Property Final 2

Question 1

After a divorce, what happens to tenancy in common and joint tenancy?

Answer 1

They both stay the same. Divorce does not end it.

Question 2

What is the modern trend towards martial property?

Answer 2

Equitable distrubtion

Question 3

What are the 4 ways property stays the property of one spouse that is gain during the marriage?

Answer 3

gift, bequest, devise, or descent (have to be able to show it)

Question 4

is property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, descent, or devise considered martial property?

Answer 4

No

Question 5

Is property acquired by a spouse after a decree of legal separation martial property?

Answer 5

No

Question 6

What is the modern elective share after termination of Marriage by death of one spouse?

Answer 6

Surviving spouse gets a share of all property - real and personal - that decedent owned at death. The surviving spouse gets to choose to renounce the will and take the statutory share, (1/2 or 1.3)

Question 7

What does the elective share not apply to?

Answer 7

Joint tenant at the time of death nor to life insurance.

Question 8

Pg. 447 H dies in a state that gives the surviving spouse an elective forced share of one-half of the decedent’s property passing by will or intestacy. During his life H took out a life insurance policy in the face amount of $60,000 payable to W. H and W also bought a house, worth $60,000 at H’s death and took title as joint tenants. H dies owning Blackacre worth $90,000, stocks and bonds worth $20,000, and a $10,000 savings account. H’s will bequeaths all his estate to his daughter by a first marriage, D. how is H’s estate distributed?

Answer 8

b. If the wife elects to enforce the elective share statute, the $60,000 life insurance policy is hers. Secondly, the house held in joint tenancy goes to her.
c. As for the $90,000 in Blackacre and the bonds worth $20,000 and $10,000, the wife can take half of that under the statute
d. The wife is going to get $180,000 (house, life insurance policy, and half of the remaining assets) and the daughter is going to get $60,000

Question 9

i. If you were advising H before he died, how would you advise him to carry out his wishes?

Answer 9

ii. There’s nothing he can do about the forced elective share statute.
iii. But what he could do is destroy the joint tenancy. Instead of the property being worth $60K, $30K would go to each person and half of that could be devised to the daughter.
iv. He can change the beneficiary of the life insurance as payable to D (so she can get $60K)
v. Can distribute half of its value ($30K through its will) to D and W gets the other $30K.
vi. The remaining assets are the $30K in the house and the $120K in extra assets. This gets divided between W and D, so they each get $75,000.
vii. Therefore, D would end up with $135K (life insurance plus half of the rest of the assets).

Question 10

What is the problem in The Coase threory?

Answer 10

The problem is not how to restrain the steel maker, but it is a reciprocal one (the steel mill owner is not only harming the steel mill, the individual’s presence is also harming the steel mill by increasing costs).

Question 11

What is the general theory for Coase Theory?

Answer 11

If there are zero transaction costs, the efficient rule will result regardless of the choice of legal rule of liability applied to the parties by the legal system

Question 12

What is the Coase Theorem depend on?

Answer 12

everyone bargaining reasonably and in their own rational, economic self-interest.

Question 13

Zoning: Is zoning a state power or federal?

Answer 13

State police power

Question 14

What are common zoning restrictions?

Answer 14

How big/high a building can be and types of usage, location, minimum lot sizes, advertising.

Question 15

Is zoning a big picture thing that comes with a comprehensive plan?

Answer 15

Yes, courts are concerned with this and want to make sure the plan isn’t bad and its comprehensible, not racists.

Question 16

Who are the people that benefit most from zoning?

Answer 16

Single-family residences

Question 17

True or false: If the increase is to the helped properties are larger than the decreases to the harmed property, it’s economically beneficial

Answer 17

True

Question 18

True or False: Every state has a Standard Act, like that in Euclid, where municipalities can regulate and restrict structures.

Answer 18

True

Question 19

What are the three main methods of flexibility in zoning.

Answer 19

Variances, Special exceptions, Zoning amendments

Question 20

What is a variances method?

