Property Law

What are the 5 Reasons we Recognize Property Ownership?

1. To protect first possession

2. We want people to work and be productive

3. Maximize societal happiness

4. Insure and maintain a democracy

5. Facilitates personal development and identity

What is the “bundle of sticks” metaphor?

Owner has a “bundle of rights” they may exercise in regards to their property

What are the “Bundle of Sticks/Rights” an owner of property has?

1. Possess or occupy

2. Use or exploit

3. Exclude others

4. Right to transfer

5. Modify or destroy

What is trespass?

1.  unprivileged entry upon the land of another

2. Requires:

   1. Unreasonable physical or tangible interference

   2. Upon land that owner has exclusive possession

   3. damages resulting from said interference (actual or substantial injury)

What is nuisance?

conduct or activity that causes substantial interference with use or enjoyment of property

What is conversion?

Intentional interference with your use or possession of personal property

What are fixtures?

Personal property that has been physically attached to the land, making it legally a part of the estate

What factors are considered when a court considers whether something is a fixture?

1. Annexation: Some characteristic of a purposeful physical attachment to the land

2. Adaptation: Is the item customized/adapted for the property in particular?

3. Intent: Whether or not they intended for the fixture to be permanent

What are trademarks?

 word, design, symbol, etc. that identifies source of a good

What is a secondary meaning?

consumers identifying symbol/representation in the wild and associating it with your product

What is the Functionality Doctrine?

A limitation on trademark protection; where a product feature is useful, cannot be protected with a trademark (ex. taste)

What is the Latham Act? (basically, don’t get all Oral Argument on me)

Governs trademark law; considers the “likelihood” of consumer confusion

What is a Right of Publicity?

Ability to control commercial use of name and image; NOT an absolute right, often balanced against 1A rights

Definition of Possession

physical control with the intent to use or exclude others

Three Types of Possession

1. Right of First Possession

2. Subsequent Possession (Losers and Finders)

3. Adverse Possession

What three acts were considered by the Post court (Pierson v. Post) to possibly qualify possession, and which ultimately was chosen?

1. Pursuit of animal

2. Wounding of the animal

3. Occupancy (kill and capture) (selected)

What is the general “Finder’s Rule”

Although not absolute, the first finder has the rights of property against all but the rightful owner

What are all classifications of lost property?

1. Abandoned Property

2. Lost Property

3. Mislaid Property

4. Treasure Trove

5. Embedded Property

What is “abandoned property” for the purposes of subsequent possession, and who does such property belong to (other than the original owner)?

Owner of said property, with intent to no longer want to possess it, abandons it

Belongs to finder

What is “lost property” for the purposes of subsequent possession, and who does such property belong to (other than the original owner)?

Owner unintentionally and involuntarily parts with its possession and does not know where it is

Belongs to finder

What is “mislaid property” for the purposes of subsequent possession, and who does such property belong to (other than the original owner)?

Voluntarily put in a certain place by the owner who then overlooks or forgets where the property is

Belongs to Land Owner of the premises upon which the property is found

What is “treasure trove” for the purposes of subsequent possession, and who does such property belong to (other than the original owner)?

Personal property hidden or concealed for so long that original owner is probably now dead (rule of thumb 100 years)

Belongs to finder

What is bailement?

Agreement, either express or implied, that one person will entrust personal property to another for a specific purpose and that when the purpose is accomplished the bailee will return the property to the bailor

What is adverse possession?

Acquiring title by possessing property in a specified manner for a statutory period

What are the elements of adverse possession?

1. Actual Possession

2. Open and Notorious Use

3. Exclusive Possession

4. Continuous Use

5. Hostility

Open and Notorious Possession

So open and hostile as to put an ordinarily prudent person on notice of the fact that the lands are in adverse possession of another.

What is the “small encroachment/New Jersey” view to open and notorious possession (adverse possession)?

When encroachment is of a small area and is not evident to the naked eye without survey, the encroachment is not open and notorious; thus, actual knowledge required

Exclusive Possession Element (adverse possession)

Requirement to adverse possession that possessor “wholly excluded the true owner from possession of the property.”; not jointly owned

Continuous Use Element (adverse possession)

7-21 year period (created by statutory) where use must not be abandoned nor interrupted by the true owner

What is tacking?

