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1L Winter > Property > Flashcards

Property Flashcards

1
Q

What are the 5 Theories of Property Rights?

A

1) Protect First Possession
2) Encourage Labor
3) Utilitarian Theory
4) Ensure Democracy
5) Personhood Theory

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2
Q

What are 4 important rights in the bundle of sticks?

A

1) Right to transfer
2) Right to exclude
3) Right to use
4) Right to destroy

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3
Q

What are the elements of adverse possession?

A

1) Actual
2) Exclusive
3) Open and Notorious
4) Adverse and Hostile
5) Continous
6) Prescriptive Period

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4
Q

Do most places consider the state of mind of the claimant in adverse possession cases?

A

No. Majority rule is that most places don’t consider the state of mind of the claimant. The minority rule is looks at either good or bad faith

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5
Q

Is privity necessary to argue tacking in adverse possession cases?

A

Yes.

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6
Q

Can an adverse claimant acquire property interest more than the record owner?

A

No. They can acquire the property interest of the record owner and nothing more

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7
Q

Under the modern rule, do landowners own up to the heavens and down to the center of the earth?

A

No. Under the modern rule, landowners have a claim to as much of the space above the ground they can occupy or use and rights to the subsurface they can reasonably and foreseeable use

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8
Q

What are 3 approaches governing surface water?

A

1) Riparian system: assigns water rights to a landowner whose property adjoin a watercourse
2) Prior appropriation system: Location of the owner’s land is irrelevant. Water rights are allocated to the first person to divert the water for beneficial use
3) Permit system: requires a permit for diversions of surface water

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9
Q

What are 3 approaches governing subsurface water?

A

1) Reasonable use approach: a surface owner may use groundwater only for a reasonable use on the overlying land
2) Correlative rights: the surface owner is entitled to a proportional share of the groundwater beneath their land
3) Permit system: title to groundwater invested in the state so surface owner can obtain water rights only through a permit

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10
Q

What are 4 ways to aquire an interest in chattels?

A

1) Capture
2) Finders
3) Gift
4) Creation

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11
Q

What is the rule of capture?

A

The first person to take possession of a “wild animal” on “unowned land” is the lawful owner of the animal

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12
Q

Does control of a wild animal have to be absolute to capture it under the rule of capture?

A

No. Control of a wild animal doesn’t have to be absolute (see State v. Shaw)

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13
Q

When does a person have a pre-possessory interest in the property?

A

When a person takes significant steps towards achieving possession, they have a pre-possessory interest in the property (see Popov v. Hayashi)

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14
Q

What are 4 categories of found chattels?

A

1) Lost property - owner unintentionally parts with the property
2) Mislaid - owner voluntarily and knowingly placed somewhere but the owner unintentionally forgets
3) Abandoned - owner knowingly relinquishes all rights and title to the property
4) Treasure trove - owner concealed property hidden long ago

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15
Q

What are the property rights given to the finder of various types of found chattels?

A

Lost property - finder gets rights superior to all but the prior owner
Mislaid - finder has no property rights but owner of the place where the mislaid item is found must use reasonable care in safekeeping
Abandoned - finder gets full property rights

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16
Q

What are the elements for adverse possession of chattels?

A

Very state to state, but usually include:
1) Open and notorious
2) Good faith
3) Prescriptive period

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17
Q

What stops the running of the statute of limitations in adverse possession of chattel cases?

A

Concealment and the discovery rule

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18
Q

What are the 3 elements of an inter vivos gift?

A

1) Intent - donor must intend to immediately transfer
2) Delivery - property must be delivered to the donee
3) Acceptance - donee must accept that property

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19
Q

What are types of delivery?

A

1) Manual - donor must physically give the item to the donee. Required if practical
2) Constructive - donor gives an object that provides access to the item. Allowed if manual is impractical
3) Symbolic - donor gives a symbol of the object to the donee. Done if manual is impossibl

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20
Q

What are the 4 elements of a causa mortis gift?

A

1) Donative intent
2) Delivery
3) Acceptance
4) Donor’s anticipation of imminent death

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21
Q

What is a fee simple absolute?

A

All the sticks in the bundle (right to alienate, use, exclude)
Uses the phrase “and heirs”

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22
Q

What is a life estate?

A

O conveys “to A for life” or “to A until A dies”
Right to use and exclude
Right to alienate - but converts to a life estate per autre vie (length of A’s life)

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23
Q

What are the 3 types of fee simple defeasible?

