe prop w/ enough specificity that it can be easily identified
104
race:
whoever records first wins - B can have notice of A
105
notice:
subsequent purchaser has priority even if failed to record - B cannot have notice of A
106
race-notice:
- B cant know about A - & must record first

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