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68 Cards in this Set

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To A and his heirs to the use(1) of B and his heirs..

Give the estate each would hold prior to the statute of use and after the statute
Prior to application of the Statute A would have held an estate in fee simple at common law and B would have held an estate in fee simple in equity. After application of the Statute, A holds no form of property as a result of this grant. B holds an estate in fee simple at common law. Since no one else holds the equitable estate, that is, B is not acting as a trustee for another. Equity has nothing to say about how B uses the land.
To A for 10 years to the use of B for 10 years.

Give the estate each would hold prior to the statute of use and after the statute
First at common law the grantor holds an estate in fee simple. Prior to application of the Statute of Uses. A held a leasehold estate at common law and B held a leasehold estate in equity. After the application of the Statute, A holds no property as a result of the grant, and B holds a leasehold estate at common law. Think about the complete estate in fee simple and how it is split amongst the various holders of property. Both in equity and at common law, the grantor continues to hold an estate in fee simple.
To A and his heirs, to the use of B and his heirs at the age of 21

Give the estate each would hold prior to the statute of use and after the statute
Prior to the application of the Statute of Uses A held an estate in fee simple at common law. B held a contingent remainder in fee simple in equity, and the grantor would have held an estate in fee simple in equity until B reaches the age of 21. After the application of the Statute of Uses A holds nothing. B holds a contingent remainder in fee simple at common law. As there is no evidence that the grantor intended that A should benefit as a result of this grant the grantor holds an estate in fee simple determinable at common law until B reaches the age of 21.
To A to the use of B to the use of C.

Estate before the statute and after
As a result of this grant, after application of the Statute, A holds no property. B holds an estate in fee simple at common law. C holds an estate in fee simple in equity. Only the first use has been edited from the grant. This is because a series of cases in the latter part of the 16th century decided that the statute could only be used once
To A for life to the use of B for the life of A, remainder to the use of C at the age of 21.
Suppose C is 15 years old at the time of the grant. Before application of the Statute, at common law A held a life estate and grantor held an estate in remainder in fee simple. Note that the grantor’s property can be expressed differently: grantor held an estate in remainder in fee simple determinable + a contingent remainder in fee simple, with both the determining event and the condition precedent being C reaching 21. In equity, the grantor held the common law contingent remainder to the use of C and B held a life estate for the life of A

After application of the Statute, A holds no property. B holds a life estate for the life of A at common law
o A in fee simple to collect rents to the use of B
The Statute of Uses does not apply in cases where the holder of property at common law has an active duty. As a result of this grant, A holds an estate in fee simple at common law. B holds an estate in fee simple in equity. As A must collect and transfer the rent to B, the Statute is not applied to this grant. Nor does the Statute apply where a person holds the property to his own use. Note that the words in the Statute are "to the use of another".
Unto and to A, to the use of B for life, remainder to the use of
Nor does the Statute apply where a person holds the property to his own use. Note that the words in the Statute are "to the use of another".

Unto and to A" is the short form for “To A to the use of A”. Hence, as a result of this grant, A holds an estate in fee simple at common law and in equity. B holds a life estate in equity and C holds an estate remainder in fee simple in equity.
Describe the Tragedy of the Commons and who was it coined by
Garret Hardin and he that the tragedy of the commons could be prevented through private property, allocation of wealth, merit basis and a lottery. He said that b/c air and water cannot be fenced in pollution can destroy these commons
What three rights does VARA protect?
Right of attribution, rights of integrity and right to prevent destruction (some JXN's)
Describe the labor theory
Espoused by John locke it said man has property in his person and when he joins it with that of the land than it becomes property. Man does not have to have the consent of all people in commons to carve out a part of nature and make it his
Coase Theorem
Is about efficient transaction. In situations where there are no transaction costs all gov't allocations of property are equally efficient b/c interest parties will bargain privately to correct any externality.

