Property Flashcards
4 classic “incidents” of ownership
1) Possession
2) Use
3) Alienation (transfer or modify/destroy)
4) Exclusion
What are incidents?
Rights that a property owner has in an object.
What is alienation?
the transfer (by sale or gift) of property
Real Property vs Personal Property
Real property is the ownership of land and things, like buildings, that are physically attached to the land. Personal property is the ownership of everything else.
Rule of Capture (Pierson v Post)
gives ownership of a previously unowned resource to the first person to gain possession of that resource.
Tragedy of the Commons
Rule of capture can lead to overconsumption of a resource. In a tragedy of the commons scenario, people acting in their rational self-interest will over consume a resource that is unowned. Private property rights can help control tragedy of the commons.
Bailments
A bailment is a rightful possession of goods by one who is not the true owner. The owner is called the bailor. The non owner in rightful possession is called the bailee.
Classifications of Bailments
1) Bailments solely for the benefit of the bailor
2) mutual benefit bailments
3) Bailments solely for the benefit of the bailee
Bailee Liability
The common law rule on the bailee’s liability turns on 3 categories called classifications of bailments. The classifications turn on who gets the benefit of the bailment. Under the common law approach, the standard of care that will determine the bailee’s liability turns on the classification of the bailment
Liability for Bailments solely for the benefit of the bailor
the bailee is liable for only gross negligence and is expected to exercise only slight care over the bailed good.
Liability for mutual benefit bailments
the bailee is liable for ordinary negligence and expected to exercise ordinary care over the bailed good.
Liability for bailments solely for the benefit of the bailee
bailee is liable for even slight negligence and is expected to exercise great care over the bailed good.
Liability for bailee’s misdelivery
a bailee is strictly liable for misdelivery.
Finding Property Rule
When it comes to the laws around finding property, the true owner always wins and the first finder wins against everyone but the true owner.
4 categories of found property
1) abandoned property
2) lost property
3) mislaid property
4) treasure trove
Abandoned property
Property is abandoned when the owner no longer wants to possess it. Abandoned property belongs to the finder of the property against all others, including the former.
Lost Property
Property is lost when the owner unintentionally and involuntarily parts with its possession and does not know where it is. Lost property becomes the property of the finder once the statutory procedures are followed and the owner makes no claim within 12 months. Constructive possession can play a role though when lost property is on someone else’s land.
Mislaid Property
Mislaid property is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is. The finder of mislaid property acquires no rights to the property. The right of possession of mislaid property belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner.
Treasure Trove
treasure trove consists of coins or currency concealed by the owner. To be classified as a treasure trove, the property must have been hidden or concealed for such a length of time that the owner is probably dead or undiscoverable. Treasure trove belongs to the finder as against all but the true owner.
Contraband
is defined by statute and is usually subject to seizure by the state.
Inter Vivos Gifts of Personal Property
Refer to gifts that are made while the donor is alive
3 elements of valid inter vivos gifts of personal property
1) Intent
2) Delivery
3) Acceptance
Once all 3 elements are met, then a typical inter vivos gift becomes irrevocable.
Evaluating intent for inter vivos gifts
Ask whether the donor intended to make a gift and if so, did the donor intend to make a gift during life, or did the donor intend to give the gift at death.
The 3 types of delivery for inter vivos gifts
1) Actual: actual delivery involves an actual physical transfer of the object from the donor to the donee
2) Constructive: involves the transfer of some object, usually a key, that will give access to the property that is the subject of the gift. Constructive delivery might not be enough to establish a valid gift.
3) Symbolic: involves the transfer of a written document that evidences intent to make a gift of personal property.
Evaluating Acceptance of an inter vivos gift
Acceptance of a gift is presumed so long as the object has some value. As a result, this element is rarely an issue in disputes over gifts.
What is a life estate?
a life estate lasts for the present interest holder’s life and expires at the present interest holder’s death.
What is adverse possession?
Adverse possession is when someone possesses another’s property while that person is unaware or does nothing about it. Adverse possession is the product of the statute of limitation, which is the legal deadline for filing a claim in court. When an adverse possessor first entered your property, you could have brought an action for trespass or ejectment to kick the person off your land. If enough time has passed, the statute of limitations might have run on your action against the adverse possessor. Since you cannot bring an action to get the adverse possessor off of your property, title passes from you to the adverse possessor.
Basic Requirements of Adverse Possession
1) Adverse possessors must make an actual entry giving exclusive possession.
2) the adverse possession must be open and notorious. Basically using the property in the same way the owner would.
3) the adverse possession must be adverse and under a claim of right.
4) the adverse possession must be continuous for the statutory period.
Standards regarding the adverse possessor’s state of mind
The objective standards hold that the adverse possessor’s state of mind is irrelevant.
The good faith standard requires that the adverse possessor honestly believe that the averse possessor owned the property.
The bad faith or aggressive trespasser standard requires that the adverse possessor know the property was owned by someone else.
What does it mean to quiet title?
To find certainty in who is the owner
Constructive Adverse Possession and Color of Title
Legal title to property gives the owner constructive possession of that property. Actual possession typically trumps constructive possession in adverse possession cases. Color of title refers to a circumstance where the adverse possessor takes possession in reliance on some kind of written instrument that appears to give title to that property, but that is defective for some reason.
