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MD Property Law > Property Terms > Flashcards

Property Terms Flashcards

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1
Q

Property In Rem

A

Rights good against the world

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2
Q

Property in Personam

A

bind only specific individuals in relations to specific rights (Contracts. Binds people not things)

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3
Q

Exclusion theory

A

The right to property is the right to exclude others from things

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4
Q

Bundle of Sticks

A

Grey - No clear single theory of property. To determine rights need to determine what sticks you have. (exclude; enjoy; use; sell)</p>

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5
Q

Coase theorm

A

If there is no transaction cost, the initial assignment of Prop. Rights/Liability rights will have effect on the use of resources. Will find it’s own equilibrium.

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6
Q

Coase Assumptions

A
  1. No transaction costs (always is transaction costs)
  2. Can monetize all value(people overvalue their losses)
  3. People are rational(not true)
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7
Q

A Commons

A

Land that society in general can access

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8
Q

Tragedy of the commons

A

since no one owns it, people won’t take care of it because there is no incentive

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9
Q

Anti-Commons

A

so many property rights that you can’t get anything done

Hinman v. Pacific Air- if invading airspace was trespass

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10
Q

Trespass

A

Tangible, dealing with possession (taking up space)

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11
Q

Nuisance

A

Deals with use and enjoyment.

Can be intangible(particles; sound waves; odors)

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12
Q

Law

A

More tangible discussions (Remedy: Money Damages)</p>

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13
Q

Equity

A

more Intangibles/fairness issues.

remedy- to do or not do something - injunctions

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14
Q

Private Nuisance

A

Intentional.
Unreasonable interference with use and enjoyment.
Substantial harm

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15
Q

Property rule

A

1) Injunctive.
2) Voluntary- no one can take your rights away w/o consent.
3) Price set by owner.
4) Captures subjective value in property.
5) Prevents people from ignoring concerns and just paying for it

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16
Q

Liability Rule

A

1) Monetary.
2) Forced sale.
3) Price set by gov.
4) solves holdout issue

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17
Q

Types of property

A

1) Real.
2) Personal.
3) Common

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18
Q

Policy concern with body parts as property

A

1) could impede medical research.
2) unsanitary.
3) you can give your body away but can’t sell it

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19
Q

Policy concern over contracts for conditions of rights (sold art)

A

Art is tied to the artist reputation which they want to protect after art is sold.
Owners want to have full ownership.
Removes stick from the bundle</p>

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20
Q

Cultural Patrimony

A

Property that can’t be owned or sold by an individual. Communal property

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21
Q

Inalienable Property

A

Things so uniquely linked to person or person-hood that they are not like regular property.

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22
Q

Raden’s theory

A

We protect and value property differently depending on how connected it is to use personally

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23
Q

Fur Trade example regarding property right creation (raden)

A

Cost of property rights has to have a prevailing benefit.

As value increases people are more willing to assert property rights( beaver fur trade)

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24
Q

Property Rights

A

1) Right to Exclude.
2) Right to use and enjoy.
3) Right Destroy.
4) Right to sell

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25
Q

Land

A

1) Physical boundaries.
2) Trespass - protects person occupying land.
3) Nuisance - protects use and enjoyment.
4) right to evict/eject

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26
Q

Conversion

A

Taking and using someone’s property. Civil Theft

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27
Q

Asportation

A

Conversion w/o using it

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28
Q

Detinue

A

Unlawful detention of goods. Temporary possession

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29
Q

Trover

A

Using someone else’s property w/o permission, but you don’t take it.

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30
Q

Replevin

A

Wrongful taking of goods. Only case you actually got your goods back

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31
Q

Trespass to Chattles

A

Injure or interfere with property

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32
Q

Self help

A

Ok for personal property but not for real property.
There is a greater propensity for violence to protect your land.
Personal property can be replaced

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33
Q

> Exclusions - Public Accommodations

A

Historically exclusions had to be reasonable, or reasonable fees had to be charged.
Now covered by title II Lodging; eating; entertainment

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34
Q

Exceptions to the right to exclude

A

Necessity;
custom;
public accommodations;
antidiscrimination

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35
Q

Exclusions- private land

A

can exclude anyone at any time for any reason or no reason at all

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36
Q

Necessity rule as exception to exclusion

A

1) Must be outside of the control of the D.
2) Must be an Emergency.
3) Consent before action is not required

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37
Q

Exclusion if public accommodation

A

Must be reasonable.
Disruption.
Violation of safety-security etc.
Extension of Title II goes beyond protected class

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38
Q

Fair Housing Act

A

Can’t discriminate w/ house.
Equal conditions;
can’t discriminate w/ Ads;
Can’t lie about availability

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39
Q

Exceptions to the Fair Housing Act

A

Houses w/ < 3 people;
Rentals where you live;
religious Orgs and private clubs.

