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144 Cards in this Set

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first in time rule: AKA the rule of capture
first person to take possession of a thing owns it
capture of wild animals and policies
requires capture--a state that the animal can t reasonably get away from, rather than just pursuit or near-capture: competition, ease of administration
Edwards v Sims
cave case: earth below, sky above--but this does not reward industry or efficiancy
what is the rule for oil and gas and why?
rule of capture because it promotes extraction. But many states require apportionment.
eastern water rights
rule of capture
western water rights
reasonable use doctrine
reasonable use doctrine of water rights
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.
what is riparian land?
land within the watershed adjacent to a flowing body of water contained within a definite course
can riparian rights be transferred?
nope, they run with the land
natural flow doctrine
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)
how do courts enfore the reasonable use doctrine?
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.
what does "domestic use" include?
drinking, bathing, farm animals on a small farm and irrigation of a garden to feed the riparian owner.
what are some artificial or commercial uses
pretty much anything that gets you money. in some western states, irrigation is considered almost a domestic use.
use of water on non-riparian land
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
prior appropriation water rule
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.
why do we allow acquisition by creation?
to reward labor
rule of accession
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
the rule of confusion
where goods are fungible the courts usually award proportionate amounts
what is possession? 2 factors
physical control and the intent to exclude others. proving possession does not require proving ownership (dry cleaners)
what is constructive possession?
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??)
owner v finder where finder is tresspasser
owner always wins
owner v finder where finder is employee
was he acting for the owner?
is there a contractual duty (as with a hotel?)
owner v finder where finder is there for a limited purpose (cleaning the pond)
owner gets it
owner v finder where property is underground or otherwise affixed to the land
owner v finder where finder is in owners private home
usually owner unless the owner is not in possession of the home
what is the difference between lost and mislaid?
lost is accident
mislaid is intentional and forgotten
lost prperty goes to the
mislaid property goes to the
abandoned property goes to the
do all states differentiate between lost/mislaid/abandoned/etc.?
no. some abolish the categories by statute (NY) awarding everything to the finder
what is the theory of adverse possession?
owner doesnt take action within the SOL, then barred from bringing ejectment and, in fact, creates a new title
does adverse possession leave a paper trail?
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
what are the 4 requirements to establish an adverse possession claim?
actual entry giving exclusive posession that is
open and notorious
adverse and under a claim of right and
continuous for the statutory period
what does open and notorious mean?
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.
what does adverse and under a claim of right mean?
hostile, without the owners consent.
what are the objective and subjective tests of "adverse and under a claim of right?"
objective: what does it look like the possessor thinks?
Subjective: the possessor hs to genuinely think, in good faith, that the land is his.
what does continuous possession mean (as a factor of adverse possession)?
a continuous state of mind of possession--not necessarily use--but the use must be consistent with the type of property
can you tack on predecessory adverse possession?
yes as long as there is privity of estate between the possessors--that is, a voluuntary transfer (not abandonment)
what is an interrpution of adverse possession?
if the owner reenters for the purpose of regaining possession; or, in some states, they only have to act consistently with their ownership.
how does someone with a future interest prevent adverse possession?
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
When does the SOL begin to run on owners of chattels against adverse possessors?
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
what are the bailment questions?
when was the bailment created?
what is the duty of care of the bailee?
what 2 things does a gift require?
what must a person have to be a bailee?
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?
what is custody
not a bailment. the owner gives goods but doesn't intend to relinquish control--someone handing their groceries to a store clerk.
what is a constructive or involuntary bailment?
penning up stray animals or something--the relevant inquiry is whethe it would be reasonable to impose liability on that person
standard of care:
bailment for sole benefit of bailee
extraordinary care
liable for slight negligence
standard of care:
bailment for mutual benefit
ordinary care
liable for ordinary neligence
standard of care:
bailment for sole benefit of bailor
slight care
liable for gross negligence
does someone have to take an involuntary bailment? if they take it, what is the SOC?
no. slight
what is the modern trend for distinguishing categories of bailments and why?
it is almost always mutually beneficial, so we are moving toward an ordinary care under the circumstances test
what is the bailment duty of redelivery?
strict liability unless it was an involuntary bailment
what is a gift?
voluntary transfer without consideration
what is an inter vivos gift
just a normal gift like a christmas present--it is irrevocable
what is a gift causa mortis?
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.
how is a promise different than a gift?
to give a gift, the donor must intend to pass title presently
what are the reasons that we require delivery?
ritual: legal significance and finality.
evidentiary: objective
protective: protects from incompetent oral statements
what does delivery mean?
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
what is constructive delivery?
where actual delivery is impracticable, it is a relinquishment of control--giving a key for example
whats the rule on delivery through a third person?
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.
are revocable trusts allowed?
yes. as opposed to revocable gifts, these are written and the intention is verifiable with evidence.
delivery is only a...
proxy for showing true intent anyway
when would the law not presume acceptance of a gift
when it is not beneficial to the recipient
what are the two rules governing transfers in personal property?
seller can sell no better title than he has and
bona fide purchaser
can a person with voidable title transfer good title?
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.
what is a voidable title?
where someone intends to transfer title, but later can void it because it was bought with fraud or a bounced check, etc.
what is a void title?
theft--where the owner does not intend to transfer title. not even a BFP takes good title from a thief
estoppel UCC 2-403
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.)
what is a bona fide purchaser?