Where there are many transaction costs, gov't can act to minimize inefficiency by allocating property initially by the party, which gives it the greatest utility.
What are Margaret Radin's theories
She discusses property and personhood. She says that there are two types of property: property bound up with the person and property that is just a mere instrumentality and we are willing to relinquish it at a commonly agreed price. Instrumentalities have no real sentimental value. She says that there is a very narrow boundary b/w person and property but a boundary no less and that should not encourage fetishes by encouraging people to be so bound up with property. So basically distinctions in property are sometimes warranted based on the character or strength of the connection. The more closely connected w/ personhood the stronger the entitlement.
Give important reasons for enforcing a right to publicity
The rights to publicity have the attributes of personal property:
1) They can be possessed and controlled to the exclusion of others
2) Economic benefit that be enjoyed
3) Can be the subject of a K and assigned to others.

The right to publicity is descendible and this right should be protected to protect against unjust enrichment, to protect the K rights of those charged w/ using the right of publicity, and to protect society from being mislead about the endorsements of celebrities.
- Consistent w/ recognition of an individual's right of testamentary distribution is an essential right.
- Recognizing the right is consistent w/ celebrity's expectation that they are creating a valuable capital asset inheritable by their heirs
Tragedy of the Anti-commons
Michael Heller said that private property is prone to under-use. That you do not have to have a formal right to exclude and that everyone has the right to exclude.
What are the rights in the bundle of sticks metaphor
Right to alienate, consume, destroy, income, manage, modify, possess, use
When can an artist work for hire be destroyed
When it is work of a "recognized stature"
Reid Tests
Said there is a multifactor balancing test in deciding if a work is for hire
What is the distinction b/w real property and personal property
In Feudal England real actions were confined to recovery of freehold estates in land. Modernly they are rights associated w/ land.

Traditional English Definition of personal property was property for which the owner could only get damages. Modern usage is rights associated w/ movable things (chattels or goods) and intagible rights tht are not associated w/ land.

* Some items can move b/w being real and personal depending on their attachment w/ the land
What are fixtures?
real property that becomes legally a part of the land

*Wood v. Wood
- Matured crops are no longer a part of the land if they are no longer drawing nutrients and just need to be removed.

What constitutes possession?
Finder must acquire physical control over the possession and have intent to assume dominion over it

*Constructive possession - the law treats him as if he is in possession althrough he or she is unaware f it. Property not actually possessed by anybody is constructively possessed by the person who has title.

de Facto possession - possessor does not have to be aware of its existence (South Staffordshire Water Co. rings found on private property)
What form of relief can a owner of chattels recover?
Replevin - developed as an exception to the traditional rule that an owner of lost chattels could only recover damages. Replevin allows one to recover the specific chattel from any wrongful possesser.

Conversion - under modern law this has replaced trover and replevin and says that if a person acts w/ dominion inconsistent w/ the owners rights he has converted the chattel and one can recover the FMV of the chattel.
What is lost property?
Lost roperty is property an owner accidentally and casually lost and it goes to the find.
- Treasure trover is property hidden or concealed so long as to indicate that the owner is probably dead or unknown

But lost property on private propery will probably go to the owner as a policy issue weighing the exclusive rights of the premises owner over the rights of the finder - it would create an incentive to rummage.

Lost property on public property goes to the finder --> incentivize the person who returned it to social use over the owner of the premises b/c the owner never had knowledge of it and would have never brought it to social use

Occupation theory supports finders
What is mislaid property?
Mislaid property is intentionally placed somewhere and forgotten. The property goes to the owner of the premises b/c the idea is that the person would more easily remember where he mislaid his property and come back for it. But there is an exception to mislaid property in movable objects such as cars.
Why does the status of the finder matter?
Customer - if public property they will prevail.

Employee - General rule is that employees do not prevail I.e. maids in a hotel have a duty to take property to the lost and found.

Trespass: Law should not be applied to trespassing finders but could be separate for a good faith or bad faith trespasser.

Social Guest - Normally in terms of treasure trove owner unknown and it goes to the finder
What is the rule of abandoned property?
Property is abandoned if there is 1) intent to relinquish ownership and 2) acts of abandonment.

