Personal Property Flashcards
What is the general difference between real and personal property
you can move personal property and not real property.
Plus, personal property includes tangible and intangible (patent, royalty, stock)
Is a lease real or personal property?
Personal. It is a chattel, no matter the length.
How does a fixture become real property? (3 part test)
- whether the item of personal property can be easily removed once attached to the real property
- whether the item has been adapted to the use of real property; and
- whether the owner intends to make the item part of the real porperty
What is a bailment?
Transfer of possession but not ownership of personal property from one person to another.
Who owns personal property that has been lost or mislaid versus abandoned?
Lost or mislaid property is still the property of the original owner
Abandonment extinguishes any ownership interest in property
What is the general rule for finders of lost property?
They have a right to the property that is good against everyone except the true owner. Must be returned upon locating that owner. But until then, the find has all the rights attributable to the owner to possess and use the property and exclude others from using/possessing it.
Does not apply to tresspassers, or to those that find it in a private place that the public is not normally invited.
Finders rule for when a person finds lost property during the course of employment?
The employer has the possessory right to the lost property, not the employee
What is mislaid (misplaced) property?
Property that reasonably appears to have been put somewhere on purpose and then forgotten.
Who gets a possesory right to mislaid property good against the world and not the true owner?
the owner of the property, not the finder.
How does one abandon property? Who owns it then?
- (1) have the intent to abandon property and (2) must manifest that intent.
- the first person to take possession (rights good against anyone)
What duties does a quasi-bailee have when coming upon lost or mislaid property?
- locate the true owner through reasonable means
- keep the property with due care
negligence
How many years before lost or mislaid property becomes abandoned?
5
prove all of the adverse possession elements. One difference being open and notorious – clocks starts when owner discovers or should discovers that property is taken
What is accession?
the application of labor or materials to one person’s personal property by another person.
General rule for accession?
If Individual A adds labor and/or materials to Individual B’s property, the materials and the value added by the labor become the personal property of B
Accession curve ball: When there is uncertainty between two people about who owned an item of personal property, rule for who becomes owner?
the person who adds substantial value to the personal property will become the owner through accession, as long as that person is an innocent trespasser (no intention)
But other person may get damages for the taking
What are the elements of an inter vivos gift?
- Donative Capacity (mental capacity)
- Present donative intent (conditional or unconditional)
- Acceptance by the donee (presumed; express denial will overcome presumption)
- Delivery (transfer of possession)
a. Actual (physical) or constructive (handing over control)
cannot be revoked
What are the five elements of gift causa mortis? same as regular inter vivos gift with 1 extra elemtn
- donative capacity
- donative intent
- delivery
- acceptance; and
- the donor msut be in apprehension of his impending death (fast approaching)
can be revoked; remains valid though even if a cause separate from the presumed cause leads to death. o Delivery requires more than deathbed utterance
How is a gift causa mortis revoked? (3)
- affirmative act of the donor
- donor’s survival of event or illness that causes the donor’s apprehension of death
- the donee predeceasing the donor
What is detinue?
An action to recover personal property that someone else took possession of bust has refused to return
What is trespass and what is trover
- trespass action: action to recover monetary damages form the loss of possession
- trover: an action to recover the value of the property
What are the three elements to create a bailment?
- bailee must have physical possession of the proper and the intent to exercise control over the property;
- the bailee must agree to the bailment; and
- the bailee must know of the personal property
most are conditional
Is an employee’s use of employer property a bailment?
No, because the employer never loses control over the property
Is a cosignment a bailment?
yes, this is where one transfer their property to another for the puspose of the selling that property.
Risk of loss with a bailment arrangement?
stays with the bailor
Are inkeepers bailees over the property of their guests?
No, but VA has established a statutory scheme for inkeeper liability
What must an inkeeper do with respect to guest property?
take reasonable precaustions to protect their property.
Bailee standard of care for a bailment solely for the benefit of the bailor (no compensation).
Slight diligence - bailee is liable for a loss to property if acting grossly negligent
Standard of care for bailment for th emutual benefit of the bailor and bailee?
