Property Spring

Front 1

first in time rule: AKA the rule of capture

Back 1

first person to take possession of a thing owns it

Front 2

capture of wild animals and policies

Back 2

requires capture--a state that the animal can t reasonably get away from, rather than just pursuit or near-capture: competition, ease of administration

Front 3

Edwards v Sims

Back 3

cave case: earth below, sky above--but this does not reward industry or efficiancy

Front 4

what is the rule for oil and gas and why?

Back 4

rule of capture because it promotes extraction. But many states require apportionment.

Front 5

eastern water rights

Back 5

rule of capture

Front 6

western water rights

Back 6

reasonable use doctrine

Front 7

reasonable use doctrine of water rights

Back 7

where water is scarce, this doctrine limits the rule of capture: one may only capture a reasonable amount. For reasonable uses, one my use unlimited qater. But no diversion.

Front 8

what is riparian land?

Back 8

land within the watershed adjacent to a flowing body of water contained within a definite course

Front 9

can riparian rights be transferred?

Back 9

nope, they run with the land

Front 10

natural flow doctrine

Back 10

used in very few states, each riparian owner is entitled to the natural flow of water without material diminuation in quality or quantity (all domestic needs nad any artificial needs that do not materially affect the quality or quantity of water)

Front 11

how do courts enfore the reasonable use doctrine?

Back 11

downstream owners can only enjoin upstreamers if they are not getting enough for their needs. If the downstream owner is not harmed, he cant enjoin the Upstreamer.

Front 12

what does "domestic use" include?

Back 12

drinking, bathing, farm animals on a small farm and irrigation of a garden to feed the riparian owner.

Front 13

what are some artificial or commercial uses

Back 13

pretty much anything that gets you money. in some western states, irrigation is considered almost a domestic use.

Front 14

use of water on non-riparian land

Back 14

some courts under the reasonable use doctrine allow use of water to non-riparian land but only where it doesn't harm someone elses reasonable use

Front 15

prior appropriation water rule

Back 15

in 10 arid western states, nobody cares about riparian rights, it is governed by title like any other property--it is an independent property interest--and can be severed from the land.

Front 16

why do we allow acquisition by creation?

Back 16

to reward labor

Front 17

rule of accession

Back 17

when someone adds to someone elses property by labor or new materials, the original owner is always entitled the value of the property taken and, unless the value has been sufficiently increased so that it would be unfair, they get the value of the improvements also. anyway, the improver ususally has to act in good faith. and this kind of behaviour usually constitutes a tresspass in any case

Front 18

the rule of confusion

Back 18

where goods are fungible the courts usually award proportionate amounts

Front 19

what is possession? 2 factors

Back 19

physical control and the intent to exclude others. proving possession does not require proving ownership (dry cleaners)

Front 20

what is constructive possession?

Back 20

someone who has physical possession but doesn't know it--but would have intent if he did. (the owner of the premises where something valuable is found??)

Front 21

owner v finder where finder is tresspasser

Back 21

owner always wins

Front 22

owner v finder where finder is employee

Back 22

was he acting for the owner?
is there a contractual duty (as with a hotel?)

Front 23

owner v finder where finder is there for a limited purpose (cleaning the pond)

Back 23

owner gets it

Front 24

owner v finder where property is underground or otherwise affixed to the land

Back 24

owner

Front 25

owner v finder where finder is in owners private home

Back 25

usually owner unless the owner is not in possession of the home

Front 26

what is the difference between lost and mislaid?

Back 26

lost is accident
mislaid is intentional and forgotten

Front 27

lost prperty goes to the

Back 27

finder

Front 28

mislaid property goes to the

Back 28

owner

Front 29

abandoned property goes to the

Back 29

finder

Front 30

do all states differentiate between lost/mislaid/abandoned/etc.?

Back 30

no. some abolish the categories by statute (NY) awarding everything to the finder

Front 31

what is the theory of adverse possession?

Back 31

owner doesnt take action within the SOL, then barred from bringing ejectment and, in fact, creates a new title

Front 32

does adverse possession leave a paper trail?

Back 32

no, if an AP wants to sell, getting marketable title will usually reequire that the new owner seeks to quiet title from the previous owner which will leave a recorded decree

Front 33

what are the 4 requirements to establish an adverse possession claim?

Back 33

actual entry giving exclusive posession that is
open and notorious
adverse and under a claim of right and
continuous for the statutory period

Front 34

what does open and notorious mean?

Back 34

her acts must be such as will constitute reasonable notice to the owner that she is claiming dominion--some states require color of title, improvement, enclosure, cultivation, etc.

Front 35

what does adverse and under a claim of right mean?