*Law of Salvage (Columbus America Discovery Group) original owners can retain ownership of the lost item but the salvagers are entitled to a agenerous reward. courts have a lot of discretion in giving salvage awards.

Salvaged item becomes the commons b.c it is abandoned
What is a bailment?
A bailment is a rightful possession of goods by one who is not the owner. True owner = bailer and the person is possession = bailee. Bailee has a duty to care for the goods and deliver them to the owner as agreed
What are the different types of bailments?
Gratuitous Bailment: lowest standard of care (holding someone's wallet as a favor) only liable <-- gross negligence

Bailment for mutual benefit - standard of reasonable care (lost and found at a hotel)

Bailment for hire - is held to a standard of ordinary care (takes custody of car in return for compensation) may be created in the absence of an express K (quasi bailment)

Bailment for Benefit of the Bailee- highest standard of care (borrowing a car)<-- havae to exercise extraordinary care

Voluntary Bailment - a delivery of personal property by one person (bailer) to another (bailee) who holds the property for a certain purpose under an express or implied-in-fact K

Constructive bailment: arising where the person having possession of a chattel holds it under such circumstances that the law imposes upon him the obligation to deliver it to another. Conditions satisfied by voluntary acceptance of possession by one who expects some reqard for service

Involuntary Bailment: One arising when a person accidentally, but w/o any negligence, leaves personal property in another's possession. As long as he remains involuntary, he is not under the slightest duty to care for it, but if he exercises any dominion over it he becomes responsible as if he were a voluntary bailee.
What are the requirements of a bonafide purchaser?
1. Must be in ordinary course of business from a person who deals in that commodity.
2. Pruchaser must have no knowlede that the property is "tainted"
3. Purchaser must take reasonable steps to very title before buying, based on the nature of property and surrounding circumstances. I.e. real estate and autos have recording statutes to protect the owner and buyer from fraud b/c they are very valuable pieces of property and for autos they are hard to locate

*UCC requires a two-tiered definition for non-merchants:
A) you need to be an honest-in-fact purchaser when you are not a merchant but there is a different standard for merchants
B) A merchant must observe reasonable customary standards
What is voidable title?
A voidable title is one where the owner intended to pass the title but can void where the title is acquired by fraud or by a check that bounces. i.e. Voidable title allows you to pass a good title to a good-faith purchaser.

*One can obtain voidable title through good faith.
What is a void title
A void title is one where the owner does not intend to pass title or has no capacity to do so. I.e. Void title is what a thief has so if you acquire void title from a thief you do not acquire title.
What is a gift?
A gift is a voluntary transfer of property w/o any consideration. There are 3 requirements for a gift of chattels:
1. Donor must intend to make a gift(I.e. letters are sufficient for donativee intent and it may not always be practice to have physical delivery
2. Donor must deliver the chattel to the donee (there are some acceptable substitutes for manual delivery) --> words are not acceptanble. Hierarchy is actual delivery <-- constructive delivery <-- symbolic delivery
3. The donee must accept the chattel

Donor must take steps to give dominion and control to the donee (giving him a key to the cabinet where the guns are --> no more steps needed from the donor)
What is a gift inter-vivos?
this is a gift made during the donor's life, possessory interest passes immediately, when the donor is not under any threat of impending death --> gift is irrevocable
What is a gift causa mortis
This is different from a will which goes into effect after death. The requirements are: 1) an expression of donative intent 2) a delivery may be active, potentially constructively even symbolic and 3) acceptance before the donor dies. Donor must intend to pass title presently and not merely to transfer possession. Soldiers cannot make GCM try to encourage people to make a will and give away property the valid way. Courts generally require a serious and reasonable belief that you are going to die. Split of authority over whether a person contemplating suicide should be allowed to give a GCM
What is the general rule regarding engagement rings?
Split of authority in some states like PA it is a conditional gift in which you are required to return. In states like MO you do not have to return it.
*Some states used a fault based approach meaning that the person not at fault for the end of the engagement gets the ring regardless of who gave it as a gift but a lot of courts do not support this approach b/c if the difficulty in deciding who is really at fault and could lead to arbitrary decisions.

