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Property Law 1L > property > Flashcards

property Flashcards

1
Q

Intent

A

Severance: donor must have the present purpose to irrevocably sever interest in the property

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2
Q

Symbolic Delivery

A

Handing over of something is merely representative of the gifted property

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3
Q

constructive delivery

A

act of handing over an item by the donor that permits the donee to use the gift (keys to car)

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4
Q

acceptance

A

presumed by law for value gifts (arguable)

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5
Q

Gifts Intervivos v gifts causa mortis

A

I: donor is in good health and has full capacities
CM: Donor expects death but gift is revocable upon recovery

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6
Q

Wills

A

passing of property upon death of the donor only + statute requires that it must be in writing and in the presence of a witness

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7
Q

Life Estate

A

Possessory rights for the duration of the recipient’s life
After their death– reversion or remainder

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8
Q

reversion

A

back to the grantor

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9
Q

remainder

A

goes to someone else

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10
Q

Engagement Rings as Gifts

A

Conditional Gifts: Fault based or no fault based (someone ruins marriage, business death, conditional or not)

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11
Q

California Civil COde § 1590: Engagement Rings

A

“where either party to a contemplated marriage … makes a gift … to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as
contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value.

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12
Q

Estate

A

refers to the length of time that an ownership lasts

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13
Q

Fee Simple

A

Ownership of unlimited duration (unless transferred, it passes onto devisees under will or to heirs if no will)

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14
Q

Life Estate

A

possessory estate of limited time duration (“for life”)
Can also be for life of another person than the grantee (life estate pour autre vie)
Transferable inter vivos: not devisable or inheritable

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15
Q

Waste & Life Estates

A

Use must be consistent with the fact that the property will be handed over to the remainder man on the death of the life tenant– can’t permanently impair the value
3 types: (Affirmative, Permissive, Ameliorative)

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16
Q

Affirmative Waste

A

affirmative action that damages the land permanently (voluntary: burn the barn, cut trees)

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17
Q

Permissive Waste

A

Failure to act reasonably to protect against deterioration (involuntary: chronic leak, not paying property taxes, interest payment on mortgage)

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18
Q

Ameliorative Waste

A 
Affirmative action that change the principal use of the land, increasing its value
Actionable when (1) grantor intended for there to be no change in the land
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19
Q

Defeasible Fee Simple

A

Estates that are subject to termination based on a future event

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20
Q

Fee Simple Determinable

A

Grantor intends to grant fee simply only until a specified future event happens

Grantor retains a possibility of reverter (not revision)

“so long, as, until, during, while”

Transferable but nature stays the same

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21
Q

Fee Simple Subject to Condition Subsequent

A

Fee simple but can be revoked by grantor if some future event happens

Grantor retains right of entry/ power of termination

“Provide, however, but if, on condition that”

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22
Q

Fee Simple subject to an executory limitation

A

The estate is transferred to a grantee until some future event happens

Grantor creates a future interest in a third party

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23
Q

Reversion

A

created when a grantor conveys a lesser estate than he or she originally owned

always vested

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24
Q

Possibility of Reverter

A

Grantor conveyed the same quality estate as they originally had but conveys it with a determinable limitation

potentially contingent

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25
Q

Power of termination/Right of Entry

A

Grantor retains the power to cut short the conveyed estate

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26
Q

Contingent remainder

A

A remainder with some uncertainty, either (1) with regard to the identity of the person to take possession or (2) the fact that that person actually will take possession

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27
Q

Vested Remainder

A

A remainder is given to a presently existing and ascertained person, and (2) not subject to a condition OR subject to a contingency that occurred to a condition that disappeared

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28
Q

Ad coelum doctrine

A

“for whoever’s is the soil, it is theirs all the way to Heaven and all the way to hell”

owner of the land has right to the air above and the ground below property

Most important stick in the bundle (Pile v Pedrick, Jacques v Steenberg)

Limitations: Navigable air ( public domain) Griggs, Control (cave entrance) Edward v Sims, Fugitive resources, remedies might be adjusted to take into account circumstances

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29
Q

Quasi Public Property

A

Civil Rights Act of 1866 (race discrimination), Civil Rights Act of 1964 (race, color, religion, national origin, not gender),Title III (public accommodations and commercial facilities), Private clubs

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30
Q

Civil Rights Act of 1866

A

Race discrimination only

damages available

Before ‘64, only applied to state actors, not private citizens and then private actors as well later

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31
Q

Civil Rights Act of 1964

A

applies to race, color, religion, national origin (not gender discrimination)