Answer 20

Administrative departures granted unique cases to avoid ruling that ordinance is unconstitutional – granted in hardship times

Question 21

Special Exceptions

Answer 21

exceptions are authorized under conditions which will insure their compatibility within surrounding uses

Question 22

What is variance meant to uphold?

Answer 22

meant to stop zoning regulations that are unconstitutional

Question 23

What is an example of special exceptions

Answer 23

Hospital is residential areas.

Question 24

What is Zoning Amendments really?

Answer 24

This is really just re-zoning

Question 25

Zoning Amendments

Answer 25

It is basically spot zoning

Question 26

What are three questions to ask about spot zoning

Answer 26

General not allowed unless these three questions

1) are you singling out one spot for special treatment good or bad
2) Is this part of a bigger plan?
3) is singling this party out going to hurt the public

Question 27

Biggest issue with zoning amendments

Answer 27

Courts all differ in answering this and they all feel different.

Question 28

Is zoning law just legislative rezoning?

Answer 28

Yes

Question 29

What is this: allow a developer to construct dwellings in a pattern that are not in literal compliance with the area restrictions of a zoning ordianance

Answer 29

Cluster zones

Question 30

What is this: Mixed residential and commercial activity not specifically in compliance, but enough in compliance to be deemed ok

Answer 30

Planned Unit Developments

Question 31

What is a floating zone?

Answer 31

A situation where a zone is defined in the comprehensive plan but that plan reserves the determination about where the zone will be located until a future point in time.

Question 32

What is an example of an area variance?

Answer 32

Wanting to make you house a little bigger

Question 33

What case is Sawada v. Endo about

Answer 33

Tenancy by entirety

Question 34

True or False: Unlike a joint tenancy, a tenancy by the entirety cannot be defeated by a conveyance.

Answer 34

True

Question 35

Can creditors get to property held by tenancy in the entirety?

Answer 35

No they can’t bc the court favors family.

Question 36

Is tenancy by the entirety affected by the married womesn property act?

Answer 36

no

Question 37

Does education constitute property during a divorce? and what are the reasons

Answer 37

No bc no exchange of value, not transferable, personal, terminates at death which means cant be sold or inherited, and is a intellectual achievement.

Question 38

What “Defined marital property as all property acquired by either spouse during the marriage”

Answer 38

The Uniform Dissolution of Marriage Act

Question 39

What are the four exceptions to the UDMA

Answer 39

• property acquired by gift, bequest, devise, or descent
• in exchange for property acquired prior to the marriage
• after legal decree
• valid agreement

Question 40

True or False:
Fundamentally concept of community property is that each spouse’s earning should be owned equally in undivided shares by both spouses.

Answer 40

true

Question 41

What is community properties? (example)

Answer 41

both earning and profit from earnings

Whatever is bough with community earnings

Question 42

Can both partners transform their community to seperate?

Answer 42

Yes both need to agree.

Question 43

Can community property exist between friends?

Answer 43

No, only spouses

Question 44

Can the spouses convey 1/2 of their share?

Answer 44

Nope only to the other spouse or with their consent.

Question 45

Do spouses get to convey their 1/2 share at death in community property states?

Answer 45

yes

Question 46

What is Stepped up Cost? Example

Answer 46

Buy it for 20, community property. One spouse dies when its worth 50 and the surviving spouse sells it for 70. Stepped up Cost basis says we look at the value at the time of death and not at the time of buying so its 50 against 70–20 is subject to the tax.

Question 47

H, married to W, saves $5,000 out of his earnings, which he deposits in a savings account in his name only. Subsequently H withdraws the $5,000 and buys a lot, taking title in H and W as joint tenants. H then dies, devising all his separate and community property to his son, S. who owns the lot?

Answer 47

The $5K is community property. When he takes the $5K, he cannot unilaterally transform the property into a joint tenancy. The fact that he’s doing this alone does not create a joint tenancy. The only way to get a joint tenancy is if the wife agrees to transform the community property into community property held in joint property. If the wife consents to this, when he dies, she takes via the right of survivorship. If it’s community property, then his one half interest will pass through his will to S and his wife will get the other half.