No-fault: gift given on a condition and upon non-occurence of the marriage, the ring goes back to the person who gave it.

A gift given w/o implied or express condition is irrevocable.
What are the requirements of adverse possession?
1) Actual - must actually possess the entire amount of property that he desires to obtain title
2) Uninterrupted, continuous possession. A person can still be in continous possession during seasonal use. Tacking is allowed by successive possessors who qualify
3) Open and notorious (or visible) - possessor must occupy the property in an open, notorious and visible manner so as to give reasonable notice to the owner that the possessor is claiming dominion adverse to the owner's rights.
4) hostile or adverse - Not a lease, or permissive. Objective Test - state of mind of the possessor is not controlling.
Subjective Test - Some JXN's interpret claim of right to mean the possessor has a good faith belief that he has title (Connecticut Rule - majority rule). The Maine Doctrine is the minority view b/c it requires wrongful taking
5) Exclusive Possession - one person has to exclusively occupy the property and behave as the true owner in exercising the right to exclude others.
6. Is the optional Claim in good faith - that you must have an honest belief that it is really yours. Many states do not have a good faith requirement. In GA the law requires that the trespass be made in good faith.
Describe trespass and the right to exclude
Core of ownership os the right to exclusive possession. Private ownership by definition means that land is not the commons. Owners has power to decide who may enter and who may not.

*But your rights are only protected to the extent the state will enforce those rights to exclude.

- Bad faith trespassers usually lose (Jacques v. Steenberg homes)

- Courts will allow punitive damage even though there was only nominal damages awarded.
Trespass v. Nuisance
Trespass lets you exclude any and all tangible objects that intentionally enter your propoerty - Owner does not have to prove harm and utility doesnt matter

In Nuisance this effects your right to use or enjoy the land and your right is balanced w/ the interest of the alleged tortfeasor's so utility matters. And you have to prove damages.
*Intrusion must be direct, immediate, and from a physical tangible object.
When is one liable for a trespass to chattels?
A) dispossesses the other of the chattel
B) the chattel is impaired as to its condition, quality, or value
C) the possessor is deprived of the use of the chattel for a substantial time, or
D) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest

How does color title factor into AP?
Claims w/ color of title are deeds or other instruments of conveyance that purport to convey the title of the land so even if the deed was invalid they AP would still be in possession under color of title.

Claims w/o color of title are where the person has no deed or instrument that purports to convey the title of the whole land but they take possession of the land that is actually occupied or controlled.
What is tacking?
An AP can establish continuous possession by tacking onto her own period of possession any period of AP by predecessors in interest if there is PRIVITY OF ESTATE(meaning the possessor voluntary transferred to a subsequent possessor either an estate in land or physical possession).

- An adverse possessor cannot tack on prior period of possession if she has ousted the prior possessor or if the prior possessor abandoned the property

- One AP has begun to run against an owner it runs against the owner and all his successors so there is tacking on the owner's side

- If the owner interrupts the AP by reentering w/ intent of regaining possession continuity is broken. (Objective Test - ordinary acts of ownership suffice)
Who is exempt from Adverse Possession?
Future Interest - AP does not run against owner of a future interest if entry is made when a life tenant has possession. but if entry was made before the owner created the remainder the statute would begin to run against the owner and his successor in interest

- An AP does not destroy any lien, covenant until he interferes w/ it so as to give the holder of the right cause to sue the AP

