property 2

Question 1

real property

Answer 1

property for which the owner could obtain specific relief

Question 2

Teresa enters into a lease with Leonardo, whereby she rents land known as Blackacre for 4 years. One year after she takes possession, Leonardo wrongfully evicts her from Blackacre. In the jurisdiction whose law applies, Teresa has the right to sue Leonardo for damages. However, she does not have the right to retake possession of Blackacre. In other words, she cannot get a judgment from a court that requires Leonardo to restore her possession. Under the historic distinction, is Teresa’s leasehold real property or personal property?

Answer 2

Personal Property

Question 3

real property

Answer 3

consists of rights associated with land

Question 4

personal property

Answer 4

Consists of rights associated with movable things (chattels or goods) and intangible rights that are not associated with land

Question 5

property

Answer 5

you have the right to exclude other persons from a thing, whether land or personalty.

Question 6

tanglible property: corporeal property

Answer 6

Included in this term is not only natural land (the soil), but also things that are permanently attached to land such as trees and buildings.

Question 7

Fred owns Blackacre, a tract of land with a house, a small trout pond, and a grove of apple trees. The house is the personal residence where Fred and his family live. What type of property is Blackacre?

Answer 7

real property

Question 8

The roof on Fred’s house is in bad shape. He contracts to have Fast Roofers install a new roof on his house for a total price of $4000. On Monday, Fred and Fast Roofers pick out the shingles at a local building supply store. On Tuesday, Fred pays Fast Roofers a down payment of $1000, which is equal in amount to the price paid by Fast for the shingles. Fast begins the work on Wednesday, removing the old roof and installing a new plywood subroof. On Thursday, Fast finishes the job, completing the new roof. On Friday, Fred pays Fast the remaining balance of $3000 on the contract price. On which day do the shingles become real property?

Answer 8

Thursday: The instant the shingles are staple gunned to the plywood, they lose their movability and become real property.

Question 9

chattel

Answer 9

refers to tangible, movable things

Question 10

Fred’s daughter Mary picks apples from the apple tree in the family’s back yard and takes three of the apples to school, giving one to her teacher, one to her best friend, and keeping one for her lunch. Before she picked the apples, what type of property are the apples?

Answer 10

Real Property: the apples are still attached to the trees, so they’re real property. Although the apples, in a sense, are movable even when they’re on the tree, they can’t be moved without picking them.

Question 11

Fixtures

Answer 11

items which are attached to the land or a building

Question 12

Test to determine if chattel has become a fixture

Answer 12

1. Physical Attachment: To what extent is the item annexed to or attached to the property?
2. Adaptation: To what degree is the item specially adapted to the property?
3. Intent: What is the intent of the annexing party or the parties?

Question 13

Astrid buys a brand new house, which has no drapes or blinds on any of the windows. She adds nice white draperies to the living room window, and six months later, she contracts to sell the house to Hector. The contract of sale says nothing about whether Astrid can remove the drapes before closing, or whether Hector can insist that they remain in place. If the drapes are fixtures, may Astrid remove them?

Answer 13

No: If the drapes are properly labelled fixtures (and ordinarily they should be), then Astrid may not remove them. Calling them fixtures means they are real property for the purposes of a contract of sale. The general rule is that the buyer is entitled not only to the land (dirt, grass, trees) and the building, but also all fixtures.

Question 14

There isn’t a mathematical test to determine whether a particular object, attached to real estate in a particular way, is a fixture or a chattel. Another person could add the same white draperies, to the same house, as Astrid, but those identical drapes might not become fixtures that are legally part of the real estate. This is because the context may differ.

Imagine that Trip is a tenant, who rents a house just like Astrid’s, under a one-year lease. Trip doesn’t like the existing drapes in the living room, so he carefully takes them down and stores them. He buys a new white set of draperies, just like Astrid’s, and puts them up.

At the end of the lease term, Trip wants to take the drapes with him, but his landlord insists that they stay put. Does Trip have the right to remove the drapes?

Answer 14

Yes: Ordinarily under modern law the tenant has the right to remove chattels that he has attached to the leased premises, provided removal does no material harm to the premises. Older law generally gave fixtures to the landlord, meaning if the drapes were classified as fixtures, they’d have to stay with the premises. Today Trip may have the right to remove the drapes, even if they’re classified as fixtures

Question 15

intangible real property

Answer 15

rights that are associated with the ownership, use, or enoyment of land

Question 16

Tanya has written a song, “Land and Sky.” Her copyright in the song is what type of property?

Answer 16

Intangible personal property: The song is an intangible, and like all other songs it’s not tied to any parcel of real estate.

