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29 Cards in this Set
- Front
- Back
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Distinction between and rights of finder of lost v. mislaid v. abandoned property
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A. Lost property – if property is lost, the one who finds it has a right to it. Lost property is accidently placed in a location. Right is contingent upon turning it into the proper authorities, at which point statute of limitations begins.
B. Mislaid property – personal property that is mislaid is intentionally placed in a certain location. If property is mislaid, the owner of the property where it is mislaid has a right to it. C. Abandoned property – if property is abandoned then whoever picks it up is entitled to it. The original owner has no right to abandoned property and any improvements made. • Lost- finders keepers, losers weepers. Person is not aware that they no longer have it, no intention. If found you have a superior interest to property that is lost if the true owner does not reacquire the property within the statutory time period. You have to report it to the property authority. • Abandoned property-the owner has given up ownership at that moment • Mislaid- the person intended to put it where you found it, but forgot to pick it up |
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Definition of real property
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• Real property- land and fixtures
A. Real property is land and those things that are physically attached to the land |
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Elements/criteria for fixture determination
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A. Fixture has been so affixed to land that it has ceased being personal property and has become part of the realty.
B. Item is a fixture if the objective intention of the party who made the annexation was to make the item part of the realty. This intention is determined by: the nature of the article, the manner of attachment, the amount of damage that would be caused by its removal, and the adaptation of the item to the use of the realty. • Fixtures- things attached to the land and unique to the land. o Ex. Unique carpet to hotel is a fixture o Ex. Teachers desk at Trinity can be a fixture o Greater ownership interest, the greater likelihood for an item to be a fixture • An item can be a fixture even if it is not firmly attached if taking it away has an impact on the land |
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Fee simple absolute v. fee simple determinable v. fee simple subject to a condition subsequent
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A. Fee simple absolute – you own the land and what is underneath the land to the center of the earth, and the sky all the way up to the heavens. You have airspace and also mineral rights. This is the best and most expensive way to obtain property.
B. Fee simple determinable – A fee simple determinable terminates upon the happening of a stated event and automatically reverts to the grantor. A FSD can be conveyed, but the grantee takes subject to the estate’s being terminated by the specific event. C. Fee simple subject to a condition subsequent – a FSSTCS is an estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event. |
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Joint tenancy and tenancy in common
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o Joint tenancy- right of survivorship, property conveyed to A and B, B passes away A own the property
o Tenancy in common- property conveyed to A and B, B passes away then B’s property goes to his heirs A. Joint Tenancy – Distinguishing feature is right of survivorship. When one JTT dies the property is freed from her concurrent interest (her survivors do not succeed to it). B. Tenancy in common – no right of survivorship. Tenants can hold different interests in the property, but each is entitled to possession of the whole. Interests are alienable, devisable, and inheritable. • Fee simple absolute with a general warranty deed is the best way to buy property o Fee simple determinable- receives the property as long as no alcohol sales on the property, if condition is broken the property goes back to the owners or the heirs o Fee simple subject to a condition subsequent- same as above but the owner must exercise the right of reentry (must have right of reentry cause) |
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Community property v. separate property
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• Community property- any property acquired during marriage is owned by the husband and wife equally; has to be where marriage license is obtained
Separate property- Separate property is any property that has been acquired by either spouse prior to marriage, after separation, or during marriage by gift or inheritance. For example, if you receive an inheritance during the marriage the inheritance is considered separate property. Separate property is property which is owned by one spouse in a marriage. If the marriage dissolves, spouses retain ownership of their separate property and they are not required to share this property with the division of assets. In contrast, marital or community property is owned by both spouses in kind and must be divided fairly in the event of a divorce. |
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Impact, if any, of a neighbor’s unpaid premium on the ownership interest of an adjacent owner’s cooperative, townhome or condominium
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• Cooperatives- everyone has to pay the collective bill, if one person doesn’t pay, then the whole place can be foreclosed
• Town homes- liable for all payments for the house and the community, or the community can foreclose on the or force you to pay before you move • Condominiums- owned outright Cooperatives- costs more than leasing an apartment, but you get interest in property. The risk of this situation is that if someone does not pay, the burden falls on the rest of the people to pay- everybody loses if the other members don't pay the non-paying guy's share Condominium- your only responsible for your own condominium, not other peoples payment. Townhouse- you have standalone house- there is a collective liability for common use (gym etc.) and those fees must be paid or neighborhood can impose a lien on property. |
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Contract for deed v. mortgage
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How you acquire property: mortgage, cash, contract for deed.