What is tacking?
where they use the previous possessor’s time on the property to tack onto their time on the property. This rule requires privity. With regard to tacking there needs to have been a voluntary transfer of possession.
Disabilities and the adverse possession clock
In many states, the statute of limitations clock for adverse possession does not run against the owner of the property if the owner is a minor, is mentally incompetent, or is imprisoned. We typically call these categories disabilities, because a person falling into any of these categories would be disabled from asserting her legal rights in a timely fashion.
Special Rules regarding disabilities
If the owner was not disabled at the time the adverse possessor entered, then the owner will not get the benefit of the disabilities period.
Owner cannot tack on two disabilities
Statute of limitations is typically 10 years for adverse possession, and then 5 years after removal of a disability.
A Hermit’s Right
The traditional account of the property right to exclude that emphasizes a solitary, isolated individual who excludes everyone from his land. It’s not very practical as many do not want to be in complete solitude. Hermit’s land can be invaded for necessity reasons of trespass.
The Bouncer’s Right
The landowners have the right to discriminate among various parties, permitting some to enter or use the land while keeping others off the property entirely. Owners must exercise discretion as to who can utilize the resource, and the criteria for exclusion need not be transparent to those seeking admission.
Exclusionary Vibes
An exclusionary vibes approach involves the landowner’s communication to potential entrants about the character of the community’s inhabitants. Such communication tells potential entrants that certain people may not feel welcome if they enter the community in question, because they will not share certain affinities with existing or future residents. An exclusionary vibe may act as an effective bluff that prevents some potential entrants who are targeted for exclusion from moving into a community.
Exclusionary Amenities
An exclusionary amenity is a common amenity that is embedded in a residential community at least in part because willingness to pay for the amenity functions as a proxy for some desired characteristic. It is a collective resource that provokes a polarizing response among people who are considering purchasing a home or renting an apartment in a particular community.
Present Interest
Give the owner a present right of possession (or in some cases use) of the land. Are also called estates in land.
Future Interest
Give the owner a future right of possession (or use) of the land.
Fee Simple Absolute
Is unlimited in duration and is the closest thing that the U.S legal system has to absolute ownership of land. Ownership of land in fee simple absolute is ownership forever.
The Life Estate
Is an interest that has a duration measured by a human life. It is created by the language “To A for life.” A life estate is always accompanied by a future interest. If the future interest is created in someone other than the grantor, it typically will be a remainder.
Defeasible Interests
Interests that will terminate on the happening of an uncertain event.
3 types of defeasible fee simple interests.
Fee simple determinable: is created if the defeasible language is phrased in terms of duration, such as “so long as” or “until.”
Fee simple subject to condition subsequent is created if the defeasible language is phrased in terms of condition, such as “but if,” “on the condition that,” or “provided that.”
Fee simple subject to executory limitation is created when the accompanying future interest is created in someone other than the original grantor.
Future Interests
Exist at the time it is created. It is the right of possession, not the existence of the interest itself, that is delayed to the future. Future interests get their basic characteristics when they are created.
Are future interests transferrable?
Yes! They can be sold or given away by their owner during their life. They also can pass down by will or intestacy after their holder’s death. Modern approach is that future interests are freely transferable during life and at death.
Possibility of Reverter
Is the future interest that accompanies a fee simple determinable.
The Reversion
Is any future interest created in the grantor that is not a possibility of reverter or right of entry. A reversion can be understood as the portion of the grantor’s interest that the grantor retains after transferring an interest that is of limited or potentially limited duration.
Remainder
A future interest created in a grantee that will become possessory, if at all, on the natural end of the preceding interest.
When is a remainder vested?
A remainder is vested if it is both in an ascertained person and not subject to a condition precedent other than the natural end of the preceding estate.
Types of vested remainders:
1) Indefeasibly vested remainder: one that is certain to become possessory in the future.
2) Vested Remainder in an Open Class: is one that is held by an open class of people.
3) Vested Remainder Subject to Divestment: is a vested remainder that may be divested by an executory interest before it becomes possessory.
When is a remainder contingent?
A remainder is contingent if it is either in an unascertained person or subject to a condition precedent other than the natural end of the preceding estate. Contingent remainders can become vested over time.
What is an executory interest?
A future interest created in a grantee that will cut short or divest the preceding interest.
The 4 categories of found property
1) abandoned property
2) lost property
3) mislaid property
4) treasure trove
Basic law about finding property
true owner always wins and then the finder wins against everyone but the true owner.
Law about finding abandoned property
Property is abandoned when the owner no longer wants to possess it. Abandoned property belongs to the finder of the property against all others, including the former owner.
Law about finding lost property
Property is lost when the owner unintentionally and involuntarily parts with its possession and does not know where it is. Lost property becomes the property of the finder once the statutory procedures are followed and the owner makes no claim within 12 months. Constructive possession can play a role though when lost property is on someone else’s land.
Law around mislaid property
Mislaid property is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is. The finder of mislaid property acquires no rights to the property. The right of possession of mislaid property belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner.
Law around finding treasure trove
treasure trove consists of coins or currency concealed by the owner. To be classified as a treasure trove, the property must have been hidden or concealed for such a length of time that the owner is probably dead or undiscoverable. Treasure trove belongs to the finder as against all but the true owner.
Contraband
contraband is typically defined by statute and is usually subject to seizure by the state.
