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84 Cards in this Set

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What are the three major notions of the "ownership of Property" which are protected by the law?
1.Use: The law protects your right to use something. You also have the right to allow other people to use your property.
2.Possession: legal right that is separate from ownership. You can be a peaceful possessor but not own it and have it taken away from you. E.g.: Stealing a one-dollar bill, renting an apartment.
3.Convey: Can be for various amounts of time. Can be temporarily or permanent. It’s also not only a present power, but can be conveyed in the future as well. Can also have a limited right to convey.
How is Property divided into two types?
Real Property- Began in 1066 with William the Conqueror
2. Personal Property- immovables or chattel. Anything that can be moved or taken (even if you need a moving van). Personal property was deemed perishable and unimportant. The church regulated the law relating to personal property
What is constructive possession?
This is different from actual possession. It is a legal construct to protect rights and interests of people and things. You really dont have it, but you know it is yours and you can have it stolen from you. Modernly, we would say this is conversion. even if you are not home, you still have constructive possession of your home, which can be trespassed upon.
What is a bailment?
when you voluntarily turn over possession to someone for a short amount of time.
What is a gratuitous Bailment at will?
you can recall your property at any time. Law says that the bailor has constructive possession. the person you have the property to has actual possession.
What is bailment for term?
The person who turns over the property has a revsionary interest and the property will return to him at the end of the stated term. The bailee hasthe right to possession during that time.
What is an agency relationship?
the person who has custody is an agent of the person who gave them the piece of property.
What is custody?
Legal construct. Not possession. The reason is that if someone robbed your servant, they have really taken it from you. But if you handed a possession over, then you wouldnt have a cause of act.
What is Seisin?
More than mere possession. Possession plus a claim. Under fudal law, you didnt own it, but rather seized of it. If you watned to convey it to someone, you can deliver (livery seisin) to someone.
What is Disseized?
If someone comes and pushes you off the property(someone traspassed and outsted you). If you die and someone has disseized you, then your heirs would not get the land.
What is title?
an establishment of a claim over a period of time. Its as close to what we havecalled ownership. If you have superior title, trace title back to a government grant.
What are the rules regarding wild animals?
They belong to no one. A fox is an animal ferae naturae and a property right in such an animal is acquired by "occupancy" only.
What is Res Nullius?
Property of no one.
what are the elements of occupancy?
1. ther has to be manifest intent to capture the animal.
2. Deprive of natural liberty
3. Brought within control
What is Ratione Soli?
"by reason of ownership of the soil" (case with the duck pond). You have exlusive right to take the animals while they are on your property.
what is Manucation?
To have the thing in your hand.
If you have a reasonable expectation that the animal belongs to someone (wild lion running in the streets of Fresno) can you gain a property right by taking it?
Do State or Local gov't have the right to protect and have a property interest in as much as they have standing to sue?
yes, they just need to be careful how they do it.
What is Finders law?
General rule is that finders keepers. However, there is some obligation under the common law for the finder of lost property to seek the true owner.
Pursuant to the Commonlaw, what are the four different types of lost property?
1. lost personal property
2. Misplaced property
3. Abandoned
4. Treasure trove
Are there really only 8 causes of action in property?
what is tresspass on the case?
An unlawful taking from a prior possessor. It is a cause of action, which protects the right of possession. In CA, it is still conversion and replevin.
What is Detinue?
applied generally where the initial possession by the defendant was lawful but then he refused to return the property. There is a subsequent conversion or unlawful retention of the goods. A complete defense would be that you no longer have the goods. When Plaintiff is successful, defendants gets to decide whether Plaintiff gets the value of the goods (in money) or gets the goods back.(wrongdoer gets to determine the remedy.
What is trover?
initial taking lawful, keeping is unlawful. Only remedy is monetary damages.
What is replevin?
Started out a a cause action by tenants during landlord-tenant law where the landlord could sell the goods of the tenant. if he took the goods wrongfully or took too many goods, you got the goods back. Here plaintiff gets to pick the remedy.
What are the fource causes of action in personal property?
1. tresspass on the case
2. detinue
3. trover
4. replevin
What is tresspass?
violation of the exclusive right to the ownership or possession to real property. Defendant was or is on the property. Money damages were available to the plaintiff. Modernly, you can get injunctions for tresspass.
What is ejectment?
Specific cause of action for tenants to recover possession for a trespasser. protect their right to tresspassers. Teneants cause of action against anyone but the landlord.
What is quite title?
trying the right of possession between contenders claiming to have superior title. The court determines that you have a better title than everyone else.
