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My CPA-REGmodule34

Notecards I made from Wiley's 2012 CPA Exam Review

What is real property (realty)? Fixtures? Personal property (personalty)? and things attached to land in a permanent manner 2.item that was originally personal but which is affixed to property in permanent manner, considered part of real property 3.tangible/intangible property not classified as real property or a fixtu
What factors are applied to determine whether personal property that has been attached to real property is a fixture? affixers objective intent, method and permanence of physical attachment, adaptability of use of personal property as it relates to the use of the real property(Both used for same thing?)
What is a trade fixture? What kind of property? 1.fixture installed by tenant in connection with business on leased premises 2.personal(can remove at end of lease) unless removing it would cause substantial damage
What are the necessary elements of a gift? What is a inter vivos gift? Gift causa mortis? 1.donative intent by donor, delivery, acceptance by donee made while donor is living and irrevocable once completed 3.conditional gift in contemplation of death, automatically revoked if donor survives illness/crises that spurred gift
Who has ownership of found mislaid property? lost property? abandoned property? 1.owner voluntarily puts property somewhere but forgets to take it, finder does not obtain title 2.owner involuntarily leaves property, finder has valid title against all parties except true owner 3.finder has valid title against ALL parties
When does a bailment exist? What must a bailee do? 1.owner of personal property gives possession without giving title to them(called bailee) (clothes to dry cleaner) 2.return personal property or dispose of it as directed by owner
What are the requirements for creation of a bailment? What are some types of bailments? of property to bailee, possession by bailee, bailee has duty to return property or dispose of as directed by owner 2.for benefit of bailor, for mutual benefit, for benefit of bailee
What liabilities does a bailee have? Can they limit their liability? 1.must take reasonable care in light of facts and circumstances (use ticket for identification, bailee have no liability if wrong owner but had ticket), absolute liability for unauthorized use of property 2.may for negligence but not intentional conduct
Is the bailor responsible for bailees actions? What happens in cases of theft/destruction/failure to return property? bailee is not an agent of bailor 2.constitutes tort of conversion
How are bailments normally terminated? fulfillment of purpose, agreement to terminate by both parties, bailee using property inappropriately
What are common carriers? What is their liability? exceptions? can they limit their liabilities? 1.licensed to provide transportation for public 2.strict liability, liable for damage to goods being transported even if loss caused by 3rd parties or accident 3.acts of shipper, God, public enemies, b/c inherent nature of goods 4.yes by $ amt in contr
What are the two general but competing goals of intellectual property and computer technology rights? property right incentives to create products and services and limit rights so public has access to intellectual property ideas and uses
What does copyright law protect? For how long? 1.original works including computer hardware and software (expressions of ideas copyrightable but not ideas themselves) of author + another 70 years (if publishing house owns then 95yrs from publication date or 120yrs from creation whichever 1st)
Do copyrights need to be registered? What is the fair use doctrine? but registration gives them rights to statutory damages and attorney fees in cases of infringement 2.allows use for limited purposes w/o violating copyright (comment, news reporting, research, teaching)
What is the consumer software copyright act? amends copyright law to include computer programs
What remedies are available under copyright law? statutory damages or actual damages including profits attributed to infringement of copyright, also can get injunction -willful infringement allows for criminal fines and prison
What is the No Electronic Theft Act? criminalizes copyright infringement over internet whether for financial gain or not as long as value of copyrighted works exceeds $1,000 -allows for imprisonment and fines
What is covered by patent law? machines, processes, art, methods, composition of matter, new and useful improvements (genetically engineered plants or animals) -invention must be novel, useful, and not obvious
When may an inventor no longer be able to obtain a patent? How long are patents valid for? Does the owner need to give notice to others? 1.if invention was on sale/in public use for 1 year 2.20 years from when patent application filed (international protected to w/treaties) - design patents last 14 years 3.yes must mark it using word patent (or Pat)
Who has the first right to patent protection, first to file or inventor? Are software and internet business methods patentable? 1.inventor 2.recent court decisions do protect them
What remedies are available under patent law? injunctions, damages including lost profits traceable to infringement, or assessment of reasonable royalties -willful infringement allows for treble damages and require infringer to pay attorney fees
Can patent infringement liability be escaped by making changes to a patent and claiming it as a new patent? What does the Paris convention allow? 1.If changes are insubstantial then certainly not 2.1 year grace period for inventors to file in other countries once file for protection in 1st country
What is considered as a trade secret? What is the economic espionage act? What must the secret be and the owner do to be covered? on financial, engineering, scientific, technical, software programs, codes, or processes of company 2.makes federal crime to use trade secrets 3.secret others have difficulty acquiring except by improper means, owner take reasonable steps to guar
