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Legal Survey Vocab 4

Legal Survey vocab for paralegal test 4: property, estate, family, bus. org.

QuestionAnswer
Property A tangible object or a right or ownership interest
Real Property/ Real Estate Land and items growing on or permanently attached to that land
Personal Property/Chattel All property that is not real property
Tangible Property that can be touched & moved
Intangible Property that cannot be touched
Intellectual property Intangible assets that are the product of someone’s intellectual creation
Trademarks Terms,names,logos that identify particular products or services
Service marks Symbols used in connection with service-oriented businesses
Copyrights Give authors, etc. right to control their creations
Patent Gives owner the right to exclude others from making, using, or selling invention
Estate (property law) An interest in or a title to real property
Freehold estate Right of title to real property that extends for life or some other indeterminate period of time. 3 types: fee simple absolute, condition fee, life estate
Leasehold estate Gives a person “ownership rights” for a limited period of time, but the title to the property remains in the hands of the owner. 4 types: tenancy for a term, periodic tenancy, tenancy at will, tenancy at sufferance
Fee Simple Absolute estate Ownership free from any condition or restriction
Conditional fee estate Current owner retains ownership only as long as certain conditions are met, if conditions are not met, ownership reverts to the previous owner (the grantor) through reversion; or is given to a third-party = remainder
Life estate Gives life tenant ownership that lasts only as long as that person, or some other named individual, lives. After that, it reverts to original owner.
Per Autre Vie Deed to a person as long as a third person is alive
Joint tenancy Ownership by 2 or more persons who have equal rights in the use of that property. When a joint tenant dies, that person’s share passes to the other joint tenant(s)
Tenancy in Common Ownership by 2 or more people. Ownership shares do not have to be equal, but each has an undivided interest in the property. When a tenant in common dies, that person’s share passes either by will or by intestate statute
Tenancy by the entirety A special type of joint tenancy applicable only to married couples. Neither the wife or husband can transfer the property without the others consent
Joint tenancy with a right of survivorship Joint tenancy
Restrictive covenant A provision in a deed that prohibits specified uses of the property
Easement A right to use property owned by another for a limited purpose
Easement in gross Not located next to your property
Easement appurtenant Next to your land
Lease An agreement in which the property owner gives someone else the right to use that property for a designated period of time
Lessor Landlord
Lessee Tenant
Leasehold A parcel of real estate held under a lease
Tenancy for a term Aka Estate for years, lease establishes a set period of time
Periodic tenancy Rental periods are established at set intervals (week to week, year to year,etc)
Tenancy at will Lease that has no specific time period
Tenancy at sufferance A situation in which ther person in possession of the land has no legal right to be there
Forcible entry and detainer, or unlawful detainer Eviction procedures (in some states)
Summary eviction NC now has this form - supposed to by quicker, cheaper
Partial eviction Example: road built through the land
Constructive eviction Effectively evicted because property is unfit to live in
Retaliatory eviction Illegal; e.g. landlord evicts you for your complaint to the health dept. about poor conditions
6 means of transferring real property 1. sale, 2. death, 3. gift, 4. seizure by creditor, 5. eminent domain, 6. adverse possession
Listing agreement A document that spells out the nature of the services a real estate agent will perform with respect to selling real property and how the agent will be compensated for those services
Earnest money The money the buyer turns over to the real estate agent to be applied to the purchase price of property
Title search An examination of documents recording title to the property to ensure the owner has a clear title
Clear title Aka marketable title, an ownership right that is free from encumbrances or other defects
Abstract A condensed history of the title, which includes the chain of ownership and a record of all liens, taxes, or other encumbrances that may impair the title.
Title insurance Insurance against any loss due to a defective title
Mechanic’s lien Claim by a contractor or repair person who had done work on the house for which he has not been fully paid
Encumbrance Lien or other type of security interest that signifies that some other party has a legitimate claim to the property as a means of satisfying debts or the current owner
Real estate closing Meeting at which the buyer and the seller and/or their rep. sign and deliver a variety of legal documents
Deed The legal document that formally conveys title to the property to the new owner
Warranty deed A deed in which the seller promises clear title to the property.
Special Warranty deed Grantor didn’t do anything to cloud title, but can’t be sure of previous owners
Quitclaim deed A deed in which the grantor gives up any claims to the property without making any assertions about there being a clear title
Closing statement An itemized allocation of all the costs and moneys exchanged among the various parties, including financial institutions and real estate brokers, when a property is sold
Land contract An installment contract for the sale of land. Buyer takes physical possession and begins making monthly payments to the seller, which will be applied to the agreed-on sale price. If buyer defaults, the seller gets to keep title to the property & payments.
