Property Flashcards
The Right to Exclude: Civil Trespass
- Intentional
- Invasion
- Onto the land of another
- Unprivileged
The Right to Exclude: Criminal Trespass
- Trespasser knows no access allowed
Arbitrary Exclusion
- Majority
- The right to exclude for any reason
- Can not violate anti-discrimination laws
Reasonable Exclusion
- Minority
- Only discriminate when reasonable to do so
- Person is a danger to other patrons
- Person disrupts the essential business operations
Innkeeper and Common Carrier Rule
- Nationally Recognized
- Reasonable Exclusion
The Right to Access
- Consent
- Necessity
- Public Policy
1866 Civil Rights Statute
Prohibits race discrimination in the making of contracts
1964 Civil Rights Statute
Prohibits discrimination in places of public accommodation
Place of Public Accommodation
- Provides lodging for transient guests
- Principally engaged in selling food for consumption on the premises
- Place of exhibition or entertainment
Protected Classes
- Race
- Religion
- Color
- National Origin
Possession
- Occupancy
- Undertaking significant steps to achieve possession
Injunctive Relief
A court order requiring a person or entity to do, or refrain from doing a specified act
Constructive Trust
To prevent unjust enrichment when an individual benefits from his or her wrongdoing
Equitable Distribution
Divide the proceeds from the sale of property
Adverse Possession
- Possession
- Open and Notorious
- Exclusive
- Continuous
- Hostile
- For a statutory period of time
Prescriptive Easement
Grants a trespasser the right to use the property of another in the same way it had been used before without interference
Prescriptive Easement Elements
- Long-standing
- Non-permissive
- Does not qualify possession
The Improving Trespasser
A non-owner who builds or constructs an improvement on the land of another without permission
Doctrine of Relative Hardship
- Courts will balance the interest of both parties
- Only used is trespasser unknowingly encroaches on neighbor’s property
Inter Vivos Gift Requirements
- Intent
- Delivery
- Acceptance
Types of Delivery
- Actual Delivery
- Constructive Delivery
- Symbolic Delivery
Testamentary Gift Requirements
- A signed writing
- With witnesses
Gifts Causa Mortis Requirements
- Donative Intent
- Delivery
- Acceptance
- The Donor’s expectation of imminent death
Types of Co-Ownership
- Tenancy In Commons
- Joint Tenancy with the Right of Survivorship
- Tenancy by the Entireties
Tenancy in Commons
- Default Co-Ownership Type
- Right to possess the whole property
- Share calculated based on contribution
- Power to transfer his/her share without knowledge of consent of co-owner(s)
Joint Tenancy with the Right of Survivorship
- Right to possess the whole property
- Power to transfer his/her share without knowledge of consent of co-owner(s)
- Surviving Co-Owner absorbs the share of deceased Co-Owner
The Four Unities
- Time
- Title
- Interest
- Possession
Tenancy by the Entireties
- Spouses Only
- Co-Possession
- Right of Survivorship
- Cannot Transfer Alone/No Partition
- Creditor Protection
Ways to Resolve Ambiguities
- TIC as default
- Intent of grantor
- The Four Unities
- Explicit Language
Types of Shared Bank Accounts
- Joint Bank Account with the Right of Survivorship
- Agency Account
- Beneficiary Designation
- Uniform Probate Code
- New Ownership Structure
Joint Bank Account with the Right of Survivorship
- Power to withdraw and manage all funds
- When one owner dies, their share is absorbed by the surviving co-owner(s)
Agency Account
- Management rights to co-owner
- No ownership rights to co-owner
- No ROS
Beneficiary Designation
- Designating who the money will goto at death
- Overrides the Will
- No management rights until death
Uniform Probate Code
- Minority
- Owner’s share of bank account is based on his/her contributions
- ROS
New Ownership Structure
- TIC during lifetime
- JTWROS after death
Co-Tenant Obligations
- Pay proportionate share of mortgage, taxes, and maintenance
- Not required to share cost of improvements
- No Rent by IPT to OOPT
Ouster
- Rent owed to OOPT
- Actual: act of physical exclusion by IPT
- Constructive: situation of property of relationship between parties makes co-possession impractical
Unilateral Lease by Co-Owner
- Can only lease the share you own
- If you don’t subscribe to the lease, you don’t get the rent
Options for Non-Leasing Owner
- Give up rights of co-possessing, subscribe to the lease, and get the rent
- Co-Possess
- Partition
- Rent out his share to someone else
Severance
- If Co-Owner makes a lifetime transfer of their share
- If one co-owners makes lease or mortgage
Severance: Co-Owner makes a Lifetime Transfer of their Share
- ROS is gone
- Becomes a TIC
Lease or Mortgage Severance
- Converts Property into a TIC
- Deceased Co-Owner’s share would go to his/her estate
- Lease Survives
Lease or Mortgage: No Severance
- JTWROS still in place when co-owner passes
- Deceased ‘s interests absorbed by Survivor
- Lease survives
Partition in Kind
-A physical partition of the land between co-owners
Partition in Sale
- Selling the land and dividing the profits between co-owners
- Must prove:
- That the property cannot be conveniently partitioned in kind
- That the interests of one or more of the parties will be promoted by the sale
- That the interest of the other parties will not be prejudiced by the sale
