Property

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Property

Back 1

1. Property is a tangible or intangible resource that belings to someone or something.2. the legal relationship between persons regarding resources.

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Property rights- Right to Possession

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a property owner has the right to possess the property. This right remains even if another person has a legal interest in the property. This right can be given to another.

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Property rights- Right to Use

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Property owner has the right to use the property.If the property owner wishesthe right can be held by or shared with someone who is not the owner.The right to use is limited because an owner's use cannot interfere with or injure the rights of another.

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Property rights- Right to Disposition

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property owner to dispose of the property as he or she desires. Unless otherwise limited by law the property owner has the power to dispose of the proeprty by sale gift inheritance bequest or devise.

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Property rights- Right to Exclusion

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property owner has exclusive possession of the property but that right is limited. i.e. govenment officials

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First in Time

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first in time first in right. This is the idea that the first to acquire property has the greatest right to it.

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Rule of Dicovery

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Awarded land to the first "civilized nation" to discover it regardless that the land's indigenous population was occupied first.

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Protections of designs at common law

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a person who creates a chattel is protected only to the extenet of the chattel itself not against copying and imitation of the chattel.

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Protection of news

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the first to disseminate new is protected against copying by competitors.

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rule of capture

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ownership of a wild animal is given to the person who kills captures or mortally wounds it.

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rule of sportsman

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ownership of a wild animal goes to the person who is in hot pursuit and has a reasonable prospect of capturing the animal.

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rule of escape

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if a wild animal escapes fromt he possession of another the wils animal is subject to the rule of capture once again

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animus revertendi

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if a wild animal leaves the possession of another but exhibits the habit of return then the person does not lose ownership of the animal when it is not in the person's actual possession.

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ratione soli

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establishes in a landowner or lessee the exclusive right to hunt wild game located on the propety owned or leased by the person subject only to the state's rights to regulate or manage game

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interference

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competitor may interfere with a person's attempt to capture an animalwithout suffering liabilityif the he intends to capture the animal for himself.But if a person intentionally frightens off the animal with no intention of captureliability may result.

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Relitivity of title

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a finder of proerpty has title relative to his or her placement in the sequence of possession

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Lost property

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-involuntarily separated from its owner-finder ha highest claim to all except original owner

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Exceptions to relativity of title of lost property

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Landowner has higher claim if-embedded in soil-the landwoner is in actual or constructive possession of the home where the object is found-the finder is a trespasser-the finder is a licensee or and employee with a duty to report the find

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Mislaid Property

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-property that is voluntarily left by its owner but which the owner cannot now find.-awarded to the landowner

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Abandoned Property

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-the original owner has relinquished all rights and claims but title for which has not yet vested in another-belongs to the finder-if found by the agent of another withn the scope of his or her agenc the abandoned proeprty belongs to the principle.

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treasure Trove

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money (gold silver coin plate bullion and sometimes paper currency) that has been hidden in the earth or some other private place for such a length of time that the owner is likely unknown or dead.

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gift

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a gift is a voluntary transfer of property from one person to another without payment of consideration

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gift inter vivos

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gift made during a person's lifetime without threat of impending death.-is irrevocable vest immediately-Intent -acceptance-delivery (physical constructive-key symbolic- letter)

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gift causa mortis

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a gift made while a person is in fear of impending deathrevocable anytime before death -same as gift inter vivos plus-donor must have disorder that makes death imminent or be in peril that threatens death-donor must die from that disorder or peril

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Tenancy in Common (TIC)

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an interest in land that you share with another but it does not have any future interest- you can use it all but if you sell you only get your share. Separate but undivided interest descendible devisable and conveyable. No ROS. Requires UOP.

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Untity of Possession (UOP)

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the right of each tenant to possess and enjoy the whole property subject to the same right held by all other co-tenants.

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Right of Survivorship (ROS)

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that the ownership interest of a deceased joint tenant does not pass to the decedent's heirs or devisees. Instead it is extinguished and the remaining joint tenants' interests expand to cover the extinguished share.

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Joint Tenancy

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an ownership interet in real or personal property held by two or more people in separate shares but with an undivided interest in the whole and with the ROS. Requires UOP,UOT,UOTITand UOI. Conveyable but severs JT and converts to a TIC

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Unity of time (UOT)

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all interests in the joint tenancy must vest at the same time

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Unity of Title (UOTITT)

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all interest in the joint tenancy must arise from the same deed

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Unity of Interest (UOI)

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Each tenant must hold an estate of the same duration.