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40
Q

License

A

a right to use the licencor’s land that is revocable at the will of the licencor.
This revocabilty is the main thing that differentiates it form an easement</p>

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41
Q

Grant

A

License + Property interest. Non-revocable until after the event takes place

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42
Q

Licenses in regard to land

A

1) In Personam; revocable at will require refund.
2) typically $ damages.
3) can exist w/o consideration.
No consideration revocable at will; w/ consideration treat like

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43
Q

Abandonment

A

Intent to terminate ownership through relinquishing all title and possession without burdening another person

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44
Q

Transfer

A

Promotes autonomy and efficiency.
Right to choose where your property goes.
Two types- gifts and wills

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45
Q

Non-transferable things

A

Children;
people;
your vote;
trade licenses

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46
Q

Trespass

A

Physical intrusion- no damage needed.
Protects the right to exclude.
Strict liability.
Statute of limitations longer then Nuisance.

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47
Q

Nuisance

A 
Non physical. 
Protects use and enjoyment.  
Must show damage. 
Court looks at reasonableness and intent. 
Remedy is typically damages or injuction
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48
Q

public Nuisance

A

Affects the public at large. Typically brought by the gov.

Can be brought by and individual if it’s a specialized harm.

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49
Q

Locality Rule

A

St. Helens Smelting - If what you’re doing causes such bad physical damages to land it does not matter where you are it will be nuisance.

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50
Q

Nuisance Per se

A

Luensmann- if the activity violated a law that the municipality categorizes as a nuisance .

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51
Q

Easements in Gross

A

Not tied to any particular parcel of land. Tied to the person. i.e. permission to cross land to access river

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52
Q

Easement Appurtenant

A

One which benefits it’s holder in the use of a certain piece of land. Runs with the land

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53
Q

Servient Tract

A

Tract that the easements grants rights on

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54
Q

Dominant Tract

A

Track that the easement attaches to.

Granting rights to it’s owner.

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55
Q

Implied Easement by necessity

A

Deals with landlocked parcels(usually appurtenant).
Must have common ownership then severed.
Can’t be self inflicted

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56
Q

Implied Easement by Implication

A

Must show need in order to use your land.
Must be a need so obvious or manifest that it was meant to be permanent.
Common track that was severed.

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57
Q

Prescriptive easement

A

Creates an interest in the land. Must be

1) used for 5 years.
2) Open&Notorious.
3) Continuous/uninterrupted (consitant w/ nature of the land).
4) Adverse

58
Q

Ways to terminate an easement

A

1) Grant- buy it out.
2) Necessity (terminates on it’s own when necessity is gone).
3) Abandonment.
4) Perscription.
5) if it was granted for limited term.
6) otherwise it’s perpetual

59
Q

Equitable Servitude requirements and remedy

A

1) Intent.
2) Touch and concern.
3) Notice (actual or constructive) - remedy is injunction

60
Q

Real Covenant - elements and remedy

A

1) intent.
2) Touch and Concern.
3) Privily- abilitly to trace - remedy is damages

61
Q

reciprocal negative easement (negative covenant)

A

When an owner of related lots sells one with a restriction that benefits the retained lots.
The servitude becomes mutual even if the seller doesn’t put it in his own deed.
Runs with the land and binds subsequent purchasers

62
Q

Common plan doctrine

A

Can give rise to Reciprocal Negative Easements. State requirements differ- Michigan is most liberal at just over half.

63
Q

When should a court refuse to enforce Deed Restrictions (equitable servitude)?

A

1) changed conditions render purpose obsolete.

2) enforcement would be inequitable and oppressive.

64
Q

Conservation Easements

A

Voluntary bargain where landowner gives up use of the land in exchange for cash payment.
Usually prohibits commercial development for environmental benefits.
Establishes Easement in Gross allowed by statute.

65
Q

Terminating Covenants

A

1) Negotiate release.
2) by expiration.
3) Statute of limitations in some states.
4) Changed conditions render it obsolete.
5) Abandonment. Habitually and substantially violated

66
Q

Benefits of zoning

A

Know what you’re getting into when you buy property
Can improve quality of life
Easier to plan community resources

67
Q

Issues with zoning

A

Hard to change, slow bureaucracy
paints with a broad brush
can be used as tool to discriminate
Controls prices

68
Q

Zoning is constitutional if…

A

they are enacted reasonably to:
stop industry creep
increase public safety
improve overall quality of life

69
Q

Eminent Domain

A

“nor shall private property be taken for public use without just compensation.
- 5th amendment
Classic liability rule- forced sale of property
Prevents hold up game and increases efficiency for public works (roads, bridges, railroads)

70
Q

Who can exercise Eminent Domain

A

Legislature
government Agencies
Power can also be delegated to other groups or people (utility companies)

71
Q

Reciprocity of Advantage

A

mahon. Everyone should get a benefit form the restriction. Price shouldn’t fall on just one party or person

72
Q

Denominator Problem

A

What are you balancing the lost value against.