contract for deed: tired of paying for an apartment- a way in which you can obtain ownership interest on land without paying a huge amount needed in a mortgage situation. Its a little bit more than what you pay in rent, but you are paying for ownership interest. mortgage: bank loans person $ to buy property and they pay the owner of house off and pay the bank back over x amount of years. o Mortgage- paying off the loan on a house o Contract of deed- pay more than renting an apartment, but you are obtaining ownership, can leave any time; if you miss one payment, the owner can kick you out |
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Implied/presumed knowledge of zoning ordinances to buyer from neighborhood patterns of development (e.g., lot fences consistently less than 8 feet; no two story homes; absence of satellite dishes)
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• If you buy real property you are obligated to know all zoning ordinances
- ordinances are designed to protect prospective buyers by ensuring that the developer meets minimum standards of suitability. |
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Variance v. non-conforming use
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variance- permanent excuse not to follow the ordinance
non-conforming use- more likely to be granted than a variance- temporary excuse to not adhere to the ordinances |
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Elements/criteria for adverse possession
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A. Running of statute
B. Open and notorious possession C. Actual and exclusive possession D. Continuous possession E. Hostile if property is adversely possessed for the statutory period of time, then the adverse possessor owns the property fee simple absolute, time frame is around 15 years. The adverse possessor must hold the property open and notoriously for the statutory period of time without the consent of the true owner |
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General warranty v. bargain and sale v. special warranty v. quit claim deed
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• Fee simple absolute with a general warranty deed is the best way to buy property
General Warranty Deed- says person selling has not done any environmental damage, no back taxes, best warranty you can have- you and EVERYONE above me owes nothing- vouch for everyone A. General warranty – grantor warrants against (and degrees to defend against) all titles and encumbrances (such as liens and easements), including those that arose before the grantor received her title. • Bargain and sale - the person has not done anything to mess up the property. owner says I have not sold property to anyone else, however there could be environmental harms or easements. • Quit claimed deed- adversely possessed property can be transferred to someone else B. Quitclaim deeds – A quitclaim deed releases whatever interest the grantor has. No covenants of title are included or implied. I'm not sure what I own, but whatever it is you can have it. Special warranty deed- owner of property says that they haven't personally done anything to house- not vouching for people who came before |
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Easement appurtenant (assists access); expansion of easement by proscription (i.e., mini-adverse possession)
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A. Easements – an easement holder has the right to use another’s tract of land for a special purpose (e.g. to lay pipe, to access a road or lake), but has no right to possess or enjoy that land. An easement is presumed to be of perpetual duration unless the grant specifically limits the interest.
