Spring Semester Final Study Guide Flashcards
4 classic incidents of ownership
1) Possession
2) Use
3) Alienation (ability to transfer, modify, or destroy interest)
4) exclusion
Incidents are rights that a property owner has in an object.
Real Property vs Personal Property
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.
Rule of Capture
Gives ownership of a previously unowned resource to the first person to gain possession of that resource. General rule is first in time, first in right. This rule gives ownership of a previously unowned resource to the first person to gain possession of that resource. Mere pursuit is not enough and one needs to bring the resource under their certain control.
What is possession?
Possession = intent + control
Control can include constructive control [ex. having keys to something or having something in a trap]
Rule for competing for unowned resources
Keeble v Hickeringill states that you can compete and if you win and beat out another party that is okay but when you interfere in another’s obtaining of a resource then that is wrong.
Landowners and constructive possession
Landowners have constructive possession over everything on their land including wild animals.
Tragedy of the commons
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.
What is a bailment?
a bailment is a rightful possession of goods by one who is not the true owner.
Who is a bailor?
the true owner is the bailor.
Who is the bailee
the non-owner in rightful possession.
What do bailments require?
1) possession (intent + control)
2) Mutual assent between the bailor and bailee. Mutual assent can be implied through conduct or dialogue. The exact value of the good does not need to be mutually understood but when something obviously has value, there is a necessity of an ordinary standard of care.
Bailee Liability
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.
Bailments solely for the benefit of the bailor
the bailee is liable for only gross negligence and is expected to exercise only slight care over the bailed good.
Mutual Benefit Bailments
The bailee is liable for ordinary negligence and expected to exercise ordinary care over the bailed good.
Bailments solely for the benefit of the bailee
bailee is liable for even slight negligence and is expected to exercise great care over the bailed good.
Liability for bailee’s misdelivery
misdelivery is where the good is returned or returned to the wrong person. When there is misdelivery, a bailee is strictly liable.
Liability for loss or damage of property
liability = ordinary care standard
Finding property rule
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.
Categorization of Found Property
There are four categories of found property.
1) abandoned property
2) lost property
3) mislaid property
4) treasure trove
Finding abandoned property
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. The owner has relinquished their intent and control making it so that the first finder wins against all others.
Finding lost property
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 when lost property is on someone else’s land. Stolen property that was later lost and found by someone else who did not know it was stolen is lost property.
Finding mislaid property
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.
Finding treasure trove
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.
Finding contraband
contraband is defined by statute and is usually subject to seizure by the state.
Inter vivos gifts of personal property
refer to gifts that are made while the donor is alive.
three elements of valid inter vivos gifts of personal property
1) intent: did the owner intent to make a gift? Did they intend to make it during life or death?
2) Delivery:
was there actual delivery/physical transfer?
was there a transfer of some object that gives access to the gift/constructive delivery?
3) Acceptance: this is presumed so long as the object has some value. (this element is rarely in dispute over gifts).
Once all 3 elements are met, then a typical inter vivos gift becomes irrevocable.
Gifts “causa mortis”
These are gifts made in anticipation of death but then are revocable if the grantor survives.
Three types of delivery for inter vivos gifts
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.
What is a life estate?
A life estate lasts for the present interest holder’s life and expires at the present interest holder’s death.
What is adverse possession?
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 your property, title passes from you to the adverse possessor.
Basic Requirements of Adverse Possession (OCEAN)
O - Open and notorious: to put an attentive owner on notice
C- continuous for the statutory period
E- exclusive (adverse possessor does not share the property with the public or owner)
A- actual entry (physical entry on the land which title relates back to)
N- non-permissive (not licensed and under a “claim or right”)
What is tacking in adverse possession
if the adverse possessor is in privity (on opposite sides of a contract) with the prior adverse possessor they can tack on the prior possessor’s time of possession onto her own to satisfy the statutory period. There needs to have been a voluntary transfer of possession between the previous adverse possessor and the current adverse possessor. Some courts such as the trial court in Howard v Kunto require a transfer of an estate for privity and transfer of possession alone would not qualify.
Standards regarding the adverse possessor’s state of mind
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 adverse possessor owned the property. The bad faith or aggressive trespasser standard requires that the adverse possessor know the property was owned by someone else.
What does it mean to quiet title?
To find certainty in who is the owner.
Color of title and constructive adverse possession.
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.