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.
what are words of purchase?
they identify the person in whom the estate is created
what are words of limitation?
they describe the type of estate created
what are heirs?
anyone to whom land would pass upon death. a wife is an heir for example
typical breakdown between spouse and children
spouse takes half, children divide half (sometimes per stirpes--that is, by representation)
what about a child born out of wedlock
some states say she inherits only from the mother
do stepchildren inheret from step parents?
nope. spouse, blood, adoption only
do parents of a decedent take?
only where there is no issue, in which case, they split with the spouse (unless there is no spouse, then they take it all)
if a decedent doesn't have issue or parents, who takes?
collateral relatives (everyone else)
what are gifts of land in a will called?
what are gifts of personal property in a will called?
bequeath to legatees
what is a fee simple determinable?
it automatically ends when a specified event happens
if a grant has a purpose written in, is it a FSD?
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.
is a FSD transferrable?
yes, but it remains subject to the limitation
what is the grantors interest in a FSD
pssibility of reverter
what is a Fee simple subject to condition subsequent?
not automatic, but may be divested at the grantor's will when an affirmative stated condition happens
what is the difference between a FSD and a FSSCS?
FSD: automatic and it is as long as something neutral
FSSCS: at grantors will and it takes effect when something affirmative...
in "to A, but if liquopr is ever sold..." what is the "but if" part called?
words of condition
what interest does the grantor have in a FSSCS?
he retains a right of entry
can a FSSCS be transferred?
when you cant tell which it is, or when it is both, which is preferred, a FSD or FSSCS?
FSSCS because the forfeiture is optional for the grantor
restraints on conditions regarding marriage?
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.
can a fee tail be devised by will or inhereted by collateral relatives?
O conveys B/A "to A and the heirs of his body" what is the state of title?
A has a life estate. O has a reversion in FS.
what does "if A dies without issue" mean?
when all of the lineal decendents are dead
what is a 3d part interest that begins directly after a fee tail?
how does a fee tail holder get a fee simple?
disentailing: conveying a fee simple to a 3d party and buying it back
are fee tails popular?
no, they have been abolished in most states.
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?
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
what does the grantor get after a life estate?
the land reverts to the grantor
what happens when someone conveys their life estate?
it is measured by the life of the grantor--pur autre vie.
when a life estate is granted to several people, what happens when one of them dies?
it goes to the rest of them, the reversion or remainder does not become possessory until they all die
can a life estate be defeasible--that is, subject to a condition
Is a life estate morgageable?
Can the owners of a remainder allow a life tenant to sell a fee simple?
yes, if they are all competant adults
What is an equitable life estate?
it is a life estate in trust, where the trustee has the usual powers of a fee simple (sale, morgage, lease, etc.)
what is waste?
conduct by a life tenant that perminantly impares the value of land
what are the 3 kinds of waste?
affirmative (voluntary)
permissive (involuntary)
what is affirmative waste?
destroying buildings, cutting trees, etc.
what is permissive waste?
allowing the land to fall into disrepair, not paying taxes, etc.
what is ameliorating waste?
increasing the value of the land by changing the principle use of the land
when is ameliorating waste actionable?
1) the grantor intended the old use
2) the old use is still feasible
what are the remadies for waste?
damages for past waste, enjoinment against future waste
is a total restraint on alienation of a fee simple ever vaild?
what is the rule about partial restraints on alienation of a fee simple?
reasonable purpose
limited in duration
(preemtive option aka. right of first refusal)
can a fee simple determinable be conditioned racially?
yes, because automatic reversion does not involve state action (but may violate statutes)
the rule against restraints on alienation applies only to . . . intrests. Restraints on the alienation of . . . . interests are valid.
legal, equitable
what are the 2 steps to future intrest problems?
look at the exact language
anylize the interests in sequence
what are the 3 future interests a grantor can have?
reversion (left over)
possibility of reverter (determinable)
right of entry (FSSCS)
what's the differance between shifting and springing?
shifting--divests a prior estate
springing--springs out the grantor in the future
what are the two possible future interests for grantees?
remainder, executory interest
is a right of entry transferable?
a remainder can only be created by express grant and cannot arise by operation of law--true or false
a remainder needs a preceeding free hold to support it--true of false
what are the two requirments for a vested remainder?
an ascertained person, not subject to any condition precident
a contingent remainder is either . . .
created in an unacertained person
or subject to a conditioned precident
how do you classify several interests?
in order
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?
the purpose is to make land alienable (usually by getting rid of contingent remainders)
heirs are always ... remainders
what is the effect of a conditioned subsequent on a vested remainder?
in becomes a vested remainder subject to divestment
if the description gives a vested interest then has a comma before the divesting clause then the interest is ...
what can a creditor reach?
anything the debtor can voluntarily transfer
what did hte statute of uses do?
in 1536 it abolished uses, executing them into legal estates which made executory interests possible
how do you tell an executory interest from a remainder?
there is no preceeding estate
what is the difference between a springing and shifting interest?
springing divests the grantor, shifting divests a grantee
what is the rule of destructability of contingent remainders?
a contingent remainder is destroyed if it does not vest at or before the termination of the preceeding free hold estate
what is the rule of merger?
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)
can there be a remainder after a term of years?
no, there is no preceeding free hold
how do you get around the rule of destructability?
draft a term of years rather than a life estate
What is the rule in shelleys case?
where an instrument creates a freehold estate in A and a vested remainder in A's heirs, A gets a fee simple
does the rule in shelleys case care about intent?
no it is a rule of law and not a rule of construction
what is the doctrine of worthier title? (and why did it develop)
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.
does the doctrine of worthier title care about intent?
yes, it is a rule of construction. there is a presumption that no remainder has been created, but it can abe rebutted with evidence
what is the rule against perpetuities?
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.
whats the question a drafter should ask to avoid the RAP?
can somebody who is not alive right now get this after 21 years from the death of the measuring life?
how do you find the measuring life?
look at all the people who can affect the vesting--will it vest within 21 yrs after their deaths?