Prop Flashcards
(152 cards)
1
Q
What is Title?
A
Ability to convey or dispose of the property in question
2
Q
What is the Maxim of Roman Law?
A
First Come, First Served
3
Q
What is the Law of Accession?
A
A party’s good faith contribution through their own labor, which adds to the personal property of another.
4
Q
What is the rule of Discovery?
A
A first party “sights and finds” unknown territory and claims. But does not occupy or improve the property. To have title the party must occupy within a reasonable time.
5
Q
What is the rule of Conquest?
A
Seizing territory through force, followed by annexation of the territory.
6
Q
What is Labor Theory?
A
Entitlement comes through the labors and improvements of the property.
7
Q
What is Adverse Possession?
A
Obtaining title through actual (continuous, hostile, open) possession of the land (squatters rights).
8
Q
What is the rule of Capture?
A
If a party captures (manual occupancy, restrains, kills) then that party has ownership of the property (wild animals, fugitive resources)
9
Q
What is Ratione Soli?
A
Constructive Possession - Not actual possession but a virtual possession when on the property of a party
10
Q
What is Ferae Naturae?
A
Wild Animal
11
Q
What is Animus Revertendi?
A
An animal that has developed a habit of returning to a party’s property, granting the party possession.
12
Q
What is return to nature?
A
An animal can revert to its wild state, ending the posession (capture) of a party.
13
Q
What is the rule of increase?
A
Offspring of mammals belong to the owner of the mother
14
Q
What is the effect of custom on possession?
A
If a local custom known to all creates a rule of ownership, then that rule can be followed to establish ownership.
15
Q
What are fugitive resources?
A
Oil and Gas, Water, etc., resources that move on their own in their natural state.
16
Q
What rights does a property owner have to fugitive resources?
A
- Right to Extract
- Ownership upon Capture (drilled and pumped)
- Extraction rate controlled by legislation or reasonable use.
17
Q
Surface Water Rights - Eastern US
A
Riparian Rights - all land owners bordering water source can exercise reasonable use.
18
Q
Surface Water - Reasonable Use Standard
A
- Value of Use
- Harm to Neighbors
- Suitability to Locale
19
Q
Surface Water Rights - Western US
A
First in Time (Capture or Start Works to Capture)
20
Q
What does property law do?
A
Defines relationships, rights, between persons as regards to things.
21
Q
What do property rights convey?
A
A right to exclude others
22
Q
What is an externality?
A
A decision to use resources, property, without considering all of the effects (cost/benefit) of the use of the resources, specifically the costs to, or affects on others.
23
Q
What is a transaction cost?
A
Cost to internalize an externality, that is to account for the affect of decisions on others.
24
Q
How do legal rules affect externalities?
A
Legal rules reduce transaction costs, facilitate market transactions.
25
What does copyrights cover?
Expressions not facts (originality)
26
What are the elements of copyright?
1. Originality (independant creation of the author)
2. Work of authorship (type of work)
3. Fixation (tangible medium - canvas, paper, etc.)
27
What is a defense to copyright?
Fair Use - A privilege to use copyrighted matter in a reasonable manner without the authors consent.
28
What are the elements to establish fair use?
1. Purpose and character of use
2. Nature of the copyrighted work
3. Substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect on the potential market for the value of the copyrighted work (most important element)
29
What elements are required to show copyright infringement?
1. Ownership of valid copyright
2. Copying of constituent elements of the work
3. Copy was innapproriate appropriation
30
What is required for originality?
Creativity - must possess more than a *de minimus* quantum of creativity
31
Are parody's fair use?
Normally parody's do not fall within fair use, and as they become more transformative (less like the original), the less likely to infringe
32
What is the unclean hands doctrine?
A party must not have acted in bad faith with respect to infringement.
33
What are the bundle of property rights?
* Possess
* Use
* Exclude
* Sell
* Gift
Exclusion is one of the most essential sticks in the bundle - S.Ct.
34
What Property Can be Abandoned?
* Real Property with 'perfect title' cannot be abandoned
* Personal Property can be abandoned
35
What is perfect title?