Quasi-public v private property (applies to hotels, restaurants)

no damages available, must submit to state agency for resolution

32
Q

Title III: Public Accommodations and Commercial Facilities

A

prohibition of discrimination on the basis of disability in the activities of place or public accommodations

places of public accommodation under ADA; business that are generally open to the public and that fall into one of 12 categories

Requires newly constructed or altered places of public accommodations

33
Q

Federal Laws about Private Clubs

A

most public accommodation statutes do not apply to private clubs and establishments not open to the public (but state laws can differ)

Factors used to describe “private” club:

Member selection, limits on maximum amount of members

34
Q

State Laws: “reasonableness test”

A

“owners of property open to the public do not have the right to unreasonably exclude particular members of the public”

States allowed to provide more, not less, free speech protections than constitution

Schmidt Test (NJ)

35
Q

Reasonableness Test: Schmidt Test (NJ)

A

(1) the nature, purposes, and primary use of such private property, generally, its “normal” use (2) the extent and nature of the public’s invitation to use that property (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property

Applications: free speech rights (NJ Coalition v War in ME) + Card Counting in Casinos (Uston)

36
Q

Public trust Doctrine Test

A

The public right to gain access to water and wet sand areas through dry sand (Raleigh Ave Beach v Atlantis)

Whether privately owned upland sand is available for public access will depend on circumstances

Factors:

Location of the dry sand in relation to the foreshore

Extent and availability of publicly owned upland sand area

Nature and extent of public demand

Usage of upland sand by the owner

37
Q

Necessity

A

trespasser was faced with choice of two evils and chose the lesser one

acted to prevent imminent harm

reasonably anticipated causal relationship between their conduct

had no legal alternative to violating the law

(vincent v lake erie transportation co: boat on dock)

38
Q

Public policy on trespassing

A

Trespass to ensure other constitutionally protected interests

public need (state v shack)

Public rights (free speech)

Trespass to enable exercise of legitimate public authority

39
Q

Fee Simple

A

(1) determinable (automatic return)
(2) subject to condition subsequent (return upon re-entry)
(3) subject to executory interest (to third party)

40
Q

Future Interests

A

right to ownership that does not include the right to present possession or enjoyment

are created by life estates and defeasible estates

41
Q

defeasible estates

A

estates where a condition or event triggers a transfer of possessory ownership

42
Q

reverter

A

back to the grantor

43
Q

remainder

A

goes back to another party

44
Q

back to the grantor defeasible estates

A

fee simple determinable

fee simple subject condition subsequent

45
Q

defeasible estates to another/third party

A

fee simple subject to executory interest

46
Q

vested remainder

A

(1) the remainder is given to a presently existing and ascertained person, and (2) not subject to a condition OR subject to a contingency that occurred or to a condition that disappeared

47
Q

contingent remainder

A

there is some uncertainty, either (1) with regard to the identity of the person to take possession, or (2) the fact that that person actually will take possession

48
Q

vested remainder subject to divestment

A

interest goes from one grantee to another upon the occurrence of some condition (shifting)

49
Q

vested remainder subject to open

A

remainder vested in one or more ascertainable people, but with the possibility that more people will be added

50
Q

rules for vested remainder subject to open

A
  1. the class closes when it is physiologically impossible for more children to join in the class (when the ancestor dies)

children born or conceived prior to ancestor’s death**

2) the class closes when at least one member is entitled to possession (at the time of distribution and at lease one member has satisfied any conditions precedent

51
Q

public trust doctrine

A

A public right to commercial navigation and fishing on navigable waters

In CA: the right to swim, boat and engage in other forms of water recreation, and even to preserve lands in their natural state in order to protect scenic and wildlife habitat values

applies to flowing waters and well as tide and submerged lands and the beds of inland navigable water

52
Q

Beach Access (Nj)

A

(1) location of the dry sand area in relation to the foreshore
(2) the extent and availability of publicly owned upland sand area
(3) the nature and extent of publicly demand
(4) use of the upland sand area by the owner

the upland sand owner was a “quasi public body”

53
Q

Matthews v Bayhead Improvement Association

A

in order to enjoy public trust lands, the public has the right to gain access through and to the use of, the dry sand area of privately owned beaches

the upland sand owner was a “quasi public body” in that the municipality was involved in its operation

54
Q

Raleigh Avenue Beach Association v Atlantis

A

Allowed public access through and use of upland of 100% privately owned beach as reasonably necessary for the public’s right to access and enjoy the ocean

1) the public had a right to vertical access across the private atlantis property
2) the public had the right to access and use all of the atlantis sands
3) the NJDEP had the authority to review and approve the atlantis beach fees

