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99 Cards in this Set

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what is trover?
action to recover value of property following unlawful conversion of property.
what is embedded property?
property other than gold or silver buried in such a way indicating that the owner is not going to return.
what is treasure trove?
property not lost or mislaid because the owner intended to put it where it is found for safe keeping (money or coin, gold or silver, plate or bullion)
what is an antiquity?
property so old the owner can be presumed to be dead.
primary elements of law of finds
initially applied only to maritime property.

applies to sunken property that has been abandoned

finder must take possession

once finder takes possession, finder has complete title, even over original owner because of abandonment
in the law of salvage, do you have rights to title, compensation, or both.
compensation only. there are no rights to title in law of salvage.
elements of salvage claim
1.marine peril
2.salvage service must be necessary
3.salvage must be successful
explain how maritime constructive possession is different from law of salvage
constructive possesion seeks maritime lien until possession. once in possession, they feel exclusive rights against all others except true owner, despite passage of time.
does mere pursuit establish ownership interest in wild animal?
No. mere pursuit is insufficient. to establish ownership there must be pursuit + the animal must either be deprived of its natural liberty or mortally wounded .
after capture, what must one do to establish and maintain ownership interest in wild animals?
show that he does not intend to abandon to world at large. taking reasonable precautions against escape can suffice.
when does one gain ownership interests in wild animals without affirmative and visible actions of capture?
when it is industry custom

Policy Reasons: to protect viability of industry. if one could appropriate the fruits of anthers labor, the industry would seize to exist.
what is a bailment
a transfer of possession of personal property to a person other than owner and for a limited purpose
what are the requirements of a bailment?
1. delivery
2. acceptance
what constitutes delivery for purposes of bailments?
full transfer, either actual or constructive,so as to exclude it from the owners and all others for the time being
what constitutes acceptance for purposes of bailments?
act of control over property. intent to possess
who is the bailor?
the owner of the property
who is the bailee?
the recipient of the property
who has the burden of proof in bailment
p has initial burden to prove bailment. if they do, there is a presumption of a duty and negligence and d must disprove negligence. if they don't, then P has duty to prove negligence.
are there limitations on liability in bailments? if so, what are they?
yes. general limit is fair market value. some limitations allowed at common law if reasonably conspicous and others are imposed by statute. Statutes limit liability to stated value or place cap on amount
what are the components of an inter vivos gift?
1.intent
2. delivery (actual or constructive)
3. acceptance
for purposes of inter vivos gift, what constitutes intent?
present intent to gift a current or future interest. future interests subject to condition precedents fail.
for purposes of inter vivos gift, what constitutes delivery?
it can be actual or constructive and is satisfied when the donor gave up control and can no longer revoke it.

1, actual delivery is the physical delivery, but sometimes this is impracticable to do circumstances or size or nature of gift.

2. constructive: means donor has given over control or possession to donee but there is no physical transfer. (or symbolic such as picture of gifted item)
for purposes of inter vivos gift, what constitutes acceptance?
generally acceptance is presumed.
why do US courts favor physical delivery?
because of evidentiary and cautionary reasons

1.evidentiary because it removes ambiguity
2. cautionary because actual delivery compels the donor to reconsider before gifting.
what are the general elements of a gift cause mortis
1. intent,
2. it must be personal property, 3. there must be a realistic apprehension of immenent death on irrevocable condition that gift will belong to donee as long as donee dies,
4. possession of property: it must be delivered to donee or his agent at the time fo the gft and it must be accepted.
what are the elements of a BFP
a BFP:
1. pays valable consideration
2. has no notice of outstanding rights of others
3.acts in good faith
does a BFP acquire good title
yes. a bfp can acquire good title to an item the seller prucred through fraud.
what are the three scenarios in which a BFP can acquire good title?
fraud: title can ripen into good title

entrustment (ucc): entrusted item creates bailment. if bailee is a merchant who deals in goods of the kind he has voidable title. This is so because consumer should be able to rely on merchant.

money or negotiable instrument: the BFP of money or negotiable instrument receives goo tittle because of difficulty on checking validity. it is not the burden of innocent haver to check money.
what are the policy reasons for allowing a BFP
the rule nemo dat quod non habet ( no one can convey that which he doesn’t have) is to harsh for personal property where titles and records are unavailable. additionally, it promotes the free transferability of land. to hold otherwise would place burden on consumer to do recon on every item they purchase.
what is the doctrine of accessions
the doctrine that vests in a single person the ownership of products that are not severable into there component parts.
hows accession occur
the incorporation of the goods has to be such the component goods can not be recovered or can only be recovered at substantial economic cost
what is confusion
is the combination of similar things or things into a uniform mass such that the identities of the original things are lost

in confusion the owners of the original substance will own mass in proportion to there common shares.
what is specification
the application of labor into a thing or substance to create a new product..labor is inseparable, so title goes either to the original owner or to the laborer.
what is the three part test of fixtures?
three part test is
1) annexation: real..physically attached to real property or constructive...part not itself attached to land but attached to an integral and working part go land.. does it have value without land to which it is attached?
2) adaptation- used the same as the land to which it is attached
3) intent- intent to make it a permanent fixture.
what is the common law rule of accessions with regard to labor only modifications to an item?
generally if original object can be determined title goes to owner of original. however, if it would be a gross injustice to give title to owner then it may go to laborer.

