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53 Cards in this Set
- Front
- Back
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What is the definition of "Personal Property?"
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Real property is immovable property and consists of land, things fixed to land, and things incidental or appurtenant to land. Personal property is movable property, which includes everthing that is not real property.
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What is Fructus Naturales?
What is Fructus Industriales? |
Fructus Naturales- plants growing spontaneously on land (bushes, grass, wild plants, trees), not as a result of cultivation. Fructus Industriales- are the result of cultivation. Title to fructus naturales passes with the land, and are real property. Fructus Industriales are personalty.
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Does a conveyance of land include annual crops?
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A conveyance of land includes annual crops, unless a reservation in the deed or provision in an operative will provies otherwise. The intention of the parties prevails.
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What is the doctrine of Emblements?
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The doctrine of emblements provides that a former tenant has a right to enter upon property to cultivate, harvest, and remove crops planted by her prior to the termination of her estate in the land. The right of emblements applies where the tenancy was for an uncertain duration; and the tenancy terminated w/out fault of the tenant.
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Who is considered to be the owner of a wild animal?
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Ferae naturae-a wild animal in its natural state- is unowned. The become private property upon being reduced to possession.
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How does a person obtain ownership of a wild animal?
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The first person exercising dominion and control over a wild animal, with the intent to assert ownership, becomes with possession, the owner of the animal.
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What happens when a trespasser kills game on another's land?
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A trespasser who kills/captures game on another's land forfeits her title in favor of the landowner. This is to keep trespassing from benefiting the trespasser.
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What happens to a wild animal who escapes captivity?
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Where a wild animal, who is captured and held in private ownership, escapes, the former owner loses his property right in the animal, and the animal is again unowned. Title is not lost if the animal periodically returns to the home of its owner.
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Does an owner of a marked, ie branded , animal lose title if the animal escapes?
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Modern courts usually permit the prior possessor of a marked or branded animal to retain his title as long as the animal is marked, and the owner exercises all possible effort to recapture.
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What is required for a literary work to be entitled to copyright protection?
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For a work to be entitled to copyright protection, the work must be in concrete form, must be new and original, and the work must be fixed in a tangible medium of expression. This protection secures the author's exclusive right to reproduction, display, etc, for her lifetime plus 70 years, or if anonymous or working for hire, 95 years from publication or 120 years from creation, whichever expires first.
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When may an author bring an action for copyright infringement?
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A claim of copyright ownership must be properly registered with the US Copyright Office in order to enforce the author's rights, even though a copyright is deemed to be present from the time a work is created. Once properly registered, an infringment action may be brought even for infringement occuring before registration.
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What happens to personal property that is tortiously converted?
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Tortious conversion of personal prop. does not deprive the true owner of title. One who does not have title to goods cannot pass title to even a bona fide purchaser, except:
1.Transfers of money and negotiable instruments. 2. Where the owner of goods intended to transfer title; 3. Owner represented that possessor has authority to sell (estoppel situation) |
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Who has the burden of showing title?
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One who attemps to divest another of personal property has the burden of showing title and the right to do so. all evidence is admissible. Possession plus a claim of title is prima facie evidence of title and ownership.
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When is property considered "Lost"; what is the result to title of property that is "lost" ?
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Property is "lost" when the owner has accidentally and involuntarily partied with his possession and does not know where to find it. The test is generally: does the location where the item is found indicate that it was involuntarily placed there? If property is "lost", the one who reduces it to possession--physical control with intention to assume dominion over the object--becomes its finder, and the finder of lost property is entitled to possession of it as against all except the true owner.Title remains with the true owner, the finder has only a possessory right.
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When is property "abandoned?" What is the result to title of property that is abandoned?
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Abandoned property is property that the owner has voluntarily relinquished all ownership of without reference to any particular person or purpose. It is necessary to show INTENT to give up title and possession. Abandoning property relinquishes title.
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When is property "mislaid"; what is the result to the title of property that is "mislaid"?
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property is mislaid when judging from the place where found, it can reasonably be determined that it was intentionally placed there and thereafter forgotten. The finder of mislaid property does not acquire the right to possession. The owner of the locus in quo becomes entitled to possess the mislaid property against all the world except the true owner. Title remains with the true owner, owner of the locus quo has only a possessory right.
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What is a "treasure trove"?
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A treasure trove is any gold or silver in coin, plate or bullion found concealed, the owner of which is unknown. While traditionally the finder, even if a tresspasser, owned the "treasure trove" against all but the true owner, the modern view is to apply the rules applicable to lost property, and no exception is made for the handling of treasure trove problems.
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What happens to title of "lost" property in the hands of a trespasser?
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Generally, a trespasser finder of lost property will not be allowed to secure possessory rights in the lost property, and the possessory rights will fall to the owner of the locus in quo. (location where property found).
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Who obtains possessory rights to lost property found in a highly private locus?
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Where a chattel is found in a highly private locus, a location where the public is not invited, the owner of the locus in quo, and not the finder, will acqure the possessory rights.