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Title theory state

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viewed a mortgage as transferring title to the lender until the borrower paid off the loan. Under this view a mortgage taken out by a single joint tenant will sever the JT.

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Lein theory state

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views a mortgage as only security on a loan. a mortgage will not sever joint tenancy.

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Tenancy by the entirety

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interest in proeprty held only by husband and wife where the couple holds as one unit and each spouse has the ROS. Requires UOP,UOT,UOTIT, UOI and marriage. Not conveyable unless both parties agree. Divorce destroys it. partition N/A.

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Partial partition

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divide the land into physical pieces

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partition by sale

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sell land and divide the proceeds according to interest

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Common law marital property states

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Property considered separate.Each spouse get his/her own property at divorce(modern moving toward equitable distirbution). Alimony available.

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Personal Property Rights at death of spouse (common law)

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Widow takes 1/3 of her husbands personal property if there were surviving issue. if none 1/2. Widower took all of wife's personal property.

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Dower Real property Rights at death of spouse (common law)

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entitled wife to a life estate in 1/3 of each freehold of which the husband was seised during the marriage and which was inheritable by issue

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Curtesy- Real Property Rights at death of spouse (common law)

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entitled husband to a life estate in all freehold lands of which the wife was seised during the marriage and which was inheritable by issuebut only if the marriage produced surviving issue.

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Modern elective forced share-Rights at death of spouse (common law)

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the right of a surviving spouse to choose to take a statutorily designated portion (often 1/2 or 1/3) of the decedents spouse's personal adn real property owned at death

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Community property states

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recognizes both community and separate property. Once characterized as community or separate it cannot change unless the spouses agree to transmute the character of the property. Each spose owns half of community and all of seprate.

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Community Property (Community property states)

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consists of any and all earnings of both spouses during marriage and anything acquired by those earnings. Income from community property (i.e. proceeds from a sale) still remains community property

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Seperate Property (Community property states)

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property acquired before the marriage and proerpty acquired during marriage by gift devise or inheritance

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Inception of right-Mingled seperate and community Property (Community property states)

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property is characterized when it is acquired. If it is characterized as separate then the community is entitled to reimbursement of community funds used to purchase

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Time of vesting-Mingled seperate and community Property (Community property states)

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Property is characterized at the time title vests

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Pro rata sharing-Mingled seperate and community Property (Community property states)

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proeprty is characterized partly as separate and partly as community in proportion to the amoutn contributed.

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Community Property Rights at death of spouse (Community property states)

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each spouse has the right to dispose of his or her 1/2 of community property as desired by will. If a spouse dies without a will the 1/2 will be ditributed according to the laws of decent

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Separate property Rights at death of spouse (Community property states)

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each spouse has the right to dispose of his or her separate property as desired by will. If a spouse dies without a will the property will be ditributed according to the laws of decent

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Migrating couples(Community Property states)

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Characterized according to the law of the spouses domicile at the time that it is acquired. character remains the same even if they move to another state unless agreed to transmute.

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Migrating couples at death(Community Property states)

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personal property is distributed according to the rules of the state of the decedent spouses domicle. real proeprty is ditributed according to the rules of the state where the real peroperty is located.

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term of years (TOY)

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tenancy for a fixed period the beginning and ending dates for which can be calculated. No notice required to terminatea term of years lease

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periodic tenancy

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tenacy for a fixed period of time that repeats until notice of termination is givin by the landlord or tenant. If notice is not given the tenancy automatically continues for another period with the same terms and conditions as the preceeding period.

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periodic tenancy- notice to terminate (common law)

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for tenancies with a period of one year or more six months' notice is required. For tenancies with a period of less than a year the notice required is equal to the length of the period not to exceed six months.

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periodic tenancy- notice to terminate (statutory law)

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parties to a lease must give 30 days notice to end any periodic tenancy regardless of the length of the period.

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tenancy at will

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a tenancy that exists for an unspecified duration but can be terminated at any time by either the landlord or tenant. terminates at the death of either parties.

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tenancy at sufferance

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occurs when a tenant holds over after a term of years periodic tenancy or tenancy at will has ended. Lasts until the LL evicts. Once the LL has made the choice to evict he cannot change his mind and choose the other option.

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Landlord duites- to deliver possession

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A LL must deliver the legal right to possession to the tenant at the time the tenancy begins. This means the LL must have superior right to possesion of the land over all others.

