Property

Question 1

4 classic “incidents” of ownership

Answer 1

1) Possession
2) Use
3) Alienation (transfer or modify/destroy)
4) Exclusion

Question 2

What are incidents?

Answer 2

Rights that a property owner has in an object.

Question 3

What is alienation?

Answer 3

the transfer (by sale or gift) of property

Question 4

Real Property vs Personal Property

Answer 4

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.

Question 5

Rule of Capture (Pierson v Post)

Answer 5

gives ownership of a previously unowned resource to the first person to gain possession of that resource.

Question 6

Tragedy of the Commons

Answer 6

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.

Question 7

Bailments

Answer 7

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.

Question 8

Classifications of Bailments

Answer 8

1) Bailments solely for the benefit of the bailor
2) mutual benefit bailments
3) Bailments solely for the benefit of the bailee

Question 9

Bailee Liability

Answer 9

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

Question 10

Liability for Bailments solely for the benefit of the bailor

Answer 10

the bailee is liable for only gross negligence and is expected to exercise only slight care over the bailed good.

Question 11

Liability for mutual benefit bailments

Answer 11

the bailee is liable for ordinary negligence and expected to exercise ordinary care over the bailed good.

Question 12

Liability for bailments solely for the benefit of the bailee

Answer 12

bailee is liable for even slight negligence and is expected to exercise great care over the bailed good.

Question 13

Liability for bailee’s misdelivery

Answer 13

a bailee is strictly liable for misdelivery.

Question 14

Finding Property Rule

Answer 14

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.

Question 15

4 categories of found property

Answer 15

1) abandoned property
2) lost property
3) mislaid property
4) treasure trove

Question 16

Abandoned property

Answer 16

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.

Question 17

Lost Property

Answer 17

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.

Question 18

Mislaid Property

Answer 18

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.

Question 19

Treasure Trove

Answer 19

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.

Question 20

Contraband

Answer 20

is defined by statute and is usually subject to seizure by the state.

Question 21

Inter Vivos Gifts of Personal Property

Answer 21

Refer to gifts that are made while the donor is alive

Question 22

3 elements of valid inter vivos gifts of personal property

Answer 22

1) Intent
2) Delivery
3) Acceptance
Once all 3 elements are met, then a typical inter vivos gift becomes irrevocable.

Question 23

Evaluating intent for inter vivos gifts

Answer 23

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.

Question 24

The 3 types of delivery for inter vivos gifts

Answer 24

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.

Question 25

Evaluating Acceptance of an inter vivos gift

Answer 25

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.

Question 26

What is a life estate?

Answer 26

a life estate lasts for the present interest holder’s life and expires at the present interest holder’s death.

Question 27

What is adverse possession?

Answer 27

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.

Question 28

Basic Requirements of Adverse Possession

Answer 28

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.

Question 29

Standards regarding the adverse possessor’s state of mind

Answer 29

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.

Question 30

What does it mean to quiet title?

Answer 30

To find certainty in who is the owner

Question 31

Constructive Adverse Possession and Color of Title

Answer 31

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.

Question 32

What is tacking?

Answer 32

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.

Question 33

Disabilities and the adverse possession clock

Answer 33

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.

Question 34

Special Rules regarding disabilities

Answer 34

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.

Question 35

A Hermit’s Right

Answer 35

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.

Question 36

The Bouncer’s Right

Answer 36

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.

Question 37

Exclusionary Vibes

Answer 37

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.

Question 38

Exclusionary Amenities

Answer 38

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.

Question 39

Present Interest

Answer 39

Give the owner a present right of possession (or in some cases use) of the land. Are also called estates in land.

Question 40

Future Interest

Answer 40

Give the owner a future right of possession (or use) of the land.

Question 41

Fee Simple Absolute

Answer 41

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.

Question 42

The Life Estate

Answer 42

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.

Question 43

Defeasible Interests

Answer 43

Interests that will terminate on the happening of an uncertain event.

Question 44

3 types of defeasible fee simple interests.

Answer 44

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.

Question 45

Future Interests

Answer 45

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.

Question 46

Are future interests transferrable?

Answer 46

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.

Question 47

Possibility of Reverter

Answer 47

Is the future interest that accompanies a fee simple determinable.

Question 48

The Reversion

Answer 48

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.

Question 49

Remainder

Answer 49

A future interest created in a grantee that will become possessory, if at all, on the natural end of the preceding interest.

Question 50

When is a remainder vested?

Answer 50

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.

Question 51

Types of vested remainders:

Answer 51

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.

Question 52

When is a remainder contingent?

Answer 52

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.

Question 53

What is an executory interest?

Answer 53

A future interest created in a grantee that will cut short or divest the preceding interest.

Question 54

The 4 categories of found property

Answer 54

1) abandoned property
2) lost property
3) mislaid property
4) treasure trove

Question 55

Basic law about finding property

Answer 55

true owner always wins and then the finder wins against everyone but the true owner.

Question 56

Law about finding abandoned property

Answer 56

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.

Question 57

Law about finding lost property

Answer 57

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.

Question 58

Law around mislaid property

Answer 58

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.

Question 59

Law around finding treasure trove

Answer 59

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.

Question 60

Contraband

Answer 60

contraband is typically defined by statute and is usually subject to seizure by the state.