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What is "accession"?
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Accession is the addition of value to property by the expenditure of labor or the addition of new materials. If the addition can be detached from the principal chattel, this will be ordered, and each party will be put in status quo ante. Generally, if not detachable, both an innocent trespasser and a willful trespasser cannot recover, except that an innocent trespasser may divest the true owner of title if the species of the property is completely changed by the accession, or where the increase in value by the accession is so great that it would be unfair to permit the original owner to reclaim her property. The original owner would then be limited to a cause of action for damages in such circumstances.
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What is "confusion"?
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Confusion is an intermixture of goods owned by different persons such that the property of each can no longer be distinguished. Where goods are of the same kind and quality, the parties are tenants in common of the mass in proportion to their respective interests, regardless of how the confusion took place. Where the parties contributions to the "mass" is unknown,and the confusion is innocent (not occurring willfully), then the owners are tenants in common, and the parties share equally. Where the confusion is wrongful, the burden is upon the person causing the confusion to identify her portion. If she cannot ID her portion, the entire mass belongs to the innocent owner.
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When may a person obtain title to personal property by adverse possession?
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title to personal property by adverse possession is acquired when a person's possession to the personalty is 1. actual 2. open and notorious 3. hostile and adverse 4.exclusive and continuous 5. for the statutory period. Title passes when the statuory limitation period has run. Finders of mislaid property/lost property are presumed to hold openly.
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What tolls the Statute of limitations in an adverse possession situation?
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1. Disability of the plaintiff due to minority, incompetency, or imprisonment tolls the SOL until disability is removed. 2. resident wrongdoer is out of jurisdiction 3. wrongdoer conceals self to avoid service.
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What is trover?
What is a trespass action? |
An action in trover is to recover the value of the chattel along w/ damages for dispossession.
An action in trespass is to recover money damages incurred by reason of the dispossession. |
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Check Remedies in "Personal Property" page 9
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Check page 9 of personal property.
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What is a "gift"?
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A gift is a voluntary transfer of proeprty by one to anther wihtot any consideration or compensation. A valid gift must be actually made by a donor who has donative intent to make a present gift and delivers the gift, and said gift must be accepted by the donee.
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In the context of a "gift", what are the 4 types of delivery?
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1. Physical delivery
2.constructive delivery (used by items difficult to be delivered due to size or location); made by surrendering control. 3.Delivery by written instrument 4. Symbolic delivery. (usually same as delivery by written instrument). |
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Does a donor have to "deliver" a gift that is already in possession of a donee?
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If the donee is already in possession of the article, the donor need not repossess and return it to the donee; the law will not require a useless act. However, the donor must do something to make his intent objectively clear.
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When is the gift of a check of the donor delivered?
When is the gift of a check of another delivered? |
If the gift to donee is a check of the donor's, delivery does not occur until the bank makes payment. If the donor makes a gift of a check of another, transfer fulfills the delivery requirement, even if said check is unindorsed and not negotiable by donee.
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Is cash deposited in a joint checking account a gift, whereby one party (donor) makes all/most of the deposits, and the other party receives funds (donee?)?
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In most jurisdictions, a court will presume that a joint checking account in which one party deposits most or all of the money is NOT a gift, and is done merely for the convenience of the primary depositor . This presumption can be rebutted by clear proof of donative intent, or by showing convenience of the primary depositor was not the reason for the joint checking account.
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What is a gift causa mortis?
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A gift causa mortis is one given in contemplation of death. For such a gift to be valid, the donor must have donative intent, the gift must be personal property, and the gift must be delivered by the donor and accepted by the donee, and finally, must be given in anticipation of imminent death. A gift causa mortis is revoked if the donor recovers or revokes the gift. Gifts causa mortis are always subject to the claims of creditors.
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what is a lien?
When does a lienor have a right to possess? |
A lien is the right of one (lienor) to possess and retain personal property that she has improved or enhanced in value, or otherwise serviced, as security for the payment by the person claiming the property (the lienee) of all charges for the improvement or service.
The lienor has a right to possess for a period of time only if the following conditions are present 1. Debt arises from services performed on the thing. 2. Title to the thing is in the debtor (lienee) 3. Possession of the thing is with the creditor. |
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What is a general lien?
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A general lien is the right to retain all of the property of another as security for a general balance due from that person. It exists only when it is separately contracted for,conferred by statute, or is custom in a particular trade, such as attorney, banker, innkeeper, factor, universal agent.
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What are the consequences of a lien being classified as "special" vs. "general"?
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Where a lienor has a general lien and releases some of the lienee's chattels, the released chattels are freed from the lien, but the lienor retains her lien in the unreleased portion until the entire lien charge is paid. If a lien is a special lien, and a lienor releases some of the lienee's chattels, he waives his lien to the extent of the chattels released.
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What is the right of an innkeeper as lienor?
