Personal Property

Question 1

What is the general difference between real and personal property

Answer 1

you can move personal property and not real property.

Plus, personal property includes tangible and intangible (patent, royalty, stock)

Question 2

Is a lease real or personal property?

Answer 2

Personal. It is a chattel, no matter the length.

Question 3

How does a fixture become real property? (3 part test)

Answer 3

1. whether the item of personal property can be easily removed once attached to the real property
2. whether the item has been adapted to the use of real property; and
3. whether the owner intends to make the item part of the real porperty

Question 4

What is a bailment?

Answer 4

Transfer of possession but not ownership of personal property from one person to another.

Question 5

Who owns personal property that has been lost or mislaid versus abandoned?

Answer 5

Lost or mislaid property is still the property of the original owner

Abandonment extinguishes any ownership interest in property

Question 6

What is the general rule for finders of lost property?

Answer 6

They have a right to the property that is good against everyone except the true owner. Must be returned upon locating that owner. But until then, the find has all the rights attributable to the owner to possess and use the property and exclude others from using/possessing it.

Does not apply to tresspassers, or to those that find it in a private place that the public is not normally invited.

Question 7

Finders rule for when a person finds lost property during the course of employment?

Answer 7

The employer has the possessory right to the lost property, not the employee

Question 8

What is mislaid (misplaced) property?

Answer 8

Property that reasonably appears to have been put somewhere on purpose and then forgotten.

Question 9

Who gets a possesory right to mislaid property good against the world and not the true owner?

Answer 9

the owner of the property, not the finder.

Question 10

How does one abandon property? Who owns it then?

Answer 10

1. (1) have the intent to abandon property and (2) must manifest that intent.
2. the first person to take possession (rights good against anyone)

Question 11

What duties does a quasi-bailee have when coming upon lost or mislaid property?

Answer 11

• locate the true owner through reasonable means
• keep the property with due care

negligence

Question 12

How many years before lost or mislaid property becomes abandoned?

Answer 12

5

prove all of the adverse possession elements. One difference being open and notorious – clocks starts when owner discovers or should discovers that property is taken

Question 13

What is accession?

Answer 13

the application of labor or materials to one person’s personal property by another person.

Question 14

General rule for accession?

Answer 14

If Individual A adds labor and/or materials to Individual B’s property, the materials and the value added by the labor become the personal property of B

Question 15

Accession curve ball: When there is uncertainty between two people about who owned an item of personal property, rule for who becomes owner?

Answer 15

the person who adds substantial value to the personal property will become the owner through accession, as long as that person is an innocent trespasser (no intention)

But other person may get damages for the taking

Question 16

What are the elements of an inter vivos gift?

Answer 16

1. Donative Capacity (mental capacity)
2. Present donative intent (conditional or unconditional)
3. Acceptance by the donee (presumed; express denial will overcome presumption)
4. Delivery (transfer of possession)
   a. Actual (physical) or constructive (handing over control)

cannot be revoked

Question 17

What are the five elements of gift causa mortis? same as regular inter vivos gift with 1 extra elemtn

Answer 17

1. donative capacity
2. donative intent
3. delivery
4. acceptance; and
5. the donor msut be in apprehension of his impending death (fast approaching)

can be revoked; remains valid though even if a cause separate from the presumed cause leads to death. o Delivery requires more than deathbed utterance

Question 18

How is a gift causa mortis revoked? (3)

Answer 18

1. affirmative act of the donor
2. donor’s survival of event or illness that causes the donor’s apprehension of death
3. the donee predeceasing the donor

Question 19

What is detinue?

Answer 19

An action to recover personal property that someone else took possession of bust has refused to return

Question 20

What is trespass and what is trover

Answer 20

1. trespass action: action to recover monetary damages form the loss of possession
2. trover: an action to recover the value of the property

Question 21

What are the three elements to create a bailment?

Answer 21

1. bailee must have physical possession of the proper and the intent to exercise control over the property;
2. the bailee must agree to the bailment; and
3. the bailee must know of the personal property

most are conditional

Question 22

Is an employee’s use of employer property a bailment?

Answer 22

No, because the employer never loses control over the property

Question 23

Is a cosignment a bailment?

Answer 23

yes, this is where one transfer their property to another for the puspose of the selling that property.

Question 24

Risk of loss with a bailment arrangement?

Answer 24

stays with the bailor

Question 25

Are inkeepers bailees over the property of their guests?

Answer 25

No, but VA has established a statutory scheme for inkeeper liability

Question 26

What must an inkeeper do with respect to guest property?

Answer 26

take reasonable precaustions to protect their property.

Question 27

Bailee standard of care for a bailment solely for the benefit of the bailor (no compensation).

