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Property > Week 7 > Flashcards

Week 7 Flashcards

1
Q

Is valet parking a bailment

A

Yes
(1) garage has keys
(2) garage moves the cars
(3) implicitly expected to watch over garage

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2
Q

Is open air parking lot with meters a bailment

A

No just a license
(1) car owner keeps the keys
(2) lot doesn’t move cars nor watch over the cars very much

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3
Q

The Hyatt garage is somewhere between ____ because ___

A

license/bailment, owner keeps key and doesn’t move cars BUT maybe expectation of watching over because entrance/exit controlled and occasional security patrols

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4
Q

Allen majority approach to determine bailment

A

determine which is closest precedent (valet, open air meters)

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5
Q

New Jersey approach to determine if bailment

A

case by case inquiry into which party best able to control losses and spread costs

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6
Q

Allen dissent test to determine bailment

A

if complete transfer with bailee acceptance

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7
Q

Allen says a bailee’s duty of care may be determined ___

A

by statute

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8
Q

Allen says implied bailment created when __

A

operator assumes practical control and custody of the vehicles

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9
Q

Allen holds that ___

A

Hyatt was a bailee so under presumption of bailee negligence liable for the theft

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10
Q

Allen ignores waiver of liability because __

A

can’t be expected that consumer spend time comparing different parking garage contract offerings

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11
Q

Cowen says that a voluntary bailee has an __

A

absolute duty to deliver the bailed property to the correct bailor

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12
Q

Cowen also says that as soon as involuntary bailee ____ then she ___

A

exercises overt act of dominion over bailed property, effectively becomes voluntary bailee

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13
Q

There tends to be a lower standard of care for ____ bailments rather than ___ bailments

A

lost/stolen/destroyed, misdelivered

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14
Q

Cowen says an involuntary bailee owes __ and is not ___

A

minimal standard of care to TO, SL for misdelivery

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15
Q

Cowen overturns lower court that finds bailment only arises through ___ and involuntary bailee does not ___

A

express or implied agreement, aboslute duty to return to TO

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16
Q

Lehman requires ____ to take custody of bailed item

A

specific intent

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17
Q

Cowen says even involuntary bailees still have duty to __

A

not misdeliver the item

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18
Q

Winkfield says that bailee can sue third party for loss even if ___

A

would not be liable to the bailor

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19
Q

Under Hadley, bailee responsible only for ___ BUT ______ to third party tortfeasor

A

foreseeable damages, seems not to apply

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20
Q

Winkfield held that postmaster could ___ even though ___

A

recover full value of the goods, would not be liable to postal customers under sovereign immunity

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21
Q

Winkfield reasoning

A

wrongdoer should be unconcerned by rights between bailor/bailee and must treat possessor of goods as the owner

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22
Q

The postal customers in Winkfiled could sue for ____ because ___

A

unjust enrichment if not distribute award, restitution not barred under sovereign immunity

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23
Q

Generally, we expect that ___ is a check on abandonment and destruction

A

self-interest (assumes rationality)

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24
Q

Some justifications for letting people do stupid things with their property

A

autonomy
experimentation
difficulty of judging subjective values

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25
Q

The most serious problem with abandonment is ___

A

creation of negative externalities (litter, pollution)

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26
Q

Ways to dispose of property

A

sales
gifts
abandonment
destruction

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27
Q

Sales has ___ transaction costs and ____ social costs

A

high (locating and negotiating with buyer), low (both parties better off)

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28
Q

Gift has ___ transaction costs and ___ social costs

A

low (no negotiation), unclear (may accept gifts even if doesn’t make them better off)

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29
Q

Abandonment has __ transaction costs and ___ social costs

A

low, could be high (litter) or could be low (taken by someone who puts positive value on it)

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30
Q

Destruction has __ transaction costs and ___ social costs

A

low, high (loss of thing that could have value to someone else)