it may be a gross injustice if the value of the original item was insignificant as compared to the value of the new product.
What is adverse possession:
a law that enables a wrongful possessor of property to become rightful owner once the SOL expires
what are the 5 elements of adverse posession
1.actaul-must be used in some way..perhaps as the owner of that property would use it.
2. continuous- claim must be continuous, not possession.
3. exclusive- reasonable steps must be taken to exclude others.
4. hostile- it must be without permission. some states require good faith and others require bad faith

5. open and notorious- must be conspicuous so that owner can be put on notice as to others adverse possession.
with regard to lateral and subjacent support, in property as opposed to tort, what is the level of liability?
in property, the level of liability is strict liability. in tort, it is negligence
with regard to lateral and subjacent support, in property as opposed to tort, what must P show to hold D strictly liable?
to hold D strictly liable P must show that damages would have occurred if land were in natural state. That is, they must show that the added structures to their land, if any, did not contribute to damage to lateral support.
with regard to lateral and subjacent support, in tort as opposed to property, what must P show to hold D negligent.
in tort the action is one of negligence and, as such, p must show that d failed to exercise due care.
with regard to lateral support, what are the main differences between tort and property law actions?
1. liability:
tort-negligence
property-strict liability

2. damages;
Tort- covers land and bldgs on land at time of excavation, not bldgs added later.
Property- covers all reasonably foreseeable damages including land and property

3. Burden of Proof
Tort- P must show lack of due care. however, court held that there must be positive activity as opposed to inaction
Property- P must show that land was or would have been damaged in natural state despite structures added to Ps land.
with regard to lateral and subjacent support,what are the 5 main components?
1. landowners have absolute right to property support
2. right extends only to land in its natural state. neighbors have no duty to provide additional support for structures added later.
3. neighbors are liable as a matter of property law only if damages would have occurred with land on natural state.
4.liability is strict liability
5.if duty is breached, D is liable for all reasonably foreseeable damages
with regard to lateral support, how is the illinois statute different from the common law
the ilinois statute assigns duties to protect at certain depths;
at standard depth, the excavator has duty to protect land. duty of support falls on owners of the adjacent bldgs.

when deeper then standard depth- the excavator has duty to protect both land and bldgs.

this goes further than common law because common law only requires protection of land in its natural support.

it is also different because it speaks only of adjacent support whereas common law applies to nearby neighbors.
what is subjacent support
support that the surface of land receives from the underlying strata.
what are damages may be recovered for failure to provide lateral support?
damages may be recovered for injured land or injured land+ property
what damages may be recovered for failure to provide subjacent support?
compensatory damages: diff in market value before and after injury and,
punitive damages: for reckless conduct done in wanton disregard for rights of others
what are the main differences between lateral and subjacent support
you need not use negligence in subjacent support because the damage will occur regardless of whether there is a structure on land or not. The courts font care about structure because its weight is negligible compared to weight of land.

in adjacent support, you must first remove as a contributing cause the added structure in order to proceed with strict liability
with regard to subjacent support, what is included in leaving land in its natural state?
reasonable and foreseeable improvements.
what does sic utere tuo ut alienum mean (hint: its regarding nuisance)
thus use your own in order not to injure that of another
what is a nuisance?
a nuissance prevents property owners from using their land in a manner that causes a unreasonable and substantial interferon with anthers use or enjoyment of land.
what does nuisance law protect
the land owners use and enjoyment of land
types of nuisances
1) PRIVATE VS PUBLIC
public: this originated as criminal offense and focuses to injury to society at large. person can bring action for public nuisance if they are uniquely impacted
private-affects only one person or a small group of people.. public at large is not impacted.

2) NUISANCE PER SE AND NUISANCE PER ACCIDENS
per se-an act or thing that is a nuisance wherever it occurs or that is prohibited by statute.

per accidens- is a lawful activity that constitutes a nuisance because of where or when it took place.
can one maintain an action in ejectment for an object that extends beyond p's property line but that does not touch the soil.
yes. the traditional rule is that one who owns the soil owns everything up to the heavens and down to the depths. a more recent case said that the land owner owns at least as much of the airspace above the ground that could be used in connection with the land.
does a property owner have rights to the free flow of air and light?
at common law there was a doctrine called ancient lights that allowed negative easements by prescription. american law never recognized negative easements by prescription so one does not have the right to dictate how another uses their own property.
when does a court forbid the construction of a structure that interferes with another party's enjoyment of their own land
when the structure serves no useful purpose and is built exclusively out of spite.
what is diffuse surface water?
it is water from temporary ponds or puddles caused by rain, snow melting, etc.
what are the three rules relating to diffuse surface water
1. common enemy
2. civil law rule
3. reasonable use rule
what is the common enemy rule and what were its policy reasons or implications
common enemy- unlimited privilege to fight water without regard to damage to others. this promoted free use of land, predictability, and reduced litigation
what was the civil law rule and what were its policy reasons or implications
it is the rule that gave an easement or servitude for all naturally flowing water to the owner of higher elevated tract over the lower elevated tract of the serviant land owner. this was difficult to apply because of the impossibility of limiting all excess water due to improvements.
what is the reasonable use rule and what are its policy reasons or implications.
it is the rule that allows each possessor to make reasonable use of his land even though the flow of the surface water is altered and causes some harm to another. this is favorable because it tries to be fair to both sides. however, it reduces certainty and may increase litigation. the reasonable use rule is the majority rule today.
what are the 7 classifications of possessory estates? (list in descending order)
1. fee simple
2. fee tail
3. life estate
4. term of years
5. estate from period to period
6. estate at will
7. estate at sufferance.
what is a fee simple absolute?
it is a present interest not subject to to termination. its three major components are:

1.its alienable- the owner can sell, mortgage, or gift
2. it is devisable- upon the owners death the estate goes to beneficiaries
3. it descendable.it goes to heirs if he dies intestate.
what is fragmentation?
it is a concept that allows two or more persons to have simultaneous interest in the property as a whole.
what are the three main forms of fragmentation in american property law.
1. present and future interests
2. marital estates
3. concurrent estates
is there a limit on the fragmentation?
yes, the numerous clausus principle limits fragmentation to previously defined forms. a man can not create a new kind of inheritance.
what is a present interest
a right to current possession
what is a future interest
an interest in which possession is postponed, if it occurs at all.
in a trust, who has legal title
the trustee
in a trust, who has equitable title
the beneficiaries.
what is a conveyance
an inter vivos transfer
what is a devise
testamentary transfer?
what are the three freehold estates
fee simple absolute, fee tail, life estate.
what are the four non freehold estates
term of years, estate from period to period, estate at will, estate at sufferance.
what is a particular estate
it is an estate less than a fee simple.
what are words of purchase
words that transfer an interest
what are words of limitation
words that define the estate being transferred
what is a defeasible fee
a fee that is subject to termination upon the happening of a state event in the deed
what are the three defeasible fees
1. the fee simple determinable
2. the fee simple subject to a condition subsequent
3. the fee simple subject to executory interest.
what is a fee simple determinable
it is a defeasible fee subject to a special limitation because the stated event is not certain to occur.
what are the two types of defeasance that a possessory estate is subjected to?
limitation- these are said to terminate naturally upon the happening of a stated event
ex: during, until, while, so long as, for as long as, for a designated period, etc

condition subsequent--these are possessory estates that are cut short or divested by the happening of a stated event. the words on the condition or provided that followed by but if show a condition subsequent.
what is a special limitation?
a limitation is a special limitation if it describes an event not certain to occur.
what is a fee simple subject to a condition subsequent
it is defeasible fee estate that is subject to divestment- to being cut short- in favor of a reversionary future interest--a right of entry. the happening of the stated event does not automatically divest the estate. rather, it empowers the grantor to divest the estate by exercising the right of entrry
what is a fee simple subject to an executory interest
it is a defeasible fee estate subject to divestment in favor of the non reversionary future interest, the executory interest. the happening of the stated event automatically divests the estate.
how have defeasible fees changed in modern era.
the restatement third collapsed the categories and calls all of them fee simple defeasibles.
what is the fee tail
it is an estate that grew out of midevil times in which a family tried to keep wealth within the family. the estate is subject to termination upon the death of the tenant in tails last living descendant.
does the fee tail exist today?
its been essentially abolished in all american jurisdictions. today the language primarily creates a fee simple or a life estate with a remainder to a's lineal descendants.
what is a life estate
it is an estate that expires naturally upon the death of the governing life.
what is a reversionary interest
it is a future interest that is retained in the transferor
what is a nonreversionary future interest
it is a future interest created in a transferee (someone other than the transferor)
what are the three reversionary interests
reversion
possibility of reverter
right of entry
what is a reversion
a reversion is a future interest retained by the the transferor when he conveys an estate of less quantum than the transferor had originally.
what is a possibility of reverter
it is a future interest retained by the grantor whern the transferor transfers out estates of the same quantum.

the sum of two interests can suffice to equal the quantum of the transferors estate. i.e. life estate + plus B's remainder subject to a condition precedent
do possibilities of reverters need to be expressly stated
no because they constitute an undisclosed of interest remaining in the transferor.
what is a right of entry
it is a future interest created in the transferor when the transferor transfers an estate subject to a condition subsequent. the quantum transferred as compared to that the transferor originally had is irrelevant.
how do courts resolve ambiguities in reversionary interests?
there is a constructional preference against automatic forfeiture.
how does the restatement 3rd classify reversinary interests
if future interest retained in transferor, it is a reversion. if future interest created in transferee, it is a remainder.
what was the one non reverisonary future interest allowed at common law before the statute of uses?
the remainder.
what is remainder
it is a nonreversionary future interest created in the transferee that becomes possessory if at all upon the natural termination of the preceding interest.
what did the statute of uses change?
it allowed the other non reversionary interest--exectuory interest. pre-statute of uses, defeasible fees could only be followed by reversionary interest.