Clear ownership, undisputed title
36
What are the elements of personal Property abandonment
1. Must intend to relinquish all interest in the property.
2. Voluntary act by the owner effectuating that intent
37
What rights does a finder of property have?
Ownership against the whole world except the original (rightful) owner
38
Can a decedent destroy real property?
A decedent must establish that the destruction is:
* Based on some justifiable motive
* Some benefit is gained to offset the loss
39
Can the living destroy real property?
Yes, without issue
40
What is the difference between trover and replevin?
* Trover is the return of property in the form of cash
* Replevin is the return of the actual property
41
Who has the most valid claim among possessors?
* Prior possessors have a better claim than newer possessors.
42
What is the difference between an bailor and bailee?
* A bailor is the owner of property
* A bailee is the possessor of property
43
What is the Locus Owner?
The local owner has right to things found in
* Private Areas
* Things embedded in the ground
* Things found by employees/contractors
* If occupying property then constructive possession of items found therin
44
Who owns things found in public areas?
* Lost property (not intentionally placed) - the finder
* Mislaid/Misplaced (intentionally placed) - the locus owner.
45
What is the law of finding?
A finder of property acquires no rights to the mislaid property, is entitled to possession of lost property against everyone except the true owner, and is entitiled to keep abandoned property.
46
What is a Fee Simple Absolute?
Complete ownership of property in perpetuity. An unimpeded right to sell, convey, devise.
47
What is a life estate?
A property possession for the term of a person's life, reverts back to owner or on to another possessor.
48
What is a fee tail?
A fee tail is a series of coupled life estates which pass a possessed property down a family lineage.
49
What is a future interest?
A promised interest in property that vests at a future date usually after some condition precendent has been met, like death of owner, end of a life estate.
50
What is the difference between intestate and inter vivos?
* intestate are the wishes of the dead conveyed through their will.
* inter vivos are transfers made between the living.
51
What is the rule for Treasure troves?
In the US, treat as misplaced or lost
* Finder keeps
* Locus Owner does not, even if the finder is employed by the owner
52
What is a possessory estate?
An interest in land that gives the owner a right to possess the land:
* Immediately
* In the future
* Or potentially in the future
53
Under what conditions would an FSA (fee simple estate) be void?
* Disabling Restraint - withholding the power to transfer the interest
* Forfeiture Restraint - if transfer is attempted, the property is forfeited to another
* Promisory Restraint - Grantee promises not to transfer his interest
54
Why are Restraints on Alientation against public policy?
1. Restraints make property unmarketable
2. Perpetuates the concentration of wealth to by making it difficult to sell
3. Restraints discourage improvements to the land
4. Restraints limit lenders from having reach to the land for foreclosure purposes
55
Are restraints allowed for life estates?
* Only forfeiture is allowed for life estates
56
How do you calculate the value of a life estate?
The net present value of
* Value of property today
* Life expectancy of the life estate holder
* Time value of money at some discount rate
57
What are the types of property waste?
* Affirmative Waste - injurious waste where the value of the property is diminished, ameliorated waste where the value of the property is increased
* Permissive waste - where the property is not taken care of
58
What rights does a possesor of a life estate have?
They can possess the property just as the grantor could have, except
* A Life Estate holder cannot destroy the economic value (waste) of the property
* Remaindermen and Executive Interest holders can
* Enjoin the LE holder to stop waste
* Monetary DAS (compensation)
* Forfeiture of the LE
59
What is a fee simple determinable?
An estate that terminates automatically on the happening of named future event and reverts to grantor.
"For as long as, during, while, or, until"
60
What is a defeasible estate?
An estate that may terminate before its maximum duration has run.
61
How is a Determinable Estate Created?
Established by one clause, with the limitation built into that clause. May be followed by a reverter.
62
What is a fee simple subject to a condition subsequent?
An estate that has a condition which if happens, allows the grantor (or a third party if so named) to retake (right of entry) the property.
"provided, however, however if, **but if**, on condition that, in the event of"
63
What is the difference between a Fee Simple Determinable and Fee Simple Subject to a Condition Subsequent?
A fee determinable automatically reverts to the grantor when the condition is met, where a fee simple condition allows the grantor to retake (right of entry) the property.
