Property Law Flashcards
What is property?
In a legal sense, property is often referred to as a bundle of rights. A person might have one, several, or all of these rights in connection with their property
What does the term bundle of rights mean?
The term “bundle of rights” describes the set of legal rights associated with ownership of real property. The “bundle” is made up of five different rights: the right of possession, the right of control, the right of exclusion, the right of enjoyment and the right of disposition.
What is the right of control of property?
- the right to make decisions about and alterations to the property
- Often limited by local regulations, HOA agreements, historical status
What is the right of disposition of property?
– the right to sell, give away, destroy property
- Can be limited by historical status, encumbrances like liens
What is the right of enjoyment/use of property?
- the right to use the property as you see fit, without onerous outside interference
- But you cannot interfere with other’s enjoyment or rights to their property, also may be limited by zoning
What is the right of exclusion of property?
- the right to keep others from using or entering your property, or to remove them
- Limited by easements in some cases
What are the types of property?
Real
Personal (Tangible/Intangible)
Intellectual
Fixtures
What is Real Property (realty)?
land and things that are attached to land and immovable (primarily buildings)
What is Personal Property (personality)?
- Tangible: physical, movable objects: books, boats, cars, computers
- Intangible: property with no physical form – money in a bank account, stocks and bonds (etc)
What is Intellectual Property?
a form of intangible personal property that represents ownership of an idea: copyrights, patents, and trademarks
What are Fixtures?
In between realty and personalty – often refers to appliances that start as personal property and then become semi-permanently attached to real property
What does the term overlapping rights mean?
One piece of property can be the subject of multiple sets of rights
Example: - You own a computer:
- You have the right to use, enjoy, transfer, alter, and even destroy the computer
- The company that sold the camera has intangible rights in the design and technology of the computer – you cannot sell duplicates of it
What are vested property rights?
rights that have become fully effective
What are contingent property rights?
rights that depend on some future condition to become effective
What is Severalty Ownership?
sole ownership by one person
What is Concurrent Ownership?
property held simultaneously by 2+ people, and comes in 3 forms
What are the three forms of Concurrent Ownership?
Joint Tenancy
Tenancy in Common
Tenancy by the Entirety
What is a Joint Tenancy?
Each party owns a proportional share, there is a right of survivorship, and it applies to people acquiring ownership at the same time from the same source.
What is a Tenancy in Common?
Each party owns a proportional share, there is no right of survivorship (property share goes to estate if a tenant dies), and it applies to everyone else who holds property jointly.
What is a Tenancy by the Entirety?
Each party owns 100% of the property, there is a right of survivorship, and it applies to married couples (switches to tenancy in common if divorced)
What is an estate / interest in land?
A person’s ownership of real property
- Not to be confused with the summation of a persons debts and assets after they die, also called an estate
What does the “true” owner of the land mean?
A person who holds an estate in fee simple is what we often think of as the “true” owner of the land – he can pass that interest in the land onto heirs
What is a life estate?
A life estate in contrast gives a person an interest in land for their life, which cannot be passed onto heirs
What is a grantor?
The person who owns the land and gives a life estate to another
Who is a remainderman?
The grantor may choose to pass the property on (fully or in the form of a life estate) to another person after a life estate expires. Such a recipient is called a remainderman – they have a future interest in the property
What is a leasehold?
- A leasehold allows a tenant a possessory interest in land for a period of time
- They can control and occupy the land, but do not own it and cannot pass it on
What are the two restrictions on Real Property?
Easements & Licenses
What is an easement?
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Easements are legally enforceable rights to use or access the lands of others for a particular purpose – that the owner may not be able to forbid
- For example, utility companies often have easements to access components on owner’s lands
What is a license?
A license is a temporary permission to use land, such as the owner of a forest granting permission to hunters or fisherman
What is adverse possession?
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Adverse Possession is a process by which someone without title can acquire title in another person’s land
- Arguably “stealing” it
What qualifies for adverse possession?
- Possession must be
- Hostile (Without the consent of the owner)
- Adverse (against the owners interest)
- Open and notorious (not hidden)
- Continuous for a set period of time, usually 20 years
What are some ways that personal property can be acquired?
Purchase (buying)
Creation (making)
Capture
Accession
Finding
What is capturing property?
- the first person to seize something existing in nature owns it (most commonly referring to fish and game)
- Subject to a variety of regulations (such as licensure, catch limits, etc)
- Often, title in wild animals is only good so long as one has physical possession of them – once they escape it’s fair game (literally)
What is accession of property?