Allows combination of successive adverse possession together in order to meet the statutory continuous possession requirement

Adverse/Hostile Element (adverse possession)

 Way in which the land is operated/possessed done in such a way that a true owner would act, exerting primary control over the property

Three claim of right assessments are… (Note: there is universal acceptance that permissive occupation defeats adverse possession)

Objective Test (Connecticut Test): adverse possesser possess the land as their own; belief regarding such ownership is irrelevant

Bad Faith Test (Maine Rule): Requires intent to claim ownership of land and land adverse possessor knows they don’t own

Good Faith Test (Iowa Rule): Possessor must have a good faith belief that they have title or basis for claiming title

Color of Title (adverse possession)

A written instrument that purports to pass title to the adverse possessor but it doesn’t actually do so

Constructive Possession Doctrine of Color of Title

Extent of land that can be possessed is measured by deed that is relied upon by color of title, and not of use

What is replevin?

Action to recover possession of goods

What are three options for when accrual may begin when personal property is stolen?

1. Point of conversion

2. When diligent owner discovers or should have discovered the property is stolen

3. When the owner makes a demand for the return of the property

What are Gift Inter Vivos?

Gifts given during the donor’s life

What are gifts?

Immediate voluntary transfer of property without consideration

What are the elements of gift inter vivos?

1. Intent: Donor has to have intent to immediately make a transfer or ownership of thing that is subject to gift

2. Delivery: Possession of the property has to be delivered to the donee

3. Acceptance: Donee has to accept the gift

What is constructive delivery?

 Donor physically transfers a means of controlling property (e.g. keys to car)

What is symbolic delivery?

Donee given an object that symbolizes or represents a gift (like a letter)

When may a court accept constructive or symbolic delivery over actual delivery in regards to a gift?

If there is unequivocal evidence of donative intent

Once the elements are satisfied for a gift inter vivos, the gift is ____

Irrevocable

What is a gift causa mortis?

A gift given in the apprehension of death

What are the elements of a gift causa mortis

1. Intent

2. Donor Anticipation of Imminent Death

3. Delivery

4. Acceptance

5. Death of Donor

Can a donor of a gift causa mortis change their mind and revoke the gift?

Yes, before death

What is a testator?

An individual who is composing a will

What does “defeasible” mean?

Conditional

What is a quitclaim deed?

transferring the interest in the property without perfect knowledge of the title; buyer beware

What happens if an individual dies without a will?

The property passes by intestacy to the descendants heirs

What are the requirements to collect property as an heir if the individual passes away without a will? (3)

1. Survive the decedent,

2. Be listed in the statue as an eligible taker

3. There are no takers having preference over claimant’s category

What are the four essential elements needed for proper execution of a will?

1. Three witnesses

2. Witnesses have no interest in the property

3. Only the Lawyer + testator + 3 witnesses in a room

4. No one in or out until execution will is complete

What is a fee simple absolute?

Owner can possess forever and no inherent conditions or restrictions limiting how the owner can use the property

True or False: A fee simple absolute can be transferred through abandonment

False

Words of Creation for Fee Simple Absolute

To A and their Heirs

What is a life estate?

Possession lasts for the duration of a specified life (human or third party)

What are the future interests in a life estate?

Both a remainder and a reversion

A transfer of a life estate is permissible if…(3 times)

1. Transferring the extent of the life term

2. A full transfer if the life tenant and holder of the reversion agree to sell the property

3. Statutory language allows owner of a life estate with unlimited power of deposition to convey the fee simple estate and defeat the interest of the remainder men

What are the obligations of remainder man?

To follow obligations imposed by a testator/grantor if the remaindermen keeps their interest and doesn’t sell it

What are the obligations of a life estate holder?

Not to commit waste

When language of defensibility is unclear, what type do courts defer to?

Fee simple subject to condition subsequent

What is a fee simple determinable?

A type of defeasible fee ownership in real estate that automatically ends and reverts to the grantor if a specific condition is broken.

Words of Creation for a fee simple determinable?

While, during, so long as, until (durational)

What is a fee simple subject to a. condition subsequent?

Defeasible estate that is subsequent to a condition; upon the occurrence or non-occurence of a state event, the grantor has the power to terminate the estate

Words of creation for a fee simple subject to a condition subsequent

On condition that, but if, provided, however (conditional)

What is an executory limitation?

Upon the specific violation of a restriction, title passes to a THIRD PARTY

If the condition of a fee simple subject to an executory limitation is found to be void, the interest in the estate…

Remains

If the condition of a fee simple determinable with an executory limitation is found to be void, the interest/gift in the estate is

Entirely Struck

Absolute restraints on a fee simple are generally found to be

Null and void

Partial restraints on alienation must be

Reasonable, in:

1. Scope

2. Purpose

3. Supported by Consideration

What is Dead Hand Control?

An undesired outcome that statues/common law may seek to avoid, that finds an individual who is dead controlling property based on limitations, etc.

What are future interests?