Question 17

Natalie, the owner of two neighboring houses, sells one to Carla. In the deed, Carla promises that she will never install or permit any artificial reindeer in her yard. The deed states that this promise also binds Carla’s heirs, successors, and assigns. Natalie’s right to enforce this promise is intangible personal property.

Answer 17

disagree: You’re right. The promise is considered intangible. Moreover, the promise is designed to benefit Natalie by protecting the neighboring house that she has kept. She believes she’ll enjoy the property more if she never sees yard reindeer next door.

Question 18

inter vivos gifts

Answer 18

gifts between living persons

a living donor makes an immediately effective donative transfer of an object of property to a living donee.

Question 19

testamentary gifts

Answer 19

gifts that take effect upon the donor’s death

Question 20

causa mortis gifts

Answer 20

sometimes called “deathbed” gifts

Question 21

3 elements of inter vivos gift

Answer 21

1. Donative Intent: The donor must have the intent to make a present transfer of ownership of the property to the donee.
2. Delivery: The donor must make an effective delivery of the object of the gift to the donee.
3. Acceptance: The donee must accept the object of the gift. Acceptance of a gift is usually presumed where the object of the gift is beneficial to the donee.

Question 22

Inter vivos subjective and objective

Answer 22

Subjective: in the donor’s own mind

Objective: some action that corroborates the donor’s intent to make a presently effective gift

Question 23

Inter Vivos Gift Delivery

Answer 23

Manual Delivery: This is the type of delivery that the law typically requires, and it involves the donor placing the object of the gift within the actual, immediate physical control of the donee

Constructive delivery: A constructive delivery occurs when the donor transfers to the donee something that provides the donee with the ability or means to exercise dominion and control over the object of the gift. Courts sometimes permit constructive delivery where manual delivery is impossible or impractical. For example, if Jane wanted to give her son Bill a 1,500-pound safe and its contents, a court might conclude that Jane’s action of giving her son the combination to the safe was a sufficient constructive delivery.

Symbolic delivery: A symbolic delivery occurs when the donor transfers to the donee something that is a “symbol” (or substitute) for the object of the gift. Courts sometimes permit symbolic delivery where manual delivery is impossible or impractical. The best example of symbolic delivery is a deed to land. In feudal times, transfer of land occurred by livery of seisin — in which the grantor and grantee physically went onto the land, and the grantor handed a stick or clod of dirt to the grantee and uttered appropriate words of conveyance. Today, a grantor transfers land by executing and delivering to the grantee a written deed of conveyance — a process that typically takes place in the office of a lawyer, banker, or title insurer rather than on the land itself. Essentially, the deed is a “symbol” of ownership of the land, and the law treats the delivery of the deed as a delivery of title to the land itself.

Question 24

Inter vivo gifts: delivery exceptions

Answer 24

Self settled Trust: case of a self-declared or self-settled trust, there must still be reliable evidence of the donor’s intent

Question 25

testamentary gift

Answer 25

is a gift of property that takes effect to pass ownership to the donee only upon the death of the donor: MUST BE MADE BY WILL

Question 26

testamentary deed

Answer 26

called a “beneficiary deed” in some states). Where state statutes authorize such an instrument, an owner of land could execute, deliver and record a deed now, but the deed could express that it would only take effect to transfer title to the land upon the grantor’s death.

Question 27

Causa mortis gift

Answer 27

which can be made only by persons in contemplation of their imminent death

If a donor makes a valid causa mortis gift, the gift is immediately effective to transfer ownership of the object of the gift to the donee.

But if the donor recovers, the donee’s interest is terminated and the donor may reclaim ownership of the object of the gift.

Question 28

Elements of a causa mortis gift

Answer 28

intent by the donor to make a present transfer of ownership of the subject matter of the gift

a sufficient act of delivery by the donor

acceptance by the donee.

Question 29

While home alone with his son, Victor says to his son, “I want you to have my Klimt painting, but I want to keep it for the rest of my life.” Victor’s son says, “Thanks, Dad.” The Klimt is hanging on the wall throughout this conversation, and remains there.

Does Victor’s son have a future interest in the painting?

Answer 29

No: The delivery requirement serves a critical evidentiary function — protecting the donor from bogus or fraudulent oral claims of gift — and would not be excused altogether in this situation. There must be some objective manifestation of Victor’s intent to give his son a future possessory interest in the painting. Here, there is no evidence of Victor’s intent other than his oral statement, which is not sufficient by itself.