A

1) Fee simple determinable
2) Fee simple subject to condition subsequent
3) Fee simple subject to executory limitation

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24
Q

What is a fee simple determinable?

A

“So Long as”, “While”
Ex: O conveys to A while A is in the army
Full bundle of sticks but the right to alienate has conditions

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25
Q

What is a fee simple subject to condition subsequent?

A

“But if”, “and if not”, “enter and reclaim”, “right to re-enter”
Ex: O conveys to A on condition that the property is used as a farm and if not O can enter and reclaim
A fee simple but with conditions that if they happen, O has the right to take it back

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26
Q

Fee Simple Subject to Executory Limitation

A

“So long as… then to B”, “But if… then to B”
Ex: O conveys to A so long as the property is used as a farm, then to B
Executory interest (usually to a 3rd party) becomes possessory automatically upon condition

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27
Q

What are 3 possible future interests for a grantor?

A

1) Reversion
2) Possibility of reverter
3) Right of re-entry
All are alienable, devisable, and descendible

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28
Q

What are 4 types of remainders?

A

1) Indefeasibly vested remainder
2) Vested remainder subject to divestment
3) Vested remainder subject to open
4) Contingent remainder

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29
Q

What are 2 types of executory interests?

A

1) Springing executory interest
2) Shifting executory interest

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30
Q

What is an indefeasibly vested remainder?

A
  1. Created in an ascertainable person (person alive and identifiable at the time of the transfer)
  2. No condition precedent
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31
Q

Does a remainder always follow a life estate?

A

Yes.

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32
Q

What is a vested remainder subject to divestment?

A

Ex: O to A for life, then to D, but if D doesn’t survive B, then to E
Condition is subsequent, not precedent, because D’s interest is ready to become possessory unless the specified events happen (D dies before B)

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33
Q

What is a vested remainder subject to open?

A

Ex: O to A for life then to B’s children
Children are a “class” that can become bigger so the share become smaller in the future

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34
Q

What is a contingent remainder?

A

Remainder that is not “vested”
Either (1) given to an unascertainable person (ex: not yet born person) or (2) subject to a condition precedent

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35
Q

What is a springing executory interest?

A

Follows an interest in the transferor
Ex: O to B so long as D is president, then 1 year after D leaves office, to C

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36
Q

What is a shifting executory interest?

A

Follows an interest in the transferee
Ex: O to B so long as D is president then to C

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37
Q

What is the Rule Against Perpetuities? What is the 5 step process to see if RAP applies?

A

Duration of a valid future interest is limited to the length of a life in being at the time of transfer plus 21 years
1) Identify the contingent interest
2) List all the lives in being
3) Consider anyone who might be born who might affect vesting
4) Kill off the lives and add 21 years
5) Ask - is there any possibility that the contingent interest will vest after this point?

38
Q

What are 3 types of concurrent property?

A

1) Tenants in common
2) Joint tenancy
3) Tenants by the entirety

39
Q

What is joint tenancy?

A

Right to enjoy the entirety of the property
Not devisable or descendible because it belongs to the survivor who gets 100% of the property after the other(s) die(s)
O “to A and B as joint tenants with rights of survivorship”

40
Q

What are tenants in common?

A

Right to use the entire property, each has an undivided, fractional interest. Can devise, convey, or have interest descend through intestate succession
O conveys “to A and B” or “to A and B as tenants in common” OR agreement states “A and B as tenants in common”

41
Q

What are tenants by the entirety?

A

Right to the entire property. Tenants can’t convey or devise their interest
Each tenant has the right of survivorship
ONLY FOR MARRIED COUPLES

42
Q

What is separate marital property?

A

Property owned by the spouse who brought it to the marriage
Equitable distribution of property owned by each spouse and separate property stays separate in divorce

43
Q

What is community marital property?

A

Property acquired before marriage is separate but property acquired during the marriage is held jointly and considered property of both
Property divided evenly during divorce

44
Q

What are 4 types of leaseholds?

A

1) Terms of tenancy - fixed duration
2) Periodic tenancy - no fixed duration except tenant has to give 1 month notice to terminate
3) Tenancy at will - no defined term in the lease but must give as much notice as the rental period
4) Tenancy at sufferance - not based on agreement but based on tenant’s unlawful action (holdover tenant)

45
Q

Does a lease that doesn’t specify a beginning and end date create a tenancy at will by default?

A

Yes. See Effel v. Rosberg.

