Personal Property Flashcards
(24 cards)
Personal Property - What it is
Personal property is all property that is NOT real property.
Real Property - All land and everything attached to the land with the intent that it be a part of the land, that is, the land and its fixtures.
Personal Property - 3 Key Topics
- Found property.
- Gifts
- Bailments
Personal Property - Found Property - Types
- Abandoned property.
- Lost property.
- Mislaid property.
Personal Property - Abandoned Property
Two Key Questions:
- Is it abandoned?
(i) Personal property is abandoned if the owner has voluntarily given up possession with the intent to give up title and control. - If it is, has someone acquired rights in it?
(i) A finder acquires rights in the abandoned property if the finder has possession with the intent to assert title and control.
Personal Property - Lost & Mislaid Property - Exam Scenarios
Two people will be fighting over title to found property.
- The person who found the property, the finder.
- The person whose land the chattel was found, the land owner or occupier.
Note: The true owner of the property will not be in the question b/c he always wins.
Personal Property - Lost Property
Lost property is found property where the owner:
- Took no voluntary affirmative act in placing the property where it is found, that is, the owner’s parting w/ the property was accidental and involuntary.
- RPP approach to determine.
Personal Property - Mislaid property
Mislaid property is found property where the owner:
- Has taken some voluntary affirmative act in placing it down, and the owner leaves.
- RPP approach to determine.
Personal Property - Who Gets the Property?
Who gets the prop depends on the characterization as either lost or mislaid.
Mislaid:
1. If prop is mislaid the owner or occupier of the premises on which the prop is found will prevail over the finder.
Lost:
1. If prop is lost, the general rule is that the finder wins and the owner or occupier of the premises loses.
Personal Property - Exceptions to the Rule for Lost Prop
Exceptions:
- If the finder of lost prop is a trespasser the owner or occupier of the premises will prevail.
- The master prevails over the servant who finds.
- If lost prop is found in a highly private locus the owner/occupier, a place not open to the public, the owner or occupier of the prop will prevail over the finder. This happens in a home or private office.
Personal Property - Gifts - Types
A valid gift passes title.
Two Types:
- Gifts inter-vivos during life.
- Gifts causa mortis, made in contemplation of death.
Personal - Gifts - Inter-Vivos
Three Requirements:
- Donative intent;
- A valid delivery;
- A valid acceptance.
Personal - Gifts - Inter-Vivos - Intent
Two Keys to Remember:
- Donative intent is easy to find when the donor and donee are closely related.
- D.I. means the intent to pass title (not mere poss.) NOW.
Personal - Gifts - Inter-Vivos - Acceptance
Acceptance is implied by silence.
The only way there is no acceptance is if you have explicit rejection by words or deeds.
Personal - Gifts - Inter-Vivos - Delivery
Handing gift to person OR when donee is already in possession of the item when the gift is accepted OR where the donor hands over something that is representative of the object of the gift.
Exam Scenarios:
- Donor makes out a check to donee or a promissory note to donee and gives it to donee. No delivery until the check is cashed or until the note is paid.
- Donor hands donee a check or note made out to donor by a 3rd party. This is a valid delivery even if donor hasn’t endorsed the check or note to donee.
- Donor hands donee a stock certificate, representing shares in a corp. This is a valid delivery even if the donor has endorsed the stock over to the donee nor has told the corp of the transfer.
- When the donor uses a middleman to get the gift to the donee.
(i) If the middle person is donee’s agent, then there is a valid delivery when donor hands the item to that middle person.
(ii) If the middle person is donor’s agent, then the delivery will not be good until the middle person hands it over to the donee.
(iii) BUT, if the facts aren’t clear whose agent the middle person is, construe to be donor’s agent (no valid delivery until agents gives to donee. EXCEPT if the donee is a minor, then construe agent to be donee’s.
Personal - Gifts - Causa Mortis - Requirements
Rule is made to protect donors who make gifts in these stressful situations.
Two Key Points:
- Kind of peril donor must be contemplating to support a gift causa mortis. No gift will be allowed unless the donor making gift is facing a grave peril.
- How is a gift causa mortis revoked?
Personal - Gifts - Causa Mortis - Nature of Peril
Peril donor faces must be a fair degree of certainty or likelihood of death that is imminent and likely to occur.
Personal - Gifts - Causa Mortis - Revocation
Three Ways:
- Donor can at any time simply revoked.
- Donee predeceases donor.
- Donor recovers. Only valid if donor actually dies.
- Note - Revocation USED to occur when donor died from something than the peril that prompted the gift, no longer true.
Personal Property - Bailments
Two Questions:
- Is it a bailment?
- If it is, what is the liability of the bailee it the chattel is damaged, destroyed or missing?
Personal Property - Bailments - Is It?
You have a bailment when the alleged bailee has taken over custody of a chattel with intent to serve as a bailee.
Special Situations:
- Safe deposit boxes are generally regarded as a bailment, even though the bank usually has no idea whats in it. Contents are bailed.
- For parking lots or garages, the way to determine if the car is bailed is to see whether the person parking the car gave up the keys. If the parking lot or garage keeps the keys, then car is bailed. NOT so if driver keeps keys.
- Tip - On exam, something will be bailed so liability can be tested.
Personal Property - Bailments - Liability of Bailee
Bailee liable if chattel is damaged, destroyed, or missing. Then determine standard of care.
Personal Property - Bailments - Liability of Bailee - Standards of Care
- Sole benefit of the bailor situation, where bailee will be liable only for gross neg. Bob’s old friend Jack was a watch repairman. Bob brought his watch to Jack to be fixed for free. Jack’s standard of care? GROSS NEG.
- Sole benefit of the bailee, where bailee will be liable for even slight neg. A borrows B’s watch to use during exam, A’s standard of care SLIGHT NEG.
- Mutual benefit, standard of care is ordinary care. Think of going to store to buy something. ORD CARE.
Personal Property - Bailments - Liability of Bailee - Strict Liability
Care is irrelevant.
- Unauthorized use situation.
- Misdelivery situations. If bailee misdelivers the chattel, even to someone using a forged instrument, then strict liability. EXCEPTION - misdelivery of a vehicle in a parking lot to someone who shows up with a forged claim check brings NO strict liability.
Personal Property - Bailments - Liability of Bailee - Exculpatory Clauses
Where bailee tries to limit liability for damage to chattel. Can limit for bailee’s ORD NEG so long as bailor received effective notice of the limitation.
ONLY for ORD NEG, won’t protect if the bailee engages in some higher level of culpability such as gross neg, recklessness, or intentionally tortious conduct.
Personal Property - Bailments - Liability of Bailee - Bailments & Bankruptcy
Items on consignment are NOT part of a bankruptcy estate. Bailed items cannot be included in a bankruptcy estate of the bailee and remain the property of the bailor.
