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Property
| Term | Definition |
|---|---|
| property | is legally recognized rights held by one person in relation to others with respect to some thing or object. |
| property (BoR) | includes a “bundle of rights” with the most basic rights in the “bundle” are the “right to exclude,” the “right to transfer,” and the “right to possess and use.” |
| Right to exclude | One who has legal ownership or possession of property generally has the right to exclude others from entering or occupying or trespassing on property. Such rights are not absolute |
| Right to transfer | Ownership of property includes the right to transfer one’s interest in that property to others. One might sell those rights for money, or bequeath those rights in a will, or give those rights to another as a gift. The right to transfer is not absolute. |
| Right to Possess | Ownership or possession of property allows one to decide how to use that property. Such rights are not absolute. |
| Categories of property | Real property are rights in land and things attached to land (buildings, signs, fences, trees, etc.) Personal property are rights in things other than land. |
| personal Property | Personal property includes Tangible (chattels – movable items of property such as cars, books and jewelry) and Intangible (intellectual property, such as patents, trademarks, copyrights, etc.) |
| Trover | a common law cause of action to recover the value of personal property wrongfully converted by another to his own use. The plaintiff must show he has an interest in the property and a right to its possession at the time of the alleged conversion. |
| Replevin | an action to recover possession of personal property from someone who is wrongfully in possession |
| Finders rule | a finder of property prevails as against all but the true owner or prior possessors of that property |
| Bailment | A bailment is the rightful possession of goods by a person (the bailee) who is not the owner (the bailor). A bailee must exercise ordinary (reasonable) care to protect the bailor’s goods. |
| Voluntary bailment | occurs when the bailor gives possession of her goods to the bailee.- Owner entrusted bailee |
| Involuntary bailment | In the case of found goods, an involuntary bailment is created because, although the owner did not voluntarily give possession of the goods to the finder, the finder chooses to take possession. |
| Ejectment | common law action to regain possession of real property from someone occupying it wrongly (similar to replevin) |
| Trespass | seeking damages for wrongful entry onto the owner’s real property (somewhat similar to trover or conversion) |
| Locus | Owner of the real property owns the soil and owns everything attached to the soil or under the soil, whether they’re aware of it or not. - ad coelum doctrine |
| lost | A finder does not have the same right to hold mislaid property against all but the true owner (and prior possessors) as she would if it were lost property |
| lost property v. mislaid | Lost property is property unintentionally parted with and Mislaid property is property deliberately placed and unintentionally forgotten |
| Adverse possession | requires that there be (1) an entry that is actual and exclusive, (2) open and notorious, (3) continuous for the statutory period, and (4) adverse and under a claim of right. |
| Claim of right test | the adverse possessor’s subjective belief about who owns the land is irrelevant (majority rule) If the possessor uses the land as a reasonable owner would use it – without permission from the true owner – the “claim of right” element is satisfied |
| GCR: Good Faith | the adverse possessor must believe in good faith that she owns title to the land (minority rule) |
| CR: Intentional trespass | the adverse possessor must (1) know that she does not actually own the land and (2) subjectively intend to take title from the true owner |
| Constructive Adverse Possession | having “color of title” allows actual possession of only part of the land covered by the writing to constitute constructive possession of all the land described in the writing - COT- written instrument supporting the claim of right to the property |
| Tacking | Tacking” of periods of possession is permitted if successive occupants are in “privity” Successive occupants are in “privity” if there is a voluntary transfer of either an estate or possession from one occupant to another |
| Disability | An action to recover the title to or possession of real property shall be brought within SOL but if a person, is within the age of minority, of unsound mind, or imprisoned, may bring such action within five years after such disability is removed. |
| AP: Government | cl- no modern- yes, longer, not public land |
| Gift | i. A voluntary, immediate transfer of property without consideration from one person (the donor) to another person (the donee) |
| Intent | the donor must intend to make the gift |
| Delivery | the donor must transfer physical possession of the gift to the donee if practicable; if not, some constructive or symbolic delivery is required |
| Traditional delivery | If an object can be handed over, it must be. If manual delivery is not practicable because of the size or weight of the object, or its inaccessibility, constructive or symbolic delivery may be permitted. |
| Constructive | handing over a key or some object that will open up access to the subject matter of the gift. |
| Symbolic | handing over something symbolic of the property given – usually a written instrument declaring a gift of the subject matter |
| 3. Acceptance | the donee must accept the gift |
| Gift Inter Vivos | a gift made by one living person to another; once effectively made it is irrevocable |