What remedies are allowed under trade secret laws? What are some methods to help protect a trade secret? 1.breach of contract, breach of fiduciary duties, wrongful appropriation of trade secret, injunction, theft, and espionage -may be civil or criminal 2.license software, employees/buyers sign confidentiality agreements, sell software object not source co
What is the semiconductor chip protection act? amends copyright law, prohibits taking apart chips to COPY (may take apart and make new), protection for 10 years or first commercial application (whichever 1st), allows civil recovery up to $250,000
What is the federal counterfeit Access Device and Computer Fraud and Abuse Act? criminalized international unauthorized use of computer to obtain classified info to hurt US, collect credit/financial info protected by privacy law, modify material financial data, or destroy/alter computer data to hurt rightful users
What is the purpose of trademarks under the lanham act? What does it protect? 1.provide identification symbol for companys product, guarantee consistent quality of all good from same source, advertising 2.distinctive graphics, words, shapes, packaging, sounds, or even colors now if they are identified w/the brand
What inst a protected trademark under the lanham act? generic words -many once trademarked words have become generic and are no longer protectable (escalator, yo-yo, dry ice all once brands but now generic)
Are lanham act trademarks required to be registered? How is it decided who owns a trademark? What is cybersquatting? rights are obtained by its use in commerce (registering provides constructive notice to others tho) 2.first seller to use trademark owns it 3.registering sites/domain names that are deceptively similar to existing trademarks
When can trademark rights be lost? actual abandonment- not used in ordinary course of business for 3 years unless owner can prove intent to use constructive abandonment-company allows loss of its distinctiveness by frequent and common usage
What is needed to prove trademark infringement? What are the remedies for infringement? 1.established trademark is valid, priority of usage, similarities will likely cause confusion in minds of consumer 2.injunction, lost profits caused by confusion, attorneys fees
What is a certification mark under the Lanham trademark act? collective mark? service mark? Do these require registration? 1certify characteristics such as origin by location/organization, mode of manufacture 2identify product is provided by certain collective group 3identify services came from certain company/person 4No but would provide fed protection for 10yrs(renewable
What does the computer matching and privacy act regulate? the right to financial privacy act restrict? the family educational rights and privacy act grant? systems used to determine eligibility for government programs 2.government access to financial institution records w/o customer approval students and parents of minors access and right to correct records at higher learning institution
What is palming off? what is required for proof? company sells its product by confusing buyers and leading them to believe they are purchasing another companys product 2.there is likely to be confusion due to the name or appearance of the competing product
What is the digital millennium copyright act? What are the penalties? 1.fed law based on treaties w/other countries to minimize pirating -affects those that circumvent antipiracy protections to merely ACCESS copyrighted works 2.civil and criminal
What does the uniform computer information transactions act require be in writing? contracts for licensing of information rights over $5000 or cant be performed in under a year
Why was the federal telecommunications act passed? increase competition in telecommunications market
What are the types of present interest in real property? Fee simple absolute, Fee simple defeasible (determinable- upon happening of event estate auto reverts to grantor, subject to condition-happening of event grantor must take action to divest grantee of estate),life interest(death property revert to grantor)
What are the types of future interest in real property? Reversion(future interest reverts back to transferor at end of transferee's estate), Remainder(future interest is in a 3rd party at end of transferee's estate)
What is a concurrent interest in real property? two or more people have undivided interests and concurrent possessory rights in real or personal property (each has a nonexclusive right to possess whole property)
Describe the types of concurrent interest in real property, tenancy in common? joint tenancy? and tenancy by entirety? 1.concurrent interest, no right to survivorship, can not own specific portion of property 2.all rights of ownership goes to surviving tenant(survivorship) 3joint interest held by husband and wife, right of survivorship, divorce creates tenancy in common
If a creditor is going after a husband, can creditor put lien on house owned tenancy by entirety? Whats required to create a joint tenancy? Can a corporation be joint tenant? What happens in joint tenancy rights go to another w/out consent of the others? 1.No creditor can only place a lien if he is a creditor of BOTH spouses 2.time, title, interest, possession 3.No owner becomes a tenant in common, others still joint tenants
For a nonpossessory interest in land, what is an easement? how is it created? what is profit? how is it created? 1.right to enter anothers land and use it in a limited way grant in deed, express reservation in deed, by necessity 3.right to enter anothers land and remove trees, grass, gravel 4.grant or reservation
What is required in a contract for an agreement to sell land? be in writing and signed by party to be bound, identify land and parties, identify purpose, contain terms or promises, contain purchase price
What is a marketable title? Is it an implied promise? What can a purchaser do if title is not marketable? 1.title is free from doubt (doesn't contain defects like outstanding liens, breaks in chain of title, defective instruments in past 2.Yes 3.rescind/recover down payment, sue for damages, sue for specific performance w/a reduction of price
