Property Flashcards

Ejectment

1. The ejection of an owner or occupier from property

2. A legal action by which a person wrongfully ejected from property seeks to recover possession, damages, and costs

3. The writ by which such an action is begun - the essential allegations in such an action for ejectment are that 1) the plaintiff has title to the land; 2) the plaintiff has been wrongfully dispossessed or ousted; and 3) the plaintiff has suffered the damages

Title

1. The union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal like between a person who owns property and the property itself

2. Property: legal evidence of a person’s ownership rights in property; an instrument (such as a deed) that constitutes such evidence

Vested

Having become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute

Preemption

1. The right to buy before others

2. The purchase of something under this right

3. An earlier seizure or appropriation

4. The occupation of public land so as to establish a preemptive title

Possession

1. The fact of having or holding property in one’s power; the exercise of dominion over property

2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object

Prescriptive Right

A right obtained by prescription (the effect of the lapse of time in creating and destroying rights such as the extinction of a title or right by failure to claim or exercise it over a long period or the acquisition of title to a thing by open and continuous possession over a statutory period)

Injunction

A court order commanding or preventing an action - to get an injunction, the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted

Right of Way

The right to pass through property owned by another - a right-of-way may be established by contract, by longstanding usage, or by public authority (as with a highway)

Interpose

The act of submitting something (such as a pleading or motion) as a defense to an opponent’s claim

Adverse Possession

The enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open, and notorious

Adverse Possession by Chattel

If property is stolen, need diligence in getting it back; discovery rule

Discovery Rule - Adverse Possession by Chattel

Statute of limitations for an owner to recover stolen or lost property begins only when the owner discovers/reasonably should have discovered the possessor’s identity and item’s location

Claim of Title

1. The possession of a piece of property with the intention of claiming it in hostility to the true owner

2. A party’s manifest intention to take over land, regardless of title or right

Easement

An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road)

Disclaimer of Title

1. A renunciation of one’s own legal right or claim

2. A repudiation of another’s legal right or claim

Mandatory Injunction

An injunction that orders an affirmative act or mandates a specified course of conduct

Prohibitory Injunction

An injunction that forbids or restrains an act - most common type

Trespass

An unlawful act committed against the person or property of another; eswrongful entry on another’s real property

Oust

To put out of possession; to deprive of a right or inheritance

Action to Quiet Title

A proceeding to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever estopped from asserting it

Tacking

The joining of consecutive periods of possession by different persons to treat the periods as one continuous period; the adding of one’s own period of land possession to that of a prior possessor to establish continuous adverse possession for the statutory period

Privity

The connection or relationship between two parties, each having a legally recognized interest in the same subject matter such as a transaction, proceeding, or piece of property

Replevin

1. A lawsuit to repossess personal property wrongfully taken or detain by the defendant, whereby the plaintiff gives security for and holds the property until the court decides who owns it

2. A writ obtained from a court authorizing the retaking of personal property wrongfully taken or detained

Intentional Trespass

A trespass resulting from the actor’s will directed to that end

Dominion

Control; possession

Necessity

A privilege that may relieve a person from liability for trespass or conversion if that person, having no alternative, harms another’s property in an effort to protect life or health

Limited Liability Company

A statutorily authorized business entity that is characterized by limited liability for and management by its members and managers, and taxable as a partnership for federal income-tax purposes

Deed

A written instrument by which land is conveyed

Conveyance

The voluntary transfer of a right or of property

Restraint on Alienation

A restriction, usually in a deed of conveyance, on a grantee’s ability to sell or transfer real property; a provision that conveys an interest and that, even after the interest has become vested, prevents or discourages the owner from disposing of it at all or from disposing of it in particular ways or to particular persons; restraints on alienation are generally unenforceable as against public policy favoring the free alienability of land; must be reasonable in duration, intent, and effect

Reservation

The creation of a new right or interest (such as an easement), by and for the grantor, in real property being granted to another

Exhaustion of Patent Rights

The rule that the unconditioned sale of a patented article ends the patentee’s monopoly right to control its use; that control may still be exercised by limitations in a contract or license, as long as it does not amount to anticompetitive patent misuse

Infringement

An act that interferes with one of the exclusive rights of a patent, copyright, or trademark owner

Single-Use/No Resale Agreement

An agreement against a retailer’s selling of goods, previously purchased from a manufacturer or wholesaler, usually to consumers or to someone else further down the chain of distribution

Downstream Purchasers

One that purchases an item for resale and is not a first purchaser

Antitrust

The body of law designed to protect trade and commerce from restraints, monopolies, price-fixing, and price discrimination

Administrative Segregation

The act of removing a prisoner from the prison population for placement in separate or solitary confinement, usually for disciplinary reasons