Natural increase. If your livestock have babies, you own the babies
What is finding property?
Personal property can also arise out of finding – claiming property that others originally owned. The nature of ownership here depends on how the property is found.
What is lost property?
Property that the owner has unintentionally parted with and doesn’t know where it is
What are the rules of lost property?
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Lost property – the finder can claim possession against anyone except the true owner
- The finder may be required to hand over the item to authorities, or publicize its finding for a period of time, after which the property becomes fully theirs if unclaimed. This is especially true for livestock and other domesticated animals
What is mislaid property?
Property that the owner intentionally left somewhere, but forgot about
What is the rule about mislaid property?
Mislaid property – goes to the owner of the premises where mislaid, who must follow similar rules to the finder of lost property
What is abandoned property?
Property that the owner has no interest in retrieving, regardless of how it was left
What is the rule about abandoned property?
Abandoned property – finders keepers
Other rules:
- Employees who find property in the course of their employment must turn it over to their employer, who has finders rights to it
- Trespassers are secondary to landowners when finding property on the landowners estate
- When fungible goods are intermingled and subject to confusion – there is no claim to individual items, just claims to a proportional amount to what was originally owned
Who is a donor and who is a recipient?
The person giving is the donor and the recipient is the donee
What is donative intent?
The donor must have donative intent – the intent to relinquish all property rights for nothing in return
What is actual delivery? What is constructive delivery?
- Actual delivery – the item is physically transferred from one party to another (dropping off the car to the donee)
- Constructive delivery – when the parties conduct themselves as if a transfer of property has occurred without an actual or symbolic transfer (giving the donee the keys to the car)
Can gifts be conditional?
Yes
What are trusts?
Trusts are a way to convey property to a beneficiary without giving them total control (the grantor transfers control/ownership of property to the trustee who holds and manages them on behalf of the beneficiary
What are the two forms of trusts?
Revocable and Irrevocable
What are the terms of a revocable trust?
- The grantor
- May terminate the trust
- May change the trust
- Can freely access the assets
- Do NOT provide protections from creditors or tax savings
What are the terms of an irrevocable trust?
-
Irrevocable Trusts
- Cannot be terminated or meaningfully changed by the grantor
- The grantor gives up ownership and control (except for anything explicitly provided for in the trust)
What are the responsibilities of the trustee?
- Control and protect the assets
- Handle accounting and taxes
- Manage and invest the funds
- Disburse funds to the beneficiary as appropriate
- Most importantly: act impartially in the best interest of all beneficiaries
- This can get complicated when there are difficult choices to make, or multiple beneficiaries
What is probate?
The process of executing a will after a person dies, distributing property, and settling any disputes
What is a will?
The document that outlines how the deceased would like their property divided up
- The person creating a will is referred to as the testator (male) or testatrix (female)
- The collection of property owned by the decedent is their estate
- NOTE: if the deceased had debts or other obligations, creditors may be able to recover some assets from the estate, even against the declaration of the will.
- Although, close family often have at least some protected claims even above creditors
What is the term for a person who dies without a will?
Intestate
How is the estate of a person who died intestate distributed?
The estate of a person who has died intestate will be distributed according to the rules of intestate succession
Intestate succession
- In GA:
- If both spouse and children are alive, they split everything evenly, except that the spouse gets at least 1/3
- If spouse and no children, spouse gets everything (and vice versa)
- If no spouse and no children, parents get everything
- If no spouse, children, or parents, siblings get everything
- If no heirs can be found, the property escheats back to the state
What is eminent domain?
Eminent Domain is a legal procedure by which the government can seize ownership of private land for “public use”
What is “public use”?
Public “use” does not literally mean use, but is more appropriately thought of as public “purpose” or “benefit”
What is a taking?
- There is no clear line for what is or is not a taking. A finding of taking is more likely when
- There is a physical intrusion, in whole or in part (physical taking) OR
- Regulatory action renders the land in question valueless or nearly valueless
- Courts are reluctant to find that a regulatory taking has occurred if land retains at some economic value or use
- Takings to shut down or prevent a nuisance are also not entitled to just compensation
What is a nuisance?
Nuisance refers to actions by someone or something within their control that interfere with rights of either the public or private citizens outside of their property.
What is zoning?
Zoning is a process by which local governments dictate what types of activities may be conducted on certain parcels of land
- The basic idea of zoning is to do things like prevent industrial zones or sewage treatment from existing right next to private residences
- Zoning does not typically constitute a taking, and while zonings are subject to suit, they are presumptively valid and will only be overturned on clear and convincing evidence