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Covenant of quiet enjoyment (Landlord duites)

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Implied in the lease that the LL will not interfere with the tenants use or quiet enjoyment of the property.This is breach when a LL actually or constuctively evicts a tenant.If breach tenant is relieved of duty to pay rent (tenant has to leave property)

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provide habitable premises (Landlord duites- common law)

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Unless expressly agreed LL has no duty to ensure leased premises were in habitable condition except in limited circumstances. LLhas duty to disclose latent defect of which he is aware of if they were not discoverable by reasonable inspection.LL had no duty to repair and maintain the premises. If the parties contracted otherwise the LL breach did not relieve the tenant of obligation to pay rent.

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Implied warranty of habitability-provide habitable premises (Landlord duites)

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Some jurisdictions imply a duty on the LL to provide habitable premises at the begginging of the lease. Most jurisdictions recognizean impled warranty throughout the life of the lease. If breach tenant can withhold rent. Cannot be waived by tenant. If LL breaches tenent can terminate lease and seek damages continue the lease remain in the dwelling and recover damages withhold rent or use rent to make the repairs. Tenant must give notice to the LL and give reasonable time to repair.

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Tenants duty

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pay rent and dont commit waste

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Group 4 (common law)

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Creditors can levy on the debtor's spouse's right of survivorship but not on the right of possession

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Group 2 (common law)

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husbands creditors can reach husbands chare of the TE subject to the wife's right of survivorship. Wifes creditors can reach wfe's share of the TE subject to the husbands right of survivorship.

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Group 3 (common law)

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neither husbands nor wife;s creditors ca reach the TE w/o the consent of both spouses.

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Conversion

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Wrongful exercise of ownership rights of personal propery. (Organs are not property so you cant make a case)

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Contructive eviction

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as act or ommision of the LL the LL's agentor someone w/superior title to the LLthat renders the premises substantially unsuitable for purposes of the lease or which seriously interferes with the T's beneficial enjoyment.If CE no rent but T has to leave

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Real property

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land and anything affixed to the land

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Right of Co-tenant to accounting

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Rent-non due from co-tenant unless agreement or ouster.Must be if from 3rd party.Right to contribution for mortgage/taxes.May seek credit for necessary repairs

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Rent due from co-tenant occupation

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Not due unless agreement to pay or ouster is shown by adverse possession or refusal of physical entry.

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bailment

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delivery of goods or personal proeprty to the rightful possession of another w/o loss of title by the true owner and usually for a specific purpose. voluntary or involuntary

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waste

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to diminish value of property. affimative (arises from voluntary act) permissive (failure to act. amerliorative (voluntary change to increase value)

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sublease

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partial lease is transferred revisionary interest is created in teh transferring tenant

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seisin

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possession of real property under claim of a freehold estate

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group 1 (common law)

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Husbands creditors can reach husbands share of the TE subject to the wife's ROS.Wife's creditors cannot reach wife's share of the TE w/o husbands consent. If husband dies first wife owns 100%

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primogeniture

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eldest son to eldest son. No sons it goes to all daughters in a trust (co-parceny)

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burried property

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landwoner has the highest calim to lost proeprty that is burried based on constructive possession **distinguish from treasure trove**

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assignment

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entire lease term is transferred no revisionary interest. LLc an sue T1 b/c of privity of contract. There is not privity of contract b/w LL&T2. privity of estate exists b/w Ll&T2

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Finder as licensee/employee

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landowner has a higher claim than a licensee or employee with a duty to report the find

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common recovery

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the original means for disentailing

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privity of estate

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a mutual or successive relationship to the same right in the proeprty; parties n privity of estate may be sued based on relationship

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third party beneficiary contract

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a person who is not a paryt to the contract but who intend to receive the benefit of the contract may sue on the contracte ven though there is not privity

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privity of contracts

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allows partied to the contract to sue on the contract

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restraint on alienation

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anything to prevent someone from selling land. cant do it because it inhibits commerce

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rule of increase

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offspring of owned animal belongs to the owner of the mother absent and agreement to the contrary. b/c owner of the mother has more expense easier to determine mother (no animal DNA)

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intestate succession

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issue(kids grandkids)ancestors (parents)collateral kin (every else)escheat (state)

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per stirpes

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children step into the shoes of their parents

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per capita

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children are knocked out of the equation

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rent from co-tenant lessees

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must be shared w/ co-tenants based on actual receipts not fair rental value. cannot be cancelled by other co-tenants during the life of the lesor. if lesee ousts the non leasing co-tenant he is entitled to his share of fair market value

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LL right ot withhold consent to assign/sublease

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traditional-LL can aribitrarily withhold consentmodern- LL cannot arbitrarily withhold consent; LL must have commercially reasonable objections