B. Easement appurtenant – an easement is appurtenant when it benefits the holder in his physical use or enjoyment of another tract of land. An easement appurtenant passes with the transfer of the benefited land, regardless of whether it is mentioned in the conveyance. C. Easement by proscription – must be: a. Open and notorious – i.e., discoverable upon inspection b. Adverse (i.e., without the owner’s permission); and c. Continuous and uninterrupted d. For the statutory period • Easement of appurtenance- the right to have access to one person’s property through another person’s property • Easement by prescription- able to take property is it has been used for so long without the owner saying anything previously |
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Adverse possession and "tacking" of adverse possessor's interests
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My notes:
-person must live on the property open and notoriously with out consent of true owner for a statutory period of time- squatter (20-25 years in TX). State has interest on making sure it is taken care of- if the amount of time passes they own it fee simple absolute. - Must be: open, continuous, notorious, hostile - if it is only in summer months that they live there, they must be doing something synonymous like cutting grass or fixing windows etc. - if one person gets on property then they leave and another person comes along and they can prove the entire time squatting with receipts they can use time from 1st person squatting on land plus their time- "tacking" is permissible (beachcomber 1,2,3...) of quick claim deeds for an adverse period of time- this can ultimately lead to adverse possession. |
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Warranty of quiet enjoyment/habitability (temporary violation tenant rights) v. constructive eviction (continuous/long-term violation)
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• Warranty of habitability- a tenant is entitled to safety and to life functioning parts of the property to be working properly
o Constructively evicted- the tenant is entitled to damages o Latent defect- defect that cannot be discovered through casual observation or should have been known through examination A. Implied warranty of habitability – factors to determine if it has been violated: impact of the defect on basic life functions, actual or possible effect of the defect on the safety and health of the tenants, length of time the defect has existed, age of the building, whether or not there is a violation of the housing code . Remedies: a. Terminate the lease b. Make repairs and offset the cost against future rent c. Abate the rent to pay an amount equal to the fair rental value in view of the defects d. Remain in possession, pay full rent, and sue for damages B. Constructive eviction – If the landlord does something (or, more often, fails to provide a service he has a legal duty to provide) that render the property uninhabitable, the tenant may terminate the lease and seek damages. The conditions must be the result of the landlord’s actions, and the tenant must vacate the premises within a reasonable time. If you have been constructively evicted you can get your money back for the month and you don’t owe the balance on your lease. |
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Periodic tenancy v. estate for years v. tenancy at will v. tenancy at sufferance
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A. Estate for years – tenancy that lasts for some fixed period of time. Termination at the end of the stated period without either party giving notice.
B. Periodic tenancy – tenancy for some fixed period that continues for succeeding periods until either party gives notice of termination. C. Tenancy at will – Tenancy of no stated duration that lasts as long as both parties desire. Usually terminates after one party displays an intention that the tenancy should come to an end. D. Tenancy at sufferance – tenant wrongfully holds over after termination of the tenancy. Terminates when landlord evicts tenant or elects t hold tenant to another term. Landlord can have a lien on any property in room, and car in garage, etc. o Estate for years- multi year lease, no notice need be given before the estate terminates o Periodic tenancy- requires notice that the lease is up, have to give notice of termination o Tenancy at will- can leave the place at any time and can get kicked out at any time, no notice required - tenancy at sufferance- occurs when a tenant remains in possession of the property after a lease has expired. |
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Bailee’s obligation/duty regarding bailment for sole benefit of bailor v. mutual benefit bailment v. bailment for sole benefit of bailee
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• Personal property that is loaned to you (temporary possession) (bailment)
• Bailment- temporary possession; Ex. Rent a car, valet parking o Bailey is responsible for the car of that property (valet parker); unless stated otherwise o Bailment for soul benefit of the bailey: bailey must exercise the utmost degree of care; Ex. Borrowing friends vehicle to get something to eat, you’re liable for damage to the car unless you’re doing something for the friend o Mutual benefit bailment- normal degree of care o Bailment for the soul benefit of the bailor- slight degree of care (ex. watching friends car while he’s gone) o Absolute responsibility to return the property when the bailor demands it, even if they’re drunk (try to stall them if they’re drunk) A. Bailment – temporary transfer of passion of personal property to another individual. B. Bailment for the sole benefit of the bailor (one who owns the property) a. Bailee only has to exercise a slight degree of care C. Mutual benefit bailment a. Bailee only responsible for ordinary negligence, not the highest degree of care D. Bailment for the sole benefit of the bailee (one borrowing the property) a. Bailee must exercise the highest degree of care |
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Criteria for beneficiary’s valid insurable interest in property and/or in another person
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A. Insurable interest – person in your position would be impacted if the property was not in existence, damaged, etc., or if that person was not in your life.
