Property

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Utilitarianism

Back 1

Property law exists to serve the expectations of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand toward it.

Property rights function to maximize wealth/utility to individuals

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Property and personhood

Back 2

Radin.

The more closely connected a property right is with personhood, the stronger the entitlement to the property.

Front 3

utility

Back 3

a measure of the value a person attaches to a particular good, service or activity; includes noneconomic values such as personal security, the pursuit of hobbies during leisure time, etc.

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Pareto efficiency

Back 4

a change in the status quo is Pareto efficient if it makes at least one person better off and no one worse off

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Kaldor-Hicks Efficiency

Back 5

a change produces Kalder-Hicks efficiency if it increases society's society's aggregate utility, i.e. the total gains exceed the total losses

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coase theorem

Back 6

idea that in the absence of transaction costs, parties will arrive at an efficient outcome, regardless of the legal rule's allocation of entitlements

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externalities

Back 7

idea that the actor, in deciding whether to do something, will not consider the effects (costs imposed and benefits conferred) on others by his acts; the self-interested and rational actor making decisions that seem efficient to her, but are not efficient for the community

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positive externalities

Back 8

benefits others would receive from a self-interested actor's actions

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negative externalities

Back 9

costs imposed on others by a self-interested actor's actions

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Definition of right of publicity

Back 10

intellectual property right that recognizes and protects the right of individuals to control the commercial use of their identity

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policy reasons for allowing ROP to be inheritable by estate when the celebrity dies (4)

Back 11

unjust enrichment; expectation; wealth maximization; consumer deception

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Transformative test

Back 12

Do the literal and imitative or the creative elements predominate in the work that depicts the celebrity?

Front 13

definition of cultural property

Back 13

property that, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, literature, art, or science

Front 14

Possession of a thing gives rise to title unless it is successfully rebutted.

Back 14

possession principle from Wilcox v. Stroup - gubernatorial papers

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Moral rights/artists' rights (3)

Back 15

The right to attribution
The right of integrity
The right to freedom from destruction (protected in some jurisdictions)

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The right of attribution (protected in nearly every jurisdiction that recognizes moral rights)

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consists of the right of an artist to be recognized by name as the author of his work or to publish anonymously or pseudonymously, the right to prevent the author's work from being attributed to someone else, and to prevent the use of the author's name on works created by others, including distorted editions of the author's original work

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The right of integrity (protected in nearly every jurisdiction that recognizes moral rights)

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allows the author to prevent any mutilating or deforming changes to his work

Front 18

improvements - definition and examples

Back 18

formerly personal property that has become a permanent part of the land and is real property for all purposes, just like the underlying land

ex. a permanent building, a driveway, or a stone wall

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fixtures

Back 19

items that are attached to the land or a building; legally part of the real property for at least some purposes

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Law of finders general rule

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The finder of property has a right to possess the property against all but the rightful owner.

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Constructive possession

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The landowner has constructive possession of any lost chattels located on her real property if the landowner 1. has a general intent to exercise dominion and control over her property and 2. has engaged in substantial acts of control

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Finder has right to possess these types of property (against all but true owner)

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abandoned, lost, treasure trove (however, some courts have rejected the latter and preferred the landowner)

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The finder of this type of property must turn it over to the owner of the premises who has the duty to safeguard it for the true owner

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mislaid property

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The finder of this type of property must hand it over to the owner of the land on which the property was found

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embedded property

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Exception to finders rule for

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mislaid property, embedded property, and employees who find property on employers' land

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Abandonment of property

Back 26

the intentional and voluntary relinquishment of ownership in property; test aimed at ascertaining the owner's intent

Front 27

lost property

Back 27

property which the owner involuntarily and unintentionally parted with through neglect, carelessness or inadvertence

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mislaid property

Back 28

that which the owner has intentionally set down in a place with the intent to retrieve it, and then forgets where he put it

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embedded property

Back 29

that personal property which has become a part of the natural earth (e.g. pottery, sunken wreck, etc.)

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treasure trove

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gold, silver, and sometimes paper money, embedded within the soil or a structure under circumstances showing that the property had been concealed for safekeeping; needs to be sufficiently ancient to show that the owner is probably dead or incapable of identification

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equitable division

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a remedy to resolve equally strong competing claims to property by which the property is sold and the proceeds are divided between the two parties

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elements of possession

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1. Intent to possess
2. Acts of control and dominion

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standard of care for gratuitous bailment

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duty to exercise slight diligence

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standard of care for bailment for hire/for the mutual benefit of the parties

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duty to exercise reasonable care

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standard of care for bailment for the sole benefit of the bailee

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duty to exercise extraordinary care

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contract-based definition of bailment

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A bailment is a contract in which the owner delivers the thing into the possession of the bailee and the bailee has a duty to return it to the owner.