| Gift Causa Mortis | a present gift between living persons, but one made in anticipation of the donor’s imminent death; thus, if the donor survives the anticipated peril, the gift is revoked- automatic or steps |
| Gift exceptions | Gp, wristwatch, remainder |
| Estate | an interest in land which is or may become possessory, thus including present possessory interests as well as future interests in land, and is ownership measured in terms of duration |
| Present Estate | sometimes referred to as a “present estate”) – a legal interest that entitles the owner of the estate to immediate possession of real or personal property |
| Future interests | a non-possessory interest in real or personal property that will or may became a possessory estate in the future |
| Freehold estate | forms of owning land |
| fee simple | an estate of potentially infinite duration |
| fee tail | and estate whose duration is measured by the lives of the lineal descendants of a designated person - yes, fsa, fsa, but b, le/fsa |
| life estate | an estate whose duration is measured by the lives of one or more specified persons-----A life tenant can convey a life estate pur autre vie to another party (a life estate measured by the grantor’s or some other person’s life, not the life of the grantee) |
| Absolute | There is no language creating the estate indicates that it may end prematurely if a particular future event occurs |
| Defeasible | The language creating the estate indicates that it may end prematurely if a particular future event occurs |
| determinable | automatically expires at the time when a particular event occurs, immediately giving the original transferor the legal right to possession- possibility of reverter |
| Subject to condition subsequent | does not automatically expire when the triggering future condition occurs; instead, future interest holder is given the power to take affirmative action to end the estate- Right of entry- when ambiguity |
| Subject to Executory limitation | automatically expires when a stated future event occurs, but gives the right to possession to a transferee (not the original transferor) without any affirmative act by the future interest holder – executory interest |
| Reversion | reversion is the future interest that arises when the grantor transfers to another a lesser quality estate than the grantor has, and does not at the same time transfer the balance of the estate to a third party |
| Technical reversion rule | If a grantor has a fee simple, that grantor will not have a reversion in fee simple if she transfers a possessory fee simple or a vested remainder in fee simple. |
| possibility of reverter | future interest that arises when the grantor creates a determinable estate of the same quality as her own, and does not give the balance to a third party in the same conveyance- reversion |
| Right of entry | the future interest that arises in the grantor following an estate subject to condition subsequent when there is not in the same conveyance a gift over of the future interest to a third party |
| remainder | if simultaneously created with the prior interests and comes into possession, if at all, precisely at the natural termination of the prior vested estate. |
| vested remainder | given to an ascertained person and is not subject to any condition precedent other than the natural termination of the prior estate- subject to partial d- conveyance to a group or class of people sub to total d- sub to condition subs/ clause |
| contingent remainder | if given to unascertained persons or if subject to a condition precedent other than the natural termination of the prior estate |
| condition precedent | if (a) the condition precedes the grant or (b) the grant and the condition are in the same phrase regardless of their order. |
| executory interests | Executory interests always divest- deprive someone of power, rights, or possessions - a prior vested estate or interest Shifting = divests a previous grantee Springing - divests a grantor, |
| Conveyance | the transfer and assignment of any property right or interest from one individual or entity (the conveyor) to another (the conveyee). |
| deed | a written instrument to transfer an estate or other interest in land inter vivos (during the owner’s lifetime), |
| will | a written instrument, effective only upon death, by which an owner transfers property interests at death |
| Alienation | A clause used in the conveyance of real property that seeks to prohibit the recipient from transferring his interest in the property. if ambiguity of testator’s intent from language and, applies rules of construction, frequently codified by statute |
| legal waste | Common law principle for resolving land disputes where property rights are divided between persons holding present estates and future interests in the same land. |
| Affirmative waste | occurs when the voluntary acts of the present estate owner significantly reduce the value of the property |
| Permissive Waste | inaction of the present estate owner falling below a standard of reasonable care to protect the value of the estate |
| Life Estate Actuarial | one % of value in property change depending on life left |
| 3rd restatement | It replaces them with a single estate, the fee simple defeasible, defined as “a present interest that terminates upon the happening of a stated event that might or might not occur. |
| RAP | If it is at all possible that a contingent future interest in a third party could vest in interest after the time limit of the RAP, then the interest is void from the outset |
| Validating Life | any validating life – a life in being (a person living) at the time of creation of the interest . |