Decedent A person who died
Devise A gift of real estate that is given to someone through a will
Foreclosure The process by which a creditor who holds a mortgage or some other form of a lien on real property can force the sale of that property in order to satisfy the debt to the mortgage or lien holder
Power of sale clause A clause authorizing a private foreclosure sale that does not require court action
Eminent domain The power of government to take private property for public purposes
Just compensation The amount of money the gov’t must pay the owner of property it seizes through eminent domain
Adverse possession A transfer of real property rights that occurs after someone other than the owner has had actual, open, and exclusive use of the property for a statutorily determined number of years
Bailment A temporary transfer of personal property to someone other than the owner for a specified purpose (take clothes to the dry cleaner)
Bailor The owner of the personal property that is being temporarily transferred as part of a bailment
Bailee The party taking temporary control of the personal property during a bailment
Accession One way of acquiring ownership of personal property- something added to an existing item you own
Commingling Fungible - goods that are not unique (barrel of wheat)
Confusion Goods get not only commingled, but mixed into something new
Mislaid You put it down & forgot it - other than original owner, the best right of possession is the owner of the place you left it
Lost Item separated from you without you knowing it - other than original owner, the best right of possession is the finder
Abandoned Willingly relinquish your ownership - finder becomes new rightful owner
Estray statute If LOST property goes unclaimed for a year, then the finder becomes the rightful owner
Escheat statute Applies to banks, insurance companies, corporations, etc. - property not claimed goes to the state
Treasure trove Special case - property was not lost, mislaid, abandoned; nonetheless, the rightful owner no longer known - property rights go to the finder (even if on someone else’s land)
Estate (estate planning) The total property of whatever kind, both real and personal, that a erson owns at the time of his or her death
Will The document used to express a person’s wishes as to how his or her property should be distributed upon death; not a contract - no consideration; not a gift - no delivery by the giver
Testate When a person dies with a valid will
Intestate When a person dies without a valid will
Testator/testatrix The person making a will to direct how his or her assets will be distributed at death
Formal will A will that has been prepared on a word processor or typewriter and has been properly signed by the testator & witnesses
Holographic will Informal will; one that was handwritten by the testator, without the witnesses signatures necessary for a formal will. About ½ the states recognize such wills as valid
Nuncupative will An oral will. The few states that recognize these as valid only do so when the testator was in fear of imminent death and usually require at least two witnesses
Bequest/legacy A gift of personal property in a will
Beneficiary The person named in a will, insurance policy, or trust who receives a benefit
Executor/executrix A person appointed by the testator to carry out the directions and requests in his or her will
Guardian One who is given the responsibility of managing the affairs or property of a person who is incapable of administering his or her own affairs
Simultaneous death clause Clause stating that if a person named as beneficiary in the will dies shortly after decedent, it's assumed for purposes of the will that the person failed to survive the decedent; often inserted for tax purposes so estate taxes aren’t paid twice
Self-proving clause A notarized affidavit, signed by the attesting witnesses, that may eliminate the need to call witnesses during the probate process to attest to the validity of the will.
Codicil A supplement or addition to a will that modifies, explains, or adds to its provisions. (Alternatively, the testator can destroy the old will and draft a new one.)
Living will AKA medical directive; a document expressing a person’s wishes regarding the withholding or withdrawal of life-support equipment and other heroic measures to sustain life if the individual has an incurable or irreversible condition that will cause death
Durable Power of Attorney Someone appointed to do something on your behalf even after (or upon) you lose your mental capacity
Probate The process of court supervision over the distribution of a deceased person’s property
Executor Person appointed in the will to carry out the directions and requests of the will
Administrator/administratrix Person appointed by the court to carry out the directions & requests of a will
Heir Generic term for someone entitled to inherit property left by the decedent
Kindred Persons related to the decedent by blood (consanguinity)
Affinity Persons related to the decedent by marriage
Lineal heir Grandparent, parent, child, grandchild, or great grandchild of the decedent
Descendants Aka issue, those lineal heirs who descend from the decedent
Collateral heir One who has the same ancestors but does not descend from the decedent (siblings)
Per stirpes Aka right of representation; a method of dividing an intestate estate whereby a person takes in place of the dead ancestor. (if a parent is dead, the children inherit the dead parent’s share); alternative method is per capita
Escheat A reversion of property to the state when there are no heirs
Testamentary capacity The mental capacity (aka sound mind) whereby the testator understands the nature of his/her property and the identity of those most closely related to him/her
Trust A legal relationship in which one party holds property for the benefit of another. Not a public document (as opposed to a will)
Donor Aka grantor or settler; a person who creates a trust
Rule against perpetuities Ownership must vest withing lives in being + 20 years + gestation period (9 months). If it doesn’t have end, trust is invalid from the beginning
Trustee The person appointed to administer a trust
Inter vivos trust One that is created before a person’s death
Living trust A commonly used type of inter vivos trust specifically designed to avoid probate.
