Property Terms Flashcards
Property In Rem
Rights good against the world
Property in Personam
bind only specific individuals in relations to specific rights (Contracts. Binds people not things)
Exclusion theory
The right to property is the right to exclude others from things
Bundle of Sticks
Grey - No clear single theory of property. To determine rights need to determine what sticks you have. (exclude; enjoy; use; sell)</p>
Coase theorm
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.
Coase Assumptions
- No transaction costs (always is transaction costs)
- Can monetize all value(people overvalue their losses)
- People are rational(not true)
A Commons
Land that society in general can access
Tragedy of the commons
since no one owns it, people won’t take care of it because there is no incentive
Anti-Commons
so many property rights that you can’t get anything done
Hinman v. Pacific Air- if invading airspace was trespass
Trespass
Tangible, dealing with possession (taking up space)
Nuisance
Deals with use and enjoyment.
Can be intangible(particles; sound waves; odors)
Law
More tangible discussions (Remedy: Money Damages)</p>
Equity
more Intangibles/fairness issues.
remedy- to do or not do something - injunctions
Private Nuisance
Intentional.
Unreasonable interference with use and enjoyment.
Substantial harm
Property rule
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
Liability Rule
1) Monetary.
2) Forced sale.
3) Price set by gov.
4) solves holdout issue
Types of property
1) Real.
2) Personal.
3) Common
Policy concern with body parts as property
1) could impede medical research.
2) unsanitary.
3) you can give your body away but can’t sell it
Policy concern over contracts for conditions of rights (sold art)
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>
Cultural Patrimony
Property that can’t be owned or sold by an individual. Communal property
Inalienable Property
Things so uniquely linked to person or person-hood that they are not like regular property.
Raden’s theory
We protect and value property differently depending on how connected it is to use personally
Fur Trade example regarding property right creation (raden)
Cost of property rights has to have a prevailing benefit.
As value increases people are more willing to assert property rights( beaver fur trade)
Property Rights
1) Right to Exclude.
2) Right to use and enjoy.
3) Right Destroy.
4) Right to sell
Land
1) Physical boundaries.
2) Trespass - protects person occupying land.
3) Nuisance - protects use and enjoyment.
4) right to evict/eject
Conversion
Taking and using someone’s property. Civil Theft
Asportation
Conversion w/o using it
Detinue
Unlawful detention of goods. Temporary possession
Trover
Using someone else’s property w/o permission, but you don’t take it.
Replevin
Wrongful taking of goods. Only case you actually got your goods back
Trespass to Chattles
Injure or interfere with property
Self help
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
> Exclusions - Public Accommodations
Historically exclusions had to be reasonable, or reasonable fees had to be charged.
Now covered by title II Lodging; eating; entertainment
Exceptions to the right to exclude
Necessity;
custom;
public accommodations;
antidiscrimination
Exclusions- private land
can exclude anyone at any time for any reason or no reason at all
Necessity rule as exception to exclusion
1) Must be outside of the control of the D.
2) Must be an Emergency.
3) Consent before action is not required
Exclusion if public accommodation
Must be reasonable.
Disruption.
Violation of safety-security etc.
Extension of Title II goes beyond protected class
Fair Housing Act
Can’t discriminate w/ house.
Equal conditions;
can’t discriminate w/ Ads;
Can’t lie about availability
Exceptions to the Fair Housing Act
Houses w/ < 3 people;
Rentals where you live;
religious Orgs and private clubs.
License
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>
Grant
License + Property interest. Non-revocable until after the event takes place
Licenses in regard to land
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
Abandonment
Intent to terminate ownership through relinquishing all title and possession without burdening another person
Transfer
Promotes autonomy and efficiency.
Right to choose where your property goes.
Two types- gifts and wills
Non-transferable things
Children;
people;
your vote;
trade licenses
Trespass
Physical intrusion- no damage needed.
Protects the right to exclude.
Strict liability.
