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From Grace's Flashcardlet > Property I > Flashcards

Property I Flashcards

0
Q

§ What is Property?

A

Property can be tangible, intangible things. Body parts are not the property of the owner once it leaves the owner’s control Illustration of different theories of property

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1
Q

§ Theories of Property

A
  1. Labor 2. Occupation 3. Natural rights 4. Social Utility 5. Economy efficiency 6. Legal theory
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2
Q

§ Attributes of property

A
  1. Right to exclude 2. Right to transfer 3. Right to use
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3
Q

§ FINDING

A

• Natural item : Belongs to the landowner where they were found. • Lost item : The finder has a superior title to the world except to the true owner (Armory v. Delamire) • Mislaid item: The landowner has a superior title to the world except to the true owner - Because if it is a mislaid item, the true owner is more likely to come back for the item.

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4
Q

§ FINDING - LOST ITEM

A

• Lost item : The finder has a superior title to the world except to the true owner (Armory v. Delamire) • Lost item found in a public area of a private property - finder gets better title. • Lost item found in a private controlled area: landowner gets better title. º The landowner must exercise sufficient control over the area. º Even if the item was found on a private property, if the LO does not exercise sufficient control : Finder may claim it.

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5
Q

§ FINDING - Mislaid Property

A

• Mislaid item - The landowner of where the item was found has better title than the finder. - Because the original owner might come back for it. - Need to prove that the item was more likely to be a mislaid rather than a lost item.

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6
Q

§ BAILMENT

A

• Bailor- Bailee relationship is created when there are 1. Possession 2. Actual Control 3. Implied expectation of protection

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7
Q

§ Unauthorized Possession

A

• Between two people who are not true owner - the party in possession has better title. • If the true owner’s identity is known, then it goes to the true owner.

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8
Q

§ Adverse Possession

A

• Adverse possession allows the unauthorized possession to become a valid title when

  1. Actual 2. Exclusive 3. Open/notorious 4. (adverse) Hostile 5. Continuous 6. Required statutory period• The true owner must exercise reasonable effort to discover that the item is missing and to recover the item. º If the property was hidden, then it won’t satisfy the adverse possession requirement. • Continuous possession is sufficient with intent to continuously use it, not an actual possession.
    - rule: use of a seasonal home can be considered continuous possession even if it’s only occupied a little, as long as it’s consistent with its use) (Howard v. Kunto)
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9
Q

§ Accession - mistaken improvement of other’s property

A
  • IF IT IS A CHATTEL • Substantial improvement with change of characteristic (mistakenly, but in good faith) of personal property may transfer title to the improver. (Wetherbee v. Green) • Owner only gets back the original value of the material • If not substantially improved - the owner would take the property - IF REAL PROPERTY • Mistakenly builds a house on other’s land (Hardy v. Burroughs) • Decision in favor of one party would do injustice to the others - Either pay the builder a fair $ of the improvement or sell the entire property to the builder for fair $.
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10
Q

§ Bona Fide Purchase

A

• Traditionally, there is no BFP, even if the purchaser did not know of the nature of the property. - Because a thief never has a good title to transfer. • Modernly, there is BFP if the purchaser reasonably believed that the seller had a good title. - The purchaser must practice REASONABLE diligence to discover the nature of the property/ and seller

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11
Q

§ Transfer of Ownership - Gift

A

Inter vivos gift : gift during a lifetime. • Traditionally, gifts required actual, physical delivery from the donor to donee. • Modernly, there needs to be no physical delivery but the intent of the donor to give a gift of donee is sufficient.

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12
Q

§ Transfer of Ownership - Gift causa mortis

A

• Donor’s impending death • Donor must die from that specific peril • Actual delivery during the lifetime º Traditional view: A note to a family member left on a night stand by a nurse was not a delivery (Foster v. Reiss) º Modern View: The intent of the donor is important as a note left on the donee’s apartment considered as a delivery (Schere v. Hyland)

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13
Q

§ Freehold Estate – Fee Simple Absolute

A

• G to A (no restriction)

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14
Q

§ Freehold Estate – Fee simple determinable (with possibility of reverter)

A

• G to A FOR SO LONG AS xxx condition. If the condition occurs, automatically reverts back to G. • The specific language is required to create FSD condition : FOR SO LONG AS, AS LONG AS, • Reversion is automatic.