64
How is a Fee Simple Subject to a Condition Subsequent created (FSSCS)?
In two separate clauses, where the condition is in the second clause.
65
What is a Fee Simple Subject to Executory Interest (FSSEL)?
An estate that is automatically transferred to a third party upon the happening of a named event.
66
What is a Reversion?
A future interest retained by the grantor that executes when the grant **expires**. May be transferred, devised, and willed.
67
What is a Remainder?
A remainder is a future interest to a third party that remains after the execution of a prior "particular" possesory estate.
68
What are the 2 classes of Remainders?
* Contingent Remainders
* Vested Remainders
69
What is a Contingent Remainder?
* A future interest held by an **unascertained party** that vests at the natural end of a prior possesory estate.
* Like "unborn children of", or "A's heirs"
* A future interest subject to a **condition precedent** that vest at the natural end of a prior possessory estate.
* Some condition that must satisfied prior to conveyance of estate
70
Is a Contingent Remainder Conveyable to Another?
* Common Law
* Can be willed or devised
* Cannot be transferred inter vivos
* Modern Rule
* Can be willed, transferred, or devised (exception unascertained person)
71
Is a Contingent Remainder Subject to Destruction?
* Common Law
* If a future interest holder did not satisfy the contingent condition (vesting) before the prior estate terminated, then the contingent remainder is destroyed
* If a holder (possessor) of a vested present estate takes ownership of the future interests, then the contingent remainder is **merged** into a FSA and is destroyed.
* If a holder receives a vested present interest, and a future interest (reversion) from the same instrument (will), then a third party's contingent remainder is **not** destroyed.
* Modern
* Modern practice converts an unvested contingent remainder to an executory interest, if the prior possessory estate terminates.
72
What is an Executory Interest?
* A future estate interest held by a third party which upon execution, cuts short (terminates) the prior possessory estate.
73
What are the two types of Executory Interests?
* Springing
* Execution transfers property from grantor to grantee
* Shifting
* Execution transfers property between grantees
74
Is an Executory Interest Transferrable?
* Transferrable
* Descendible (will)
* Devisable
* Indestructible
* Subject to "Rule Against Perpetuities"
75
What is a "Vested Remainder"?
* A future interest where the takers (grantees) are **born**, **ascertained or ascertainable** at the time the remainder is created.
* A vested remainder subject to open (partial divestment) is when the future interest can be diluted by additional grantees in the class. (New heirs, or siblings).
* A vested remainder subject to (total) divestment is is vested but can be terminated upon the occurence of **condition subsequent**. (condition of use, etc.)
76
What is the "rule against perpetuities"?
A future interest which cannot vest within 21 years is deemed void.
* Contingent Remainders
* Vested Remainders Subject to Open
* Executory Interests
77
What is a life in being?
A person (living) that is causually connected to the vesting of a future interest. The perpetuities clock is based on that person.
78
What is Gray's law of 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.
79
What is Shelley's Rule?
A single insturment which creates a life estate to A, and then attempts to create a remainder to A's **heirs**, and both the life estate and remainder are legal in equity.
Result: Remainder converts to a fee simple (fee tail) in A.
80
What is the doctrine of Worthier Title?
In the case of an **inter vivos** conveyance of land with a limitation to the grantors heirs as a remainder, converts to a reversion to the grantor.
81
What is the rule on common law destruction of contingent remainders?
A legal remainder in land is destroyed if it does not vest at or before the termination of the preceding freehold estate.
82
What is the intervening remainder destruction exception?
If a holder grants a life estate and future vested estate to a person at the same time as creating an intervening estate to a third party, the merging estates do not destroy the intervening estate.
83
Can an executory interest be destroyed?
No
84
Are Children and Heirs the same?
No, children are specific, heirs are future generations and those who may inherit through any method.
85
What is a Term of Years (TOY)?
An estate which lasts for a fixed period of time (days, weeks, years, or upon some future event).
86
What are the steps to analyze a Future Interest?
1. Which future interest is it?
2. Identify who holds the future interest
3. State the duration of the future interest.
87
What is Joint Tenancy?
Both parties equally own the property, with the property share passing to the other owners at death (survivorship)
88
What are Tenants in Common?