A present right to possess property in the future; possesses value; can be bought/sold

When a grantor gives an estate of a lesser quantum than their own, they have/may have these two reversionary interests

1. Reversion: undisposed of interest that a transferor retains when she transfers out an estate of lesser quantum than she owns

2. Power of termination:  when O transfers an estate of the same or lesser quantum, and imposes a restriction on the transferee’s use in the form of a condition subsequent, with a power of to reclaim possession in case of violation of the restriction

When a grantor gives an estate of a the same quantum as their own, they have/may have these two reversionary interests

1. Possibility of Reverter: when O transfers an estate of the same potential duration as O has and subjects the transferee to a special limitation, which is signified by language of duration

2. Power of Termination

What is a nonreversionary future interest?

Future interests in third parties

Three Rules of Remainders

1. Defeasible Fee Simple: never follows a defeasible fee (unselfish)

2. Defeasible Particular Estate: If subject to durational/a special limitation/determinable (polite and patient)

3. Non Defeasible Particular Estate: Interest is capable of becoming possessory immediately (lucky)

Basically, what is a vested remainder?

A remainder in an ascertained person and is not subject to a condition precedent

What is an indefeasibly vested remainder?

A remainder subject to no conditions at all; remainder man’s interest not even cut off at death, heirs can take their place

What is a vested remainder subject to complete divestment?

Is a future interest in property held by a known person that is already "vested" (owned) but can be completely taken away if a specific condition subsequent occurs

What is a vested remainder subject to open?

Remainder created in a class of takers; remaindermen’s interest not cut off by death, passes to heirs or devises

What are two different rules for interpreting when a “class” ends in regards to a vested remainder subject to open?

1. Physiological Closing: not closing class until parent dies

2. Rule of Convenience: class of takers ends when life estate dies

What is a contingent remainder?

A remainder subject to a condition precedent or in an unborn or unascertained person or both

What are the rules for Executory Interests?

1. Defeasible Fee Simple: Always follow a defeasible fee simple (greedy)

2. If A’s particular interest is subject to a condition subsequent (impatient, benefits from misfortune or cuts off)

3. Interest will not become possessory immediately (unlucky)

What are the types of executory interests?

1. Shifting: takes effect by cutting short a transferee

2. Springing: takes effect by cutting short the grantor

What is the rule for the “Destructibility of Contingent Remainders”

A rule for marketability; contingent remainder is destroyed if it fails to vest before or at the moment the preceding estate terminates; abolished in most jurisdictions

What is The Rule in Shelby’s Case?

A rule for marketability; converts a remainder interest given to a person’s heirs into a remainder in the person themselves; abolished in most jurisdictions

What is the Doctrine of Worthier Title?

A rule for furthering marketability; creates a presumption that a grantor who conveys a future interest to their own heirs actually intended to keep that interest, favoring reversion to the grantor over a remainder to heirs;

What is the Rule Against Perpetuities?

No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being all the creation of the interest

Steps to Identifying Rule of Perpetuities

1. Identify the contingency to which the future interest is subject

2. Identify a valuing life (Find a Life + 21 years to identify whether future interest surely becomes possessory)

3. Strike offending language

Reform option instead of Rule Against Perpetuities

1. Wait and See: Basically just wait and see if interest will vest or not

   1. Under USRAP, interest must vest if at all within 90 years

Features of a Tenancy in Common

1. Undivided Interest

2. Transferable during their lifetime and death

3. Has right to use whole parcel even if they own a fractional share

Features of a Joint Tenancy

1. Each cotenant has undivided right to use and possess whole property

2. Other covenants have a right of survivorship

3. Cannot pass share down when you die

4. Four Unities

What is a right of survivorship?

When one cotenant dies, remaining covenants become the automatic owners of the interest

What are the four unities?

1. Time: Each cotenant acquired interest at the same time

2. Title: Each cotenant acquired interest by virtue of the same instrument (same deed, grant)

3. Interest: Each cotenant acquired identical interest by size and duration

4. Possession: Each cotenant equal right to possess and enjoy all the property

What language triggers a joint tenancy?

“right of survivorship” language

Generally, unilateral severances of joint tenancies are _____

allowed; consent is not usually required

What are strawman transactions?

Conveyances to a third party, who then conveys back to multiple parties; usually o satisfy four unities problem in joint tenancies

Features of a tenancy by the entirety

1. Can only be held by legally married couples

2. Each tenant has an undivided right to possess whole property

3. Each spouse has right of survivorship

4. Can only end in death, divorce, agreement in writing

Requirements for tenancy by the entirety

1. Legally married

2. Four Unities