Statute of limitations longer then Nuisance.
Nuisance
Non physical. Protects use and enjoyment. Must show damage. Court looks at reasonableness and intent. Remedy is typically damages or injuction
public Nuisance
Affects the public at large. Typically brought by the gov.
Can be brought by and individual if it’s a specialized harm.
Locality Rule
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.
Nuisance Per se
Luensmann- if the activity violated a law that the municipality categorizes as a nuisance .
Easements in Gross
Not tied to any particular parcel of land. Tied to the person. i.e. permission to cross land to access river
Easement Appurtenant
One which benefits it’s holder in the use of a certain piece of land. Runs with the land
Servient Tract
Tract that the easements grants rights on
Dominant Tract
Track that the easement attaches to.
Granting rights to it’s owner.
Implied Easement by necessity
Deals with landlocked parcels(usually appurtenant).
Must have common ownership then severed.
Can’t be self inflicted
Implied Easement by Implication
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.
Prescriptive easement
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
Ways to terminate an easement
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
Equitable Servitude requirements and remedy
1) Intent.
2) Touch and concern.
3) Notice (actual or constructive) - remedy is injunction
Real Covenant - elements and remedy
1) intent.
2) Touch and Concern.
3) Privily- abilitly to trace - remedy is damages
reciprocal negative easement (negative covenant)
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
Common plan doctrine
Can give rise to Reciprocal Negative Easements. State requirements differ- Michigan is most liberal at just over half.
When should a court refuse to enforce Deed Restrictions (equitable servitude)?
1) changed conditions render purpose obsolete.
2) enforcement would be inequitable and oppressive.
Conservation Easements
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.
Terminating Covenants
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
Benefits of zoning
Know what you’re getting into when you buy property
Can improve quality of life
Easier to plan community resources
Issues with zoning
Hard to change, slow bureaucracy
paints with a broad brush
can be used as tool to discriminate
Controls prices
Zoning is constitutional if…
they are enacted reasonably to:
stop industry creep
increase public safety
improve overall quality of life
Eminent Domain
“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)
Who can exercise Eminent Domain
Legislature
government Agencies
Power can also be delegated to other groups or people (utility companies)
Reciprocity of Advantage
mahon. Everyone should get a benefit form the restriction. Price shouldn’t fall on just one party or person
Denominator Problem
What are you balancing the lost value against.
All the coal or just the pillars
Penn Central balancing test
used for all regulatory takings
1) economic Impact
2) Investment Backed expectations
3) character of government action
Per Se Taking
- When regulation takes away all economic value from something the owner must be justly compensated. Lucas v. SC
- When a regulation takes away 100% of the economic value of a property
Grantor
Who conveys the property through sale; grant; or through bequest
Heirs
those who take by bequest. Do not exist until person dies
Successor
Those who have taken the Grantor’s interests
Escheat
Reversion of property to state when one dies with out heirs
words of purchase
Who gets the property
words of Limitation
what estate was created
Fee simple Absolute
full ownership now till eternity
default Estate when granting property
Life Estate
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”
Defeasible fees
Like fee simple absolute but may end upon happening of named contingency
fee Simple Determinable
ends automatically on occurrence of named event
“as long as” “so long as” “while”
Fee simple subject to condition subsequent
Continues indefinitely until occurrence of named event
Does not automatically transfer but can be ended by grantor or successor
“But if”
fee simple subject to executory limitation
Ends on occurrence of named event and is followed by an interest granted to a 3rd party.
Automatically ends on occurrence of event
Fee tail
Creates a non-transferable life estate that passed through blood descendants.
has been abolished
future interest
Interest that follows present possessory interest
Reversionary interest
Future interest held by the grantor
follows the natural end of a life estate
remainders or executory interests
Future interests held by 3rd parties
Remainder - natural termination
executory interest- follows condition cutting the estate short
Possibility of Reverter
interest reserved for grantor following fee simple determinable
Grantor automatically gets property back at occurrence of named event
right of entry (Power of termination)
The grantors interest following a fee simple subject to condition subsequent
nothing automatically happens grantor must take action
remainders
Similar to reversion but to 3rd party rather then grantor holds future interest
follow the natural end of previous estate
Indefeasibly vested Remainder
Identity of the takers is unknown and there is no other contingency to fill.