Rule with color of title
A defective document (typically a defective deed) gives the adverse possessor color of title but does not give them actual title. The benefit of color of title is that it gives the adverse possessor constructive possession of all of the property described by the document. As a result, the adverse possessor may obtain title to all of the property described by the document, not just the property actually possessed by the adverse possessor.
color of title vs actual title holder of the property
In jurisdictions that recognize constructive adverse possession, the adverse possessor’s constructive possession under color of title will trump the owner’s constructive possession as the actual title holder of the property. This doctrine serves the purpose of cleansing title on behalf of the adverse possessor in cases where the owner of the land is not in possession.
Disabilities and the adverse possession clock
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.
Special rules regarding disabilities
1) statute of limitations is typically 10-20 years for adverse possession, and then 5-10 years after removal of the disability. Whichever is longer.
2) 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
3) owner cannot tack on two disabilities
The extent of the right to exclude
there is a constitutional right to exclusive enjoyment of one’s own property for any purpose which does not invade the rights of another person. (ex. migrant farmworker case, State v Shack)
What is the hermit’s right?
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. Jacques v Steenberg Homes demonstrates that punitive damages can be awarded in instances of trespass.
The Bouncer’s Right
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.
Exclusionary Vibes
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.
Exclusionary Amenities
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.
Ex: golf course communities & catholic university.
What is a present interest?
An interest that gives the owner a present right of possession (or in some cases use) of the land. These are also called estates in land.
What is a future interest?
An interest that gives the owner a future right of possession (or use) of the land. A future interest exists at the time it is created.
Good faith versus bad faith rules for adverse possession
Under the bad faith standard, a mistaken possession won’t qualify as adverse under a claim of right since the bad faith standard requires that the adverse possessor intentionally enter the property with “bad faith intentions.” The good faith standard or objective standard does allow adverse possession through a good faith mistake. [add onto this rule].
adverse possession and future interests
If the adverse possessor enters after ownership has been split into present and future interests, then the statute of limitations doesn’t run against a future interest holder until that person’s interest becomes possessory.
What does fee simple absolute mean?
an interest that 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.
The life estate
is an interest that has a duration messed 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.
What are defeasible interests?
Interests that will terminate on the happening of an uncertain event. There are three types of defeasible fee simple interests:
1) fee simple determinable
2) fee simple subject to condition subsequent
3) fee simple subject to executory limitation
Rules for Fee Simple Determinable
1) Fee simple determinable is created if the defeasible language is phrased in terms of duration, such as “so long as,” “until,” or “while.”
2) It gives the grantor a possibility of reverter.
The triggering event automatically ends the fee simple estate and reverts ownership to the grantor.
3) If the grantor/owner does not exercise their rights, they could be at risk of losing the property to adverse possession. The clock for SOL would start ticking immediately upon violation of the condition.
Rules for Fee Simple Subject to Condition Subsequent
fee simple subject to condition subsequent is created if the defeasible language is phrased in terms of conditions, such as “but if,” “on the condition that,” or “provided that.”
It gives the grantor right of entry. The triggering event does not automatically end the fee simple estate. Rather, even after the triggering event, ownership will remain with the grantee unless or until the grantor takes some additional step to reclaim ownership.
Adverse possession clock would not start ticking automatically but there is not an unlimited time in which the grantor has to exercise their rights of possession. Jurisdictions have different rules regarding this.
What to do if the language is ambiguous regarding defeasible fee simple interests?
if the granting language is ambiguous, courts favor fee simple subject to condition subsequent because they disfavor automatic termination of an interest.
Fee simple subject to executory limitation
Is created when the accompanying future interest is created in someone other than the original grantor. The future interest is held in a third party. There is no distinction made between using durational language (“so long as”) or conditional language.
What is the future interest created in a fee simple subject to executory limitation and can also be subsequent to a vested remainder subject to divestment.
Executory Interest: is a future interest created in a grantee that will cut short or divest (take away) the preceding interest.
The Reversion
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.
Remainder Interest
A future interest created in a grantee that will become possessory, if at all, on the natural end of the preceding interest.
When is a remainder vested?
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.
Definition of ascertained
in this context, an ascertained person is a specific person that is known. Whereas unascertained means that the person that is to have the future interest is not known and could be a number of different people.
types of vested remainders
1) indefeasibly vested remainder: an interest that is certain to become possessory in the future.
2) vested remainder in an open class: an interest that is held by an open class of people.
3) vested remainder subject to divestment: a vested remainder that may be divested by an executory interest before it becomes possessory.