Answer 27

Slight diligence - bailee is liable for a loss to property if acting grossly negligent

Question 28

Standard of care for bailment for th emutual benefit of the bailor and bailee?

Answer 28

Ordinary diligence - liable for loss or damage to the property resulting from bailee’s negligence

most commercial bailments

Question 29

Where there is a bailment contract, What two things must a plaintiff prove to establish a prima facie bailment case against a bailee who negligently lost the property?

Answer 29

(1) Delivery of the property to the bailee with intent to create a bailment; and
(2) failure to exercise ordinary diligence which includes Bailee’s failure to return the property

there is a baiment K, you don’t really need more than (1) delivery and (2) failure to return for a prima facie case. Whereas, if there is no K, then you need to prove (1) delivery and (2) acceptance to establish a bailment existed in the first place.

Question 30

When a prima facie bailment case against a bailee has been proven, what could the bailee prove to absolve herself of liability?

Answer 30

Show that the failure to return the negligence was without fault or negligence on her part.

e.g., I exercised reasonable care and my employee acted outside their scope of employment

Question 31

How is a bailment relationship created without a bailment contract (prima facie case)?

Answer 31

1. Delivery (intentionally yielding possession of the property)
2. Acceptance
   Bailee’s knowledge of the value of the property is irrelevant to the question of whether a relationship has been created.

Question 32

When an employee becomes a bailee (w/o k) is the employer vicariously liable?

Answer 32

The employer vicariously liable for actions taken in the scope of her employment.

Question 33

How can a bailee disclaim or limit liability under the bailment?

Answer 33

Disclaimer are disfavored so they are strictly construed. To be effective, the disclaimer or limitation must be known to the bailor, or they should have known about it (conspicuous), and assented to it.

Question 34

What does the scope of employment include?

Answer 34

Acts expressly and impliedly authorized by the employer to conduct business. Detour versus frolics (significant deviations).

Question 35

What is the general rule about selling a good that you do not have rights to?

Answer 35

Generally, a seller can transfer only the title that he has.

Question 36

What is the UCC exception to the general rule that a seller can only transfer title they have? (boni-fide good faith purchaser)

Answer 36

A buyer in the ordinary course of business that purchases from a merchant of goods of the kind will have all rights as owner.

A buyer in the ordinary course of business is one that buys in good faith and without knowledge that the sale to him is in violation of the ownership rights of a third party in the goods. Consider the buyer’s experience with the goods (good faith means that if they understood the value of the product, they would know something is off if they get a huge discount.

Question 37

What does it mean to endorse a stock certificate in blank?

Answer 37

o Creates a bearer paper.

Question 38

• What does the creation of an inter vivos trust require regarding proof?

Answer 38

o Clear and convincing evidence of the intent to create an inter vivos trust.

Question 39

• What is the difference between the authority to act as an agent versus a trustee with regard to the principal/settlor dying?

Answer 39

o The authority for an agent extinguishes

Question 40

• Can a testamentary gift be made orally?

Answer 40

o No, it must satisfy the requirements for a will

Question 41

• When is a bailee strictly liable for loss or damage to goods?

Answer 41

• When the bailee uses the bailed goods for a purpose outside the scope of the bailment
• If the bailee moves the property from the agreed place of storage
• A bailee who agrees to return the bailed property in exactly the condition it was in at the start of the bailment and fails to do so
• A failure to return the property or misdelivering the property

Question 42

• What is an action for conversion and whats it for?

Answer 42

o Its for the deprivation of the value of property from the rightful owner (includes failure to deliver the property to the owner)
o Its essentially a forced sale whereby the title thrust upon the converter or can pursue detinue action

Question 43

• What is the measure of damages for a conversion action?

Answer 43

o Detinue – return of the property
o Trover – value of the chattel at the time and place of the conversion, or more if fair market value would lead to unjust enrichment in the defendant; if just damaged, then difference between
o Tresspass – seek losses by virtue of not having the property

Question 44

• What measure of damages for breach of contract, negligence and strict liability?

Answer 44

o Expectation damages: so in this context the value of the possessions (compensation) (or difference between FMV and actual value if just damaged)

Question 45

• What is an action for detinue and what must be proven to prevail?

Answer 45

o An action to recover personal property
o (1) the plaintiff has a current right in the property; (2) the plaintiff has a right to immediate possession; (3) the property is capable of possession; (4) the property has value; and (5) the defendant had possession of the property prior to filing suit.

Question 46

Under the UCC, a person with void title can transfer what type of title to a good faith purchaser versus a person with voidable title?

Answer 46

Void cannot pass good title
Voidable can pass good title