Ordinary diligence - liable for loss or damage to the property resulting from bailee’s negligence
most commercial bailments
Where there is a bailment contract, What two things must a plaintiff prove to establish a prima facie bailment case against a bailee who negligently lost the property?
(1) Delivery of the property to the bailee with intent to create a bailment; and
(2) failure to exercise ordinary diligence which includes Bailee’s failure to return the property
there is a baiment K, you don’t really need more than (1) delivery and (2) failure to return for a prima facie case. Whereas, if there is no K, then you need to prove (1) delivery and (2) acceptance to establish a bailment existed in the first place.
When a prima facie bailment case against a bailee has been proven, what could the bailee prove to absolve herself of liability?
Show that the failure to return the negligence was without fault or negligence on her part.
e.g., I exercised reasonable care and my employee acted outside their scope of employment
How is a bailment relationship created without a bailment contract (prima facie case)?
- Delivery (intentionally yielding possession of the property)
- Acceptance
Bailee’s knowledge of the value of the property is irrelevant to the question of whether a relationship has been created.
When an employee becomes a bailee (w/o k) is the employer vicariously liable?
The employer vicariously liable for actions taken in the scope of her employment.
How can a bailee disclaim or limit liability under the bailment?
Disclaimer are disfavored so they are strictly construed. To be effective, the disclaimer or limitation must be known to the bailor, or they should have known about it (conspicuous), and assented to it.
What does the scope of employment include?
Acts expressly and impliedly authorized by the employer to conduct business. Detour versus frolics (significant deviations).
What is the general rule about selling a good that you do not have rights to?
Generally, a seller can transfer only the title that he has.
What is the UCC exception to the general rule that a seller can only transfer title they have? (boni-fide good faith purchaser)
A buyer in the ordinary course of business that purchases from a merchant of goods of the kind will have all rights as owner.
A buyer in the ordinary course of business is one that buys in good faith and without knowledge that the sale to him is in violation of the ownership rights of a third party in the goods. Consider the buyer’s experience with the goods (good faith means that if they understood the value of the product, they would know something is off if they get a huge discount.
What does it mean to endorse a stock certificate in blank?
o Creates a bearer paper.
- What does the creation of an inter vivos trust require regarding proof?
o Clear and convincing evidence of the intent to create an inter vivos trust.
- What is the difference between the authority to act as an agent versus a trustee with regard to the principal/settlor dying?
o The authority for an agent extinguishes
- Can a testamentary gift be made orally?
o No, it must satisfy the requirements for a will
- When is a bailee strictly liable for loss or damage to goods?
- When the bailee uses the bailed goods for a purpose outside the scope of the bailment
- If the bailee moves the property from the agreed place of storage
- A bailee who agrees to return the bailed property in exactly the condition it was in at the start of the bailment and fails to do so
- A failure to return the property or misdelivering the property
- What is an action for conversion and whats it for?
o Its for the deprivation of the value of property from the rightful owner (includes failure to deliver the property to the owner)
o Its essentially a forced sale whereby the title thrust upon the converter or can pursue detinue action
- What is the measure of damages for a conversion action?
o Detinue – return of the property
o Trover – value of the chattel at the time and place of the conversion, or more if fair market value would lead to unjust enrichment in the defendant; if just damaged, then difference between
o Tresspass – seek losses by virtue of not having the property
- What measure of damages for breach of contract, negligence and strict liability?
o Expectation damages: so in this context the value of the possessions (compensation) (or difference between FMV and actual value if just damaged)
- What is an action for detinue and what must be proven to prevail?
o An action to recover personal property
o (1) the plaintiff has a current right in the property; (2) the plaintiff has a right to immediate possession; (3) the property is capable of possession; (4) the property has value; and (5) the defendant had possession of the property prior to filing suit.
Under the UCC, a person with void title can transfer what type of title to a good faith purchaser versus a person with voidable title?
Void cannot pass good title
Voidable can pass good title