Causa mortis gift Conditional gift subject to a condition that the giver die from condition he expected to die from (different from a gift in a will)
Revocable trust The donor can change the beneficiaries and terms at any time and take back full ownership and control of the property
Irrevocable trust The terms of the trust cannot be changed and the donor cannot regain ownership or control of the property
Testamentary trust A trust created by a will. It does not become effective until after the testator’s death.
Corpus The property of the trust
Express trust Usually written trust (rarely oral)
Implied Trust
Charitable Trust
Spendthrift Trust Beneficiary has no right to sell trust interests (prevents problems when beneficiary is irresponsible)
Totten Trust Grantor puts money in separate account in their name for the benefit of a trustee. It can be revoked at any time.
Tontine Trust Group of people all put money in - it stays until last of them die & that person’s child(ren) get all the money
Sole proprietorship One owner, single taxation, unlimited liability
Partnership Two+ owners, single taxation, unlimited liability
Corporation One or more owners, double taxation, limited to capital contribution
Subchapter C corporation
Subchapter S corporation
Limited liability company One or more owners, single taxation, limited to capital contribution
Limited partnership A partnership of at least one general partner and one or more limited partners. The limited partners’ liability is limited to their investments so long as they do not participate in management decisions
Uniform Partnership Act (UPA) Known as a gap filler, the UPA comes into play only if terms are left out of a partnership agreement
Partnership by estoppel A partnership created by the words or actions of persons acting as though they were a partnership
Dividend A distribution of the corporate profit as ordered by the directors
Articles of incorporation Primary document needed to form a corporation
Registered agent The person designated to receive service of legal documents for a corporation
Shareholders Persons who hold shares of stock. They elect board of directors.
Board of Directors Responsible for the management of the corporation
Fiduciary A relationship in which a person in a position of trust is responsible for acting in the best interests of another party
Closely held corporations Relatively small operations in which one person or the members of one family own all the stock
Foreign corporation When a corporation incorporated in one state does business in another state
Domestic corporation When a corporation does business in the same state it’s incorporated in
Alien corporation A corporation formed in another country
Domestication Foreign & alien corporations must file for this in order to do business in a state
Public corporation Widely held - public shareholders
Private corporation Small number of shareholders
Closely Held (or Close) corporation Small number of shareholders (often family)
Piercing the corporate veil When a court sets aside the liability protection normally given to corporate shareholders
Limited liability company (LLC) A new form of business ownership that gives small businesses the advantage of liability limited to the amount of the owner’s investment along with single taxation
Limited liability partnership (LLP)
Commercial paper Refers to a variety of instruments (written documents) used for making payments
Secured transaction Whenever a supplier or creditor asks for a guarantee of repayment in the form of collateral
Note A promise to pay money involving two parties, maker & payee; maker signs the instrument promising to pay money to the payee
Co-makers Of a note…both are liable
Guarantor Person who signs on the back of a note. Secondarily liable if maker(s) default.
Draft Three-party instrument in which the drawer orders the drawee (if bank it’s a check, if else it could be money order) to pay money to the payee; it is an order to pay
Check A specialized form of a draft in which a bank depositor names a specific payee to whom funds are to be paid from the drawer’s account; it is an order to pay
Cashier’s check Drawer & drawee are same bank
Teller’s check Drawn by a bank on another bank
Certified check Check accepted for payment by a bank (bank promises to cash it)
Bearer paper Instrument will have written on its front a statement that it is payable to cash or payable to the bearer, or it will have a signature on the back, causing it to be indorsed in blank
Indorsement in blank, blank endorsement When an indorser simply signs his or her name and does not specify to whom the instrument is payable - it becomes bearer paper
Special endorsement When an indorser writes “pay to Person C” on the back. Person B is still responsible
Qualified endorsement When an indorser writes “pay to Person C without recourse” on the back. Person B is not responsible if it bounces
Order paper States on its face “pay to the order of” a specific payee and has not been indorsed in lank on its back
Negotiable instrument Commercial paper that can be transferred by endorsement or delivery. Must meet the requirements of UCC s 3-104 to be negotiable. If it does not, a transferee cannot become a holder but only gets the rights along with the liabilities of a contract assignee
UCC requirements for negotiable instrument 1. in writing, 2. signed by the maker or drawer, 3. an unconditional promise or order to pay, 4. state a specific sum of money, 5. payable on demand or at a definite time, and 6. payable to order or to bearer
Holder If bearer paper - a person becomes holder by proper delivery; if order paper, by proper delivery AND it must have all necessary indorsements
Holder in due course A holder who has not only the right to enforce the agreement but also to be exempt from some of the defenses that could have been asserted against the original payee.