| Use of VL | such that by using that life you can prove that the interest in question must necessarily vest, if at all, within that person’s lifespan, or at their death, or no longer than 21 years from their death, then the interest is valid; otherwise it is invalid.c |
| Analyze | First, analyze the conveyance- ei, cr, vrpd Second- vesting event is for that interest. Third, determine whether there is a validating life for the vesting event. |
| Extras | Fertile Octogenarian rule assumes that as long as you are alive, you can still have kids even if it is scientifically impossible Unborn widow problem- widow in unascertained. So long as a child has been conceived, that time is added in. |
| USRAP | If at the end of 90 years following creation of the interest, the interest is still in existence and unvested, it is invalid. Under the USRAP, waiting 90 years to determine the interest’s validity will not always be required |
| wait and see | we “wait and see” whether the contingent interest actually vests or terminates within the permissible vesting period. If it still exists and is unvested at the end of that period, then it is invalid. |
| Analyze w and s | If the contingent interest is valid under the common law RAP, it is valid. ii. If not, If it actually vests or terminates within the permissible vesting period, it is valid. If it does not, it is invalid. |
| Co- ownership | where two or more persons simultaneously hold the right to current (possessory) or future possession of property. |
| b. Tenancy in common | Each co-owner of this estate holds an undivided, fractional share of the whole interest. If a possessory estate, each is entitled to simultaneous possession and enjoyment of the whole parcel of land no -ros |
| Joint Tenancy | Time (acquire title at the same time)Title (acquire title by the same deed or will) Interest (each joint tenant had to own the same fractional interest) Possession (each joint tenant had to have an equal right to possession of the entire parcel) |
| Right of survivorship | The right of survivorship means that each joint tenant is deemed to own the entire estate as a single unit with the other joint tenants. Upon the death of a joint tenant, the interests of that joint tenant are extinguished (withdrawn from the estate). |
| Tenancy by entirity | A valid tenancy by the entirety required the four unities of time, title, interest, and possession, plus the fifth unity of a valid marriage - ros - one spouse cannot unilaterally break the required unities |
| TE: Common Law | the husband could alienate his right of possession and his right of survivorship. though wife- ros - Creditors thus risked the possibility that property seized to satisfy the debts of the husband would go back to the wife if she survived the husband |
| Post Married Womens Property Acts : group one | these acts did not change the common law tenancy by the entirety. States that fell in this group no longer recognize the estate at all |
| PMWPA: Group 2 | these acts had the purpose of giving the wife the same rights as the husband had- Neither spouse can destroy the right of survivorship in the other Creditor thus becomes a tenant in common with the non-debtor spouse for the joint lives of the spouses |
| PMWPA: Group 3 - majority | Both husband and wife are forbidden to alienate his or her interest in the property without the consent of the other neither his nor her creditors can reach the entirety property |
| PMWPA: Group 4 | creditors cannot levy on the debtor’s right to possession but can levy on the debtor spouse’s right of survivorship. Thus, creditors cannot interfere with the spouses’ use and enjoyment of the property, but take all if the non-debtor spouse dies first |
| extras | strawman, sim death, murder |
| Judicial Partition | Any tenant in common or joint tenant may sue for judicial partition, which ends the co-tenancy and distributes the property among the former cotenants as solely-owned property. Absent an agreement to the contrary |
| Partition in kind | is a physical division of the property into separate parcels |
| owelty | the value of the parcels might not be equal due to various differences in the parcels – a court can equalize such a distribution by ordering a money payment called owelty |
| partition by sale | only where it is demonstrated (1) the physical attributes of property make partitioning impracticable or inequitable and (2) the interests of the cotenants are better promoted by a sale. |
| ouster | Ouster occurs when a cotenant in possession of property refuses the request of another cotenant to share possession of the property. maj- in exclusive possession no owe unless ouster, min- do owe |
| Co-tenant leasing | same rights- can only lease yours - --- share rent, cost - entitle to contribution - repair- if notice, sometimes without |
| leaseholds | Forms of renting land |
| Term of years tenancy | The tenancy lasts for a period of time that is either (a) fixed in advance, or (b) computed using a formula agreed to in advance Tenancy automatically expires when the agreed period ends- can be determinable |
| Periodic Tenancy | Lasts for an initial fixed period and then automatically continues for additional equal periods until either the landlord or tenant terminates by giving advance notice If neither L nor T gives notice, the tenancy will continue indefinitely term fixed |
| Tenancy at will | Has no fixed duration and endures only so long as both L and T desire At common law, the estate ended immediately |
| Tenancy at sufferance | person in rightful possession of land wrongfully continues in possession after that right ends- under the common law an option, to either (a) evict the tenant as a trespasser, or (b) hold the tenant to a new tenancy |