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15
Q

§ Freehold Estate – Fee simple subject to condition subsequent (with right of re-entry)

A

• G to A on condition that XXX, if XXX occurs, then the G may exercise his right of re-entry and take back the property from A. If G doesn’t exercise his right when he discovered the occurrence of the condition, he loses his right of re-entry.

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16
Q

§ Freehold Estate – Fee simple determinable (with executory interest)

A

• G to A on condition that XXX occurs, if XXX occurs, then to B.

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17
Q

§ Freehold Estate – Fee tail

A

• G to A and the heirs of his body. Reversion in G.

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18
Q

§ Freehold Estate – Life estate

A

• G to A for life. Reversion in G.

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19
Q

§ Freehold Estate – Life Estate pur autre vie

A

• G to A for the life of B. Rev to G.

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20
Q

§ Future Interest – Vested remainder

A

• G to A for life | and then to B. º A has life estate º B has vested remainder (because he is sure to get it after A dies)

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21
Q

§ Future interest – Vested remainder subject to open (partial divestement)

A

• G to A for life / then to A’s children. If no children at the time of grant, then contingent remainder in A’s to-be-born children. Reversion in G If a child at the time of grant, vested remainder subject to open to A’s children (because there might be more kids) º Adopted children would count as well.

22
Q

§ Future interest – Vested remainder subject to total divestment

A

• G to A for life / remainder to B and his heirs / but if B doesn’t have children to C. º A has life estate º B has vested remainder total divestment If B has children, he will get FSA. but if he doesn’t have children, his vested remainder will be stripped Total divestment is a condition to take away the estate from the remainder. º C has executory interest. ** executory interest follows fee simple determinable.

23
Q

§ Future Interest – Contingent Remainder

A

• G to A for life, / and then to B if XXX condition. º A has life estate º B has contingent remainder that on the occurrence of XXX he gets the estate. Unlike Fee simple determinable, Contingent remainder follows life estate Condition comes before the transfer.

24
Q

§ Future Interest – Destructibility

A

• G to A for life / then to B if B becomes a cowboy. - normally, contingent remainder in B. º Traditionally: If A dies before B can satisfy the condition, contingent remainder destroyed, and revert to G. º Modernly: Even if A dies, if B reasonably have intent to satisfy the condition, or satisfies the condition in the future, then the interest springs back to B from G’s reversion. - If condition doesn’t satisfy- G has FSD followed by B’s executory interest.

25
Q

§ Future Interest – Rule on Shelley’s case

A

• G to A for life, and then to A’s heirs º Traditionally, this is called Rule of Shelley’s Case • Modernly, Fee simple absolute in A.

26
Q

§ Future Interest – Doctrine of Worthier Title

A

• Traditionally, G to A for life, then to G’s heirs - Doctrine of Worthier title • Modernly, Same as reversion in G after life estate.

27
Q

§ Future Interest – Executory Interest

A

• G to A and his heirs, /// but if B becomes a fireman, to B and his heirs. º A’s interest is limited by Fee Simple Determinable º B has executory interest if B becomes a fireman. – B cuts short A’s fee simple interest .

28
Q

§ Rule against Perpetuities

A

• No interest is good unless it vest not later than 21 years after the creation of interest. • This rule is created to impose limitations on vestment. º Some jdxs abolished the Rule º Some jdxs adopted 90 years Modified Rule º Some jdx adopted “wait and see”

29
Q

§ Concurrent Ownership

A

• Any situation in which two or more persons simultaneously may assert interests in realty or personality .

30
Q

§ Concurrent Ownership - Tenancy in Common

A

• Two of more parties own separate but undivided interest in a same property - A, B,C are co-owners of the whole property. - TC can alienate their portion without other’s consent/ permission. - If the TC holder dies, his heir will take over the portion. * Modernly this is the default creatioin.