Question 30

On his son’s graduation, Victor gives his son a letter, prepared by Victor’s lawyer and signed by Victor, saying “My Klimt is yours, but I intend to keep possession of it for the rest of my life. It is my intention by this letter to give you a future interest in the painting.” His son reads the letter and says “Thanks, Dad.” At the time, Victor and his son were standing next to the painting, but Victor did not touch the painting, which remains on the wall in his living room for the rest of Victor’s life.

Did Victor make a valid gift of a future interest to his son?

Answer 30

Yes: Requiring Victor to manually deliver possession of the painting is impractical and pointless, given that Victor intends to retain the present right to possession during the rest of his life. Such an act — handing the painting to his son, only to have the son hand it right back — would be purely symbolic, and Victor’s letter serves as an equally reliable symbol of Victor’s intent. Thus, Victor’s delivery of the letter constitutes a sufficient symbolic delivery of the future right to possession of the painting. See, e.g., Gruen v. Gruen, 496 N.E.2d 869 (N.Y. 1986).

Question 31

David owns a farm in fee simple absolute. He executes and delivers to Terri a deed that purports to convey the farm “to my daughter Terri, subject to my continued possession for my natural life.”

David lives on the farm for the rest of his life. When David dies, Terri’s brother Bob, unaware of David’s earlier deed to Terri, attempts to exercise possession over the farm, based upon the provisions of David’s will, which devised all of his assets to Bob. Terri claims that she is now the outright owner of the farm. Assume that the jurisdiction does not have a statute authorizing the use of testamentary deeds.

Who now owns the farm?

Answer 31

Terri. The deed validly granted an inter vivos gift of a remainder interest in the farm.

Question 32

finder

Answer 32

Possession is physical control of the object. Thus, the finder is the person who has taken physical control of the object.

Question 33

Bailee

Answer 33

finder of lost property :right to possession better than anyone else than the owner, but Amy had also undertaken two responsibilities to the owner: (1) the duty to return the property and (2) the duty to care for the property.

Question 34

Misplaced/mislaid

Answer 34

tangible personal property that was intentionally placed were it was found but appears to have been inadvertently left there.

Question 35

Treasure trove

Answer 35

Generally, it is classified as lost property, so it goes to the finder if the owner does not appear to claim it. Another approach is to consider it to be part of the land in which it is buried. In the alternative, the buried treasure might be classified as abandoned, so the finder gets ownership.

Question 36

Constructive Possession

Answer 36

Unless property is in the possession of someone, the law has a fiction that it is in the possession of its owner. This is called “constructive possession.” Thus, Oliver’s book is in his constructive possession.

Question 37

Open and Notorious

Answer 37

[Possession] must be visible and open to the common observer so that the owner or his agent on visiting the premises might readily see that the owner’s rights are being invaded.

Determining if the current owner is sleeping on their rights

Accordingly, the “open and notorious” requirement provides a threshold for objectively measuring the quality of the adverse possessor’s conduct. This threshold helps the court (or jury) make the necessary judgment as to whether the true owner’s failure to respond to the possessor’s conduct justifies the harsh consequence of reallocating title by adverse possession.

Question 38

Frank’s New Home

Suppose that Frank purchases a lot (Lot A) in Fairway Acres subdivision on which he plans to construct his residence. Frank and his contractor, however, misread the legal description for the lot, and the contractor actually builds the home on an adjacent lot, Lot B (owned by Sam and Ellen, a couple who live in another state and who purchased the lot as an investment and a potential site for a future retirement home). Unaware of the mistake, Frank moves in and occupies the home as his personal residence.

Is Frank’s possession of Lot B “open and notorious”?

Answer 38

Yes:

That’s right! Without question, Frank’s possession of the home on Lot B is open and notorious. Even though Frank’s possession may be mistaken, there is nothing surreptitious or secret about it. He is in active, visible possession of the land for all to see – indeed, his possession is no different from what we would expect of any true owner of land. Any objective third party observer of the land who was unaware of the mistake would reasonably conclude, based upon Frank’s conduct, that Frank owned the home. This sort of possession is thus sufficient to alert Sam and Ellen as to the existence and nature of Frank’s possessory claim.

Question 39

Gorski V. Mannillo

Answer 39

Adverse possession: Ms. Gorski sidewalk was 15in over into mannillos property: was NOT open and notorious technically

The court concluded that in the case of such a trivial encroachment, the Mannillos were not neglectful for having failed to object when Ms. Gorski built the sidewalk

overwhelming minority view – the landowner’s actual or subjective knowledge/awareness becomes critical in cases involving “minor” boundary encroachments.

Question 40

2 alternatives of open and awareness

Answer 40

1. The law could draw a presumption that landowners do know (or should know) exactly where their boundary lines are located.
2. Alternatively, the law could draw a presumption that landowners do not (or need not) know exactly where their boundary lines are located, but only the approximate location of those boundary lines.