- Governmental land, Public lands and lands w/ charitable use are exempt - not right to take property from the public and give to a private individual
What about AP of Chattels
Title to personal property may also be acquired through AP. However, difficulty arises in determining when AP of chattel begins. Majority hold that the cause of action accrues when the owner knows or reasonably should know through exercise of due dilligence (Georgia O'Keefe)
What about AP and cotenancy
Possession by a sole cotenant is only hostile or adverse if there is ouster. And ouster has to be shown through actions or behavior that demonstrates an intention to oust. There is a notice requirement. In the absence of ouster there is a 20 year period for a possessing cotenant who meets the elements of AP to take title against the non-possessing cotenant.
Can an AP sue in replevin the person who can no longer sue them as the original true owner?
The running of the SOL on the owner's action in ejectment not only bars the owner's claim of possession but it also extinguishes their old title creating a new title by operation in the AP
What is the discovery rule?
the discovery rule switches the burden of proof to the π and says that they have to show that they exercised due diligence in trying to recover the property once it was discovered missing. This differs from the old rule that said the adverse possessor had to prove they deserved title but now the π has the burden.
What is a tenancy in common?
This is where tenants hold land in common and each person owns an undivided share for his enjoyment. Each tenant can force a partition sale. And the interest is inheritable and devisable. When a TIC makes a coveyance the grantee becomes a new tenant in common.
*Preferred construction where there is ambiguity
- Joint tenants who become tenants in common after their divorce have a legal right to partition (partition in kind or in sale)
What is ouster?
Where each tenant in common has an unrestricted right of access to the property where one co-tenant wrongfully excludes another from making use of the property that co-tenant can bring an action for ouster and may receive FMV of the property from the time that he is dispossessed.

* Some courts created a presumption of ouster for former spouses but most courts decline to do this b/c it would create more problems
What is the open-mine doctrine?
This is the doctrine that if land passes to an owner if there is an open-mine on the land unless there is expressed contrary intent he is allowed to make use of the mine. Would be wasteful if he did not and a life tenant is not permitted to deplete the property
When is a cotenant in possession liable to an out-of-possession cotenant?
1) possession in TIC is presumed to be the possession of all tenants unless communicated by one that they have an exclusive right
2) Where one cotenant has exclusive possession of lands and uses it for his own benefit w/o receiving rents or profits he is not liable to cotenant out of possession unless he holds adversely
3) Cotenant in possession seeking contribution for amounts expended in the improvement or preservation claim may be offset by cotenant out of possession claim for FMV of his use of the property if he has exceeded his or her proportionate share of ownership
What is a joint tenancy?
JT's own an undivided share of the property and the surviving cotenant has the right to the whole estate. The right to survivorship is a distinctive feature of a JT. <-- several states have prohibited joint tenancies.
Four Unities Requirement:
1) Unity in time
*Today many states have reforms that eliminate the need for the particular unity of time and possible title to exist
2) Unit in title
3) unity in interests
4) Unity in possession

At common law there was a presumption that any conveyance or devise to two or more persons (other than spouses) created a joint tenancy, absent contrary language. Modernly a conveyance to two or more people creates a TIC. A JT can be created only by Express words indicating such an intent

*At common law neither a JT or a TIC had right to insist upon a partition but today all U.S. states recognize the right to partition
How can you sever a Joint Tenancy?
A conveyance by a JT can sever the JT w/ respect to that share *but it has been held at common law that where there were 3 joint tenants and one conveyed his interest to a 3rd party, the JT was only severed as to the party conveyed and the 3rd party grantee became a TIC w/ other two JTs --> right to survivorship not extinguished b/w the two JT's in respect to their share of the JT

Agreement among JT - JT can agree that one tenant has the right to exclusive possession w/o severance. However, the severance occurs if they agree to hold as TiC although none of the four unities is broken

Divorce does not terminate a JT unless the parties agree.

Where one party murders the other a severance occurs in most states, creating a TIC. Other JXN's hold that no severance occurs, rather courts award the victim's heirs everything except the murder's life interest in half the estate. In simultaneous death cases, usually one-half each goes to estates of the JTs .
Can a JT will his interest to another?
No b/c at death his interest vanishes and the right to survivorship goes to the other cotenant
What words are needed to create a JT?
Using the words "jointly and severally" do not create a joint tenancy nor do the words "share and share alike". you can say "jointly w/ the right of survivorship" to create a JT.
What is a tenancy by the entirety?
The tneancy can be created only b/w husband and wife holding as one person. <-- Severance by one tenant is impossible thus the right of survivorship cannot be destroyed.

