BLAW 301 EXAM 2 Amii Castle KU

Property

legal right to exclude others from resources that are originally possessed or are acquired without force, theft, or fraud.

Real Property

law applies to land and interests in land. (all other resources are protected by personal property law)

Personal Property

applies to moveable resources those things that people do not annex to the land.

Tangible Property

(personal) things one can touch, i.e.. cars, books, clothing. Controlled by the Uniform Commercial Code

Intangible Property

(personal) not physical. Intellectual property, securities. May only include right to include, right to exclude. i.e.. Patents, copyrights, trademarks.

Fee Simple

represents the maximum estate allowed under law, the owner having fullest legal rights and powers to possess use and transfer the land.

Estate

the bundle of rights and powers of land ownership are called an estate

Life estate

grants an ownership in land for the lifetime of a specified version.

leasehold estate

the property right granted to tenants by a landlord.

concurrents ownership

multiple owners

easement

places a particular use of land behind the exclusive legal fence. often a right to cross over land.

bailment

when an owner temporarily places an object in the possession of another

bailor

the owner of the property in a bailment

bailee

possessor of the object during a bailment

mutual benefit

during an easement. (rental agreement) Bailee must use reasonable care.

contract

rule that make agreements to exchange resources between owners legally binding and enforceable.

first rule of possession

the first person to resume previously unowned things to possession becomes their owner.

abandonment

measuring intent in order to detriment abandonment

lost items

in order to be claimed must follow a statutory procedure. VS mislaid (items go to the person who own the premise.

adverse possession

gives you ownership of land under state statute when the possession is

-open and notorious

-actual and exclusive

-wrongful

-continuous

-for a prescribe period of time

open and notorious

(adverse possession) the possessor must occupy the land in such a way as to put the true owner of the land on notice.

actual and exclusive

(adverse possession) the possessor must physically occupy the land

continous

(adverse possession) possession must not be interrupted

wrongful

(adverse Possession) the possessor must not have permission to be on the land for example under a lease.

Prescribed period of time

(adverse possession) most states specify adverse possession of between 10 and 20 years before the possessor becomes the new owner

gifts

no mutual exchange of resources occurs. Donor gives to a donee who becomes the new owner. rules of gifts specify 1) intends to make the gift 2) delivers the gift by physical transfer to the donee.

accession

something added.

security interests

an application of property that gives someone an interest in what belongs to another usually to secure an extension of credit (mortgages and secured transactions)

deeds of trust

(security interest) a type of document to secure an extension of credit through an interest in the land

mortgage

(security interest) transfer of an interest in property for the purpose of creating a security for a debt. in land, usually securing an extension of credit.

mortgagees and mortgagors

mortgagees- the creditors

mortgagors- debtors

foreclosure

(security interest) (default) mortgagee may declare the whole debt due and payable and they may foreclose on the property to pay the debt secured by the mortgage. proceeds of property are sold and applied to debts

deficiency

(security interest) (default) land based, the amount of the loan which remains unpaid after the land has been sold

right of redemption

(security interest) (default) allows the the mortgager to get back the land upon payment

lien

(security interest) a claim to an interest in property satisfaction of a debt or claim (artisans lien- personal property) (mechanics lien-real estate)

Nuisance

a physical condition constituting an unreasonable and substantial interference with the rights of individuals or the public at large

Public Nuisance

arising from some use of land that causes inconvenience or damage to the public.

Private Nuisance

an unreasonable use of ones property so as to cause substantial interference with the enjoyment or use of another land.

zoning ordinances

laws that divide counties or municipalities into use districts designated residential commercial or industrial.

variance

an owner can ask a zoning board for a variance to allow use of land in a way not permitted under a zoning ordinance.

contract

a legally enforceable promise or an exchange of promise, can be oral or written

bilateral contract

(Types of contracts) a promise for a promise exchange, mutual promises. 2 rights and 2 duties (opposite of unilateral)

unilateral contract

(Types of contracts) an agreement with only one promise and only one party is committed to perform. (opposite of bilateral)

express contracts

(Types of contracts) a contract in which parties show their agreement in words, oral or written. (opposite of implied)

implied contracts

(Types of contracts) arise from the conduct of the parties rather than written. i.e. asking for for professional advice means a promise to pay the rate for advice (opposite of express)

Void Contracts

(Types of contracts) an agreement but lacks an essential requirement for validity and enforceability. (opposite of voidable)

voidable contract

(Types of contracts) an agreement when at least one of the party has the right to withdraw from the promise made without incurring any legal liability (opposite of valid)

executed contract

(Types of contracts) one in which the parties have performed their promises (opposite of executory)

executory contract

(Types of contracts) when the parties have not yet completed their promises. (opposite of executed)

Elements of enforceable contract

Offer

acceptance

consideration

offer

contains a specific promise

-offeror, person making the offer

-offeree person to whom the offer is made

Definite terms

contract terms must be definite and secure, cannot be made on the basis of indefiniteness

revocation

(termination of offer) when the offeror retracts the offer before the acceptance

rejection

(termination of offer) when the offeree rejects the offer

counter offer

(termination of offer) when the offer makes a counter offeror.