Who bares the risk of loss in a contract for sale of land before the deed is conveyed? Who can insure against a loss? 1.purchaser bears risk of loss (subject to terms of contract), courts may look at who as the most ownership rights and benefits (normally the purchaser anyway) 2.either party
What promises are conveyed by a grantor in a warranty deed? grantor has title and right to convey it, free from encumbrances except as disclosed in deed, quiet enjoyment (neither grantor nor third party w/rightful claim will disturb grantees possession)
What promises are conveyed by a grantor in a bargain and sale deed (grant deeds)? Quietclaim deed? 1.grantor has done nothing to impair title, doesnt warrant against impairments before grantors ownership 2.conveys only what interest in land grantor has, no warranty of title is made by grantor
What must a deed have on it? What must happen for a deed to become effective? 1.description of real estate (price not necessary), identify buyer and seller, have sellers signature 2intent of grantor to pass title to grantee, presumed grantee possess deed, deeds recorded, deed given to 3rd party till performance condition completed
What does recording a deed do? IMPORTANT What happens under a notice-type statute? race-notice type statute? 1gives constructive notice to the world of grantees ownership (protects grantee against subsequent purchasers) 2.subsequent bona fide purchaser wins(if record or not) over previous purchaser if not recorded before 2nd purchase occur 3.race to record fir
What is title insurance? Is it required? What is a title insurance company liable for? 1.used to insure that title is good and to cover the warranties by seller 2.not if contract doesnt require it(dont use only recourse is against grantor) 3.any damages/expenses not disclosed by survey and physical inspection of premises
What is adverse possession? What is the statutory period? when does it start? Can it be added? how does it affect a true owner of future rights? 1.possessor of land who was not owner can acquire title if held for statutory period 2.varies by state 5-20yrs 3.upon taking possession 4if possessor transfer to another can add time together 5doesnt affect until come into possession then time starts
What are the necessary elements for adverse possession? open and notorious possession (owner would have reasonable notice), hostile possession (indicate intentions), actual possession (use as normal-farm farmland), continuous possession, exclusive possession
What is easement by prescription? similar to adverse possession and use same elements but person obtains right to use anothers land not the land
Does a mortgage have to satisfy the statute of frauds? Yes because interest in real property, must be in writing and signed by party to be charged, and include description of property and debt to be incurred
What happens when a mortgage is recorded? same benefits as deed/assignment of contract -gives constructive notice, protects mortgagee(lender) from subsequent mortgagees/purchasers, subsequent dealt w/by notice-type statute, race-type statute like deeds or race statute(first to RECORD wins)
Does a second priority mortgage have anyway to recover before a first priority mortgage does? yes, if 1st priority owns other property available as security, 2nd can require 1st to resort to other property for payment
If mortgaged property is sold, what may the buyer do and under each option whos liable? assume mortgage (if mortgagee allows, buyer becomes personally liable, seller remains liable unless released by a novation) or take subject to mortgage(seller only liable, mortgagee may foreclose on property even if in hands of buyer)
Can a mortgagee assign rights to a third party without the mortgagor's consent? If a mortgagee defaults can the mortgagor do the same? 1.yes 2.yes or foreclose on the land too
After defaulting on a mortgage, what does a foreclosure require from the courts? judicial action that directs foreclosure sale, if price is too low it raises a presumption of unfairness court can refuse sale
Can a mortgagor redeem the property after default? How long does it exist? What if state law grants statutory right of redemption? 1.usually can save real estate by use of equity redemption. pays interest, debt, and expenses 2.until foreclosure sale, cant be curtailed by prior agreement 3.can redeem after foreclosure sale if during statutory period mortgagor pays off loan
What happens to excess sale from the proceeds of a foreclosure? if there is no excess? Who regulates mortgage lenders? 1.excess proceeds to mortgagor 2.mortgagor is still in debt 3.Real Estate Settlement Procedures Act (provides home buyers with info about settlement process and protects them from high settlement fees)
What is a deed of trust? What about a sale on contract? mortgage nonpossessory lien on real property to secure debt, legal title given to trustee to hold(upon default sell land for creditor) 2.unlike mortgage/trust deed SELLER retain title, purchaser takes possession get title when debt fully paid
What are the types of leaseholds? periodic tenancy (time share), tenancy for a term (bistro), tenancy at sufferance(tenant remains in property after expiration, landlord may treat as trespasser and eject or as tenant and collect rent), tenancy at will(leased for indefinite period of time)
If a lessor breaches does the lessee have right to breach contract? no, generally lessors promises(covenants) are independent of lesses rights
What are a lessor's covenants (promises)? right to possession,quiet enjoyment,fit for use(habitable),lessee may assign(transfer interest reserving no rights, assignor still liable unless novation) or sublet(transfer portion, can take no action on sublessee, sublessor still liable for rent)
What are lessee's duties? Rent(cant withhold even if lessor is in breach), obligation to make ordinary repairs
How is a lease terminated? expiration, proper notice in tenancy from period-to-period, surrender by lessee and acceptance by lessor, death of lessee (except if lease for period of years), eviction -lessor transfers property doesnt end lease
Created by: Bsantoro
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