Each co-tenant has a:
* separate and distinct share of property
* separate undivided interest in the whole property
* right to possess and enjoy the entire property
* upon death, the share passes to heirs or devisees
89
What are the Four Unities of Joint Tenancy?
1. Time (Granted at the same **Time**)
2. Title (Granted under the same **Instrument**)
3. Interests (Must have interests in **Property**)
4. Possession (Must have equal rights of **Possession**)
90
What is Tenancy by Entirety?
The four unities plus marriage.
91
How can one convert a Joint Tenancy to a Tenancy in Common?
Break one of the unities.
92
When Does the timer start in the Rule of Perpetuities?
* Wills - at the moment of the testator's death
* Irrevocable Deed - At the moment the deed is conveyed
* Revocable Trust - At the moment the trust becomes irrevocable
93
What are examples of Freehold Estates
* FSA
* FSD
* FSSCS
* FSSEL
* Fee Tail
* Life Estate
94
What are examples of Non-Freehold Estates?
* TOY
* Periodic
* Tennants at Will
95
What is Escheat?
A person dies without heirs or a will and their property goes to the State.
96
What is the difference between an Heir and Devisee?
* An Heir is a person designated **by law** to enherit an estate when the owner dies.
* A devisee is defined **by will** to enherit an estate when the owner dies.
97
How do states deal with the outmoded fee tail?
1. Abolish and convert to a Fee Simple, or
2. Convert to a Life Estate in possessor, and FSA remainder to heirs, or
3. Allow disentailling conveyances, or
4. Convert to a FSA after one generation
98
What was the major advance made by the "Statute of Uses in 1536"?
The creation of an executory limitation, that is a future interest which vests in a 3rd party other than the grantor or grantee.
99
Why was the Statute of Uses needed?
* Rights of Reversion (reversion or right to entry) are not Assignable, can only be retained by the grantor.
* To assign future FSA intersts to a 3rd party, another category was required (Executory Limitation)
100
What are the three "**nevers"** of Remainders?
* Can **never** follow possession by the Grantor
* Can **never** Divest (cut short) a prior estate
* Can **never** follow an FSA
101
What can Executory Interests **do** that Remainders cannot?
* Can follow possession by the Grantor
* Can Divest (cut chort) a prior estate
* Can follow a Fee Simple
* Can shift a future interest
102
What are the two types of Executory Limitations in FSSEL's?
* Subject to - Divestment (a condition)
* Followed by - Expiration (duration or time)
103
What is an Alternative Contingent Remainder?
A contingent remainder that vests when a prior contingent remainder fails to vest.
"but if, otherwise"
104
What is the Merger Doctrine of Remainders?
For a party that holds successive **VESTED** future interests, these merge to a FSA, crushing any contingent future interests that might be present.
105
What is a Vested Remainder Subject to Divestment (VRSD)
A vested remainder that is subject to condition subsequent.
106
What is Tenancy at Will?
A tenancy with no stated duration that last only as long as the tenant and landlord desire. Can be terminated by either party.
107
What is a Periodic Tenancy?
A tenancy for a fixed duration that extends succeeding periods until such time as the landlord or tenant gives notice of termination.
* Can be created by agreement or operation of law
* Can only be terminated with appropriate notice
* Leases 1 year or greater - 6 months notice
* Less than one year - Equal to the lenth of period
* Month to Month - 1 month's notice
* By Clause
108
What is a Tenant at Sufferance?
A tenant that wrongfully remains in possesion of property after termination of the tenancy.
* Common Law
* If landlord elects for an additonal term of tenancy, the tenant is responsible even under extenuating circumstances
* * Modern
* Converts to a periodic tenancy (governed by the old lease)
* May raise rental fee
* Tenant must object, silence is implied consent
109
What is Partitioning?
Joint Tenants and Tenants in Common can split the estate by partitioning.
* by Sale - The property is sold and the proceeds divided (Modern Preference)
* If physical partition impractible
* Tenants better served by sale (economic loss by physical partition)
* Party that has improved the property gets added value
* in Kind - The property is physically divided among tenants
* Court will allow under emotional attachment
* Improved portion awarded to party that made improvements
110
What is Ouster?