When is a remainder contingent?
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.
Alternative contingent remainder
where the remainder will either go to one party or another depending on a condition. (a remainder keeps its name even if it is conveyed back to the original grantor)
Term of years
an estate that is conveyed for a specific period of time.
who is an heir?
Heirs refer to people that inherit property after someone’s death and is different than simply saying one’s children.
Rule against perpetuities (common law)
No interest [subject to the rule] is good unless it must vest [in a closed class], if at all, no later than 21 years after some life in being at the creation of the interest.”
What happens if an interest violates the rule against perpetuities? (common law)
If a contingent remainder, executory interest, or vested remainder in an open class does not satisfy the rule, they are void from the time of creation. It is as if they never existed. If an interest violates the rule, we simply cross it out of the conveyance.
How is RAP satisfied? (common law)
For contingent remainders and executory interests, this means that the contingencies reflected in the interest must resolve themselves one way or the other within the period stated by the rule. They must vest or fail within the period; it is not about when they might become possessory.
How is the perpetuities period defined? (common law)
The time period is no later than 21 years after some life in being at the creation of the interest. A life in being can be understood as a person who was alive when the interest was created. The perpetuities period ends 21 years after the death of the last life in being. Interests subject to the rule that do not vest in a closed class or fail within this time period are void.
Alternatives to the rule against perpetuity
1) wait and see approach
2) uniform statutory rule against perpetuities
3) elimination of application to trusts
4) outright abolition of the rule
Wait and see approach (alternative to RAP)
judges the validity of interests under the rule based on facts as they actually occur, rather than speculating on what might happen.
Uniform Statutory Rule Against Perpetuities (alternative to RAP)
under USRAP, an interest is valid if it either (a) satisfies the common-law rule or (b) vests or fails within 90 years.
Elimination of Application to Trusts
a number of states have abolished the application of the rule of perpetuities to property held in trusts
Outright abolition of the rule against perpetuities
An increasing number of states have abolished the rule against perpetuities outright.
Doctrine of worthier titles
This doctrine can destroy contingent remainders to create a reversion in fee simple absolute. The operation of this doctrine therefore rewrites conveyances, promoting the alienability of property.
The Rule in Shelley’s Case
Another rule that promotes alienability by destroying a contingent remainder created in a person’s heirs. The rule merges someone’s life estate with their heir’s contingent remainder interest to create a fee simple absolute interest for the person who had the life estate.
Destructibility of Contingent Remainders
This rule that has largely been abolished, destroys contingent remainders to aid alienability by reducing the number of interests and eliminating the need to worry about the resolution of the contingency.
Numerus Clauses Principle
Under this principle, we have a fixed number of property interests. A grantor cannot intentionally or inadvertently create a new property interest by using creative language. When a conveyance is ambiguous, we need to fit the interests into our existing categories.
Rules of construction for ambiguous clauses (conveyances)
1) conveyances should be interpreted to best achieve the intent of the grantor
2) conveyances should be interpreted to favor a fee simple absolute
3) conveyances in wills should be interpreted to avoid partial intestacy. (it is reasonable to presume a person intended to give away all of their assets in their will)
4) conveyances should be interpreted to favor the free alienability of property.
5) conveyances should be interpreted to favor a fe simple subject to condition subsequent over a fee simple determinable
6) conveyances should be interpreted to favor vested interests and disfavor contingent interests
7) documents should be read as a whole (should not construe provisions in a way that contradict other provisions).
Trust relationships
in a trust, the trustee is the legal owner of the assets held in the trust. The beneficiaries’ interest is superior to the trustee’s interest. The trustee holds legal ownership for the benefit of the beneficiaries and owes fiduciary duties to them.
Alienability and trusts
when future interests are involves, creating a trust should be the default rule, and you should deviate from this default rule only if you have good reason to do so.
Law of Waste
This law deals with the relationship between the present and future interest holders. There is an obligation of the present interest holder to leave the land in an essentially unchanged condition. If a present interest holder breaches this obligation, the future interest holder may bring a claim for waste against the present interest holder.
affirmative waste
involves a voluntary act by the present interest holder that damages the property
permissible waste
permissible waste involves the failure of the present interest holder to exercise reasonable care to protect and maintain the property. It is a manner of negligence, rather than an affirmative intentional act. Failure to eject an adverse possessor may also constitute permissible waste. The duty to maintain and pay taxes is limited to the fair rental value of the property.