Back 35

hostile, without the owners consent.

Front 36

what are the objective and subjective tests of "adverse and under a claim of right?"

Back 36

objective: what does it look like the possessor thinks?
Subjective: the possessor hs to genuinely think, in good faith, that the land is his.

Front 37

what does continuous possession mean (as a factor of adverse possession)?

Back 37

a continuous state of mind of possession--not necessarily use--but the use must be consistent with the type of property

Front 38

can you tack on predecessory adverse possession?

Back 38

yes as long as there is privity of estate between the possessors--that is, a voluuntary transfer (not abandonment)

Front 39

what is an interrpution of adverse possession?

Back 39

if the owner reenters for the purpose of regaining possession; or, in some states, they only have to act consistently with their ownership.

Front 40

how does someone with a future interest prevent adverse possession?

Back 40

if the AP begins after the interest has been granted, then the SOL runs from the time they have a present claim to the land

Front 41

When does the SOL begin to run on owners of chattels against adverse possessors?

Back 41

In NY, it doesn't run until the owner knows who has the goods and demands them. In other states, it doesn't begin as long as the owner is using due diligence to find them

Front 42

what are the bailment questions?

Back 42

when was the bailment created?
what is the duty of care of the bailee?

Front 43

what 2 things does a gift require?

Back 43

intent
delivery

Front 44

what must a person have to be a bailee?

Back 44

actual physical control
intent to possessif a court thinks liability would be unexpected or unfair, they will say that the person lacked one of these.
Was there an expectation that B was assuming a duty of reasoanble care?

Front 45

what is custody

Back 45

not a bailment. the owner gives goods but doesn't intend to relinquish control--someone handing their groceries to a store clerk.

Front 46

what is a constructive or involuntary bailment?

Back 46

penning up stray animals or something--the relevant inquiry is whethe it would be reasonable to impose liability on that person

Front 47

standard of care:
bailment for sole benefit of bailee

Back 47

extraordinary care
liable for slight negligence

Front 48

standard of care:
bailment for mutual benefit

Back 48

ordinary care
liable for ordinary neligence

Front 49

standard of care:
bailment for sole benefit of bailor

Back 49

slight care
liable for gross negligence

Front 50

does someone have to take an involuntary bailment? if they take it, what is the SOC?

Back 50

no. slight

Front 51

what is the modern trend for distinguishing categories of bailments and why?

Back 51

it is almost always mutually beneficial, so we are moving toward an ordinary care under the circumstances test

Front 52

what is the bailment duty of redelivery?

Back 52

strict liability unless it was an involuntary bailment

Front 53

what is a gift?

Back 53

voluntary transfer without consideration

Front 54

what is an inter vivos gift

Back 54

just a normal gift like a christmas present--it is irrevocable

Front 55

what is a gift causa mortis?

Back 55

a gift made in contemplation of immediately approaching death. it does not become irrevocable until the donor dies, and in fact, is presumptively revoked if the donor recovers.

Front 56

how is a promise different than a gift?

Back 56

to give a gift, the donor must intend to pass title presently

Front 57

what are the reasons that we require delivery?

Back 57

ritual: legal significance and finality.
evidentiary: objective
protective: protects from incompetent oral statements

Front 58

what does delivery mean?

Back 58

the donor must do an act that evinces an intent to immediately relinquish control.
constructive or symbolic delivery may suffice where actual delivery is impracticable

Front 59

what is constructive delivery?

Back 59

where actual delivery is impracticable, it is a relinquishment of control--giving a key for example

Front 60

whats the rule on delivery through a third person?

Back 60

can the donor still control the property? can he recall the agent? if it is his own agent, it is not a gift until delivered.

Front 61

are revocable trusts allowed?

Back 61

yes. as opposed to revocable gifts, these are written and the intention is verifiable with evidence.

Front 62

delivery is only a...

Back 62

proxy for showing true intent anyway

Front 63

when would the law not presume acceptance of a gift

Back 63

when it is not beneficial to the recipient

Front 64

what are the two rules governing transfers in personal property?

Back 64

seller can sell no better title than he has and
bona fide purchaser

Front 65

can a person with voidable title transfer good title?

Back 65

yes under UCC 2-403 he can transfer to a BFP
this is because the original owner COULD HAVE voided the title and one innocent is gonna get screwed anyway.

Front 66

what is a voidable title?

Back 66

where someone intends to transfer title, but later can void it because it was bought with fraud or a bounced check, etc.

Front 67

what is a void title?