When a tenant in possession through restriction, or use does not allow a co-tenant to use and enjoyment of the property.
* Once ousted, a cotenant can demand compensation from tenant in possession
* rent
* usage fees, or
* Partitioning
111
What can a Tenant in Common do with their Share?
* Lease to a third party
* The leasee can only have what rights the leasor has
* Cotenant can recover porportionate share of rental income
* If leasee creates an ouster, then cotenant can recover rental value
* Sell
112
What is the black letter law of personal property gifts?
* Manual Delivery - handing over the gift
* Intention to make the gift - immediate, not a promise of a gift in the future
* Acceptance - Is presumed
113
What is a constructive/symbolic delivery?
* Constructive - Another object that allows one's access or use (keys to a car),
* Symbolic - Another object that symbolizes object
* Allowed only when actual delivery is impossible or impractical
114
What is the typical clause to create a joint tenancy?
"as joint tenants with right of survivorship", using just jointly doesn't cut it.
115
What is a Strawman?
A third party that acts as an intermediary for the purpose of property conveyance. They receive the conveyance and then reconvey (at a reasonable time) back to the grantor. In Common law, a person cannot convey to themselves.
116
What is equitable servitude?
A restrictive covenant
117
What rights does a co-Joint Tenant have?
* Survivorship
* If the other JT has outstanding debts (even secured by the joint property) they are not actionable when a Tenancy by Entirety
* For multiple JT's, if one conveys their interest (sale, mortgage, etc.), the remaining JT's have a TIC with the new tenant and a JT with the remaining JT's.
118
What are the two theories of Joint Tenancy severance?
* Title Theory
* A conveyance (mortgage, loan, etc.) severs the joint tenancy upon filing the title claim.
* Lien Theory
* Like common law, the filing of lien does not severe the joint tenancy unless the lien if signed by all joint tenants
119
What is "pur autre vie"?
A possessory estate that is based on the life span of someone **other** than the holder of the grant.
120
What is the Married Women's Property Act?
Established that women are not wards of their husbands and have their own property rights - not subject to the debts of the husband.
121
What are the policy issues with property purchase options?
Outstanding options discourage property owners (possessors) from investing and improving the property.
122
Do options violate violate the Rule Against Perpetuities?
* If an option for purchase - yes
* can take longer than 21 years to vest
* If an option of first refusal - no
* is a yes/no answer that is immediate.
123
What are the rules of Joint Bank Accounts?
* True Joint Accounts
* Present Possession, Survivorship
* Payable on Death (POD)
* Survivorship
* Convenience Account (Joint Tenants)
* Possession/Right to Access
124
What happens when a Joint Tenants conveys, three severance options?
* Severance
* Any conveyance severs J/T and converts to TIC for term of conveyance and back to grantor as TIC
* No Severance
* Conveyance does not destroy J/T, if one dies then survivorship crushes grantee
* No Severance - Modified
* Conveyance doe not destroy J/T, grantee keeps conveyance until expiration and to grantor or survivor.
125
What rights do creditors have with J/T?
* Creditors do not have access to the co-tenants right of survivorshipor possession
*
126
What is the rule of RAP and class gifts (Vested Remainders Subject to Open)?
If any one member of the class can violate RAP, then the entire class is in violation and the grant is void.
127
What is the Rule of Convenience?
A class closes upon the earlier of:
* Physiological impossibility of additional class members being created
* One member eligible for immediate possession, class closes. Afterborns out of luck
128
What are the Choice of Law options for Marital Property?
* At Death
* location of real property dictates
* Decedents domicile for personal property
* At Divorce
* Domicile of spouse @ time of acqusition
129
What is Community Property
* Earnings - Equally divided
* Property Acquired - Equally divided
* Before Marriage - Separate Property
* Gift/Devise/Inherit - Separate Property
* Transmuted Portions - By Agreement
130
What is the Elective/Forced Share Modern Rule?
Death of a spouse, the survivor can elect to either:
* Take the elective share
* up to ½ depending upon jurisdiction
* depends on presence of children
* Take the amount in the will
131
What is a Dower?
A life estate comprising 1/3 of the property the husband had during marriage and was inheritable (prior property and property during marriage)
132
What are the Texas rules for inheritance?