What are the four causes of action real property causes of action?
1. tresspass
2. ejectment
3. quite title
4. nuisance
What is Jus Tertii?
Right of a third party. Argument that item belongs to someone else, and that there is a third party who has a better right to the property.
To maintain an action for conversion, must the plaintiff have a possessory right in the property converted?
yes, actual possession is sufficient.
What is a gift?
A voluntary transfer of property by one person to another without any consideration or compensation thereof.
What is the barf for Inter vivos Gift?
To constitute a valid gift inter vivos, it must be made with the donative intent that it shall take effect immediately and irrevocably and it must be fully executed by a complete and unconditional delivery.
What is Donative intent?
intent at the time the gift transfers. (right now, must be given immediately.
What are the three different aspects of delivery in regards to a Inter Vivos Gift?
1. actual
2. constructive
3. symbolic
What is constructive delivery in regards to a Inter Vivos Gift?
the thing exchanged gives the recipient dominion or control.
What is symbolic delivery in regards to a Inter Vivos Gift?
delivering not the object, nor the mode or means, but a writing, which indicates that this person now has the object.
What is acceptance in regards to an Inter Vivos Gift?
where the gift is beneficial to the donee and imposes no burdens upon her acceptance is presumed.
What are the reasons for the survival of the delivery requirement?
1. the delivery makes a vivid and concrete indication to the donor the significance of the act he is doing.
2. the act is as unequivocal to actual witness of the transaction as to the donor himself.
3. the fact of delivery gives the donee at least prima facie evidence of the alleged gift.
Must a Inter Vivos Gift be done while a person is alive?
yes, you cant write a note saying "in the event of my death, i bequeath). If you do this,the courts wont honor it because it is not a will
Are inter vivos gifts revockable?
Who bears the burden of proof (excluding relatives) in proving an Inter Vivos Gift?
the party receiving the gift.
In regards to relatives and burden of proof regarding a Inter Vivos Gift?
There is a presumption of a gift when it involves relatives. Then the donor must show that no gift was made.
What burden of proof must be proven regarding a party claiming no Inter Vivos Gift?
Clear and convincing evidence.
what are the elements of a gift Causa Mortis?
1. donative intent
2. delivery
3. acceptance
4. revocable under certain conditions.
what are the common law conditions where the gift is automatically revoked?
1. the donor recovers from the sickness that caused him to make the gift.
2. if the donor revokes the gift before his death
3. if donee dies before donor.
It is a general rule in common law that a will does not revoke a causa mortis gift?
Generally, are gifts given in the future good?
no, they must be given now. However, a present gift of a future interest is good law.
What is adverse possession?
A claim by a party that the statute of limitations has run against another party and that the party is barred from bring an action.
What are the elements of adverse possession?
1. Hostile- Your conduct is contrary or hostile to the true owners legal rights
2. Actual-Physicial presence.
3. Continuous-an unbroken continutity of possession
4. Exclusive-you are exercising the rights of an owner, you can invite or exclude the public as you wish
5. Open and Notorious-The adverse possession cannot be secretive.
What are the three often discussed policies to explain the reason behind adverse possession?
1. makes it easier to clear title
2. to promote the general use of land
3. punish the owner for not claiming the right to his land.
What has the burden in an adverse possesson case?
The adverse possessor
Is it true that the adverse possessor dosent acquire the title of the old owner, but rather establishes his or her own new title?
Is there adverse possession against a governmental entity?
No, the maxim is that time does not run against the king.
In regards to an adverse possessor, does the Statute of Frauds apply?
No, the adverse possessor could transfer a right t use the property orally.
In an adverse possession action, do you have to go back beyond the statutory period?
What is tacking in relation to adverse possession?
Each adverse possesor in the chain must satisfy all the elements of adverse possession. Where there is privity between adverse possors, their time may be added or tacked on to one another.
what is Period in Gross?
gives the disable owner a period in gross from the time of the removal of the disability to bring a cause of action.
What is a Prescriptive easement?
continued use, not possession, of the property of another over a period of time can give the user a continued right to use that property (things like a right of way or the right to draw water, etc.)
What is the biggest problem regarding Adverse Possession of chattels?
adverse possession of chattels is showing that it is open ended and notorious. Chattels are easier to move than realy property.
What is the common law view regarding adverse possession of chattels?
Statute of limitations begins to run when elements of adverse possession have been met regardless of discovery or time of theft
What is the New York view regarding adverse possession of chattels?
