Property Law

Types of Property

personal

• tangible (ie: iPad)

• intangible (ie: stocks)

• temporary (simple)

real

• land

• fixture (anything attached to land)

• formal (old)

Personal Property

• Acquiring Ownership (Title)

  • laws that govern: Common Law and Contracts

1. Purchase: New Goods - UCC

2. Gifts:

(1) Inter Vivos (in donors life)

• transfer of property + title from a donor —> donee without consideration

  • irrevocable (cannot take back)

(2) Causa Mortis

• made in contemplation of imminent death (don’t have time for will)

• property must be delivered for donee

• the gift is made with understanding that it goes back to the donor, if they survive (revocable)

a. Elements

(1) Intent - the donor must have the present intent to make an immediate transfer of property/title

(2) Delivery - the gift is delivered with the intent to relinquish donors control over the property

(a) actual

(b) construction delivery (transfer of something giving access to them) —> (ie: car then give them the keys)

(c) symbolize delivery

(3) Acceptance - presumed that it is accepted, no need to prove

Real Property

A. Freehold Estates (deals with ownership)

1. Types

a. Fee Simple Absolute: most complete ownership interest in land

(1) Rights

• owner has full control:

  • possess land

  • use it however they want (within law/zoning)

  • sell, lease, gift, or pass it by will

(2) Extent of Rights

• no conditions or limitations attached

(3) Duration

• only ends if owner transfers or dies without heirs (rare escheat to the state)

b. Defeasible Fees: strings attached

(i) Fee Simple Determinable (Qualified Fee)

• automatically ends if a condition is broken (as long as it is used for specific use)

(ii) Fee Simple Subject to a Coalition Subsequent

• ends when grantor takes action

(1) Rights

• owner has full rights unless/until condition is violated and enforced

(2) Extent of Rights

• ownership is conditional

(3) Duration

• cut short if condition is breached (termination power)

c. Life Estate

(1) Rights

• possess and use property

• collect income (rent)

(2) Extent of Rights

• only sell life interest

(3) Duration

• for life

(4) Future Interests

(i) Reversionary Interest

• goes back to original grantor

(ii) Remainder Interest

• goes to third party

(a) Vested

• guaranteed possessory in the future

• no conditions attached

(b) Contingent

• depends on conditions

B. Non-Freehold Estates (deals with relationship —> one person own land, and the other occupies = govern by K)

1. Leasehold

a. Ownership Rights Created

(1) Tenant

(a) Possession and Use

• landlord grants to a tenant an exclusive right to use and possess the land for a definite period of time

• non-possessory leasehold provisions with touch and concern the land

(b) Covenant of Quiet Employment

(2) Landlord

(a) Reversionary Interest (rights go back to Landlord)

(b) Compensation

b. Ownership Duties

(1) Tenant

• pay rent

• maintain premises in good repair

(2) Landlord

• maintenance (make any necessary repairs, performed in a timely fashion)

• courts look at:

  • severity of the condition (1-2 days if major, 5-7 days if minor)

  • notice to Landlord

  • availability of repairs

  • lease terms

• comply with the implied warranty of habitability

• prior notice, typically 24 hours, before entering the premises (only for repairs)

• mitigate damages

Restrictions for LL/Tenant

• T: cannot subtract any repairs from the rent

• LL: cannot illegally evict you without notice, a hearing, and court order

  • can’t overcharge for security deposit

  • can’t deduct from the security deposit for normal wear and tear

  • can’t hold on to security deposits more than 30 days

c. Transfer of Leasehold

d. Termination of Leasehold

(1) Expiration surrender

(2) Notice

(3) Novation

(4) Abandonment

(5) Eviction: tenant breaches

(6) Constructive Eviction: LL breaches

2. Easement

(a) Ownership Rights Created

(1) Express agreement (K, will)

• Dominant Estate: the benefited land get the advantage of an easement

• Servient: this is the land that must allow the use

(2) Implication: created when the owner of the adjacent property makes an apparent and permanent use in the nature of an easement, then the property is conveyed/transferred without mentioning the easement (used before for easement, court grants)

(3) Necessity: law says cannot live on landlocked property (emergency vehicles)

(4) Prescription: statutory, varies - if a person uses a portion of land owned by another in a way that is:

• adverse to the rightful owners use

• open and notorious

• continuances and uninterrupted for a specific period of time

(5) Eminent Domain

• government compensate

(b) Termination of Easement (in writing)

(1) Agreement

(2) Eminent Domain

3. License

Government and Private Restrictions over Property

1. Eminent Domain - 5th amendment

a. Taking: govt take

b. Private property

c. For public use

• Kelo vs. City New London

  • approached property for private developer, SC vote in favor it because it raises tax base

  • 45 states (VA included) have amendment cannot take real property

d. Just compensation: property rights - govt must pay, can fight for more compensation but cannot fight govt taking property

2. Zoning: the principle method of public control over now private land is used

a. he exercise of the government police power: the authority to provide for the publics health, safety, and welfare

b. Laws/Powers: Ordinances

(1) use restriction residential, business, industry

(2) density control

(3) height restrictions

(4) setback requirements

(5) parking requirements

(6) nuisance type of controls

(7) aesthetic/design protections

(8) variances (exceptions to oridnance)

(9) grandfathering (can stay but can’t expand)

c. Effect on ownership rights

d. Judicial Review

(1) Invalid Zoning Ordinance

(2) Ordinance had been applied unreasonably

(3)

3. Restrictive Covenants: private restrictions on land created by a developer of sub visions who file a master plan with the courthouse where the property is located

• constructive notice

• constitutional restrictions (can’t be base on race or religion)

• no restriction covenants allowed based on parentage

b. creation

enforcement

federal constitutional limits

Transfer of Real Property

1. Transfer by Deeds

• Requirements

  • in writing

  • names/address of the parties: grantor - grantee

  • description of the property - meats and the bounds

  • time of convergence - closing (when is it transferred)

    • lien: bank’s interest

    • grantor/grantee does same time

  • type of deeds

  • signatures of parties

  • delivery

• Recordation: new owner is grantee

• Marketable Title: property is free from

  • encumbrances (liens)

  • defects/chains of title

2. Transfer by Adverse Possession

a. Requirements:

(1) possession of a panel of land by non-owner for the statutory panel of the tort of trespass

(2) open and notorious

(3) continuous and uninterrupted

(4) hostility (no permission)

(5) under colorable claim of rights

Transfer by Trust

1. Trust instrument (doc) that spilts ownership of property into 2 parts:

(1) legal ownership: title - the trustee

(2) beneficiary ownership

• control person who creates the trust = settlor

Types

a. Testamentary

b. Living/Inter Vivos

(1) Revocable: avoid probate (public administration of will = expensive + timely)

(2) Irrevocable: too much money, avoid by Trust, avoid death taxes

c. Special and Implied:

(1) Charitable Trust

(2) Spendthrift Trust: protect beneficiary from predators

• creditors cannot go after trust

Transfer by Will

1. Will Language

(1) Testator/Deceased - last will and testament

(2) Testamentary Trust

(3) Testamentary Gifts

(4) only speaks at death

(5) Executor: person(s) administers will

(6) Testamentary Estate

(7) Surviving spouses force share (can cut kid, but not spouse)

• if has kids, spouse is entitled to 1/3 of estate

• if no kids, spouse is entitled to ½ of estate