All the coal or just the pillars

73
Q

Penn Central balancing test

A

used for all regulatory takings

1) economic Impact
2) Investment Backed expectations
3) character of government action

74
Q

Per Se Taking

A
  1. When regulation takes away all economic value from something the owner must be justly compensated. Lucas v. SC
  2. When a regulation takes away 100% of the economic value of a property
75
Q

Grantor

A

Who conveys the property through sale; grant; or through bequest

76
Q

Heirs

A

those who take by bequest. Do not exist until person dies

77
Q

Successor

A

Those who have taken the Grantor’s interests

78
Q

Escheat

A

Reversion of property to state when one dies with out heirs

79
Q

words of purchase

A

Who gets the property

80
Q

words of Limitation

A

what estate was created

81
Q

Fee simple Absolute

A

full ownership now till eternity

default Estate when granting property

82
Q

Life Estate

A

Naturally ends at death of the named person
Alienable by gift or sale but not by will
can only transfer the estate for your life
“to Marta for life”

83
Q

Defeasible fees

A

Like fee simple absolute but may end upon happening of named contingency

84
Q

fee Simple Determinable

A

ends automatically on occurrence of named event

“as long as” “so long as” “while”

85
Q

Fee simple subject to condition subsequent

A

Continues indefinitely until occurrence of named event
Does not automatically transfer but can be ended by grantor or successor
“But if”

86
Q

fee simple subject to executory limitation

A

Ends on occurrence of named event and is followed by an interest granted to a 3rd party.
Automatically ends on occurrence of event

87
Q

Fee tail

A

Creates a non-transferable life estate that passed through blood descendants.
has been abolished

88
Q

future interest

A

Interest that follows present possessory interest

89
Q

Reversionary interest

A

Future interest held by the grantor

follows the natural end of a life estate

90
Q

remainders or executory interests

A

Future interests held by 3rd parties
Remainder - natural termination
executory interest- follows condition cutting the estate short

91
Q

Possibility of Reverter

A

interest reserved for grantor following fee simple determinable
Grantor automatically gets property back at occurrence of named event

92
Q

right of entry (Power of termination)

A

The grantors interest following a fee simple subject to condition subsequent
nothing automatically happens grantor must take action

93
Q

remainders

A

Similar to reversion but to 3rd party rather then grantor holds future interest
follow the natural end of previous estate

94
Q

Indefeasibly vested Remainder

A

Identity of the takers is unknown and there is no other contingency to fill.
No conditon

95
Q

Contingent Remainder

A

Remainder where some uncertainty remains about the identity of the takers or the occurrence of a condition

96
Q

Vested Remainder subject to complete Defeasance

A

The remainder is vested but can be cut short by a condition and shifted to someone else

97
Q

Vested Remainder subject to partial defeasance

A

Subject to open - number of takers can grow
Vested because there is no uncertainty as to the takers and there is no condition precedent.
Possibility of partial divestment because number of takers can grow. (kids)

98
Q

Executory Interests

A

An interest in a 3rd party that cuts short the previous interest

99
Q

Numerous clausus

A

you can’t create new estates. must work with the ones that now exist.

100
Q

Doctrine of Waste

A

Governs what the present holder can do in regard to what the future holder can do.
Can’t use up all the minerals

101
Q

Ameliorative Waste

A

Making an affirmative change increasing the value of the property.
Waste Doctrine not concerned with maximizing value

102
Q

Affirmative waste

A

When present possessory interest holder takes affirmative action to create some kind of damage or diminution of value.
Judged by the normal use of the land

103
Q

Permissive waste

A

waste equivalent of negligence

life estate owner of a house not fixing a leaking roof

104
Q

rule against Perpetuitites

A

No interest is good unless it must vest- if at all- not later then 21 years after some life in being at the creation of the interest
Interest is invalid unless it can be said w/ absolute certainty @ creation; that the interest will vest or fail to vest
corps have no measuring life just 21 years

105
Q

Tenancy in common

A

Each Tenant has separate but undivided interests
Default co-ownership model- requires all tenants to have equal right of possession
Exit by partition

106
Q

Partition in Kind

A

at any time for any reason
division of land by courts
favored method
May have to buy you co-tenant depending on how property is divided and your interest

107
Q

Partition by sale

A

When it is not physically possible to cut it in half.

forced sale and proceeds are split

108
Q

factors that determine method of partition

A

Physical- how many divisions and shape of the property
how each side is using the property. actually living on it carries lots of weight
economic considerations