Abandonment

To relinquish or give up with the intention of never again reclaiming one’s rights or interest in; departure without the intent to return

1. owner must intend to relinquish all interests in the property, with no intention that it be acquired by any particular person, and

2. must be a voluntary act by the owner effectuating that intent

Personal Property

Any movable or intangible thing that is subject to ownership and not classified as real property

Protective Custody

The care and control of a thing or person for inspection, preservation, or security

Conclusive Presumption

A presumption that cannot be overcome by any additional evidence or argument because it is accepted as irrefutable proof that establishes a fact beyond dispute

Recorded Deed

An original or authentic official copy of a deed that has been deposited with an authority

Perfect Title

A grant of land that requires no further act from the legal authority to constitute an absolute title to the land

Executor

A person named by a testator to carry out the provisions in the testator’s will

Residue of Estate

The part of a decedent’s estate remaining after payment of all debts, expenses, statutory claims, taxes, and testamentary gifts (special, general, and demonstrative) have been made

Trust Indenture

A document containing the terms and conditions governing a trustee’s conduct and the trust beneficiaries’ rights

Private Nuisance

1. A nuisance that affects a private right not common to the public or that causes a special injury to person or to property of a single person or a determinate number of people

2. A condition that interferes with a person’s enjoyment of property; especially a structure or other condition erected or put on nearby land, creating or continuing an invasion of the actor’s land and amounting to a trespass to it - condition constitutes a tort for which the adversely affected person may recover damages or obtain an injunction

Encroachment

To gain or intrude unlawfully onto another’s lands, property, or authority

Covenants

A promise made in a deed or implied by law; especially an obligation in a deed burdening or favoring a landowner

Trustee

Someone who stands in a fiduciary or confidential relation to another; especially one who, having legal title to property, holds it in trust for the benefit of another and owes a fiduciary duty to that beneficiary

Temporary Restraining Order

A court order preserving the status quo until a litigant’s application for a preliminary or permanent injunction can be heard

Inheritance

Property that a person receives by bequest or devise

Condition Precedent

An act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises

Right of Descent and Distribution

Rights under the rules by which a decedent’s property is passed, whether by intestate succession or by will

Natural Right

A right that is conceived as part of natural law and that is therefore thought to exist independently of rights created by government or society, such as the right to life, liberty, and property

Procreational Autonomy

The right to procreate and the right to avoid procreation

Separate Property

Property that a spouse owned before marriage or acquired during marriage by inheritance or by gift from a third party, and in some states property acquired during marriage but after the spouses have entered into a separation agreement and have begun living apart or after one spouse has commenced a divorce action

Administrator

A person appointed by the court to manage the assets and liabilities of an intestate decedent

Preliminary Distribution

A distribution made before the final distribution when the trustee completes the trust administration

Bailment

A delivery of personal property by one person (bailor) to another (bailee) who holds the property for a certain purpose; usually under an express or implied-in-fact contract; unlike a sale or gift of personal property, a bailment involves a change in possession but not in title

Detinue

A common-law action to recover personal property wrongfully taken or withheld by another

Real Property

Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land

Breach of Fiduciary Duty

A failure of the fiduciary to act toward the beneficiary as the law obligates fiduciary to act with regard to good faith, trust, confidence, and candor

Disposition

The act of transferring something to another’s care or possession, especially by deed or will; relinquishing of property

Trover

A common-law action to recover damages for the conversion of personal property, the damages generally being measured by the property’s value

Life Estate

An estate held only for the duration of a specified person’s life, usually the possessor’s; if duration is measured by the life of another, the estate is an estate pur autre vie

Common Law Rule Judicial Sales

cannot do a judicial sale unless it’s necessary. and there are insufficient means to pay taxes

Hypothecate

Pledging property as collateral for a loan without transferring title to lender

Waste

Permanent harm to real property committed by a tenant (for life or for years) to the prejudice of the heir, the reversioner, or the remainderman

Affirmative Waste

Liability results from injurious acts that have more than trivial effects

Permissive Waste

Failure to take reasonable care of property

Ameliorative Waste

Uses by tenant that increases property value

Fee Simple

An interest in land that, being the broadest property interest allowed by law, endures until the current holder dies without heirs

Fee Simple Absolute

May endure forever, can be transferred both by will and inter vivos

Fee Tail

May endure forever if the designated bloodline continues

1. MA style: recognized in common law form, except that the tail can be “docked” by inter vivos transfer

2. TX style: fee tail abolished. Any language attempted to create a fee tail will be construed as granting a fee simple absolute