Back 67

theft--where the owner does not intend to transfer title. not even a BFP takes good title from a thief

Front 68

estoppel UCC 2-403

Back 68

if the owner expressly or impliedly entrusts or represents that the possessor is authorized to pass title and this induces reliance by the purchaser, the owner is estopped from denying the transfer (entrusting goods to a merchant for ex.)

Front 69

what is a bona fide purchaser?

Back 69

one who does not know (and doesn't have reason to know) of seller's wrongful possession but has a good faith belief that the seller has title and pays valuable consideration.

Front 70

what are words of purchase?

Back 70

they identify the person in whom the estate is created

Front 71

what are words of limitation?

Back 71

they describe the type of estate created

Front 72

what are heirs?

Back 72

anyone to whom land would pass upon death. a wife is an heir for example

Front 73

typical breakdown between spouse and children

Back 73

spouse takes half, children divide half (sometimes per stirpes--that is, by representation)

Front 74

what about a child born out of wedlock

Back 74

some states say she inherits only from the mother

Front 75

do stepchildren inheret from step parents?

Back 75

nope. spouse, blood, adoption only

Front 76

do parents of a decedent take?

Back 76

only where there is no issue, in which case, they split with the spouse (unless there is no spouse, then they take it all)

Front 77

if a decedent doesn't have issue or parents, who takes?

Back 77

collateral relatives (everyone else)

Front 78

what are gifts of land in a will called?

Back 78

devises

Front 79

what are gifts of personal property in a will called?

Back 79

bequeath to legatees

Front 80

what is a fee simple determinable?

Back 80

it automatically ends when a specified event happens

Front 81

if a grant has a purpose written in, is it a FSD?

Back 81

no, it just shows the grantor's motive. to be a FSD it has to be granted "unless" or "until" or "so long as", etc.

Front 82

is a FSD transferrable?

Back 82

yes, but it remains subject to the limitation

Front 83

what is the grantors interest in a FSD

Back 83

pssibility of reverter

Front 84

what is a Fee simple subject to condition subsequent?

Back 84

not automatic, but may be divested at the grantor's will when an affirmative stated condition happens

Front 85

what is the difference between a FSD and a FSSCS?

Back 85

FSD: automatic and it is as long as something neutral
FSSCS: at grantors will and it takes effect when something affirmative...

Front 86

in "to A, but if liquopr is ever sold..." what is the "but if" part called?

Back 86

words of condition

Front 87

what interest does the grantor have in a FSSCS?

Back 87

he retains a right of entry

Front 88

can a FSSCS be transferred?

Back 88

yes

Front 89

when you cant tell which it is, or when it is both, which is preferred, a FSD or FSSCS?

Back 89

FSSCS because the forfeiture is optional for the grantor

Front 90

restraints on conditions regarding marriage?

Back 90

if the purpose is to penalize marriage then it is against public policy.
if the purpose is to support until marriage then it is valid.

Front 91

can a fee tail be devised by will or inhereted by collateral relatives?

Back 91

no

Front 92

O conveys B/A "to A and the heirs of his body" what is the state of title?

Back 92

A has a life estate. O has a reversion in FS.

Front 93

what does "if A dies without issue" mean?

Back 93

when all of the lineal decendents are dead

Front 94

what is a 3d part interest that begins directly after a fee tail?

Back 94

remainder

Front 95

how does a fee tail holder get a fee simple?

Back 95

disentailing: conveying a fee simple to a 3d party and buying it back

Front 96

are fee tails popular?

Back 96

no, they have been abolished in most states.

Front 97

where fee tails are abolished, what does "to A and the heirs of his body. if A dies without issue, to B and her heirs" mean?

Back 97

1. A has a fee simple
2. A has a fee simple but B has a shifting future interest if A has no issue
3. (minority) A has a life estate his issue has a remainder in fee simple

Front 98

what does the grantor get after a life estate?

Back 98

the land reverts to the grantor

Front 99

what happens when someone conveys their life estate?

Back 99

it is measured by the life of the grantor--pur autre vie.

Front 100

when a life estate is granted to several people, what happens when one of them dies?

Back 100

it goes to the rest of them, the reversion or remainder does not become possessory until they all die

Front 101

can a life estate be defeasible--that is, subject to a condition

Back 101

yes

Front 102

Is a life estate morgageable?

Back 102

no

Front 103

Can the owners of a remainder allow a life tenant to sell a fee simple?

Back 103

yes, if they are all competant adults

Front 104

What is an equitable life estate?

Back 104

it is a life estate in trust, where the trustee has the usual powers of a fee simple (sale, morgage, lease, etc.)

Front 105

what is waste?

Back 105

conduct by a life tenant that perminantly impares the value of land

Front 106

what are the 3 kinds of waste?

