Week 7 Flashcards
Is valet parking a bailment
Yes
(1) garage has keys
(2) garage moves the cars
(3) implicitly expected to watch over garage
Is open air parking lot with meters a bailment
No just a license
(1) car owner keeps the keys
(2) lot doesn’t move cars nor watch over the cars very much
The Hyatt garage is somewhere between ____ because ___
license/bailment, owner keeps key and doesn’t move cars BUT maybe expectation of watching over because entrance/exit controlled and occasional security patrols
Allen majority approach to determine bailment
determine which is closest precedent (valet, open air meters)
New Jersey approach to determine if bailment
case by case inquiry into which party best able to control losses and spread costs
Allen dissent test to determine bailment
if complete transfer with bailee acceptance
Allen says a bailee’s duty of care may be determined ___
by statute
Allen says implied bailment created when __
operator assumes practical control and custody of the vehicles
Allen holds that ___
Hyatt was a bailee so under presumption of bailee negligence liable for the theft
Allen ignores waiver of liability because __
can’t be expected that consumer spend time comparing different parking garage contract offerings
Cowen says that a voluntary bailee has an __
absolute duty to deliver the bailed property to the correct bailor
Cowen also says that as soon as involuntary bailee ____ then she ___
exercises overt act of dominion over bailed property, effectively becomes voluntary bailee
There tends to be a lower standard of care for ____ bailments rather than ___ bailments
lost/stolen/destroyed, misdelivered
Cowen says an involuntary bailee owes __ and is not ___
minimal standard of care to TO, SL for misdelivery
Cowen overturns lower court that finds bailment only arises through ___ and involuntary bailee does not ___
express or implied agreement, aboslute duty to return to TO
Lehman requires ____ to take custody of bailed item
specific intent
Cowen says even involuntary bailees still have duty to __
not misdeliver the item
Winkfield says that bailee can sue third party for loss even if ___
would not be liable to the bailor
Under Hadley, bailee responsible only for ___ BUT ______ to third party tortfeasor
foreseeable damages, seems not to apply
Winkfield held that postmaster could ___ even though ___
recover full value of the goods, would not be liable to postal customers under sovereign immunity
Winkfield reasoning
wrongdoer should be unconcerned by rights between bailor/bailee and must treat possessor of goods as the owner
The postal customers in Winkfiled could sue for ____ because ___
unjust enrichment if not distribute award, restitution not barred under sovereign immunity
Generally, we expect that ___ is a check on abandonment and destruction
self-interest (assumes rationality)
Some justifications for letting people do stupid things with their property
autonomy
experimentation
difficulty of judging subjective values
The most serious problem with abandonment is ___
creation of negative externalities (litter, pollution)
Ways to dispose of property
sales
gifts
abandonment
destruction
Sales has ___ transaction costs and ____ social costs
high (locating and negotiating with buyer), low (both parties better off)
Gift has ___ transaction costs and ___ social costs
low (no negotiation), unclear (may accept gifts even if doesn’t make them better off)
Abandonment has __ transaction costs and ___ social costs
low, could be high (litter) or could be low (taken by someone who puts positive value on it)
Destruction has __ transaction costs and ___ social costs
low, high (loss of thing that could have value to someone else)
Generally abandonment is ____ than destruction
more favorable
You can generally abandon __ but not ___
personal property, real property in fee simple
Abandonment requires ___ and ___
intent to abandon (convention), overt act demonstrating intent
what is abandonment
leaving item behind with no intent to retain possession
Pocono holding
MacKenzies didn’t abandon property because real property cannot be abandoned
What did MacKenzies try to do before “abandoning”
turn over to appellee who refused
give lot as gift to community but declined
notarized statement of abandonment
stop paying taxes and county offered for sale
One can generally destroy property when ____ but not ___
alive, dead
Eyerman holding
razing the home (as requested under the will) would contravene public policy
Eyerman says that taking of property by inheritance is not ____ but ____
absolute/natural right, one created by the sovereign
Eyerman says that because taking of property by inheritance is one created by sovereign the sovereign has___
power to control what becomes of property once owner dies
Eyerman reasoning
(1) sovereign power
(2) high historical significance
(3) demolition would depreciate adjoining homes
(4) cost of replacing destroyed home high
Multiple interests in a resource is generally avoided by property because ____ but can be overcome to ___
creates complexities, benefit from shared ownership (specialization, risk spreading)
Fee simple is ____ and goes to ___
indefinite in time, owner’s successors
Language for fee simple
To A
To A in fee simple
(historically) To A and her heirs
Life estate ends with ___
death of named person
Life estate language
To A for life
If a life estate is sold, the purchaser receives ___
life estate (according to seller’s life)
Possible future interests in life estate
reversion (if back to owner)
Remainder (if designated to specific person after, to M for life then to L)
What is fee simple determinable
ends upon occurrence of named event
Example of fee simple determinable
To A so long as Blackacre used for law instruction then to O
what is future interest in fee simple determinable
possibility of reverter (back to grantor)
What is fee simple subject to condition subsequent
ended by action by grantor (self-help, lawsuit) upon happening of named event
Fee simple subject to condition subsequent example