No conditon
Contingent Remainder
Remainder where some uncertainty remains about the identity of the takers or the occurrence of a condition
Vested Remainder subject to complete Defeasance
The remainder is vested but can be cut short by a condition and shifted to someone else
Vested Remainder subject to partial defeasance
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)
Executory Interests
An interest in a 3rd party that cuts short the previous interest
Numerous clausus
you can’t create new estates. must work with the ones that now exist.
Doctrine of Waste
Governs what the present holder can do in regard to what the future holder can do.
Can’t use up all the minerals
Ameliorative Waste
Making an affirmative change increasing the value of the property.
Waste Doctrine not concerned with maximizing value
Affirmative waste
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
Permissive waste
waste equivalent of negligence
life estate owner of a house not fixing a leaking roof
rule against Perpetuitites
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
Tenancy in common
Each Tenant has separate but undivided interests
Default co-ownership model- requires all tenants to have equal right of possession
Exit by partition
Partition in Kind
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
Partition by sale
When it is not physically possible to cut it in half.
forced sale and proceeds are split
factors that determine method of partition
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
Right of survivorship
Joint tenancy - when one party dies rights go to the other tenant. heirs don’t inherit
4 unities required to create joint Tenancy
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”
Destroying Joint Tenancy
Partition (same as Tenancy in Common)
Severance - destroys survivor-ship and coverts to Tenancy in common
Tenancy by the entirety
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
Ouster
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
lease - Term of years
Most common
Fixed period of time
automatic termination requires no notice
Lease Periodic Tenancy
automatically renews unless terminated by either party
Common law required half the lease period
Modern rule is 30 days notice
Tenancy at will
No stated duration
can be terminated at any time by either party
Tenancy at sufferance
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
Modernization of leases
moving away from land leases only and more towards contracts
implied warranty of habitability
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
Duty to Mitigate
landlord must reasonably try and fill the tenants spot if they surrender it
Surrender Doctrine
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
Sublet
Tenant becomes an intermediate landlord
Assignment
Tenant takes themselves out of the equation and transfers everything to a new tenant
Must be accepted by L
Caveat Lessee
No implied warranty of use with land. you take the risks in leasing just as you would if you were buying it.
Constructive Eviction
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)
Co-op
collective ownership of property by everyone (shareholders)
Democracy - everyone has a say in how it’s run
Condo
Corporation owns and leases out the spaces
collective ownership of common areas
Individuals own their own units
Dictatorship - corp makes the rules
Business Judgment rule
So long as the decision was made reasonably the court will support a co-op’s decisons
invalidating a Covenant
Court very unlikely to do
only if the restriction is deemed to be unreasonable
Chain of Title
show a continuous chain all the way back to the sovereign
Adverse possession creates a new sovereign
Namo Dat
no one can give what he or she doesn’t have
Clouds in title
Adverse Possession
Bad faith sale (selling to two parties)
Transfer of property via sale
person who pays the most; wants it the most; and will put it to the best use
Transfer of property via gift
Prior owner earned the property and recipient can sell it if they do not value it
Unowned property
Not yours until you physically possess it
requires intent and control
Abandonment
requires intent to abandon + action demonstrating that intent
Ways to extinguish rights of occupancy
Purchase
Treaty
Conquest
Title Based theory
If you have title to the land you have the rights to it.
Title rights > occupancy rights
Policy arguments for Adverse Possession
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
Adverse Possession elements
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
How is Adverse Possession different from Easements?
1) Easements do not have to be exclusive
2) you are awarded easement not actual title
3) shorter statutory period