Back 106

affirmative (voluntary)
permissive (involuntary)
ameliorating

Front 107

what is affirmative waste?

Back 107

destroying buildings, cutting trees, etc.

Front 108

what is permissive waste?

Back 108

allowing the land to fall into disrepair, not paying taxes, etc.

Front 109

what is ameliorating waste?

Back 109

increasing the value of the land by changing the principle use of the land

Front 110

when is ameliorating waste actionable?

Back 110

1) the grantor intended the old use
2) the old use is still feasible

Front 111

what are the remadies for waste?

Back 111

damages for past waste, enjoinment against future waste

Front 112

is a total restraint on alienation of a fee simple ever vaild?

Back 112

no

Front 113

what is the rule about partial restraints on alienation of a fee simple?

Back 113

reasonable purpose
limited in duration
(preemtive option aka. right of first refusal)

Front 114

can a fee simple determinable be conditioned racially?

Back 114

yes, because automatic reversion does not involve state action (but may violate statutes)

Front 115

the rule against restraints on alienation applies only to . . . intrests. Restraints on the alienation of . . . . interests are valid.

Back 115

legal, equitable

Front 116

what are the 2 steps to future intrest problems?

Back 116

look at the exact language
anylize the interests in sequence

Front 117

what are the 3 future interests a grantor can have?

Back 117

reversion (left over)
possibility of reverter (determinable)
right of entry (FSSCS)

Front 118

what's the differance between shifting and springing?

Back 118

shifting--divests a prior estate
springing--springs out the grantor in the future

Front 119

what are the two possible future interests for grantees?

Back 119

remainder, executory interest

Front 120

is a right of entry transferable?

Back 120

no

Front 121

a remainder can only be created by express grant and cannot arise by operation of law--true or false

Back 121

true

Front 122

a remainder needs a preceeding free hold to support it--true of false

Back 122

true

Front 123

what are the two requirments for a vested remainder?

Back 123

an ascertained person, not subject to any condition precident

Front 124

a contingent remainder is either . . .

Back 124

created in an unacertained person
or subject to a conditioned precident

Front 125

how do you classify several interests?

Back 125

in order

Front 126

what is the purpose of 1) distructability of contingent remainders
2) the rule in shelley's case
3) the doctrine of worthier title
4) the rule against purpetuities?

Back 126

the purpose is to make land alienable (usually by getting rid of contingent remainders)

Front 127

heirs are always ... remainders

Back 127

contingent

Front 128

what is the effect of a conditioned subsequent on a vested remainder?

Back 128

in becomes a vested remainder subject to divestment

Front 129

if the description gives a vested interest then has a comma before the divesting clause then the interest is ...

Back 129

vested

Front 130

what can a creditor reach?

Back 130

anything the debtor can voluntarily transfer

Front 131

what did hte statute of uses do?

Back 131

in 1536 it abolished uses, executing them into legal estates which made executory interests possible

Front 132

how do you tell an executory interest from a remainder?

Back 132

there is no preceeding estate

Front 133

what is the difference between a springing and shifting interest?

Back 133

springing divests the grantor, shifting divests a grantee

Front 134

what is the rule of destructability of contingent remainders?

Back 134

a contingent remainder is destroyed if it does not vest at or before the termination of the preceeding free hold estate

Front 135

what is the rule of merger?

Back 135

if a life estate and a vested remainder or reversion are held by the same person there can be no contingent remainder (unless they are granted by the same intrument)

Front 136

can there be a remainder after a term of years?

Back 136

no, there is no preceeding free hold

Front 137

how do you get around the rule of destructability?

Back 137

draft a term of years rather than a life estate

Front 138

What is the rule in shelleys case?

Back 138

where an instrument creates a freehold estate in A and a vested remainder in A's heirs, A gets a fee simple

Front 139

does the rule in shelleys case care about intent?

Back 139

no it is a rule of law and not a rule of construction

Front 140

what is the doctrine of worthier title? (and why did it develop)

Back 140

an inter vivos attempt to create a future interest in the grantor's heirs is ineffective, so grantor has a reversion. People used to do this to avoid feudal incidents of decent.

Front 141

does the doctrine of worthier title care about intent?

Back 141

yes, it is a rule of construction. there is a presumption that no remainder has been created, but it can abe rebutted with evidence

Front 142

what is the rule against perpetuities?

Back 142

no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.

Front 143

whats the question a drafter should ask to avoid the RAP?

Back 143

can somebody who is not alive right now get this after 21 years from the death of the measuring life?

Front 144

how do you find the measuring life?

Back 144

look at all the people who can affect the vesting--will it vest within 21 yrs after their deaths?