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The lien of an innkeeper is unique in that it attaches to any property brought into the inn by the guest. It is not essential in all cases that the guest is the owner of the property. The property may be that of a third person, or even stolen, as long as the innkeeper has no knowledge that the property is not rightfully in the possession of the guest, his lien will attach generally to all the property to the extent of a reasonable charge for services rendered.
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How may a lien be waived?
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1. Contract for delivery before payment
2. By acceptance of other security for work performed. 3. Demand for excess charges after payment of original fee. |
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Can a common law lienor sell the property to reimburse herself?
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A common law possessory lien is only a right to hold property until a debt is paid. The lienor has no right to sell the goods to reimburse herself unless the right is conferred by statute or special agreement. Most states have statutes permitting a lienor to enforce the lien by sale with adequate notice or judicial foreclosure.
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What is a bailment?
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A bailment is the relationship created by the transfer of possession of an item of personal property by one called the bailor to another called the bailee for the accomplishment of a certain purpose. The relationship involves the transfer of possession of an item of personal property without a transfer of title. An express contract is not necessary.
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What is required for a bailment?
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Bailee consents to act as bailee, has physical custody of property, w/ intent to exercise control over the bailed item.
In other words: In a bailment, the bailee has the right of possession and control of the goods, for the term of bailment, against all the world including the bailor. |
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Can an employee be a bailee of an employer's goods?
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An employee cannot be a bailee of an employer's goods because an employee is at all times subject to the orders and control of his employer.
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What is the difference between a sale and a bailment?
In each situation, who bears the risk of loss? |
A sale involves a transfer of title to the vendee. a bailment involves merely a transfer of possession to the bailee, the title to the goods remaining in the bailor.
The individual with title undertakes the risk of loss. |
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What is a pledge?
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a pledge is a particular type of bailment by which the bailor delivers property to the bailee to secure an obligation owned by the bailor to the bailee.
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What is the special rule for liability of a hotel or innkeeper for the goods of a guest?
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A hotel or innkeeper is an insurer of the goods of a guest taken into custody and control of the establsihment, and is therefore liable for any loss or damage, except where the damage or loss is caused by an act of God, public enemy, or fault of the guest.
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What is a bailee's rights in bailed chattel?
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A bailee has the exlcusive right to possession of the proeprty during the bailment, provided she is exercising this right according to the terms and conditions of the bailment. This right is operative not only against third persons, but also the owner of property, and creditors of the property owner.
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What is a bailor's right in bailed chattel?
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Where bailed goods become lost or damaged as a result of a wrongful act of the bailee, the bailor can maintain an action against the bailee.
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When may a bailor maintain an action against a third party?
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Where the bailment is for a definite time, a bailor cannot maintain a trover (conversion) or replevin action during the life of the bailment against a person who converts the bailed property from the bailee, because the bailor has neither possession nor the right to possession of the bailed object. The bailor may bring an action for damages based on common law trespassing.
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What is a bailee's duty of care?
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A bailee must exercise due care wirth respect to bailed goods, but she is not an insurer of their safety. If the goods are damaged or lost through no fault of the bailee, the loss falls on the bailor.
The degree of care is dependent on the type of bailment: for the sole benefit of the bailor, only slight diligence is require, and liability will rest on gross negligence. sole benefit of the bailee, great diligence is required and liability will result from slight negligence. Mutual benefit, ordinary due care is required. Modern trend is to require ordinary due care under all circumstances, regardless of the type of bailment. |
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Who has the burden of proof as to the bailee's negligence?
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Where bailed goods are lost/damaged/destroyed durign a bailment, the burden is on the bailee to prove that the loss/damage was caused despite her due care.
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May parties to a bailment contractually prescribe a bailee's liability?
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The parties to a bailment may contractually impose greater or lesser obligations than the law ordinarily requires; however, a complete waiver of liability is generally not favored and are strictly construed.
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When is a bailee absolutely liable for loss or damage to bailed items?
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1. Where a bailee departs from the terms of a bailment
2. or breaches an agreement to insure the goods against hazards that ultimately destroy the bailed items. 3. Where a bailee misdelivers a bailed chattel to someone other than the bailor. |
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When is a bailee not liable for misdelivery of a bailed chattel?
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Some court make an exception to the rule of absolute liability for misdelivery when the bailee delivers the chattel to one holding an indispensable instrument, such as a claim check, as long as the bailee had no notice or knowledge that the one presentign the instrumetn was not the original bailor.
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Should a bailee delivery a bailed chattel to the bailor when she has notice of an adverse claim to the bailed property?
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When a bailee has notice of, or reason to know of, an adverse claim to the bailed property, the bailee will be absolutely liable for delivery to the original bailor if the original bailor is not the true owner. The appropriate action for the bailee to take is to interplead all claimants of the property.
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When is a bailee excused from making delivery to the bailor?
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1. Where the bailor has sold the property to the bailee or a third party w/ notice to the bailee during the life of the bailment.
2. Where there is title paramount in a 3rd party and such party claims the article or 3. Where the property is taken from the bailee by judicial process. |