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Bailment definition

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The rightful possession of goods by one who is not the owner.

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involuntary bailment

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bailee did not agree to possession; either no care owed or the standard of gross negligence; BUT if he exercises any control over the thing bailed, he becomes a voluntary bailee

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UCC 2-403 - Bona fide purchasers - Persons who can acquire good title from a person with only voidable title if

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They act in good faith (honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade)

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whether one has a duty to investigate title depends on

Back 40

reasonable transaction costs, real world experience as to risk (e.g. fraud is prevalent in the field)

Front 41

gift of a remainder

Back 41

takes effects at a later date such as the owner's death; present transfer of title while the owner retains possession; effective

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promise to make a gift in the future

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invalid; transfers of possession effective only after death must be made by will (exception for gift causa mortis - gifts made by a donor in the apprehension of death; revocable if donor does not actually die)

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Elements of inter vivos gifts

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1. Intent to make an irrevocable present transfer of ownership.
2. Delivery
3. Acceptance

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Requirements for gift causa mortis

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1. Intent, delivery, acceptance
2. Apprehension of death
3. Delivery
4. Death actually occurs

Front 45

Estate

Back 45

what a person owns at any given time

Front 46

The relatives designated by state statute to receive a decedent's property in the event that he dies intestate

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heirs

Front 47

Those who receive real property under a will

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devisees

Front 48

Those who receive personal property under a will

Back 48

legatees

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Reversion

Back 49

a future property right that's inheritable and transferrable

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Operates as a release that conveys the grantor’s entire title, interest or claim in the property to the grantee, but without warranting that such title is valid and without making any promise of quality.

Back 50

quitclaim deed

Front 51

Uses of quitclaim deed in modern context

Back 51

donative transfer, divorce, using it to clean up a title problem

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warranty deed

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the grantor promises to warrant and defend the grantee's title and possession of the estate against all legal challenges arising under the deed

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fee simple determinable definition; how its created

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an estate which automatically expires upon the occurrence of a stated event and reverts back to the owner; created by words of duration (until, so long as, during) and, ideally, by explicitly denoting it as such

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waste

Back 54

tort cause of action by holder of future interest or co-owner against owner of present estate for improper use

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tenancy for years

Back 55

lease for a fixed period of time
no notice of termination required because of the fixed ending date

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periodic tenancy

Back 56

lease for a fixed period of time, which repeats until either party terminates the lease by giving notice of termination to the other party
notice must be given one period in advance (exception - year-to-year - 6 months is sufficient)

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tenancy at will

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default; the tenant has possession for no definite length of time and either party can terminate the length at any time
notice effective immediately upon receipt unless later date stated
requires reasonable notice to terminate

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tenancy at sufference

Back 58

estate that result when a (now holdover) tenant remains in possession without the LL's consent

lasts until tenant is evicted or surrenders possession or the parties enter a different type of tenancy

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license

Back 59

right to use the property for a specified purpose only, other rights being excluded; revocable and nontransferable

Front 60

how to determine whether a K is a else or a license

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the legal effect of its provisions - what rights are given to the tenant and those that are reserved to the landlord

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FHA protected classes

Back 61

race, color, religion, sex, familial status, national origin

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two types of discrimination

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intentional discrimination and discrimination by disparate impact

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prima facie case for housing discrimination

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P must prove
1. Member of statutorily protected class
2. Applied for and was qualified to rent or purchase the property
3. Was rejected AND
4. The property remained available thereafter.

Front 64

Majority rule (English rule) for LL duty to deliver possession of the premises

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The LL must actually deliver possession of the premises to the tenant; if not, LL has breached and is liable for damages

Front 65

implied covenant of quiet enjoyment

Back 65

implied in all leases; violated by wrongful eviction (actual - total or partial - and constructive)

Front 66

implied warranty of habitability

Back 66

available in most states; applies only to residential leases; scope varies

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remedies for breach of CQE

Back 67

injunctive relief, damages, lease termination, rent withholding

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remedies for breach of IWH

Back 68

damages, termination of the lease (notice required), specific performance to compel LL to make repairs, "repair and deduct" (notice required), rent withholding/abatement/escrow

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trade fixtures

Back 69

those which the tenant places on demised premises peculiarly for the benefit of the present business; he may remove them when he leaves

Front 70

Criteria for a trade fixture

Back 70

1. Degree of physical attachment
2. Degree of adaptation
3. Intent

Front 71

LL's remedies for tenant's breach if tenant abandons premises prior to expiration of lease

Back 71

1. Do nothing and collect full rent due (majority rule - duty of making reasonable efforts to mitigate)
2. Treat the lease as terminated, reenter the premises and relet them, thereby releasing the tenant from further liability for rent
3. Notify the tenant that LL is entering and reletting the premises for tenant's benefit (tenant still potentially liable for rent)

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LL's remedies if tenant defaults on rent but is still in possession

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1. Commence eviction proceedings OR
2. Continue the relationship and sue for rent due
!! LL cannot engage in self-help eviction !!

