Mod 34 Property Flashcards
Personal property is either…
Tangible or intangible
Tangible property
Items you can physically hold
Intangible property
Interests or rights that are not capable of physical possession
Fixtures 2
1 Personal property that is so attached to real estate
2 that it becomes real estate as a matter of law
Whether or not an item is a fixture depends on 4
1 intention of party who attached it
2 how it is attached to real estate
3 damage removal would cause real estate
4 trade fixtures
Trade fixtures 2
1 items used in a trade or business
2 are usually personal property
Ways to acquire property 3
1 by gift
2 by inheritance
3 by finding property
Gift, definition 2
1 a present
2 voluntary transfer of property without consideration
A gift has 3 elements
1 donative intent
2 delivery and
3 acceptance
Why is a promise of a gift unenforceable?
Because there is no delivery
Inter vivos gift 2
1 made while donor is still living
2 once made, it is irrevocable
Gift causa mortis 2
1 deathbed gift
2 automatically revoked if donor doesn’t die
Inheritance occurs by… 2
1 by will or
2 by intestate succession if there is no will
By Finding Property:
With lost or mislaid property
Finder gets good title against all but the true owner
By finding property:
With abandoned property
Finder gets good title even against true owner
Deeds have 4 elements
1 must be in writing
2 signed by grantor
3 contain a description of property
4 delivered
a general warranty deed…
Gives the best protection
A general warranty deed provides the following 3 guarantees
1 good title and right to convey (ownership)
2 no unstated encumbrances
3 buyer’s title will be undisturbed by any adverse claims of
ownership from others
Special warranty deed
Only guarantees ownership for time seller owned property
Quitclaim deed 2
1 grantor gives whatever title or interest
2 but doesn’t guarantee he has anything
Least protection
Grantor doesn’t guarantee he has anything
All deeds promise…
An implied warranty of marketability
Implied warranty of marketability of deed
Deed free from reasonable doubt
No unstated encumbrances 3
No unstated mortgages, liens, easements
Zoning restrictions are…
Not defects to marketable title
Title insurance
Protects owner against losses due to defects of record in their
Title
Title insurance only insures that…2
1 there are no defects of record and
2 only up to date of policy
The title insurance policy may make exceptions to…2
1 title coverage
2 and usually does
A title insurance policy cannot…
Con not be assigned to a 3rd party
Recording of deeds and mortgages gives…
Constructive notice to all subsequent 3rd parties of your interest
You don’t need to record deeds or mortgages to…
Give sellers or mortgagors notice
Real Property, define 4
1 land
2 items firmly attached to land
3 things under land
4 air above the land
With unrecorded deeds or mortgages…
A subsequent party may obtain a superior interest in the property
3 types of recording statutes for subsequent parties in deeds or mortgages
1 notice jurisdiction
2 race jurisdiction
3 notice-race jurisdiction
Notice race jurisdiction is also known as…
Race notice jurisdiction
Notice jurisdiction 2
1 Failure to record means you lose to subsequent parties without
Notice of your interest
2 whether or not they had notice
Race Jurisdiction 2
1 the first to record wins
2 whether or not they had notice
Notice-race (race-notice) jurisdiction
Failure to record means you lose to subsequent recording parties without notice of your interest
With Tenants in Common…
Each co-owner has undivided interest in property
Tenants in common:
Undivided interest in property 2
1 this interest can be inherited
2 interest can be transferred without other co-owner’s permission
Inherited
If one dies, property goes to heirs
With joint tenants, each co-owner has…
Undivided interest in property
Joint tenants:
Each co-owner must…
Have equal interest in the property
Joint tenants:
Each has rights of…
Rights of survivorship
Rights of survivorship
If one dies, property goes to surviving owners
Joint tenants:
Interest can be transferred…2
1 transferred without co-owners permission
2 but buyer becomes tenant in common
Joint tenancies have…
2) neumonic?
4 unities (elements)
2) PITT
4 elements of joint tenancies
1 possession
2 interest
3 time
4 title
4 elements of joint tenancies (PITT):
P 2
1 possession
2 each has undivided right to use whole property
4 elements of joint tenancies (PITT):
I 2
1 interest
2 each joint tenant’s interest is of same type and duration
4 elements of joint tenancies (PITT):
T 2 (first)
1 time
2 each tenant’s interest arose at the same time
4 elements of joint tenancies (PITT):
T 2 (2nd T)
1 title
2 each acquired their title by the same instrument
Tenants by the Entirety
Joint tenancy between husband and wife
Under Tenants by the Entirety, husband or wife may…
Not transfer their interest without specific co-owner’s permission
If type of co-ownership is unclear…
Law counts it as tenancy in common
Mortgages:
Most states follow…
The lien theory of mortgages
lien theory of mortgages:
Mortgage define
Lien on land to secure payment of debt
lien theory of mortgages:
The mortgagor…2
1 retains legal title and
2 right to possession
lien theory of mortgages:
A mortgagee may…
Assign the mortgage even if prohibited by the contract
lien theory of mortgages:
Mortgagees are regulated by…
the Real Estate Settlement Procedures Act (RESPA)
What does RESPA stand for?
