property 2 Flashcards
from CALI
real property
property for which the owner could obtain specific relief
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?
Personal Property
real property
consists of rights associated with land
personal property
Consists of rights associated with movable things (chattels or goods) and intangible rights that are not associated with land
property
you have the right to exclude other persons from a thing, whether land or personalty.
tanglible property: corporeal property
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.
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?
real property
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?
Thursday: The instant the shingles are staple gunned to the plywood, they lose their movability and become real property.
chattel
refers to tangible, movable things
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?
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.
Fixtures
items which are attached to the land or a building
Test to determine if chattel has become a fixture
- Physical Attachment: To what extent is the item annexed to or attached to the property?
- Adaptation: To what degree is the item specially adapted to the property?
- Intent: What is the intent of the annexing party or the parties?
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?
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.
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?
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
intangible real property
rights that are associated with the ownership, use, or enoyment of land
Tanya has written a song, “Land and Sky.” Her copyright in the song is what type of property?
Intangible personal property: The song is an intangible, and like all other songs it’s not tied to any parcel of real estate.
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.
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.
inter vivos gifts
gifts between living persons
a living donor makes an immediately effective donative transfer of an object of property to a living donee.
testamentary gifts
gifts that take effect upon the donor’s death
causa mortis gifts
sometimes called “deathbed” gifts
3 elements of inter vivos gift
- Donative Intent: The donor must have the intent to make a present transfer of ownership of the property to the donee.
- Delivery: The donor must make an effective delivery of the object of the gift to the donee.
- 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.
Inter vivos subjective and objective
Subjective: in the donor’s own mind
Objective: some action that corroborates the donor’s intent to make a presently effective gift
Inter Vivos Gift Delivery
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.
Inter vivo gifts: delivery exceptions
Self settled Trust: case of a self-declared or self-settled trust, there must still be reliable evidence of the donor’s intent
testamentary gift
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
testamentary deed
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.
Causa mortis gift
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.
Elements of a causa mortis gift
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.
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?
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.
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?
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).
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?
Terri. The deed validly granted an inter vivos gift of a remainder interest in the farm.
finder
Possession is physical control of the object. Thus, the finder is the person who has taken physical control of the object.
Bailee
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.
Misplaced/mislaid
tangible personal property that was intentionally placed were it was found but appears to have been inadvertently left there.
Treasure trove
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.
Constructive Possession
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.
Open and Notorious
[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.
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”?
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.
Gorski V. Mannillo
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.
2 alternatives of open and awareness
- The law could draw a presumption that landowners do know (or should know) exactly where their boundary lines are located.
- 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.
Easment
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).
adverse possession an public land
Cannot get adverse possession of public land
affirmative easements and negative easements
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.
Appurtenant Easements and Easements in Gross
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
2 truths of all easements
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
restrictions
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.
Covenants
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.
equitable servitudes
“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.
2 types of land in real covenant or euqitable servitude
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.
Horizontal Privitiy
“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.
negative restrictions
Usually, the restrictions are in the form of promises not to use the property in a particular way
affirmative restrictions
promises to use the property in a particular way
Propertys first principles
exclusion (trespass)
Nuisance (garbage can of property law
waste
- active, Passive, Ameliorative
Capture possession case
Pierson v. Post (fox hunting)
Propriety case
keeble v. Hickeringill
duck pond case
custom case
ghen v. rich (whailing case)
capture (fugitive resources) things to consider
Thing
Place
Custom
Propriety
Policy
abandoned property
possession terminated: voluntarily
- Intent
- Manifestation
Best Rights to Possession: finder (becomes new owner
Lost property
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
Misplaced/Mislaid Property
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
Adverse Possession
Open and Obvious
Continuous
- Tacking
- For statutory period
Exclusive
Adverse
Notorious
(OCEAN)