Shelter principle One can buy the rights of a negotiable instrument free of personal defenses
Personal defense to neg. instrument Breach of warranty, unauthorized completion (filling out the check w/out approval)
Universal defense to neg. instrument Even HDC not protected - bankruptcy, alteration, forgery
UCC requirements for holder in due course 1. who gives value, 2. in good faith, and 3. without notice that the instrument is overdue or has been dishonored or has any claims against it or defenses to it
Attached security interest (attachment) 1. creditor must either possess the collateral or have a signed security agreement, 2. the creditor must have given something of value, and 3. the debtor must have rights in the collateral
Perfected security interest (perfection) 1. possessing the collateral, or 2. filing a financing statement, or 3. giving money to purchase consumer goods
Purchase money security interest PMSI Special type of perfected security interest in which a seller gives credit to a debtor so that the debtor can purchase a particular item
Buyer in the ordinary course of business Rule protecting the ordinary buyer. (If you buy a tv from Sears & Sears defaults on a debt incurred in purchasing tv inventory. The creditor can’t seize your tv.)
Order of priorities among creditors & buyers 1. buyers in the ordinary course of business, 2. perfected purchase money security interests, 3. perfected security interests, 4. lien creditors, 5. unperfected security interests, 6. general creditors
Floating lien A security interest can be retained in collateral even when the collateral changes in character or location
Agent Someone who has the power to act in the place of another
Principal A person who permits or directs another person to act on the his/her behalf
Fiduciary duty A legally imposed obligation to act in the best interest of the party to whom the duty is owed
Equal dignity rule If the thing you want your agent to do must be in writing, then the agency relationship must be created in writing
Actual authority Can be express or implied
Apparent authority 3rd party believes that the person is an agent of someone
Alternate ways agency relationships can be created 1. estoppel - if principal holds you out as an agent & a 3rd party relies on that, 2. by order of law “agent for service of process” - if agent dies - someone is appointed to take place, 3. by emergency
Agents duties to Principal 1. performance, 2. notification, 3. loyalty, 4. obedience, 5. accounting
Principals duties to Agent 1. compensation (usually), 2. reimbursement & indemnification, 3. cooperation, 4. safe working conditions
Fully disclosed agency Identity of agent & principal known; if breach of contract, principal is liable, not agent
Partially disclosed agency Identity of principal unknown; if breach of contract, both are liable
Undisclosed agency Not aware you’re dealing with an agency relationship; if breach of contract, agent is liable, principal can be held liable if identity discovered
Respondeat superior “let the master answer”, tort theory that an employer can be sued for the negligent acts of its employees
Title VII Part of the Civil Rights Act of 1964 dealing with employment. Also established EEOC.
Protected categories under Title VII Race, color, religion, sex, and national origin
3 theories of discrimination Overt, disparate treatment, disparate impact
Overt discrimination Where the employer openly refuses to treat all applicants or employees equally
Bona fide occupational qualification A defense to an overt discrimination claim, alleging that the qualification is necessary to the essence of the business operation
Disparate treatment The legal theory applied when a rejected applicant claims the reason for rejection was based on a discriminatory intent but the employer alleges a nondiscriminatory reason
Disparate impact The legal theory applied when the use of a neutral standard has a disproportionate impact on one protected group
Burden of production The necessity to produce some evidence, but it need not be so strong as to convince the trier of fact of its truth.
Burden of proof The necessity of proving the truth of the matter asserted
Quid pro quo sexual harassment Involving an exchange of sexual favors for employment benefits
Intimidating, hostile, or offensive work environment A reasonable person would find it to be hostile or abusive
Affirmative action Allows an employer to use race or gender as a “plus factor” when choosing between two equally qualified applicants
ADEA Age Discrimination in Employment Act (1967) - Protected class age 40+
ADA Americans with Disabilities Act (1990)
Disability A physical or mental impairment that substantially limits a major life activity
Qualified individual with a disability An impaired individual who can perform the essential job functions
Reasonable accommodation Special provisions for a disable employee that do not create an undue hardship for the employer
Family law The area of the law that covers marriage, divorce, and parent-child relationships
Solemnized marriage A marriage in which the couple has obtained the proper marriage license from a local government official and has then taken marriage vows before either a recognized member of the clergy or a judge and a designated number of witnesses.