Question 41

Easment

Answer 41

lessser interest over land than adverse possession

“an easement creates a non-possessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.” § 1.2.1.

Put more simply, A is given a right to enter onto B’s land and B may not interfere with that right. Easements are often spoken of as “the privilege to use the land of another in a particular manner and for a particular purpose.” Russakoff v. Scruggs, 400 S.E.2d 529 (Va. 1991).

Question 42

adverse possession an public land

Answer 42

Cannot get adverse possession of public land

Question 43

affirmative easements and negative easements

Answer 43

affirmative easement entitles the holder to enter and use another’s land

negative easement gives the holder the right to prevent an owner of land from using that land in a certain way.

Question 44

Appurtenant Easements and Easements in Gross

Answer 44

easement appurtenant involves two parcels of land: one that is benefited by the easement and one that is burdened by it.

easement in gross involves only one piece of land, the burdened piece

Question 45

2 truths of all easements

Answer 45

First, if there is an easement there is always a burdened parcel of land, the land over, under, or on which the easement runs. The burden attaches to the land and passes with it to future owners in all but a few narrow circumstances that we will later explore. The easement is an encumbrance on the burdened land which will raise marketability of title and deed warranty issues at the time the land is to be sold.

Second, because the law is burdening an owner’s land, it will do so only in circumstances where the owner expressly agrees or where the strict legal requirements for implying an easement are present. A person desiring an easement can never force a neighboring landowner to accept an easement solely because the former wants or needs it

Question 46

restrictions

Answer 46

restrictions in this set of tutorials are servitudes on the promisor’s land. In that sense, they are like easements. However, unlike easements, real covenants and equitable servitudes do not give another the right to use the promisor’s land. Rather, they require the promisor to use or to refrain from using the promisor’s land in a particular way.

Question 47

Covenants

Answer 47

In general, a “covenant” is an enforceable promise. As such, it may be either an agreement between parties or a promise that forms part of an agreement.

Question 48

equitable servitudes

Answer 48

“servitudes” generally are burdens upon one’s estate in land that (1) limit the estate owner’s use of the burdened property and (2) benefit someone other than the land owner or possessor. A servitude may arise from a covenant, an equitable servitude or an easement. An equitable servitude is one that is enforceable in a court of equity.

Question 49

2 types of land in real covenant or euqitable servitude

Answer 49

the benefited land, i.e., the land enjoying the benefit of the promise, and

the burdened land, i.e., the land bearing the burden of the promise.

Question 50

Horizontal Privitiy

Answer 50

“Horizontal privity” usually has two components converging simultaneously: privity of estate and privity of contract. The privity of contract arises from the transfer of interest in property, either in a landlord-tenant relationship or a grantor-grantee relationship. The privity of estate arises from the simultaneous promise(s) made by the promisor in the instrument transferring the property interest.

Question 51

negative restrictions

Answer 51

Usually, the restrictions are in the form of promises not to use the property in a particular way

Question 52

affirmative restrictions

Answer 52

promises to use the property in a particular way

Question 53

Propertys first principles

Answer 53

exclusion (trespass)

Nuisance (garbage can of property law

waste
- active, Passive, Ameliorative

Question 54

Capture possession case

Answer 54

Pierson v. Post (fox hunting)

Question 55

Propriety case

Answer 55

keeble v. Hickeringill

duck pond case

Question 56

custom case

Answer 56

ghen v. rich (whailing case)

Question 57

capture (fugitive resources) things to consider

Answer 57

Thing
Place
Custom
Propriety
Policy

Question 58

abandoned property

Answer 58

possession terminated: voluntarily
- Intent
- Manifestation

Best Rights to Possession: finder (becomes new owner

Question 59

Lost property

Answer 59

Possession terminated: involuntarily

True owner doesn’t know where it is

Best rights to possession: true owner

Next best rights: finder

Duties:
-Return to true owner if reclaimed
-Care for property

Question 60

Misplaced/Mislaid Property

Answer 60

Possession terminated: inadvertently
- Placed: intentionally
- Left: unintentionally
- True owner might not know where it is

Best rights to possession: true owner

Next best rights: PPWMPF*

Duties:
- PPWMPF:
- Advertise finding(?)
- Return to true owner if reclaimed
- Care for the property

Finder:
- Return to PPWMPF

Question 61

Adverse Possession

Answer 61

Open and Obvious
Continuous
- Tacking
- For statutory period
Exclusive
Adverse
Notorious

(OCEAN)