109
Q

Right of survivorship

A

Joint tenancy - when one party dies rights go to the other tenant. heirs don’t inherit

110
Q

4 unities required to create joint Tenancy

A

1) Time - interest is created simultaneously
2) Title - Created in the same instrument (deed/will)
3) Interest - Undivided shares identical in duration (different % ok)
4) each must have right to possess the whole
5) Must be explicit “to A and B as joint Tenants”

111
Q

Destroying Joint Tenancy

A

Partition (same as Tenancy in Common)

Severance - destroys survivor-ship and coverts to Tenancy in common

112
Q

Tenancy by the entirety

A

For married couples
Neither party can unilaterally transfer or encumber property without consent of the other
right of survivor-ship
Created by 4 unities + marriage
exited through divorce or mutual agreement

113
Q

Ouster

A

Refusal to permit co-tenant to occupy the land
Contribution and accounting- if one party excludes the other then they need to pay the other tenant fair rental value for their piece of the property

114
Q

lease - Term of years

A

Most common
Fixed period of time
automatic termination requires no notice

115
Q

Lease Periodic Tenancy

A

automatically renews unless terminated by either party
Common law required half the lease period
Modern rule is 30 days notice

116
Q

Tenancy at will

A

No stated duration

can be terminated at any time by either party

117
Q

Tenancy at sufferance

A

Tenant holds over after the end of a valid lease
Landlord may:
Evict or Hold him to another term (create a periodic lease)
Not typically trespass because they entered legally

118
Q

Modernization of leases

A

moving away from land leases only and more towards contracts

119
Q

implied warranty of habitability

A

Landlord guarantees premises are at least good enough condition to be lived in
Applies to only residential leases
T can’t have prior knowledge of conditions
Implied warranty cannot be waived
Remedies: Damages; offset rent for repairs; specific performance to fix

120
Q

Duty to Mitigate

A

landlord must reasonably try and fill the tenants spot if they surrender it

121
Q

Surrender Doctrine

A

Requires offer by T and acceptance by L

if L can’t rent the property for the full price T must pay the difference and any months L is unable to find a new T

122
Q

Sublet

A

Tenant becomes an intermediate landlord

123
Q

Assignment

A

Tenant takes themselves out of the equation and transfers everything to a new tenant
Must be accepted by L

124
Q

Caveat Lessee

A

No implied warranty of use with land. you take the risks in leasing just as you would if you were buying it.

125
Q

Constructive Eviction

A

1) Substantial deprivation of quiet use and enjoyment
2) Landlord could control the situation
3) Landlord doesn’t control the situation
4) Typically have to physically leave the property (exception NH)

126
Q

Co-op

A

collective ownership of property by everyone (shareholders)

Democracy - everyone has a say in how it’s run

127
Q

Condo

A

Corporation owns and leases out the spaces
collective ownership of common areas
Individuals own their own units
Dictatorship - corp makes the rules

128
Q

Business Judgment rule

A

So long as the decision was made reasonably the court will support a co-op’s decisons

129
Q

invalidating a Covenant

A

Court very unlikely to do

only if the restriction is deemed to be unreasonable

130
Q

Chain of Title

A

show a continuous chain all the way back to the sovereign

Adverse possession creates a new sovereign

131
Q

Namo Dat

A

no one can give what he or she doesn’t have

132
Q

Clouds in title

A

Adverse Possession

Bad faith sale (selling to two parties)

133
Q

Transfer of property via sale

A

person who pays the most; wants it the most; and will put it to the best use

134
Q

Transfer of property via gift

A

Prior owner earned the property and recipient can sell it if they do not value it

135
Q

Unowned property

A

Not yours until you physically possess it

requires intent and control

136
Q

Abandonment

A

requires intent to abandon + action demonstrating that intent

137
Q

Ways to extinguish rights of occupancy

A

Purchase
Treaty
Conquest

138
Q

Title Based theory

A

If you have title to the land you have the rights to it.

Title rights > occupancy rights

139
Q

Policy arguments for Adverse Possession

A

Lockean Theory- getting property in the hands of those who deserve it more and make the most use of it
Raidin personhood - person who is using land is more bound up in it; personally attached to it
Utility - Reduces transaction costs. Clears title for cleaner sales. Creates new Root of title

140
Q

Adverse Possession elements

A

1) Actual Possession - content specific
2) Exclusive - Ouster: intent to have dominion and exercising ownership
3) Open and Notorious
4) Continuous for Statutory period - content specific (summer homes)
5) Adverse - making a claim that is contrary to the actual title. Most states do not care if it was done in good faith or not

141
Q

How is Adverse Possession different from Easements?

A

1) Easements do not have to be exclusive
2) you are awarded easement not actual title
3) shorter statutory period

MD Property Law (2 decks)

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