31
Q

§ Concurrent Ownership : Joint Tenancy with right of survivorship

A

• Undivided share in the same interest with a right of survivorship. - If one party dies, the survivors takes and divides the interest amongst them - If one member conveys to a 3rd party, the JT is severed. -

  • Traditional rule: if land was conveyed to 2+ persons, a JT was created. All tenants must take interest in the same: 1. time 2.title 3.interest 4.possession
  • Modern rule: if you convey land to 2+ persons, then it’s a tenancy in common, unless there is CLEAR LANGUAGE that shows intent to create a JT

GRANTING LANGUAGE: Needs clearly expressed language of “Joint Tenancy” or else it will default to Tenancy in Common; “Jointly, commonly” is NOT enough (In re Estate of Michael)

-Severing JT: 1. conveying to 3rd party 2. partition 3. MURDER (turns into TC) 4. divorce (turns into TC)

32
Q

§ Concurrent Ownership : Joint Life Estate with Contingent Remainder of survivorship.

A

• It is a life estate between two parties which would not sever the survivorship between the joint parties even if there is a conveyance of the interest to a 3rd party .

33
Q

§ Concurrent Ownership : Tenancy by entirety.

A

• Estate held by married couple. - Equal undivided interest.

34
Q

§ Concurrent Ownership : Creation of Concurrent ownership

A

• Traditionally, JT was the default creation. • Modernly, TC is the default. • To create JT, there needs to be specific language - “JOINT TENANCY” or at least “WITH RIGHT OF SURVIVORSHIP” • Word ‘Jointly” is not sufficient. -Look to the grantor’s intent.

35
Q

§ Concurrent Ownership : Slayer Sttt

A

• Killing of one JT by another JT will sever the right of survivorship. - However, the Killer JT will still retain his share

36
Q

§ Concurrent Ownership : Adverse Possession

A

• 1 tenant can adversely possess another tenant’s interest if an actual notice is given and all the requirements of adverse possession are met. (Mercer v. Wayman)

37
Q

§ Concurrent Ownership : Mortgage.

A

There are two diff. type of mortgage according to jdx.

  1. Mortgage in Title: The creditor takes the title and estate, and severs the JT.
  2. Mortgage in Lien : The creditor only puts lien on the estate, which doesn’t sever JT. When paying off the debt, co-owner may benefit if he contributes within the reasonable time
38
Q

§ Condominium and Timeshare arrangement

A
  • Traditionally: Condominiums are viewed as a property and allowed specific performance for remedies.
  • Modernly: Condominium unit is a generic, fungible. Thus more like a personal property. – no specific performance.

(Centex Homes corp. v. Boag)

39
Q

§ Condominium : Damages in the common area

A

• Damages arose from the common area of the condominium

  • Pro Rata Share: Individual owners will be held proportionally liable for their share of harm, because they have less control over the common area. (Dutcher v. Owens)
  • Condo association cannot arbitrarily withhold consent to transfer unless the restriction is reasonable (if restraint is to find another purchaser at fair market value, then it’s valid). (Aquarian Foundation Inc, v. Sholom House Inc.)
40
Q

§ Non-Freehold Estate - Landlord and Tenant

A
  • Traditionally: Lease is a conveyance • Modernly: Lease is a contract.
  • Illegal contract which violates statute(Housing Code) is void and confers no right upon the wrongdoer (Brown Case) - Violation of Housing Code that makes habitation unsafe and unsanitary.
  • The leasehold agreement must be consistent with other statutes and rules like non-waivable implied warrant of habitability measured by thes standard set in housing codes.
41
Q

§ Landlord and Tenant - Access to the rental market

A

• Leasehold may not be created based on discrimination. To determine if there was a discrimination, look to the surrounding circumstance, history of renting, LL’s intent. - If a reasonable person would find that there has been discrimination, then it would be so, >>Jancik v. Dept of Housing

42
Q

§ Landlord - Tenant : Tenant’s Right to Possession

A

>>Adrian v. Rabinowitz • English Rule: LL has duty to put the tenant in the actual possession and legal title. If there is a holdover tenant, then LL has duty to evict. • American Rule: LL has duty to put the tenant in a legal title only. Tenant has to take action to evict the holdover tenant.