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Majority view on restrictions on subleases and assignments

Back 73

When the lease contains an approval clause, the lessor may arbitrarily refuse to approve a proposed assignee no matter how suitable the assignee appears to be and no matter how unreasonable the lessor's objection

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Minority view on restrictions on subleases and assignments

Back 74

When the lease contains an approval clause, the lessor may only withhold consent if he has a commercially reasonable objection.

growing in popularity; adopted by Rest.

Front 75

profit a prendre

Back 75

the right to remove something of value from another's land and keep it

Front 76

The D's conduct is said to be a nuisance if

Back 76

if the gravity of the injury to the P outweighs the utility of the D's conduct to the point that the D's conduct is unreasonable under all the facts and circumstances

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nuisance per accidens/nuisance in fact

Back 77

the circumstances around an otherwise lawful use of the property render it a nuisance

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nuisance per se/nuisance at law

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a nuisance that in itself cannot be conducted or maintained as to be lawfully carried on or permitted to exist

2 types - statutory and common law (activities that courts have repeatedly labeled as nuisances

no balancing test needed

Front 79

private nuisance

Back 79

nontrespassory invasion of another's interests in the use/enjoyment of his property

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public nuisance

Back 80

an action that harms the public at large; must show injury to a significant amount of the general public

Front 81

To be liable for acts of third parties that create a nuisance on your land, you must

Back 81

1. know that the activity is being carried on and will involve an unreasonable risk of causing a nuisance AND
2. consent to the activity or fail to exercise reasonable care to prevent it

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remedies for nuisance

Back 82

flexible - damages and/or injunctive relief

Front 83

Elements required to show adverse possession

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1. Actual possession
2. Open and notorious
3. Hostile
4. Exclusive
5. Continuous

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Hostile possession (majority and minority)

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majority - objective test - possession without the authority or permission of the true owner of the land
minority - the possessor must subjectively intend a knowing, wrongful taking

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Tacking

Back 85

Successive adverse possessors can add together their periods of adverse possession to meet SOL requirements if they are in privity (i.e. if there is a sufficient nexus or connection between the consecutive possessors, usually established by conveyances)

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Policy justifications for adverse possession

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1. Certainty as to title (public interest; evidentiary concern)
2. The owners have "slept" on their rights.
3. The protection of the possessor's reliance interest.
4. The protection of 3rd persons who deal with the possessor.
5. Efficiency and the promotion of land development.

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Discovery rule (AP of chattels)

Back 87

cause of action accrues when the owner knows or should have known of the location of the chattel through the exercise of due diligence (BOP on owner)

Front 88

Demand and refusal rule (AP of chattels)

Back 88

delays accrual of cause of action until the true owner demands its return and the possessor refuses

Front 89

eminent domain

Back 89

under the fifth amendment to the US Constitution, must be for public use and must give just compensation

Front 90

public use

Back 90

SCOTUS - public purpose, including private uses that provide a public benefit [primary, not incidental] (Kelo)

Many states further restrict --> statute - economic development takings (those that result in transfer to a private party) only if the land is "blighted," while others require an actual use by the public or at least a public right to use the property that has been taken

Front 91

County of Wayne factors for whether eminent domain can be used to transfer to a private entity

Back 91

1. private necessity
2. private entity remains accountable to the public
3. public concern

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Regulatory takings factors

Back 92

1. the extent of the diminution [per se rule - total deprivation of value is a taking unless govt can show that it is suppressing a nuisance]
2. interference with owner's investment-backed expectations
3. character of the government action
4. nuisance prevention
5. average reciprocity of advantage
6. destruction of recognized property right

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Test for whether an exaction (condition imposed on proposed development) can be upheld

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1. Nexus between the state interest and the permit condition exacted by the city
2. Rough proportionality between the conditions proposed on the owners and the negative impact of the development on the public.

Front 94

usufruct

Back 94

exclusive to GA; leases for less than five years are usufructs unless stated otherwise in lease; conveys only a right to use and enjoy and cannot be conveyed without landlord's consent