At common law a conveyance to a husband and wife created a tenancy in the entirety - common law remains as presumption in many states but some states presume a TIC while others presume a JT
How is a tenancy in entirety terminated?
Divorce - terminates the unity of marriage and terminates a tenancy by the entirety. In the majority of states, it then becomes a tenancy in common; in the remaining states, it becomes a JT.

When spouses jointly convey to a 3rd party but they must expressly say the property is being conveyted to the couple "as tenants by the entirety"
Can creditors collect against the land if the debt is the legal obligation of both spouses?
A debt incurred by one spouse is not collectible agains the other. Protects the surviving spouse from the other's debts. If there is a tax lien it can sever the JT and create a TIC and one tenant has enough bundle of sticks to have a right to the property. But if the debtor dies first the lien will disappear but if the non-debted tenant dies the lien attaches to 100% of the property
What is the wife's estate called at death?
Dower- birth of child not required - dower applies to 1/3 of the husband's freehold estates.

*Most states have abolished dower and curtesy. Today dower is only recognized in 4 states: Arkansas, Kentucky, Michigan and Ohio.
What is the husband's estate estate called?
Its called curtesy and it requires the birth of a child. At common law on a wife's death a husband received a life estate in all of his wife's lands if issue were bron of the marriage. It applies to all the wife's freehold estates.
* Has been abolished wherever dower has been abolished.
What is the modern rule where one of the spouse's dies?
Most states say the surviving spouse is entitled to a percentage of the deceased's spouse's estate and if the spouse is less generous the surviving spouse can contest the will and take a mandated share. Treats real property and personal property alike.
What have been two major reforms in divorce?
No-fault divorce and Equitable Division of property
What is equitable division of property?
Under traditional law property was divided by the relatively simple process of deciding who owned what and confirming that ownership. Property was divided into 3 groups: (i) owned solely by husband (ii) owned solely by wife (iii) owned together as in community property)

Equitable Distribution Law contemplates only two classes of property: marital and separate property
What is community property?
Community property consists of earnings of either spouse during marriage. 9 states have enacted community property statutes under which property is owned in equal undivided shares by the spouses. In one additional state married couples may elect to hold their property as community property.

*Can be divided w/partition of sale when appropriate.

Neither spouse can convey his or her share of the community property, except to the other spouse. However, the spouses can agree to convert community property into separate property of either spouse.

Accumulations of wealth belong to the couple togehter

All income earned during the marriage belongs to both partners equally

Community property states all lie to the west of the Mississippi river
*Allowed to own separate property which consits of all premarital property but there is a strong presumption that all property owned by either spouse is community property.

A person who claims a particular asset has the burden of proof to have it declared separate property
What is alimony?
Personal obligation of that spouse
What problems are there w/ community property laws?
If spouses own property in different states those properties are subject to different rules depending on if that state is a separate property state or community property state.

Also how the property is divided in the event of divorce: Some states require an equal division and others make an equitable division.
Can a spouse give a gift alone?
In some states one spouse cannot act alone in giving a gift from community property. but other states allow one spouse acting alone to give a reasonable gift. CA and WA allow the non-generous spouse to set aside any gift of community property whereas in some states (TX) a reasonabe gift is allowed.
What is not subject to division after the dissolution of the marriage?
Disability and workers comp are not subject to division b/c if it is disability pension that is the worker's separate property
What are the property rights of unmarried couples?
Although now abolished in most states, a common law marriage, where recognized, affords a couple the same rights as given to those married by official methods.

But usually unmarried couples do not have equivalent property rights as do married couples such as survivorship rights and rights upon termination of relationship. They are treated just as unrelated individuals are regardless of their nature and cohabitation
What about Ks b/w unmarried partners?
Some JXNs that do not recognize common law marriages still give certain rights to unmarried cohabitants on dissolution of the relationshp under express or implied K; partnership or quantum meruit.

Some JXNs have struck down these Ks b/c of their illicit nature but this was more of a traditional rule and as times change and with the current diversity of family structures and living arrangements this has caused some problems and they usually just require that the K be in writing.