55
Q

tenancy in common

A

each owner holds an undivided, fractional share in the entire parcel of land, and each co-tenant is entitled to simultaneous possession and enjoyment of the whole parcel (even if the co-owner has a smaller fraction)

transferrable

56
Q

joint tenancy

A

each co-owner holds an undivided, equal share in the entire parcel of land, and each co-tenant is entitled to simultaneous possession and enjoyment of the whole parcel AND each has the right to sole ownership if the other dies first (“survivorship”)

not transferable: inter vivos conveyances sever (destroy) the joint tenancy, creating a tenancy in common

57
Q

tenancy by entirety

A

each married co-owner holds an undivided, equal share in the entire parcel of land, and each is entitled to simultaneous possession and enjoyment of the whole parcel AND each has the right to sole ownership if the other dies first (“survivorship”) AND can be terminated only by (1) divorce of the couple (2) death of one spouse (3) agreement of both spouses

not destructible

creditors

58
Q

Right to possession

A

equal right of possession and enjoyment of the whole parcel, regardless of each share/ fractional interest

ouster

59
Q

outster

A

action by a co-tenant to receive rent from a co-tenant in possession who refuses the request of another co-tenant to share possession of the land

60
Q

right to rents and profits

A

each co-tenant is entitled to a pro rata share of rents received from a third party for use of the land

if a co-tenant refuses to share rent income, other co-tenants can bring an accounting action against the other co-tenant to force payment

if a co-tenant exploits natural resources on the property, each tenant is entitled to his or her pro-rated share of the resulting net profits

61
Q

liability for mortgage and rent payments

A

all co-tenants are obliged to pay their proportional share of mortgage, tax, assessments, and other payments that could give rise to a foreclosure

if one co-tenant pays more than a pro-rata share, he or she may recover the excess in a contribution action

one exception: co-tenants in sole possession cannot file a contribution action to obtain tax and mortgage payments from other co-tenants if the reasonable rental value that he or she is obtaining through possession exceeds these payments

62
Q

liability for repair and improvement costs

A

no right to obtain contributions for repairs or improvements-right to partition instead

63
Q

liability for waste

A

liability for the use of the common property in an unreasonable manner that creates permanent harm

-except extraction of resources: not waste, but income that he must account to the other co-tenants

64
Q

Lien Theory

A

execution does not sever the interest- it is an interest granted over an item of property (temporary possession/ to secure the payment of a debt or performance)- with regard to a mortgage, the severance occurs only when a foreclosure take place (CA)

65
Q

Title theory

A

type of execution of leases or mortgages

has the effect of a severance of the interest- breaking the unity

66
Q

conveyance of joint tenant’s entire interest

A

freedom to sever without the consent of the others

(also transfer to one self)

hybrid joint tenancies

67
Q

partition

A

mutual agreement or judicial partition-each co-tenant has the right to request

___ in kind physical division into separate parcels

___ by sale: property is sold and proceeds are shared- other leads to dispossession of co-tenants

restraint against alienation (except with regard to condominiums)

68
Q

partition in kind

A

physical division into separate parcels

Owelty: court orders money payment to account for differences in the value of the separated parcels

69
Q

partition by sale

A

property is sold and proceeds are shared- often leads to dispossession of co-tenants

70
Q

tenancy by entirety

A

four unitities (time, title, interest, and possession) + marriage

inalienable (only divorce can end it)

71
Q

possessory estates types

A

term of years, periodic, at will, tenancy at sufferance, life tenancy (previously discussed)

72
Q

term of years

A

lease for a fixed period= termination date is known

ends automatically: no notice needed, holdover tenant: requires eviction

inheritable and alienable

must be in writing

73
Q

periodic tenancy

A

undetermined duration, continues for successice period automatically until l or t provides notice of termination

created expressly: week to week, month to month, year to year

created by implication: (1) when no mention of duration in lease provision is made for payments or rent at set intervals (2) oral agreement for terms of years- becomes implied periodic tenancy by the way rent is now tendered

rent increase is new rental agreement with notice

rent termination requires notices of equal period

74
Q

tenancy at will

A

tenancy for no fixed duration

“to tenant for a long as landlord or tenant desires”

like license but full control

must be expressly agreed to by parties (otherwise implied periodic tenancy)

can be terminated by either party but reasonable demand to quit is usually needed

75
Q

tenancy at sufferance

A

tenancy created when tenant has wrongfully held over past the expiration of the lease

purpose: permit landlord to recover rent

lasts until landlord either evicts or elects to hold tenant to a new tenancy

76
Q

rights of lanlords

A

right to select tenants, holdover tenants, tenant moves out prematurely

Property Law 1L (1 decks)

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