To X, but if not used for instruction in the law then O right to reenter and take premises
Difference between fee simple determinable and fee simple subject to condition subsequent
durational language (so long as, while, during) VS. conditional language (provided that, if , on the condition)
There is a preference for fee simple subject to condition subsequent over fee simple determinable to ___
disfavor forfeitures (automatic vs. grantor taking action)
Future interest in fee simple subject to condition subsequent
right of entry/power of termination to the grantor
what is fee simple subject to executory limitation
defeasible fee followed by an interest not reserved to the grantor
fee simple subject to executory limitation example
to A so long as Blackacre used for instruction in the law then to B
what is the future interest in fee simple subject to executory limitation
executory interest (for third party not the grantor)
fee simple subject to executory limitation interest is automatically __
cut short by executory interest upon happening of named event
Remainders follow ___
life estates
Indefeasibly vested remainder means that the __
identity of takers known + no other contingencies must be fulfilled before interest ready to become possessory other than natural termination of preceeding interest
Indefeasibly vested remainder example
M grants Blackacre to H for life then to B and their heirs
example of contingent remainder
M grants Blackacre to H for life then to his children and their heirs
OR
M grants Blackacre to H for life, then to B if graduates from high school by 19
Vested subject to complete divestment remainder example
M grants Blackacre to Homer for life, then to B but if B fails to graduate then to L
Vested subject to partial divestment remainder example
M grants Blackacre to H for life then to his children and their heirs
B&L alive but X not yet, B&L class subject to pen because more members could enter the class
what is an executory interest
interest in a transferee not retained by the grantor that divests or cuts short previous interest
Conservation of estates rule
all of what grantor had must be accounted for (typically means last interest is fee simple absolute)
Courts favor will interpretations that avoid __
intestacy
Will interpretation rules
blend of formalism + testator intent
Courts take a less formalistic approach when interpreting ___ wills (__)
holographic (will entirely handwritten by testator and not attested to by witnesses)
Most modern life estates are ___
created in trust
Williams says that where a testator’s intent is ambiguous, provisions of will conveying property are ___
interpreted by predominant intention demonstrated in the document as a whole
Williams held that the will manifested his intent to ____
grant each of three daughters life estate defeasible upon marriage. (reversion in fee simple)
Williams reasoning
only intended to support three named daughters during their lives
Numerus clausus means ___
closed and finite number of forms of property so new forms of ownership cannot be created
Under numerus clausus, courts try to __
fit interests into pre-existing boxes
What is purpose of numerus clausus
reduce third party info costs for people looking to buy property
Charles says that where a testator wills an idiosyncratic conveyance of property, her intent is to be interpreted so __
fits into enumerated property interests that the law allows
Charles held that Mrs. Charles’ intent could be interpreted as __
granting life interest in part of the property to her nephew and remainder in fee simple to her niece
Rules of public policy may influence ___
question of will construction
Most disputes about waste are now handled by __
K or trust
what are the three types of waste
affirmative, permissive, ameliorative
what is affirmative waste
misfeasance, life tenant takes some affirmative act that is unresaonable and casues excess damage to reversionary/remainder interest
Any ___ can be affirmative waste
abnormal
Open mines doctrine says if mines are ___ but if not extraction is affirmative waste
already in use extraction ok
what is permissive waste
nonfeasance, failure to act is unreasonable and causes excess damage to future intereests
ameliorative waste
tenant significantly changes the property resulting in increased value
Traditional/minority view of ameliorative waste
Brokaw, type of affirmative waste and not permitted
Flexible/majority view of ameliorative
Melms, good faith mistake + neighborhood changes so much to make dwelling house undesirable
Posner approach to ameliorative
wealth maximazation
OG only those holding ___ had standing to sue for waste but over time allowed ___
indefeasibly vested remainders/reversions, contigent remainders, executory interests etc
Brokaw says that the holder of a life estate commits waste through any act that ___
permanently and materially alters what the remainderman inherits
Brokaw held that the P was not ___
authorized to remove the mansion even though would increase value of property
Brokaw rationale
Decedent wanted residence to pass not just the land
Almost any attempts to _____ will be held void as contrary to public policy
directly restrain alienation
Courts will uphold restraints on alienation for a limited period time if ___
related to some family planning objective (until minor reaches age)
Justifications for limiting restraints on alienation
owner autonomy
efficiency
don’t like dynasties
alienation primary way of changing assignment of responsibility for managing resources
Toscano says that a condition in the deed that restricts use of property ____
is not a restraint on alienation
Toscano dissent saus that since the use clause __
had same legal result as restraint on alienation it should be held void
Toscano holds that the portion of the deed prohibiting sale was ___ but was ____
void as restraint on alienation, separable from use condition which created fee simple subject to condition subsequento
Toscano reasoning
avoid automatic forfeiture + promotes charitable giving
