property Flashcards
Intent
Severance: donor must have the present purpose to irrevocably sever interest in the property
Symbolic Delivery
Handing over of something is merely representative of the gifted property
constructive delivery
act of handing over an item by the donor that permits the donee to use the gift (keys to car)
acceptance
presumed by law for value gifts (arguable)
Gifts Intervivos v gifts causa mortis
I: donor is in good health and has full capacities
CM: Donor expects death but gift is revocable upon recovery
Wills
passing of property upon death of the donor only + statute requires that it must be in writing and in the presence of a witness
Life Estate
Possessory rights for the duration of the recipient’s life
After their death– reversion or remainder
reversion
back to the grantor
remainder
goes to someone else
Engagement Rings as Gifts
Conditional Gifts: Fault based or no fault based (someone ruins marriage, business death, conditional or not)
California Civil COde § 1590: Engagement Rings
“where either party to a contemplated marriage … makes a gift … to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as
contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value.
Estate
refers to the length of time that an ownership lasts
Fee Simple
Ownership of unlimited duration (unless transferred, it passes onto devisees under will or to heirs if no will)
Life Estate
possessory estate of limited time duration (“for life”)
Can also be for life of another person than the grantee (life estate pour autre vie)
Transferable inter vivos: not devisable or inheritable
Waste & Life Estates
Use must be consistent with the fact that the property will be handed over to the remainder man on the death of the life tenant– can’t permanently impair the value
3 types: (Affirmative, Permissive, Ameliorative)
Affirmative Waste
affirmative action that damages the land permanently (voluntary: burn the barn, cut trees)
Permissive Waste
Failure to act reasonably to protect against deterioration (involuntary: chronic leak, not paying property taxes, interest payment on mortgage)
Ameliorative Waste
Affirmative action that change the principal use of the land, increasing its value Actionable when (1) grantor intended for there to be no change in the land
Defeasible Fee Simple
Estates that are subject to termination based on a future event
Fee Simple Determinable
Grantor intends to grant fee simply only until a specified future event happens
Grantor retains a possibility of reverter (not revision)
“so long, as, until, during, while”
Transferable but nature stays the same
Fee Simple Subject to Condition Subsequent
Fee simple but can be revoked by grantor if some future event happens
Grantor retains right of entry/ power of termination
“Provide, however, but if, on condition that”
Fee Simple subject to an executory limitation
The estate is transferred to a grantee until some future event happens
Grantor creates a future interest in a third party
Reversion
created when a grantor conveys a lesser estate than he or she originally owned
always vested
Possibility of Reverter
Grantor conveyed the same quality estate as they originally had but conveys it with a determinable limitation
potentially contingent
Power of termination/Right of Entry
Grantor retains the power to cut short the conveyed estate
Contingent remainder
A remainder with some uncertainty, either (1) with regard to the identity of the person to take possession or (2) the fact that that person actually will take possession
Vested Remainder
A remainder is given to a presently existing and ascertained person, and (2) not subject to a condition OR subject to a contingency that occurred to a condition that disappeared
Ad coelum doctrine
“for whoever’s is the soil, it is theirs all the way to Heaven and all the way to hell”
owner of the land has right to the air above and the ground below property
Most important stick in the bundle (Pile v Pedrick, Jacques v Steenberg)
Limitations: Navigable air ( public domain) Griggs, Control (cave entrance) Edward v Sims, Fugitive resources, remedies might be adjusted to take into account circumstances
Quasi Public Property
Civil Rights Act of 1866 (race discrimination), Civil Rights Act of 1964 (race, color, religion, national origin, not gender),Title III (public accommodations and commercial facilities), Private clubs
Civil Rights Act of 1866
Race discrimination only
damages available
Before ‘64, only applied to state actors, not private citizens and then private actors as well later
Civil Rights Act of 1964
applies to race, color, religion, national origin (not gender discrimination)
Quasi-public v private property (applies to hotels, restaurants)
no damages available, must submit to state agency for resolution
Title III: Public Accommodations and Commercial Facilities
prohibition of discrimination on the basis of disability in the activities of place or public accommodations
places of public accommodation under ADA; business that are generally open to the public and that fall into one of 12 categories