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31
Q

Generally abandonment is ____ than destruction

A

more favorable

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32
Q

You can generally abandon __ but not ___

A

personal property, real property in fee simple

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33
Q

Abandonment requires ___ and ___

A

intent to abandon (convention), overt act demonstrating intent

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34
Q

what is abandonment

A

leaving item behind with no intent to retain possession

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35
Q

Pocono holding

A

MacKenzies didn’t abandon property because real property cannot be abandoned

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36
Q

What did MacKenzies try to do before “abandoning”

A

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

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37
Q

One can generally destroy property when ____ but not ___

A

alive, dead

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38
Q

Eyerman holding

A

razing the home (as requested under the will) would contravene public policy

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39
Q

Eyerman says that taking of property by inheritance is not ____ but ____

A

absolute/natural right, one created by the sovereign

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40
Q

Eyerman says that because taking of property by inheritance is one created by sovereign the sovereign has___

A

power to control what becomes of property once owner dies

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41
Q

Eyerman reasoning

A

(1) sovereign power
(2) high historical significance
(3) demolition would depreciate adjoining homes
(4) cost of replacing destroyed home high

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42
Q

Multiple interests in a resource is generally avoided by property because ____ but can be overcome to ___

A

creates complexities, benefit from shared ownership (specialization, risk spreading)

43
Q

Fee simple is ____ and goes to ___

A

indefinite in time, owner’s successors

44
Q

Language for fee simple

A

To A
To A in fee simple
(historically) To A and her heirs

45
Q

Life estate ends with ___

A

death of named person

46
Q

Life estate language

A

To A for life

47
Q

If a life estate is sold, the purchaser receives ___

A

life estate (according to seller’s life)

48
Q

Possible future interests in life estate

A

reversion (if back to owner)
Remainder (if designated to specific person after, to M for life then to L)

49
Q

What is fee simple determinable

A

ends upon occurrence of named event

50
Q

Example of fee simple determinable

A

To A so long as Blackacre used for law instruction then to O

51
Q

what is future interest in fee simple determinable

A

possibility of reverter (back to grantor)

52
Q

What is fee simple subject to condition subsequent

A

ended by action by grantor (self-help, lawsuit) upon happening of named event

53
Q

Fee simple subject to condition subsequent example

A

To X, but if not used for instruction in the law then O right to reenter and take premises

54
Q

Difference between fee simple determinable and fee simple subject to condition subsequent

A

durational language (so long as, while, during) VS. conditional language (provided that, if , on the condition)

55
Q

There is a preference for fee simple subject to condition subsequent over fee simple determinable to ___

A

disfavor forfeitures (automatic vs. grantor taking action)

56
Q

Future interest in fee simple subject to condition subsequent

A

right of entry/power of termination to the grantor

57
Q

what is fee simple subject to executory limitation

A

defeasible fee followed by an interest not reserved to the grantor

58
Q

fee simple subject to executory limitation example

A

to A so long as Blackacre used for instruction in the law then to B

59
Q

what is the future interest in fee simple subject to executory limitation

A

executory interest (for third party not the grantor)

60
Q

fee simple subject to executory limitation interest is automatically __

A

cut short by executory interest upon happening of named event

61
Q

Remainders follow ___

A

life estates

62
Q

Indefeasibly vested remainder means that the __

A

identity of takers known + no other contingencies must be fulfilled before interest ready to become possessory other than natural termination of preceeding interest

63
Q

Indefeasibly vested remainder example

A

M grants Blackacre to H for life then to B and their heirs

64
Q

example of contingent remainder

A

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

65
Q

Vested subject to complete divestment remainder example

A

M grants Blackacre to Homer for life, then to B but if B fails to graduate then to L

66
Q

Vested subject to partial divestment remainder example

A

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

67
Q

what is an executory interest

A

interest in a transferee not retained by the grantor that divests or cuts short previous interest