Question 48

What are the three approaches to mixing community and separate property?

Answer 48

Inception of right rule, Time of Vesting rule, and Pro rata approach.

Question 49

What approach is this to mixing community and separate?

Property character determined at the time right as entered into.

Answer 49

Inceptions of rights rule

Question 50

Property character determined time right fully vest? When its fully paid off?

Answer 50

Time of Vesting

Question 51

You characterize the property based on the percentage of the total value that was paid out of separate property vs. the value that was paid out of community property>

Answer 51

Pro Rata

Question 52

True or False?

Under the pro rata sharing rule, the community payments “buy in” a pro rata share of the title

Answer 52

True

Question 53

What is this an exmaple of Let’s say the house was $100K, and you put $20K down. Then you get married and the remaining $80K is paid out of community property. It’s value will be 20 percent your separate property.

Answer 53

Pro rata approach

Question 54

What happens if you move domicilies?

Answer 54

Once a piece of property is characterized, it does not change if parties move unless both parties consent to changes?

Question 55

During marriage, H takes out a $50,000 life insurance policy on his life, paying premiums out of his earnings. The named beneficiary is H’s son, S. at H’s death, who is entitled to the $50,000?

Answer 55

H took out the policy during marriage and paid the premiums out of community property earnings, so the policy is community property – W is entitled to half, $25K. H can dispose of the other half as he wants at death, and as a result the life insurance designation is treated as a testamentary designation. As long as all the premiums were paid out of community property, W is going to get $25K and S will get $25K.

Question 56

Suppose that H had taken out the policy before marriage and that $3,000 in premiums had been paid before marriage and $7,000 in premiums had been paid after marriage from community funds. At H’s death who is entitled to the $50,000?
Inception at right rule

Answer 56

First possibility is if it’s the inception of right rule, it remains separate property and S gets the $50K.

Question 57

Suppose that H had taken out the policy before marriage and that $3,000 in premiums had been paid before marriage and $7,000 in premiums had been paid after marriage from community funds. At H’s death who is entitled to the $50,000?
Time at Vesting?

Answer 57

Second possibility is that it’s the time of the vesting rule. If it’s this, it’s characterized at the time the last payment was made, and this was made out of community property. So the answer here is the same as Part I

Question 58

Suppose that H had taken out the policy before marriage and that $3,000 in premiums had been paid before marriage and $7,000 in premiums had been paid after marriage from community funds. At H’s death who is entitled to the $50,000?
Pro Rata

Answer 58

Third possibility is the court takes a pro rata approach. If it’s this, 70% of this policy ($35K) is community property and W is entitled to half of that ($17,500), and the other $17,500 goes to S as does the 30% that was never community property to begin with

Question 59

True or false: If there is any injury to the party, the injuring party has to stop – we’re going to protect the innocence of the injured party.

Answer 59

True

Question 60

True or False: The property is protected in its entirety. Generally what we mean when somebody has ownership. If there’s any injury to the property, that injury has to be fully removed. And this comes from coase theorem

Answer 60

true.

Question 61

Hypo: the property line encroaches and plaintiff sues defendant. Who will win under coase theorem

Answer 61

Plaintiff is going to win because the defendant shouldn’t be on their property

Question 62

Can you think with emotion or spite for the coase theorem?

Answer 62

No, it only works when the people do things in their own economic interest.

Question 63

Is doing something out of spite a nuisance?

Answer 63

Yes

Question 64

Who did the court say had to pay in spur?

Answer 64

Webb because sput was blameless so Webb would need to pay for them to leave

Question 65

What is the Spur v. Del an example of?

Answer 65

Calebresi’s 4th remedy

Question 66

What were the three good arguments that Spur had?

Answer 66

1. Spur could argue adverse possession.
2. They have been openly, notoriously, hostilely using the land.
3. It may give them a prescriptive easement – give you access, not ownership. Pretty good argument that they have a prescriptive easement by adverse possession.