Property Flashcards
Bundle of Rights
- Liberty to Use (in any way you want)
- Right to Exclude (who else can use)
- Power to Transfer (to sell or give away)
- Power to Devise or Bequeath (let it so someone in your will)
- Immunity from Damages (to not have property damaged)
- Immunity from Expropriation (prevent others from taking it from you)
Limits of Bundle of Rights
- Liberty to use (don’t violate someone’s rights)
- Right to Exclude (so long as you are not violating anti-discrimination)
- Power to Transfer (except that laws regulate contractual relationships)
- Power to Devise and Bequeath (must pay estate taxes and some states require surviving spouse gets property)
- Immunity from Damage (except some things may impact property and be permitted)
- Immunity from Expropriation (except the govt can take property (eminent domain or zoning regulations))
Real Property
the earth’s crust and all things attached to it
Personal Property
anything else
Granite example
Existing on the earth’s crust it’s real property, when it is cut up and stored it’s personal, but when placed in the kitchen permanently it is real property
Tangible Property
has a physical existence
Intangible Property
has no physical existence, value lies in the rights that go with the property, rights that go with the property
Public Property
owned by the government, doesn’t mean public access
Private Property
owned by an individual, group, corp, or business
Acquiring Ownership
- Production
- Exchange
- Possession of Unowned Property
Production
a person owns the property she makes unless she has agreed to do the work for another person
Possession of Unowned Property
- Abandoned
- Lost
- Mislaid
- Rule of First Possession
Abandoned
owner intentionally placed the property out of possession, intending to relinquish rights
Lost
owner did not intend to part from possession, didn’t intentionally relinquish rights to something, original owner has better rights but finder has better rights than anyone else
Mislaid Property
owner intentionally place property somewhere but then accidentally left it there, not intending to relinquish ownership
Rule of First Possession
can take ownership just by possession if it is truly unowned
Rule of Capture
think deer example, have to kill and capture it on your property
Gifts
voluntary transfer of property
- donor must intent to make the gift, donee has to intend to receive it, donor must deliver the deed
Bailment
an express or implied contract that the bailee has control of the property and a duty to retain it
Bailment (types)
- one party holding property for someone else, for a while, but with a duty to return it (can i borrow…)
- in business: valet parking, warehouse storage
Standard of Care for Bailment
- if the bailment is “for the benefit of the bailor” then the standard is relatively low
- if the bailment is “for the benefit of the bailee” then it is much higher
Many bailments are…
for mutual benefit of both parties
Adverse Possession
a person WRONGFULLY occupies land in an OPEN and NOTORIOUS manner; in a way that is ACTUAL, EXCLUSIVE, and CONTINUOUS.
For Adverse Possession, it must be…
continuous for a prescribed period of time (10-20 years) & true owner must take steps within the time to eject possessor or forever lose the right
Fixtures
a permanent fixture is personal property that has become attached to or connected to real property in such a way that it ceases being personal and becomes part of the real property
Who do fixtures belong to?
the owner of the real property
How do you know if something is a “fixture”?
- Attachment
- Adaptation
- Intent
Attachment
if firmly attached to real property so it cannot be removed without damaging property
Adaptation
when an item would be of little value except for use with real property
Intent
judged objectively – by what circumstances indicate was intended not person’s subjective intent
Do fixtures transfer?
Yes! So if you want to keep something you have to write it into contract under exclusions
Easement
the right to make certain use of another person’s property
Types of Easement
- natural easement (easement by necessity)
- easement by grant
- easement by reservation
- easement by prescription
Natural Easement (Easement by Necessity)
someone must be allowed to use land he does not own out of necessity (e.g there is no other way to get to the land)
Easement by Grant
written grant that says the property owner says the other person has the right to use some part of the land in some way
Easement by Reservation
owner sells the land, but reserves some use of a part of it for themselves
Easement by Prescription
someone conducts an open, adverse, and continuous use of another person’s land over a long period of time and the owner fails to stop that use (tiny adverse possession)
Concurrent Ownerships
joint tenants and tenants in common
Joint Tenants
- must own equal shares
- can have rights of survivorship
- have to use special words to create it
Tenants in Common
- can own different shares
- cannot have right of survivorship
- no special words needed
Agreements dealing with real property must be…
written
Intellectual Property (4 TYPES)
- Patents
- Trade Secrets
- Copyrights
- Trademarks
Patent
an agreement between the inventor and the federal govt that gives the inventor a monopoly for a limited period of time (20 years)
* you must disclose to the patent office & the public the invention and how to make it
Patents apply to…
processes, machines, manufactured articles, compositions of matter, etc.
To be patented, the invention must meet 3 standards:
- Useful
- Novel (New)
- Nonobvious
Who is the “inventor” who gets the patent?
First person to file a patents gets the patent, even if they were not the first to invent (one year grace period from earliest public disclosure)
What is not patentable?
Abstract ideas & rules of nature
Patent Infringement
if someone starts making the thing you patented, you can file a lawsuit to get an injunction and damages or negotiate a license and collect royalties
Trade Secret
any secret formula, pattern, process, program, device, method, technique, or database used in the owner’s business to provide competitive advantage
* must take reasonable measures to secrecy
What are you not protected against with a trade secret?
Reverse engineering
Trade Secret Misappropriation
occurs when a person discloses or uses the secret information after acquiring the secret by improper means
Improper Means
theft, trespass, etc OR through another party who is know to have obtained by improper means OR by breaching a duty of confidentiality
Damages for Misappropriation
- amount of actual loss to owner
- unjust enrichment to the trade secret misappropriater
- sometimes punitive damages
- sometimes injunction
Copyright
wide range of creative material from books and articles, to computer code
How do you get copyright coverage for your work?
comes into existence automatically upon the creation and fixing of the work
Must you register to have copyright?
no, but you need to if you want to sue
How long does copyright last?
life of the creator plus 70 years
Work for hire
employee creates a copyrightable work within the scope of her employment duties, employer is the author and copyright holder
Ownership rights for copyright
exclusive rights to reproduce the work, prepare derivative works, and istribute copies for sale or otherwise (they are transferable and licensable
Copyright infringement
- defendant has access to the copyrighted work
- defendant engaged in enough copying that the resemblance between the two does not seem coincidental AND
- there is a substantial similarity
Fair Use Exception
ok under some circumstances to copy work for:
- criticism
- news reporting
- teaching, scholarship, research
Trademark
distinctive mark, motto, device, or emblem that a manufacturer stamps, prints, or affixes to products it produces or services it performs
How do you get a trademark?
you do not have to register the trademark, can use TM without it but can’t get R without registering
How do you lose a trademark?
trademark protection or genericide
Trademark Infringement
someone uses the mark without the owner’s consent, in connection with the sale of goods or services, such that consumers are likely to be confused about the source
Trademark Dilution
if someone makes use of a famous mark without the owner’s consent, they face liability if their use is likely to cause dilution of the strength of the mark
Trademark Dilution (types)
blurring - use of same mark by two very different companies that may confuse the public
tarnishing - use of the mark in a way that makes the company look bad