Equitable Distribution of Property
133
What is Privity of Contract
Being a party to a contract
* Being bound by the terms and conditions of the contract.
134
What is privity of Estate?
Becomes liable for the *real covenants* (interests) of leasor/prior owner
* Having possessory rights and obligations to the property.
* Rent
* Breach of terms related to the property
135
What does the Fair Housing Act guarantee?
136
Who is a 3rd party beneficiary?
if subleasor agrees to pay the original landlord on behalf of the leasor
137
What is the English rule of delivery of possession?
Landlord must provide property to leasing party, if not tenant can:
* Terminate Lease sue for DAS
* Partial physical possession (pro-rated rent)
* Delay taking possession (pro-rated rent)
* Proceed against holdover (landlord doesn't have assets)
138
What is the American rule of Delivery of Possession?
Landlord does not have provide possession, leasing party has to act to remove tenant at sufferance by,
* Bringing an action for trespass, tenant has legal right to possession and can assert those rights.
* Possession
* Damages
139
What does the Fair Housing Act cover?
* Invidious Discrimination
* Refuse to Rent/Sell
* Terms and Conditions
* Discrimination in Advertising
* Reasonable accomodation - handicapped
Attorney's fees can be claimed against landlord
140
What is an Assignment?
A tenant can assign their entire property rights to another party with no reversionary interest.
* If assigned, the assignee is in privity of estate with landlord.
* If assigned **and** assumed, then the assignee is in privity of estate and contract with the landlord.
* Language denoting assumption
141
What is a Sublease?
A lease of less interest than the original lease holder had. The original leaseholder retains some property rights.
142
What is the difference between a leasehold and license?
* Leasehold
* Tenant has possession of the premises (or right of possession) during the lease
* License
* Owner retains possession of the premises, licenses use of the property
143
Can a landlord refuse a request for sublease/assignment?
Yes, the general rule is that the landlord does not need to be reasonable.
* However some jurisdictions have now required that landlords have a reasonable basis for refusal
* Raising the rent not reasonable
144
When are Executory Interests at risk for RAP?
* Follows a fee simple defeasible to a 3rd party (FSSEL)
* The conveyance is a future interest only
* Vested Remainders Subject to Divestment
* Executory Interests Following a "Gap" reversion.
145
What are the rules for contributions to taxes (etc.) for Joint Tenants?
* Not in possession
* Each tenant owes and equal share of taxes, etc.
* A paying tentant can recover 1/2 from a non-paying co-tenant
* In possession
* The tenant in possession is allowed to recover
* 1/2 of the amount above the "fair rental value" of the property
* So only 1/2 of the tax bill contribution owed by the co-tenant
* Same is true of other costs, based on fair rental value, not market value.
146
Does the right of Re-Entry expire?
Generally no, unless
* Holder affirmatively waives right
* Terminate, or
* If the party subject to the right of re-entry has detrimentally relied on the implied waiver (inaction, etc.).
147
What is Quiet Enjoyment
The right of a tenant to not be disturbed or intruded on by the landlord.
* Implied Covenant
* Breached if tenant is
* Constructively, or
* Actively Evicted
148
What is Constructive Eviction?
* Landlord's conduct has interfered with the tenants possession
* The interference is substantial
* The tenant has given notice of the condition, or the landlord already knows
* Tenant abandons possession of the premises
149
What is Implied Warranty of Habitability?
The landlord must keep the premises in a habitalble state throughout the term of the lease.
150
What is Tenant Abandonment?
The tenant abandons possesion of the property
* Surrender is a premature termination of the lease
* Expressly, or
* by the parties conduct
* Accpetance by the landlord
* Express
* Silence/Inaction
151
Can the landlord evict the tenant through "self-help"?
* In old common law - yes
* Modern law - Maybe
* The landlord must not "breach the peace" to change the locks
* No harassment
* Failure can lead to a wrongful eviction action against the landlord
152
What are the rules of destruction by Casualty
Common law is based on fault
* Tenants fault
* Must pay for damages and continued rent
* Landlords fault
* Must pay damages and provide rent relief to the tenant
* Nobody's fault
* loss is shared