Requires newly constructed or altered places of public accommodations
Federal Laws about Private Clubs
most public accommodation statutes do not apply to private clubs and establishments not open to the public (but state laws can differ)
Factors used to describe “private” club:
Member selection, limits on maximum amount of members
State Laws: “reasonableness test”
“owners of property open to the public do not have the right to unreasonably exclude particular members of the public”
States allowed to provide more, not less, free speech protections than constitution
Schmidt Test (NJ)
Reasonableness Test: Schmidt Test (NJ)
(1) the nature, purposes, and primary use of such private property, generally, its “normal” use (2) the extent and nature of the public’s invitation to use that property (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property
Applications: free speech rights (NJ Coalition v War in ME) + Card Counting in Casinos (Uston)
Public trust Doctrine Test
The public right to gain access to water and wet sand areas through dry sand (Raleigh Ave Beach v Atlantis)
Whether privately owned upland sand is available for public access will depend on circumstances
Factors:
Location of the dry sand in relation to the foreshore
Extent and availability of publicly owned upland sand area
Nature and extent of public demand
Usage of upland sand by the owner
Necessity
trespasser was faced with choice of two evils and chose the lesser one
acted to prevent imminent harm
reasonably anticipated causal relationship between their conduct
had no legal alternative to violating the law
(vincent v lake erie transportation co: boat on dock)
Public policy on trespassing
Trespass to ensure other constitutionally protected interests
public need (state v shack)
Public rights (free speech)
Trespass to enable exercise of legitimate public authority
Fee Simple
(1) determinable (automatic return)
(2) subject to condition subsequent (return upon re-entry)
(3) subject to executory interest (to third party)
Future Interests
right to ownership that does not include the right to present possession or enjoyment
are created by life estates and defeasible estates
defeasible estates
estates where a condition or event triggers a transfer of possessory ownership
reverter
back to the grantor
remainder
goes back to another party
back to the grantor defeasible estates
fee simple determinable
fee simple subject condition subsequent
defeasible estates to another/third party
fee simple subject to executory interest
vested remainder
(1) the remainder is given to a presently existing and ascertained person, and (2) not subject to a condition OR subject to a contingency that occurred or to a condition that disappeared
contingent remainder
there is some uncertainty, either (1) with regard to the identity of the person to take possession, or (2) the fact that that person actually will take possession
vested remainder subject to divestment
interest goes from one grantee to another upon the occurrence of some condition (shifting)
vested remainder subject to open
remainder vested in one or more ascertainable people, but with the possibility that more people will be added
rules for vested remainder subject to open
- the class closes when it is physiologically impossible for more children to join in the class (when the ancestor dies)
children born or conceived prior to ancestor’s death**
2) the class closes when at least one member is entitled to possession (at the time of distribution and at lease one member has satisfied any conditions precedent
public trust doctrine
A public right to commercial navigation and fishing on navigable waters
In CA: the right to swim, boat and engage in other forms of water recreation, and even to preserve lands in their natural state in order to protect scenic and wildlife habitat values
applies to flowing waters and well as tide and submerged lands and the beds of inland navigable water
Beach Access (Nj)
(1) location of the dry sand area in relation to the foreshore
(2) the extent and availability of publicly owned upland sand area
(3) the nature and extent of publicly demand
(4) use of the upland sand area by the owner
the upland sand owner was a “quasi public body”
Matthews v Bayhead Improvement Association
in order to enjoy public trust lands, the public has the right to gain access through and to the use of, the dry sand area of privately owned beaches
the upland sand owner was a “quasi public body” in that the municipality was involved in its operation
Raleigh Avenue Beach Association v Atlantis
Allowed public access through and use of upland of 100% privately owned beach as reasonably necessary for the public’s right to access and enjoy the ocean
1) the public had a right to vertical access across the private atlantis property
2) the public had the right to access and use all of the atlantis sands
3) the NJDEP had the authority to review and approve the atlantis beach fees
tenancy in common
each owner holds an undivided, fractional share in the entire parcel of land, and each co-tenant is entitled to simultaneous possession and enjoyment of the whole parcel (even if the co-owner has a smaller fraction)