Real Estate Settlement Procedures Act
Mortgages have elements that are…
The same elements for deeds
4 elements of mortgages
1 must be in writing
2 signed by mortgagor
3 contain description of property
4 be delivered
Upon foreclosure, all mortgage debts and expenses are…
Paid in order of their priority
Priority of mortgage debts and expenses upon foreclosure 2
1 mortgagee is paid in full before subsequent mortgagees
2 any surplus goes to mortgagor
A mortgagor remains liable for…
Any deficiencies if there is no surplus after mortgagee is paid
1st the mortgagee is paid in full before subsequent mortgages are paid unless…
There is a recording problem
Right of redemption 2
1 mortgagor’s right to redeem the property after default
2 but prior to judicial sale by paying all mortgages in full
Assuming a mortgage 2
1 Buyer agrees to be liable and
2 seller is still liable
Novation 2
1 buyer agrees to be liable and
2 mortgagee releases original mortgagor
Buying subject to 3
1 buyer is not liable
2 only seller (original mortgagor) is liable
3 buyer runs the risk of foreclosure if seller doesn’t pay
A lease must give the tenant…
The right to exclusive possession
Leases do not require writing unless…
The lease is for more than 1 year
If the lease is in writing it must include…
A description of the leased premises
For leases, a due date for rent payment…
Is not required
Leases:
Assignment
New tenant pays landlord
Leases:
Sublet
New tenant and old tenant pays landlord
Assigning and subletting can both be done unless…
Prohibited by lease
The assignor or sub lessor is still…
Liable for rent if not paid
Neither death nor sale of property…
Ends a lease
Bailment 2
1 temporary transfer of possession, but not title to personal property
2 by rightful owner (bailor) to another (Bailee)
Bailments have 3 elements
1 delivery of personal property by bailor to bailee
2 transfer of possession of personal property but not ownership
3 imposes absolute duty on Bailee to turn or send item as bailor
directs
Element of bailment:
Delivery of personal property, does not include…
Real estate
Bailee is liable for…
Negligence (lack of due care)
Bailee is presumed to be negligent…
If goods are lost or destroyed
If the Bailee can prove that the goods were lost or destroyed…
Through no fault of the Bailee, the Bailee is not liable
The Bailee has absolute liability without regard to fault in the following 2 cases
1 Bailee is strictly liable for unauthorized use of property
2 Bailee is strictly liable for misdelivery
Why is the Bailee strictly liable for misdelivery?
Because of the absolute duty to return the goods to the right
person
Common carriers
Those in business of transporting the public’s goods
Common carriers are considered…
Extraordinary Bailees
Common carriers liability
Strictly liable for any loss to the goods regardless of fault
Common carriers are strictly liable for any loss to the goods regardless of fault. 2 exceptions
1 not liable for loss due to goods improperly packed by party
shipping them
2 not liable for acts of God
Acts of God 2 examples
Floods, tornadoes
Bailees, including common carries may limit…
Limit their liability by contract
Notice jurisdiction (plain English definition from video) 2
1 if 1st mortgagee doesn’t record
2 second mortgagee will get house if they don’t know about 1st mortgagee
Race jurisdiction (plain English video definition)
Whoever records mortgage first wins
Notice-Race or Race Notice jurisdiction (plain English video definition) 2
1 first mortgagee doesn’t record notice
2 second mortgagee must record before first mortgagee and not
Know about first mortgagee
Adverse possession
Possessor of land, who was not owner, May acquire title if he
holds it for statutory period
Adverse possession:
What is the statutory period?
2) when does statute begin to run?