| Delivery: English | There is an implied covenant that the landlord will put the tenant into physical possession of the property |
| Delivery: America | There is no implied covenant, so unless it is expressly stated, the tenant must take action against the wrongful tenant |
| Privity | Privity denotes a voluntary transactional relationship between two or more people or entities - estate occurs when a landlord conveys a right of possession of real property to a tenant contract occurs when parties enter into a contractual relationship |
| Sublease | A sublease between the original tenant and a new tenant does not convey all of the leasehold estate from the original tenant. |
| Assignment | An assignment of a lease from the original tenant to a new tenant ends the privity of estate between the landlord and the original tenant which now exists (by way of transfer) between the landlord and the new tenant. |
| Common law | A sublease occurs when a lessee transfers less than his entire interest in a lease to another. |
| Modern | considers the intention of the parties, looking among other things at the words used by the parties b. Thus, if the parties intended to create a sublease, it is deemed a sublease. If they intended to create an assignment, it is deemed an assignment. |
| Third party Bene | Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties |
| Novation | If landlord expressly agreed to release the original tenant in light of assignment, then the og will not be liable. |
| restraint on alienation | where a lease contains an approval clause - the lessor may arbitrarily refuse to approve a proposed assignee. (MAJORITY) consent may be withheld only for commercially reasonable objection to the assignment (min) |
| AirBnb | a. Many states (the majority) permit leases that prohibit assignments and subleases altogether, but that alternative comes at a price, because the prohibition may make the lease less attractive to some prospective tenants.- |
| Default | c. Evection, Summary judgement, Ejectment, Self-help repossession- must have legal right to possession and must be peaceful - some, only comm, banned |
| Mitigation - when abandonded | Majority rule now is that landlords do have an obligation to mitigate damages, they, the non-breaching party, are in a contract so they need to take reasonable efforts to mitigate the damages caused by the breaching party- not try to mitigate damages, |
| Quiet Enjoyment | implied covenant- a promise that the landlord (and those claiming under him) will not wrongfully interfere with the tenant’s possession of the premises |
| Constructive Eviction | when the lessor, without intending to oust the lessee, does an act by which the latter is deprived of the beneficial enjoyment of some part of the premises - tenant has his right of election, to quit, and avoid the lease and rent.. must quit |
| Actual Eviction | when the tenant is deprived of the occupancy of some part of the demised premises, |
| Implied Warranty of Habitability | In the rental of any residential dwelling unit an implied warranty of habitability exists in the lease, . . that the landlord will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation. |
| Transfers of land | locating, Negotiating, Preparation, closing |
| Preparation for closing | Buyer’s contractor or inspector, Inspection for termite infestation, apply for financing, title report will be prepared 5Most contracts contain a mortgage contingency – if buyer cannot obtain a mortgage loan before closing the contract is rescinded |
| Closing the Transaction | Buyer will execute a written promissory, Purchase loan is made by lender, Sales price is paid, Commission is distributed, Seller conveys title to buyer Buyer receives a title insurance policy, Deed and mortgage are immediately recorded |
| Contract for sale | price, Legal description, Good title furnished, Warranties of title, Date of transfer, Party responsible for risk of fire, Prorations of utility bills, furnishings, escrow agreement Provision for return of initial, Signature of the parties |
| SOF: Covering | 1. Contracts that cannot be performed within less than one year (the one-year provision) 2. Contracts involving transfers of interests in real estate (the land contract provision) |
| Analysis | Is the contract within the statute- oral contract- If the contract is within the statute, is there a sufficient memorandum If the contract is within the statute, and no sufficient memorandum exists- exception |
| Restatement (2d) of Contracts, § 131 (General requirements | evidenced by any writing, signed by or on behalf of the party to be charged - reasonably identifies the subject matter- is sufficient to indicate between the parties or offered by the signer to the other party - reasonable certainty the essential |
| Restatement (2d) of Contracts, § 132 (Several writings) | a. The memorandum may consist of several writings if one of the writings is signed and the writings in the circumstances clearly indicate that they relate to the same transaction. |
| Restatement (2d) of Contracts, § 133 (Memo not made as such) | a. Except in the case of a writing evidencing a contract upon consideration of marriage, the Statute may be satisfied by a signed writing not made as a memorandum of a contract. |
| Restatement (2d) of Contracts, § 134 (Signature) | a. The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer. |
| Exceptions : Part Performance | part performance allows the specific enforcement of oral agreements when particular acts have been performed by one of the parties to the agreement |
| Exceptions: Equitable Estoppel | applies when unconscionable injury would result from denying enforcement of the oral contract after one party has been induced by the other to seriously change his position in reliance on the contract |