3. OK style: if the grant contains a “gift over” it will be recognized as a valid restriction for the life of the initial grantee (who holds a fee simple subject to executory limitation"), but upon the death of the initial grantee the transfer ripens into a fee simple absolute if the grantee dies with issue. If the grantee dies without issue, the executory interest takes a fee simple absolute. If the grant does not contain a “gift over,” the grant is treated as a fee simple absolute

4. FA style: grantee takes a life estate, and issue take a remainder in fee simple absolute

Fee Simple Determinable

Estate may endure forever, but will end upon the happening of a certain event. Followed by a possibility of a reverter (if retained by grantor) or executory interest (if in a third party)

Fee Simple Subject to Condition Subsequent

Estate may endure forever, but may be terminated by the grantor or third party by reentry upon the happening of a stated event. The right of reentry is in the grantor. If the right is held by a third party, it is called an executory interest

Fee Simple Subject to Executory Limitation

Estate may endure forever, but may end upon the happening of a specified event with the interest transferred to a third party

Remainder Interest

The property that passes to a beneficiary after the expiration of an intervening income interest; if a grantor places real estate in trust with income to A for life and remainder to B upon A’s death, then B has a remainder interest

Vested Remainder Interest

A right to inherit property after the current owner’s death, with no conditions attached; given to ascertained person and is only subject to natural termination

Indefeasibly Vested Remainder

certain to become possessory in future and cannot be divested

Vested Subject to Divestment Remainder

Remainder is vested but subject to condition subsequent - partial/complete

Contingent Remainder Interest

When someone might inherit property in the future, but only if a specific event happens first; given to an unascertained person or is made contingent on specific event other than natural termination

Shifting Executory Interest

When someone might inherit property in the future, but only if a specific event happens to take it away from the current owner

Springing Executory Interest

When someone might inherit property in the future, but only if a specific event happens to take it away from the grantor

Reversion

Interest left in an owner when he carves out of his estate a lesser estate and does not provide who is to take the property when lesser estate expires

Possibility of Reverter

Owner carves out of his estate a determinable estate of same quantum; retained when life tenant conveys his life estate to another, determinable on happening of even

Doctrine of Merger

If the life estate and the next vested estate in fee simple come into the hands of one person, the lesser estate is merged into the larger

Destructibility of Contingent Remainders

A legal remainder in land is destroyed if it does not vest at or before the termination of the preceding freehold estate; if remainder is still subject to a condition precedent when the preceding estate terminates, remainder is wiped out, and the right of possession moves on to the next vested interest

Rule in Shelley’s Case

1. One instrument

2. Creates a life estate in A

3. Purports to create a remainder in persons described as A’s heirs/heirs of A’s body, and

4. The life estate and remainder are both legal or both equitable

the remainder becomes a remainder in fee simple (or fee tail) in A

Doctrine of Worthier Title

Where there is an inter vivos conveyance of land by a grantor to a person, with a limitation over to the grantor’s own heirs either by way of remainder or executory interest, no future interest in the heirs is created, rather, a reversion is retained by the grantor; “then to O’s heirs” triggers doctrine

Rule Against Perpetuities

Limits the duration of future interests to ensure that they vest within a certain period after the death of a life in being at the creation of the interest; limiting the reach of the dead hand; 21 year rule is so the grantor can provide for people he personally knew and the generation after them; no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest

Application of Rule Against Perpetuities

Determines whether the future interest in question is even subject to the Rule, which applies only to interests that are not vested at the time of the conveyance that creates them; does not apply to possessory interests, only contingent/vested remainders subject to open, executory interests

Wait and See Rule Against Perpetuities

Wait and see, and only kill interests that fail to vest within the period - modern trend

Uniform Statutory Rule Against Perpetuities

Wait-and-see approach but allows for a 90-year perpetuities period

Unborn Widow

if described as a status rather than a specific person, we can expect that they are not born yet, and are thus not a life in being, and could not die within 21 years of the lives in being; the widow might not be a life in being, the class of “issues then living” wouldn’t close until the widow dies, and that could be more than 21 years after A’s death

Magic Gravel Pit

To A so long as minerals are produced on this land, then to B if the minerals are no longer produced; there’s no certainty on how long the minerals will be produced, so future interests will fail even if the mines are basically depleted

Fertile Octogenarian

A woman is fertile and able to have children until her death, no matter how old she is

Slothful Executor

If an estate needs to be taken care of within a timeframe, assume that it wont’t be (not guaranteed it will be), and thus, it fails

Class Gifts under Rule Against Perpetuities

“All-or-nothing rule” - if a gift to one member of the class might vest too remotely, the whole class gift is void; a class gift is not vested in any member of the class until the interests of all members have vested

For a gift to be vested, the class must be closed and all conditions precedent for each and every member of the class must be satisfied, within the perpetuities period