Varies by state, 5-20 years
2) begins to run upon taking possession
5 necessary elements of adverse possession
1 open and notorious possession 2 hostile possession 3 actual possession 4 continuous possession 5 exclusive possession
Open and notorious possession
Owner knows you’re there
Hostile possession 2
1 owner doesn’t want you there
2 must indicate intentions of ownership
Actual possession, define with example
Possession of land consistent with its normal use
Ex. Farm land is being farmed
Intellectual Property and Computer Technology Rights:
2 general competing goals
1 incentives to create products and services
2 provide public access to intellectual property, computer ideas
And uses
Intellectual Property and Computer Technology Rights:
Incentives to create products and services
Granting property rights so creators have incentive to create and market
Intellectual Property and Computer Technology Rights:
Provide public access to intellectual property and computer ideas and uses
Limiting intellectual and computer technology rights so public has access
Copyright Law:
Protects…
Original works (literary, musical, artistic)
Copyright Law:
Expressions of ideas are…
2) ideas themselves may…
generally copyrightable
2) not be copyrighted
Copyright Law:
Amendments to Copyright Act give added protection to…2
1 Computer hardware and
2 computer software
Copyrights created after January 1st, 1978 are…
Valid for life of author + 70 years
How long are copyrights valid for, for a publishing house?2
1 95 years form publication date or
2 120 years from creation date (whichever expires first)
Registration of copyright is…2
1 Not required
2 copyright begins when author puts expression in tangible form
Registration gives copyright owner, in case of infringement rights to…
Damages and attorney’s fees
Works published after March 1, 1989…
No longer need copyright notice on them
Fair use doctrine
Allows use for limited purposes without violating copyright
Fair use doctrine 4 examples (of limited use of copyright without violation)
1 portions for comment
2 news reporting
3 research or
4 teaching
Accessing digital work is…
Not protected by fair use doctrine
Consumer Software Copyright Act amends copyright law to include…
Computer programs as creative works protected by law
Consumer Software Copyright Act. 3 areas of computer program covered
1 computer program readable by humans
2 binary portions normally read by computer
3 basic structure and organizations
No Electronic Theft Act (NET Act) 2
1 criminalizes copyright infringement over Internet
2 whether or not financial gain where retail value of copyright
exceeds $1,000
No Electronic Theft Act, provides for…
Imprisonment and fines
Patent Law:
What does it cover?6
1 machines 2 processes 3 art 4 methods 5 composition of matter 6 new and useful improvements
Patent Law:
New and useful improvements include…
Genetically engineered plants and animals
Under patent law, mere ideas are…
Not covered
Cyber plans can be patented when they use practical application of…3
1 formulas
2 calculations or
3 algorithms
Cyber plans can be patented when they use practical application of formulas, calculations or algorithms because they produce results that are…3
1 useful
2 tangible
3 concrete
Patent law:
Invention must be…3
1 novel
2 useful
3 not obvious
Patents are administered by…
U.S. Patent and Trademark Office
Patent law:
Inventor may not obtain patent if invention was on sale or in public use in U.S. at least…
1 year before attempt to obtain patent
Generally patents are valid for…
20 years from when patent application was filed
How do patents usually receive international protection for 20 years?
By treaties
Design patents are valid for…
14 years from date of issuance
Owner of patent must Mark it…2
“Patent” or “Pat” to give notice to others
U.S. Gives patent protection to…
2) rather than…
First inventor
2) rather than first to file patent
Most countries give protection to…
The first to file patent
Financial and business models used over the computer…
Can be patented
What does US PTO stand for
Patent and Trade Office
PTO may reexamine and…
Reject patent
Patent may be overturned or narrowed in…
Case brought to court
Patent law is exclusively…
Federal law, (not state law)
Remedies for infringement of patent 3
1 injunctions
2 damages including lost profits traceable to infringement or
3 assessment of reasonable royalties
Patent law:
If infringement is willful, inventor may be…
1 awarded treble damages and
2 require infringer to pay attorneys fees
U.S. Supreme Court affirmed that you cannot escape liability for patent infringement in which…
Only insubstantial changes to patent are made in attempt to be
new patent
Paris convention
Allows patent protection in many foreign countries
Paris convention:
Most comprehensive agreement…
Between nations involving intellectual property
Paris convention:
Signed by…
Nearly all industrialized countries and many developing countries
Paris convention:
Generally allows a one year grace period for…
Inventors to file in other countries, once inventor files protection
In first country
Trade Secrets Law:
Economic Espionage Act
Makes it federal crime to use trade secrets
Trade secrets include such information as…6
1 financial 2 engineering 3 scientific 4 technical 5 software programs or 6 codes
Trade secrets also protect…
Processes used by company
Federal law helps protect against computer hackers who steal…
Trade secrets such as data bases and computer lists
Trade secret protection includes, what possible 4 areas to give business advantage of competitors…
1 formulas
2 patterns
3 devices or
4 compilations
Trade secrets must be secret that others have…
Difficulty acquiring except for improper means
An owner must take reasonable steps to…
Guard trade secret
Trade secrets can cover computer…
Hardware and software
Trade secret protection may be lost if…2
1 owner of trade secret fails to take steps to keep it secret or
2 other person independently discovers what was subject of
Trade secret
Methods to help protect trade secrets include:
Licensing of software
Prohibit copying except for backup copies
Methods to help protect trade secrets include:
Provide license that is…
Terminated for any breach of confidentiality
Methods to help protect trade secrets include:
Sell software in…
Object code instead of source code
Methods to help protect trade secrets include:
Have employees and buyers…
Sign confidentiality agreements
Semiconductor Chip Protection Act 2
1 amends copyright laws
2 prohibits taking apart chips to copy them
Semiconductor Chip Protection Act:
Prohibits taking apart chips to copy them…2 exceptions
1 allows act if used to create new chip rather than copy
2 copying common place designs are allowed
Semiconductor Chip Protection Act:
Protection is for…
10 years time from registration or first commercial application (whichever is first)
Semiconductor Chip Protection Act:
Permits civil recovery and penalties up to…
$250,000 for chip piracy
Semiconductor Chip Protection Act:
Reverse engineering of chips is…
Allowed if creates some new innovation