B. Person - must have an insurable interest in that person at the time you obtain the policy. C. Property – must have an insurable interest at the time of the property loss. a. Indemnity – indemnity limits your claim to the market value of the item |
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Elements of a gift
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A. Intent to give the gift
B. Delivery of the gift C. Acceptance of the gift • Can’t have gifts that are conditioned |
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Gift causa-mortis
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A. Gift causa-mortis: conditional gifts made in contemplation of death. The person must pass as a result of the illness that caused them to give the gift, otherwise it must be returned.
• Gift causa-mortis, gift made in the contemplation of death, difficulties arise when person does not die from the original direct illness |
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Probate (disposition by will) v. intestate succession (descendants, ascendants, collaterals)
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A. Probate – orderly procedure to collect a passed individual’s property, settle his debts, and distribute any remaining property those who will inherit it under his will or by intestate succession.
B. Intestate succession – if you don’t indicate who is to receive the real and/or personal property assets, your assets will be distributed intestate: a. Descendents b. Ascendants – parents c. Collaterals – brother and sisters d. Children of brothers and sisters e. If none exists, then it goes to the state Probate- will was made right and met requirements Intestate- will can be thrown out |
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Requirements/elements of a valid will
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A. Signed by the testator
B. Two attesting disinterested witnesses C. Testator sign the will or acknowledge signature in each of the witness’s presence D. Revoke all previous wills or testaments E. Pages must be numbered F. Witnesses sign in the testator’s presence • Wills must be in writing, a video tape is supporting evidence that someone entered into a will o Undue influence- the only reason why a will would not be valid Convincing someone who is making a will o Wills have to have witnesses, even if they are part of the will, they must be sane in mind o Must be published |
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Requirement for a holographic will (totally testator/testatrix handwriting)
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A. Holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses. A holographic will must contain the testator’s signature, but it need not be at the end of the will.
o Holographic will- If will is in entirely in the writing of the person, then it is upheld |
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Codicil (amendment to pre-existing will)
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A. Codicil modifies a previously executed will and must be executed with the same formalities.
o Codicil- a short cut to amending a previous will |
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Requirements/elements of a trust
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A. Trust is a ficuciary relationship with respect to specific property (res) wherein the trustee holds a legal title to the property subject to enforceable equitable rights of the beneficiary. The crator of the trust is the settlor, who must have had the intent to create a trust.
• Trust- can set up trusts for medical, educational, or charitable purposes and the person who set up the trust can specify what the stust can be used or spent on o Settlor- person who creates the trust o Delivery of trust property to trustee o Independent trustee o Intent to create a trust o Beneficiary o Precatory language- one has to have a desire not just precatory o Doctrine of Cypres- court can substitute the beneficiary of the trust, if the trust purpose has been fulfilled, has to be consistent of the settlor o Once a trust is created it cannot be revoked, except in Texas o Duties of a trustee- Have to act consistent with the trust |
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Interpretation/application precatory trust language
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A. Precatory language – a settlor’s expression of a hope, wish, or mere suggestion that the property be used in a certain way.
B. Doctrine of cy pres – principle that allows courts to say precatory language is not practical in this context. Court can substitute performance of the trust. |
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Trustee’s duties/obligations
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A. Standard of Care – exercise that of a reasonably prudent person in managing her own property
B. Duty of Loyalty C. Duty to Account D. Duty to make trust productive |
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CERCLA v. RCRA
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-2 parts of EPA (environmental Protection Agency)
- CERCLA- Comprehensive Environmental Response Compensation and Liabilities Act. "Superfund Law"- fund designed to clean up waste cites world-wide. - Remedial law- deals with environmental waste sites to clean up RCRA- Resource Creation and Recovery Act- any person/ business in chain of ownership of property can be held liable for its clean up. Authorizes EPA to establish standards and regulations relating to treatment, storage, transportation and disposal of hazardous waste. These are preventive rules to stop waste before it starts. |
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Trademark v. Copyright (post 1978) v. Patent (duration of each)
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A. Trademark – exist as long as they are fervently protected, obligation to zealously go after any use of the image.
- exist 10 years and they are renewable B. Copyright – now lasts for the duration of a persons life plus 70 years. C. Patent – lasts for 20 years. |