Follows the demand rule. A cause of action for replevin does not arise until the defendant refuses to return the property following plaintiffs demand. No due dilligence by the true owner to find the object is required.
What is the modern view regarding adverse possession of chattels?
is that the statute of limitations does not begin to run until the true owner discovers the whereabouts of the stolen objection and not until the act of demand and refusal have been met. This is the california law.
What is the elements regarding the doctrine of agreed boundaries?
1. dispute or uncertainty regarding the true boundary line.
2. Agreement between the owners where that line will be fenced.
3. Boundary is maintained for statutory period of time.
Who has the burden of proof when a cause of action regarding doctrine of agreed boundaries?
The party bringing the action.
What is a fee simple absolute?
a fee simple absolute is the largst estate known to the common law; it denotes the maximum of lgal ownership, the greatest possible aggriegate of rights, privileges, powers, and immunities which a person may have in land. It is usually indicated by the phrase "and his heirs"
what is a fee simple determinable?
it is a fee simple that has the potential to last to infinity but is subject to a limitation which coulc cause the estate to end. If this limitation occurs, then the fee simple estate is automatically extinguished. It is normally indicated by the words "during", "while" or "Until" or the phrase "So long as"
what is a fee imple subject to a condition subsequent?
means a fee simple subject to being erminated by exercise of a poer of termination or riht of re-entry for condition broken. It is usually indicated by the phrases "upon condition that", "provided that" "but if". Today this right is generally alienable, devisable, and descendible.
What is a fee simple subject to a springing executory interest?
It is a fee simple subject to a future interest that will become possessory after som period of time during which no other ransferee is entitled to posession. Typically, the grantor etained the right of possession, expressly or impliedly, during this period so that no other transferee was entitled to possession.
what is a shifting executory interest?
a future interest created in a transferee that in order to become possessory must, upon the occurrence or non-occurance of an event, divest a present interest of another transferee or a vested interest of another transferee. The interest that is divested is an interest of a transferee and not an interest that has been retained by the transferor.
What is a Fee Tail?
This was an estate that automatically descended to the heirs of the estate owner upon his or her death and continued so descending to the linel descendants until the entire line of lineal descendants became extinct. The person who created the fee tail retained a reversion which could become possessory only at such a time, if ever, that the grantee (tenant-in-tail) and his entire line of descnedants became extinct. Typically this was created by use of the words "and the heirs of his (or her) body"
What is a life estate?
This estate lated only so long as th life tenant was alive. IT terminated automatically when he died. At that time, the property either reverted o the grantor or passed to some other person who had either a remainder or an executory interest.
what is an estate per autri vie?
life estate created for the life of someone other than the curent owner of the estate.
What is dower?
this was the estate of a surviving widow. It equaled a life estate in one-third of all lands of which the usband was seized at any time during the marriage.
what is curtesy?
This was the estate of the surviving widower. It equaled a life estate in all lands of which the wife as seized of a legal or equitable estate at any time during the marriage.
What is a reversion?
a reversion is the residue left in the grantor who transfers an estate which is smaller than the estate which she had. A reersion is a future interest, thus the grantor is not entitled to the present use and enjoyment of the property until b's life estate terminates. A reversion is alwaysa vested interest in the transferor, and the transferor can dispose of it either by deed or will.
what is a possibility of reverter?
A possibility of reverter is an interest which is retained by the grantor who conveys a fee simple determinable.
What is a right of re-entry or condition broken?
It is an interest retained by a transferor who has conveyed the property subject to a condition subsequent. Failure to do either for a lon period of time after the condition is breachd may constitute a waiver of the right or conditions may estop the party from asserting the right or exercising the power.
What is a vested remainder?
It is a remainder limited in favor of a born or ascertained person (s) where the Person (s) (or their transferees, heirs or devisees) are certain to acquire a present interest at some time in the future, and are also certain to be entitled to retain permanently therafter the present interest so acquired. A vested remainder is alienabl, devisable, and descendible.
What is a vested remainder subject to open or partial divestment?
It is a remainder limited in favor of a class of persons having at least one living member, subject to no unmet conditions precedent.
What is a remainder subject to complete divestment?
It is a remainder that is limited in favor of a born or ascertained person or is limited in favor of a class of persons which class is vested subject to open.
What is a contingent remainder?
It is a remainder limited in favor of an unborn person, limited in favor of an unascertained person, or limited in favor of a born or ascertained person which is subject to a condition precedent.
What is a concurrent estate?
They are estates owned or possessed by two or more persons at the same time.