46
Q

What are the elements of constructive eviction?

A

1) Plaintiff has to show the landlord intends for the plaintiff to no longer enjoy the premises
2) Landlord committed a material act/omission which substantially interfered with tenant’s use/enjoyment
3) Landlord’s act or omission permanently deprived the tenant of use of the premises
4) Tenant abandoned premises within a reasonable amount of time after the act/omission

47
Q

What is the implied warranty of habitability?

A

The bare living requirements to make the premises fit for human occupancy

48
Q

What are the remedies for a landlord breaking the implied warranty of habitability?

A

1) Withholding rent (most common)
2) Repairing and deducting
3) Suing for damages
4) Terminating the lease

49
Q

What is assignment?

A

Landlord and Assignee have privity of estate
Landlord and Tenant have privity of contract (ongoing obligation)
Tenant and Assignee have privity of contract

50
Q

What is subleasing?

A

Landlord and Tenant have privity of contract and privity of estate
Tenant and Assignee have privity of contract and privity of estate
-

51
Q

What is subleasing?

A

Landlord and Tenant have privity of contract and privity of estate
Tenant and Assignee have privity of contract and privity of estate (tenant grants an interest in the leased premises less than their own)
No privity of estate between landlord and sublease (sublease can’t be liable for landlord for covenant to pay rent)

52
Q

What is abandonment?

A

When the tenant…
1) Vacates the leased property without justification and without any intention of returning AND
2) Defaults in payment of rent

53
Q

What are the landlord’s options when a tenant abandons the leased property?

A

1) Sue for all the rent (keep premises vacant then sue)
2) Terminate the lease
3) Mitigate damages then sue the tenant for unpaid rent during tenancy

54
Q

What is retaliatory eviction?

A

A landlord unlawfully retaliates against a tenant if the landlord terminates a lease because of the tenant’s good faith complaint

55
Q

What is a purchase contract?

A

A standard form used in every state that include essential terms: identifying the parties, price, and property description
Must satisfy the statute of frauds
Seller must convey marketable title (either express or implied promise to do so)

56
Q

What are 2 exceptions to the statute of frauds?

A

Partial performance and promissory estoppel

57
Q

What are reasons that title wouldn’t be marketable?

A

1) Seller’s property interest is less than what she purports to sell
2) Title is subject to an encumbrance
3) Reasonable doubt as to either 1 or 2

58
Q

Are municipal zoning restrictions encumbrances?

A

No, they are not unless the house violates the zoning code at the time of the purchase contract - then the title is unmarketable

59
Q

Are private covenants encumbrances?

A

Yes unless they are disclosed to the buyer and/or the house is in violation at the time of the purchase contract

60
Q

What are 3 approaches to equitable conversion of title?

A

1) Buyer bears all the risk during the executory period
2) Seller bears all the risk during the executory period
3) Risk apportioned based on the right to possession at the time loss occured

61
Q

When does a seller typically have a duty to disclose?

A

If a seller has actual knowledge of defects that (1) materially affect the value of the property AND (2) not known to or not readily discoverable by the buyer

62
Q

Does the statute of frauds apply to deeds?

A

Yes

63
Q

What is title assurance?

A

Promise that the title being conveyed is free of encumbrances

64
Q

What are 3 types of warranty deeds?

A

1) General warranty deeds - contain the greatest degree of assurances
2) Special warranty deed - contain some assurances
3) Quitclaim deed - contains no assurances

65
Q

What are warranty deed covenants that come after closing?

A

Covenant of warranty - promise to defend the grantee against claim of superior title
Covenant of quiet enjoyment - promise that the grantee’s possession of the property will not be disturbed
Covenant of further assurance

66
Q

Are the duty to convey marketable title and other covenants raised before or after closing?

A

Before

67
Q

Do title covenants only apply to defects discovered before or after closing?

A

After

68
Q

What are 3 approaches to recording acts?

A

1) Race (minority) - purchaser who records first has priority
2) Notice - subsequent bona fide purchaser has priority if the purchaser takes it without notice of prior interest in the title
3) Race-notice (majority) - subsequent bona fide purchaser who takes both without notice and records first has priority

69
Q

For a deed to be duly recorded, it must be what?

A

Formal and correct document in form and substance

70
Q

What is the shelter rule?

A

A bona fide purchaser is allowed to transfer his protection to a later grantee
(Ex: S to B doesn’t record, S to C records, C to D records, D knew about S to B exchange, D is protected by shelter rule)

71
Q

What is a wild deed?