43
Q

§ Landlord - Tenant: Provisions governing the Tenancy

A

• Tenancy at will: Indeterminate terms • Tenancy at sufferance: When tenant remains in possession even after the termination of the lease • Tenancy for years: Definite beginning date and the end date - can be for ANY period • Periodic Tenancy : Year to Year ; Month to Month, etc.

44
Q

§ Landlord - Tenant : Holdover Tenant

A

>>Commonwealth Building v. Hirschfield • If a tenant remains in possession of the premise, with a good faith with intent to move out, for some period, the LO can’t hold the tenant responsible for additional rent term. - Tenant is still liable for the period that he remained in possession.

45
Q

§ LL- Tnt : Condition of the Premises

A

>>Richard barton v. Tsern • Issue of suitability: The premise must be suitable for the commercial purpose of the tenant’s intent. - Not meeting that suitability: is a breach of contract. Obviously, this is a modern rule, where the leasehold is viewed as a contract. Under traditional view of Leasehold being a conveyance, there is no implied warranty of suitability.

46
Q

§ Landlord - Tenant : Rent Control

A

>>Telluride v. Lot 34 Venture • Rent Control of private housing is not common (rent control of public housing/commercial is a norm) • Maximum rent limit is not allowed.

47
Q

§ Landlord-Tenant : Use of the premise - Duty of continuous operation

A

>>Piggly Wiggly • Majority: Substantial minimum rent is a indication that there is no duty to continue operation • Minority: % rent is an indication that there is a duty to continue operation. ** Four factors to determine the duty of continuous operation 1. Substantial fixed base rent 2. Tenant’s free assignability of the lease 3. Actively negotiated all parties involved 4. Noncompetitive provision.

48
Q

§ Landlord-Tenant: Use of the premise - Physical Alteration

A

>>Handle v. Horns • Traditional: A fixture becomes a part of the property once it is installed,and can’t be removed • Modernly: A trade fixture for the specific commercial use can be removed if removal doesn’t damage the property.

49
Q

§ Landlord-Tenant : Injuries to Persons and Property

A

>>Walls v. Oxford Mngment • Majority : LL has no duty to protect the tenants from criminal activity, unless there is a special relationship. • Minority : LL has duty to protect the tenants from criminal activity - Failure to do so is a violation of implied warranty of habitability

50
Q

§ Landlord-Tenant : Lessor’s remedy against the defaulting tenant Termination of Lease

A

>>Foundation Development Corp v. Loehmann • Trivial breach (delinquent payment) doesn’t justify termination of lease. º Economic efficiency reasons

51
Q

§ Landlord-Tenant : Lessor’s remedy against the defaulting tenant - Eviction

A

>>Edwards v. Habib • LL may not evict the tenant in retaliation for reporting violations of Housing Code on the premises, even if the tenant at will. • Tenant must prove that there was a sufficient retaliatory intention by the LL.

52
Q

§ Landlord-Tenant: Lessor’s Remedy against defaulting tenants - Damages

A

>>US National Bank v. Homeland • When tenant abandons the property.. Traditionally: Lease is a conveyance: transfer of property — you only have an obligation when you are using the property . - If tnt abandoned the premise, he doesn’t have to pay for the damage. Modernly: Lease is a Contract : agreement to pay money for certain amount of time for the use of this property - If tnt abandoned the premise, he is still liable for the period of vacating, until the reletting occurs. • Landlord has duty to mitigate in a reasonable fashion. - He has to use his own diligence to relet the premise. - If unreasonable, tenants may not be liable. - If the LL can’t get a subsequent tenant because of prev. tenants’ breach, then prev.tenant would still be liable.

53
Q

Concourrent Ownership:

Contribution

A

A cotenant who pays more than his share of debt, is entitled to reimbursement from his cotenants to the extent to which he paid their shares of indebtedness. If the other co-tenant does not contribute in a reasonable time, he can lose his interest in the property. (Laura v. Christian)

From Grace's Flashcardlet (4 decks)

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