Common-law marriage A marriage that has not been solemnized but in which the couple has mutually agreed to enter into a relationship in which they accept all the duties and responsibilities that correspond to those of marriage
Forced share Each of the married partners is given a statutory right to inherit from the other, even if the other spouse seeks to prevent it
Prenuptial agreement (aka antenuptial agreement) A document that prospective spouses sign prior to marriage regarding financial and other arrangements should the marriage end
Anti-heart-balm statute A law that prohibits lawsuits for such things as breach of a promise to marriage, alienation of affection, and seduction of a person over the legal age of consent
Annulment A legal (or religious) judgment that a valid marriage never existed. Because a legal marriage never existed, normally there are no continuing matrimonial obligations, such as a duty to pay support or attorney’s fees.
Divorce (aka dissolution) A legal judgment that dissolves a marriage. Does not erase the existence of the marital relationship.
Voidable marriage A marriage that was valid when it was entered into and that remains valid until either party obtains a court order dissolving it
Void marriage A marriage that is invalid from its inception and that does not require court action for the parties to be free of any marital obligations
Fraud A false representation of facts or intentional perversion of the truth to induce someone to take some action or give up something of value
No-fault divorce A form of divorce that allows a couple to end their marital relationship without having to assess blame for the breakup.
Temporary restraining order (TRO) Sometimes also called a protection order,A court order of limited duration designed to maintain the status quo pending further court action at a later date
Protection order A court order issued in domestic violence and abuse cases to keep one spouse away from the other, the children, or the home
Settlement agreement A document that contains the arrangements agreed on by the parties to a dispute
Marital property Property that is subject to court distribution upon termination of the marriage
Alimony (aka maintenance or support) Financial support and other forms of assistance required to supply the “necessities” of life; in NC: alimony terminated by remarriage or cohabitation of the dependent spouse, or by the death of either spouse
Community property states States that classify all property acquired by either the husband or the wife during the marriage, with the exception of gifts or inheritance, as marital property to be equally distributed between the spouses at the time of the divorce.
Doctrine of equitable distribution A system for distributing property acquired during a marriage on the basis of such factors as the contributions of the souses, the length of the marriage, the age and health of the souses, and their ability to make a living
Physical custody The child lives with and has day-to-day activities supervised by the designated parent or guardian
Legal custody The designated parent or guardian has authority to make legal decisions for the child relating to such matters as health care and education
Sole custody One parent has both physical and legal custody of the child
Joint legal custody Both parents have an equal say in making major decisions
Split custody Example: one parent has both physical and legal custody for the school year, then the other parent has it for the summer.
Split or divided custody Can refer to rare situation when one parent has one+ child & the other parent has one+ child
Guardian ad litem Court appointed person, usually an attorney or social worker, who speaks for the interests of the child
Visitation Court determines the extent to which the noncustodial parent can visit the child
Child support Money that the noncustodial parent contributes to assist the custodial parent in paying for a child’s food, shelter, clothing, medical care, and education
Garnishment A process through which a court can require an employer to withhold money from an employee’s wages and turn this money over to the party to whom a debt is owed
Extradition The transportation of an individual from one state to another so that person can be tried on criminal charges
Agency adoption An adoption in which a licensed agency assumes responsibility for screening adoptive parents and matching them with available children
Independent adoption An adoption that involves a private agreement between the birth parents and the adoptive parents
Surrogacy contract A document in which a woman agrees to conceive and give birth to a child, deliver the child to its natural father, and terminate her parental rights so the father’s wife can become its adoptive mother
Child neglect The negligent failure to provide a child with the necessaries of life
Child abuse Intentional harm to a child’s physical or mental well-being
Clear and convincing An evidentiary standard that requires more than a preponderance of the evidence but less than beyond a reasonable doubt
Emancipated minor Someone who is still under the legal age of adulthood but who has nevertheless been released from parental authority and given the legal rights of an adult
NC divorce A year separation or incurable insanity; for NC jurisdiction - at least one spouse must live in the state for 6 months
NC division of property Equitable distribution or agreement of the parties (separation agreement)
Created by: Paralegal on 2010-02-27



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