lapse of time

(termination of offer) when the offeree fails to accept by a deadline defined in the offer or after a reasonable amount of time

acceptance

necessary to create a valid enforceable contract

mirror image rule

the acceptance to the exact contacts/ offers terms. changing anything is a counter offer

mailbox rule

acceptance usually becomes binding when it is deposited with the postal service

consideration

an essential element in the creation of a contract obligation that creates a detriment to the promisee or benefit to the promisor. incentive to enforce contract

promise to make a gift

(consideration) not binding as a gift, because no bargained for consideration supports the promise to make a gift

option contract

(consideration) a promise to keep an offer open for a certain period of time. must be supported by the offeree's consideration

promissory estoppel

(consideration) "detrimental alliance" court enforcement of an otherwise unbinding promise if injustice can be avoided only by enforcement of the promise . exception to consideration

capacity

refers to a persons ability to be bound by a contract.

who lacks capacity?

- minors

-intoxicated persons

-mentally incompetent persons

Unlawful purpose

(Unenforceable Contracts) contract that violates the law, or require commission of a crime or tort, violate accepted standards

unconscionable contracts

(Unenforceable Contracts) in a contract that are oppressive overreaching or shocking to the conscious.

unreasonably restrain trade

(Unenforceable Contracts) contracts the restrain trade are often illegal or void, i.e. monopolize, fix prices, divide up markets

Fraudulent Inducement

the use of deceit or trick to cause someone to act to his/her disadvantage, such as signing an agreement or deeding away real property. An agreement in which mutual understanding is lacking

Elements to fraud

-misrepresentation of fact

-intent to deceive

-justified reliance on the misstatement by the innocent party

-injury resulting from the reliance

duress/undue influence

lacking mutual agreement meaning through force/ threat. It can be physical or economical

Influence - unlawful persuasion

Statute of Frauds

the law requires that certain contracts must be in writing. this does not address fraud in the formation of a contract. Meant to address fraud in oral contracts.

Interests in land ex?

(statute of frauds) contracts for land, mortgages, mining rights, and easements (does not include a contract to insure land or to erect a building )

Guaranty

guaranteeing a persons performance in a contract

performed outside of a year

(statute of frauds) a party cannot complete outside of a year without a written contract

goods over $500

(statute of frauds) sales of good $500 or more under the UCC

contract interpretation

words are given their common meaning courts interpret ambiguous terms according to common trade usage

trade usage

(contract interpretation) how a word is interpreted in a different settings/ contract

handwritten terms

(contract interpretation) handwritten terms will be interrupted to control the typed contract by the courts.

constructed against drafter

(contract interpretation) if only one party drafts the contract, the court will interpret in favor of the party that did not draft

parol evidence rule

parties to a complete and final written contract cannot introduce oral evidence in court that changes the intended meaning if the written terms.

duty of performance

the legal obligation of a party to a contract

substantial performance

fulfillment of the obligations agreed to in a contract, with only slight variances from the exact terms and/or unimportant omissions or minor defects. ( not all obligations are filled but not yet in breach)

material breach

a level of performance below what is reasonably acceptable.

impossibility of performance

(excuses for nonperformance) if the subject matter of the contract is destroyed, therefor the contract is impossible to perform

waiver

(excuses for nonperformance) when a party intentionally relinquishes a right to enforce the contract

release

(excuses for nonperformance) when a party announces the other party does not have to perform as promised. usually occur before a contracting party fails to perform

mitigation

(breach of contract) the purposeful reduction of damages, usually the responsibility of the non breaching party

Types of Damages

compensatory- court awarded to plaintiff to make as if contract was completed

consequential- court awarded damages from unusual losses that were foreseeable

liquidated- when damages are uncertain parties may specify in the contract what they would be

Equitable relief (if damages are not adequate)

specific performance- parties are compelled to perform

recession- requires each party to return the consideration given the other (often for fraud or misrepresentation)

injunction- court order for a party to do something or refrain from doing something. (often for intellectual property)

intentional tort

a civil wrong, duty imposed by common law

tortious behavior

behavior that constitutes a tort

tortfeasor

person who commits the tort

assault

(intentional tort) the placing of another in immediate apprehension for his/her physical; safety

elements: intentional, unauthorized, immediate, reasonable fear

battery

(intentional tort) an illegal touching of another, without justification and consent of the person

elements: intentional, touching, nonconsensual

Intentional infliction of emotional distress

(intentional tort) to the emotions

elements: outrageous, intentional, physical manifestation

elements

what the plaintiff would have to prove

invasion of privacy

(intentional tort) intrusion into private affairs disclosure of private information. Publication in a false light or appropriation of one name for personal gain.

trespass

(intentional tort) entering another persons land w/out consent

elements: intentional, unauthorized, entry on another land

false imprisonment

(intentional tort) restraint of a person against there will without legal authority or justification

Elements intentional. without consent, without legal justification