Ameliorative waste
involves a voluntary act by the present interest holder that increases the value of the property.
Concurrent interests/ownership
Multiple people can own a property interest at the same time. The types of concurrent interests are:
1) tenancy in common
2) joint tenancy
3) tenancy by the entirety
tenancy in common
this is the default concurrent interest. There is no limit to the number of people who can be tenants in common. Tenants in common need not have equal shares, however, each tenant has the right to possess and use the entire property.
Partition
Any any time and for any reason, any tenant in common can petition a court for partition of the co-owned property. The partition process beings when one or more co-tenants bring an equitable action for partition in court. In almost all circumstances the court will grant the request for partition and at the end of the process the co-tenancy relationship will be terminated. There is partition in kind and partition by sale.
Partition in kind
involves a physical division of the property between the former co-tenants. There is a strong legal presumption in favor of partition in kind. However, there are many circumstances where partition in kind is impossible or impracticable.
Partition by Sale
Involves a sale of the property at auction, with the proceeds divided among the co-tenants according to their shares. Partition in sale is more common due to the many circumstances where partition in kind does not make sense.
Joint tenancy
the existence of a right of survivorship is the only practical difference between a tenancy in common and a joint tenancy. The right of survivorship means that when one joint tenant dies, the other joint tenant becomes the sole owner.
Creation of joint tenancies and unities
joint tenancies require clear language of conveyance for creation. The language needed to create a joint tenancy varies from jurisdiction.
Joint tenancies also require certain “unities”
1) joint tenants must acquire their interests at the same time
2) JTS must acquire title from the same instrument
3) JTS must have equal shares in the property
4) JTS must have equal rights of possession and use.
Severance of joint tenancies
severance is the legal term for when someone in a joint tenancy relationship gives their interest to another person and it severs the right of survivorship aspect of the joint tenancy. If a joint tenancy is severed, the JT relationship is terminated. Any JT can unilaterally sever the JT by conveying their interest to a third party. However, it only destroys it for the relationship of the person who severed it. If A, B, and C have a joint tenancy and A conveys his interest to D, then B and C and still JTs and A is a tenant in common with them.
Tenancy by the entirety (only ended in divorce or death)
The tenancy by the entirety is a concurrent interest between spouses that in most respects resembles a joint tenancy. It will typically require the same unities as a joint tenancy, plus the additional requirement that the couple be married when they receive the interest. This interest is best created with a conveyance “to spouse 1 and spouse 2 as tenants by the entirety.” A tenancy by the entirety also has a right of survivorship. However, spouses cannot unilaterally convey their interests.
three basic ways that a tenancy by the entirety can end
1) The spouses may together transfer property to another person
2) One spouse may die, with the right of survivorship operating to give sole ownership to the surviving spouse
3) The spouses may obtain a decree of divorce which will sever the tenancy by the entirety by ending the marriage.
Marital property: Separate Property system
It views property as being separately owned by the spouse who owned the property before marriage or obtained it during marriage.
It provides that each spouse is individually liable for separate debts.
Property obtained by one spouse is owned solely by that spouse.
During marriage, each spouse will continue to own property separately unless they take action to own it jointly.
Creditors cannot touch a spouse’s individual assets in a separate property system to satisfy the debt of the other spouse.
What happens in divorce for separate property system
When spouses divorce, separate property states generally provide for equitable distribution of the property owned by each of the spouses.
Equitable distribution is limited to property acquired during marriage in almost all separate property states, although some will also include property acquired before the marriage.
Factors the court considers in determining equitable distribution are:
1) length of marriage (shorter marriages = less property redistribution)
2) each spouses income during marriage
3) the lifestyle shared
4) whether support is needed for one spouse to obtain marketable skills so that support will not be needed in the future.
What happens when a spouse dies in separate property system
When one spouse dies the marital property rights are protected upon one spouse’s death in separate property states by elective share statutes.
Elective share statutes give the surviving spouse the right to claim a significant share of the decedent spouse’s estate regardless of the provisions of the decedent spouse’s will.
Community Property System
The community property system at its core treats earnings of each spouse during marriage as being owned equally in undivided shares by both spouses.
Property owned before marriage and property acquired during marriage by inheritance or by gift is treated as separate property.
Under the systems in most states, debt occurring before marriage is generally treated as separate debt.
Debt incurred by one spouse before marriage cannot be satisfied by the other spouse’s separate property. Community property can be used to satisfy debt to the extent the community property can be attributable to the earning efforts of the debtor.