| Restatement (2d) of Contracts, § 129- Specific performance | A contract for the transfer of an interest in land can be specifically enforced- if it is established that the party seeking enforcement, in reasonable reliance - that injustice can be avoided only by specific enforcement. |
| Merchantable Marketable Title | is free from reasonable doubt, and a title is doubtful and unmarketable if it exposes the party holding it to the hazard of litigation. … must be of a substantial character and one from which he may suffer injury. |
| Private restrictions/ government res | private- mere existence = violation gov- violation of restriction = issue |
| Rescission | iii. Buyer- can use rescission to get out of contract- don’t have to buy a title with reasonable doubt of a non-frivolous lawsuit – do before closing |
| Deed | document used to transfer an estate or other interest in land during the owner’s lifetime. |
| General Warranty deed | Contains six specific covenants of title warranting against any defect in the grantor’s title |
| Special Warranty Deed | Contains same title covenants found in GWD, but applies them only to defects caused by acts or omissions of the grantor |
| Quitclaim Deed | Warranting nothing |
| Present covenants | breached instantaneously at the moment the transfer is made |
| Covenant of seisin | i. Warrants that the grantor is the owner of the estate described in the deed ii. Covers both type of estate and the quantity of land being conveyed |
| Covenant of right to convey | Warrants that the grantor has the legal right to transfer title |
| Covenant against encumbrances | Warrants that there are no encumbrances on the land conveyed |
| Encumbrance | is a right or interest held by a third party – other than a present freehold estate or future interest – that reduces the value of or restricts the use of the land |
| Future Covenants | breached when someone shows up |
| Covenant of general warranty | a. Grantor’s promise to defend and indemnify the grantee who suffers an eviction or similar interference with possession by a person with superior or “paramount” title |
| Covenant of quiet enjoyment | Warrants that the grantee’s possession and enjoyment of the property will not be disturbed by anyone holding superior title |
| Covenant of further assurances | Promise that the grantor will execute any additional documents or take any other actions necessary to reasonably perfect the title conveyed to grantee |
| Covenants run | 7. MAJOIRTY- present covenants do not run with the land - only imemdte grantee not remote grantee 8. Minotiry- present covenants do run with the land, making it possible for a remote grantor to be held accountable to a remote grantee |
| Valid deed | Must be in writing (SOF)Must be signed by the grantor (SOF)Must identify the grantor and grantee Must contain words of conveyance Must describe the property Delivery |
| Delivery of deed | the grantor must manifest by words or actions an intent that the deed be immediately effective to transfer an interest in land to the grantee. |
| Conditional delivery | i. A grantor can hand a deed to a third party with oral instructions to deliver the deed to the grantee upon the grantor’s death. 1. Majority accepts- if it was irrevocable Courts will often let slide 2. Minority- will not |
| Recording system - first in time | at common law, the person who first acquires an interest in property prevails over anyone who acquires an interest later |
| Bona Fide Purchaser | a bona fide purchaser (subsequent purchaser of an interest in land without notice of an interest already held by a third party) prevails in a title dispute with a first-in-time claimant |
| notice | Actual notice- actual knowlegde, constructive- record, inquiry |
| Notice Juris | , a subsequent bona fide purchaser of property for value who has no notice (either actual or constructive/record) of a prior interest already held by a third party will prevail over that interest. |
| Race- notice Juris | a bona fide purchaser is a subsequent purchaser for value without notice of the prior interest who records his or her interest first. |
| Race Jur | under a race recording statute, the first purchaser for value to record prevails. |
| Idem Sonans | when an improperly spelled name sounds substantially like the true name, the spelling error is ignored. This doctrine is used to cure technical defects in legal documents or written instruments |
| RS: Analyze | Step 1: competing Step 2: you need to identify the most subsequent purchaser notice over all - the moment of purchase, Shelter rule – used in race- notice jurisdictions |
| defects | 3. Majority rule – when a defect in a deed does not appear on the face of the deed (latent), the deed provides constructive notice. If the defect is patent (visible on the face of the deed), then the deed is deemed to not give constructive notice. minnoce |
| mass v. Miss | title search to miss an additional conveyance, as they are no longer searcher under that grantor- there is no notice. Even once the grantor is located in the record with the converaynce, additional convaynces will be on constructive notice. |
| R- n : Shelter | a. A person who takes from a bona fide purchaser protected by the recording act has the same rights as his grantor. |
| R-n Statue | a. A race-notice statute protects the subsequent purchaser who first records his own conveyance only if all prior conveyances in his chain of title are also recorded. |
| Inquiry Notice | a. If a person has actual notice of facts that would cause a reasonable person to inquire further, she is deemed to know the additional facts that inquiry would uncover whether she inquired or not. |
Created by:
Vanderhoof_