68
Q

Conservation of estates rule

A

all of what grantor had must be accounted for (typically means last interest is fee simple absolute)

69
Q

Courts favor will interpretations that avoid __

A

intestacy

70
Q

Will interpretation rules

A

blend of formalism + testator intent

71
Q

Courts take a less formalistic approach when interpreting ___ wills (__)

A

holographic (will entirely handwritten by testator and not attested to by witnesses)

72
Q

Most modern life estates are ___

A

created in trust

73
Q

Williams says that where a testator’s intent is ambiguous, provisions of will conveying property are ___

A

interpreted by predominant intention demonstrated in the document as a whole

74
Q

Williams held that the will manifested his intent to ____

A

grant each of three daughters life estate defeasible upon marriage. (reversion in fee simple)

75
Q

Williams reasoning

A

only intended to support three named daughters during their lives

76
Q

Numerus clausus means ___

A

closed and finite number of forms of property so new forms of ownership cannot be created

77
Q

Under numerus clausus, courts try to __

A

fit interests into pre-existing boxes

78
Q

What is purpose of numerus clausus

A

reduce third party info costs for people looking to buy property

79
Q

Charles says that where a testator wills an idiosyncratic conveyance of property, her intent is to be interpreted so __

A

fits into enumerated property interests that the law allows

80
Q

Charles held that Mrs. Charles’ intent could be interpreted as __

A

granting life interest in part of the property to her nephew and remainder in fee simple to her niece

81
Q

Rules of public policy may influence ___

A

question of will construction

82
Q

Most disputes about waste are now handled by __

A

K or trust

83
Q

what are the three types of waste

A

affirmative, permissive, ameliorative

84
Q

what is affirmative waste

A

misfeasance, life tenant takes some affirmative act that is unresaonable and casues excess damage to reversionary/remainder interest

85
Q

Any ___ can be affirmative waste

A

abnormal

86
Q

Open mines doctrine says if mines are ___ but if not extraction is affirmative waste

A

already in use extraction ok

87
Q

what is permissive waste

A

nonfeasance, failure to act is unreasonable and causes excess damage to future intereests

88
Q

ameliorative waste

A

tenant significantly changes the property resulting in increased value

89
Q

Traditional/minority view of ameliorative waste

A

Brokaw, type of affirmative waste and not permitted

90
Q

Flexible/majority view of ameliorative

A

Melms, good faith mistake + neighborhood changes so much to make dwelling house undesirable

91
Q

Posner approach to ameliorative

A

wealth maximazation

92
Q

OG only those holding ___ had standing to sue for waste but over time allowed ___

A

indefeasibly vested remainders/reversions, contigent remainders, executory interests etc

93
Q

Brokaw says that the holder of a life estate commits waste through any act that ___

A

permanently and materially alters what the remainderman inherits

94
Q

Brokaw held that the P was not ___

A

authorized to remove the mansion even though would increase value of property

95
Q

Brokaw rationale

A

Decedent wanted residence to pass not just the land

96
Q

Almost any attempts to _____ will be held void as contrary to public policy

A

directly restrain alienation

97
Q

Courts will uphold restraints on alienation for a limited period time if ___

A

related to some family planning objective (until minor reaches age)

98
Q

Justifications for limiting restraints on alienation

A

owner autonomy
efficiency
don’t like dynasties
alienation primary way of changing assignment of responsibility for managing resources

99
Q

Toscano says that a condition in the deed that restricts use of property ____

A

is not a restraint on alienation

100
Q

Toscano dissent saus that since the use clause __

A

had same legal result as restraint on alienation it should be held void

101
Q

Toscano holds that the portion of the deed prohibiting sale was ___ but was ____

A

void as restraint on alienation, separable from use condition which created fee simple subject to condition subsequento

102
Q

Toscano reasoning

A

avoid automatic forfeiture + promotes charitable giving

103
Q
A

Property (15 decks)

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