A

A deed from when the grantor at some point conveys the property twice

72
Q

What are 3 mortgage theories?

A

1) Lien theory (most states) - a mortgage is seen as creating a lien, not conveying title. No right to possession until foreclosure
2) Title theory - mortgage is a transfer of title from the borrower to the lender so the lender has the right of possession but rarely do so
3) Intermediate theory - the lender holds title but no right to possession until the borrower defaults

73
Q

What is an installment land contract?

A

A buyer promises to pay the purchase price to the seller in installments over a fixed period of time.
The buyer has possession of the property but the seller retains title until the buyer completes all the payments

74
Q

What are the borrower’s rights before the foreclosure?

A

1) Reinstatement - borrower avoids foreclosure by paying the missed payments BEFORE the lender accelerates the loan
2) Equitable redemption - borrower avoids foreclosure by paying in FULL plus any incurred costs AFTER default and BEFORE the sale occurs

75
Q

What are some special mortgage priority rules?

A

Purchase Money Mortgage - priority over judgment lien, dower, or community property because lender’s interest is closer to the property
Future Advance Mortgage - additional loans backed by the same house/property. New loan takes priority from the date of the mortgage
Deed in Lieu of Foreclosure - the lender takes the deed in lieu of foreclosure subject to the interests of junior lenders

76
Q

What are 8 consideration to determine whether a sale is an equitable mortgage?

A

(1) any express statements indicating that the seller intended to retain ownership
(2) a substantial difference between the purchase price and the actual value of the property
(3) a buy-back option
(4) the seller’s continued possession of the property
(5) the seller’s continuing homeowner obligations, such as paying property taxes
(6) any disparity in the sophistication or bargaining position of the parties
(7) an irregular purchase process
(8) any financial distress the seller was in, including the imminence of foreclosure.

77
Q

What are the elements to an easement by necessity?

A

(1) Severance of title
(2) Necessity for the easement at the time of severance

78
Q

What are the elements of a prescriptive easement?

A

(1) Adverse use of another’s land
(2) Continous and uninterrupted for 10 years
(3) Adverse use must be known to the owner of the land
(4) Reasonably identified starting and ending point, line and width of the land adversely used

79
Q

What are the elements for easement by estoppel or irrevocable license?

A

(1) Landowner allows another to use the land
(2) Licensee relies in good faith (usually makes physical improvements)
(3) Licensor knows or should reasonable should expect such reliance to occur

80
Q

What are the elements of real covenants?

A

(1) Statute of Frauds
(2) Touch and concern the land
(3) Intent to bind successors
(4) Vertical privity
(5) Horizontal privity

81
Q

What are the elements of equitable servitude (covenants)?

A

(1) Touch and concern the land
(2) The original parties intended they run with the land and bind remote grantees
(3) Remote grantees have notice of the covenants

82
Q

What is the rule regarding the constitutionality of zoning based on Euclid?

A

Municipal zoning ordinances are constitutional unless they “are clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or general welfare.”

83
Q

What Amendment allows for the government to have eminent domain?

A

The Fifth Amendment - “nor shall private property be taken for public use without just compensation”

84
Q

What are 2 types of takings?

A

1) Physical takings - government seizure of land or property for public purpose
2) Regulatory takings - when government regulations restrict an owner’s rights so much that it becomes the functional equivalent of a seizure

85
Q

What counts as a “public use” under the Fifth Amendment for eminent domain?

A

“If it is rationally related to a conceivable public purpose.” See Kelo v. City of New London

86
Q

Are facts copyrightable?

A

No. Copyright requires a certain degree of originality

87
Q

What is copyright?

A

Protection for “original works of authorship fixed in any tangible medium of expression.”

88
Q

What are the factors for fair use?

A

(1) The purpose and character of the use
(2) The nature of the copyrighted work
(3) The substantiality of the portion used in relation to the copyrighted work as a whole
(4) The effect of the potential market for or value of the copyrighted work

89
Q

What is patentable subject matter?

A

“Any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” 35 USC Section 101

90
Q

Can a color be trademarked?

A

Yes if it has an acquired secondary meaning

91
Q

What are trademarks?

A

Any word, name, symbol, or device, or any combination thereof

92
Q

What is the inevitable disclosure doctrine?

A

An employer can claim trade secrets to prevent a former employee from working in a job that may result in the use of trade secrets without the need of proof or evidence

1L Winter (2 decks)

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