transferrable
joint tenancy
each co-owner holds an undivided, equal share in the entire parcel of land, and each co-tenant is entitled to simultaneous possession and enjoyment of the whole parcel AND each has the right to sole ownership if the other dies first (“survivorship”)
not transferable: inter vivos conveyances sever (destroy) the joint tenancy, creating a tenancy in common
tenancy by entirety
each married co-owner holds an undivided, equal share in the entire parcel of land, and each is entitled to simultaneous possession and enjoyment of the whole parcel AND each has the right to sole ownership if the other dies first (“survivorship”) AND can be terminated only by (1) divorce of the couple (2) death of one spouse (3) agreement of both spouses
not destructible
creditors
Right to possession
equal right of possession and enjoyment of the whole parcel, regardless of each share/ fractional interest
ouster
outster
action by a co-tenant to receive rent from a co-tenant in possession who refuses the request of another co-tenant to share possession of the land
right to rents and profits
each co-tenant is entitled to a pro rata share of rents received from a third party for use of the land
if a co-tenant refuses to share rent income, other co-tenants can bring an accounting action against the other co-tenant to force payment
if a co-tenant exploits natural resources on the property, each tenant is entitled to his or her pro-rated share of the resulting net profits
liability for mortgage and rent payments
all co-tenants are obliged to pay their proportional share of mortgage, tax, assessments, and other payments that could give rise to a foreclosure
if one co-tenant pays more than a pro-rata share, he or she may recover the excess in a contribution action
one exception: co-tenants in sole possession cannot file a contribution action to obtain tax and mortgage payments from other co-tenants if the reasonable rental value that he or she is obtaining through possession exceeds these payments
liability for repair and improvement costs
no right to obtain contributions for repairs or improvements-right to partition instead
liability for waste
liability for the use of the common property in an unreasonable manner that creates permanent harm
-except extraction of resources: not waste, but income that he must account to the other co-tenants
Lien Theory
execution does not sever the interest- it is an interest granted over an item of property (temporary possession/ to secure the payment of a debt or performance)- with regard to a mortgage, the severance occurs only when a foreclosure take place (CA)
Title theory
type of execution of leases or mortgages
has the effect of a severance of the interest- breaking the unity
conveyance of joint tenant’s entire interest
freedom to sever without the consent of the others
(also transfer to one self)
hybrid joint tenancies
partition
mutual agreement or judicial partition-each co-tenant has the right to request
___ in kind physical division into separate parcels
___ by sale: property is sold and proceeds are shared- other leads to dispossession of co-tenants
restraint against alienation (except with regard to condominiums)
partition in kind
physical division into separate parcels
Owelty: court orders money payment to account for differences in the value of the separated parcels
partition by sale
property is sold and proceeds are shared- often leads to dispossession of co-tenants
tenancy by entirety
four unitities (time, title, interest, and possession) + marriage
inalienable (only divorce can end it)
possessory estates types
term of years, periodic, at will, tenancy at sufferance, life tenancy (previously discussed)
term of years
lease for a fixed period= termination date is known
ends automatically: no notice needed, holdover tenant: requires eviction
inheritable and alienable
must be in writing
periodic tenancy
undetermined duration, continues for successice period automatically until l or t provides notice of termination
created expressly: week to week, month to month, year to year
created by implication: (1) when no mention of duration in lease provision is made for payments or rent at set intervals (2) oral agreement for terms of years- becomes implied periodic tenancy by the way rent is now tendered
rent increase is new rental agreement with notice
rent termination requires notices of equal period
tenancy at will
tenancy for no fixed duration
“to tenant for a long as landlord or tenant desires”
like license but full control
must be expressly agreed to by parties (otherwise implied periodic tenancy)
can be terminated by either party but reasonable demand to quit is usually needed
tenancy at sufferance
tenancy created when tenant has wrongfully held over past the expiration of the lease
purpose: permit landlord to recover rent
lasts until landlord either evicts or elects to hold tenant to a new tenancy
rights of lanlords
right to select tenants, holdover tenants, tenant moves out prematurely
