Property Law

Question 1

What is property?

Answer 1

In a legal sense, property is often referred to as a bundle of rights. A person might have one, several, or all of these rights in connection with their property

Question 2

What does the term bundle of rights mean?

Answer 2

The term “bundle of rights” describes the set of legal rights associated with ownership of real property. The “bundle” is made up of five different rights: the right of possession, the right of control, the right of exclusion, the right of enjoyment and the right of disposition.

Question 3

What is the right of control of property?

Answer 3

• the right to make decisions about and alterations to the property
  
  • Often limited by local regulations, HOA agreements, historical status

Question 4

What is the right of disposition of property?

Answer 4

– the right to sell, give away, destroy property
- Can be limited by historical status, encumbrances like liens

Question 5

What is the right of enjoyment/use of property?

Answer 5

• the right to use the property as you see fit, without onerous outside interference
  
  • But you cannot interfere with other’s enjoyment or rights to their property, also may be limited by zoning

Question 6

What is the right of exclusion of property?

Answer 6

• the right to keep others from using or entering your property, or to remove them
  
  • Limited by easements in some cases

Question 7

What are the types of property?

Answer 7

Real
Personal (Tangible/Intangible)
Intellectual
Fixtures

Question 8

What is Real Property (realty)?

Answer 8

land and things that are attached to land and immovable (primarily buildings)

Question 9

What is Personal Property (personality)?

Answer 9

• Tangible: physical, movable objects: books, boats, cars, computers
• Intangible: property with no physical form – money in a bank account, stocks and bonds (etc)

Question 10

What is Intellectual Property?

Answer 10

a form of intangible personal property that represents ownership of an idea: copyrights, patents, and trademarks

Question 11

What are Fixtures?

Answer 11

In between realty and personalty – often refers to appliances that start as personal property and then become semi-permanently attached to real property

Question 12

What does the term overlapping rights mean?

Answer 12

One piece of property can be the subject of multiple sets of rights
Example: - You own a computer:
- You have the right to use, enjoy, transfer, alter, and even destroy the computer
- The company that sold the camera has intangible rights in the design and technology of the computer – you cannot sell duplicates of it

Question 13

What are vested property rights?

Answer 13

rights that have become fully effective

Question 14

What are contingent property rights?

Answer 14

rights that depend on some future condition to become effective

Question 15

What is Severalty Ownership?

Answer 15

sole ownership by one person

Question 16

What is Concurrent Ownership?

Answer 16

property held simultaneously by 2+ people, and comes in 3 forms

Question 17

What are the three forms of Concurrent Ownership?

Answer 17

Joint Tenancy
Tenancy in Common
Tenancy by the Entirety

Question 18

What is a Joint Tenancy?

Answer 18

Each party owns a proportional share, there is a right of survivorship, and it applies to people acquiring ownership at the same time from the same source.

Question 19

What is a Tenancy in Common?

Answer 19

Each party owns a proportional share, there is no right of survivorship (property share goes to estate if a tenant dies), and it applies to everyone else who holds property jointly.

Question 20

What is a Tenancy by the Entirety?

Answer 20

Each party owns 100% of the property, there is a right of survivorship, and it applies to married couples (switches to tenancy in common if divorced)

Question 21

What is an estate / interest in land?

Answer 21

A person’s ownership of real property
- Not to be confused with the summation of a persons debts and assets after they die, also called an estate

Question 22

What does the “true” owner of the land mean?

Answer 22

A person who holds an estate in fee simple is what we often think of as the “true” owner of the land – he can pass that interest in the land onto heirs

Question 23

What is a life estate?

Answer 23

A life estate in contrast gives a person an interest in land for their life, which cannot be passed onto heirs

Question 24

What is a grantor?

Answer 24

The person who owns the land and gives a life estate to another

Question 25

Who is a remainderman?

Answer 25

The grantor may choose to pass the property on (fully or in the form of a life estate) to another person after a life estate expires. Such a recipient is called a remainderman – they have a future interest in the property

Question 26

What is a leasehold?

Answer 26

- A **leasehold** allows a tenant a **possessory** interest in land for a period of time - They can control and occupy the land, but do not own it and cannot pass it on

Question 27

What are the two restrictions on Real Property?

Answer 27

Easements & Licenses

Question 28

What is an easement?

Answer 28

- **Easements** are legally enforceable rights to use or access the lands of others for a particular purpose – that the owner may not be able to forbid - For example, utility companies often have easements to access components on owner’s lands

Question 29

What is a license?

Answer 29

A license is a temporary permission to use land, such as the owner of a forest granting permission to hunters or fisherman

Question 30

What is adverse possession?

Answer 30

- **Adverse Possession** is a process by which someone without title can acquire title in another person’s land - Arguably “stealing” it

Question 31

What qualifies for adverse possession?

Answer 31

- Possession must be - Hostile (Without the consent of the owner) - Adverse (against the owners interest) - Open and notorious (not hidden) - Continuous for a set period of time, usually 20 years

Question 32

What are some ways that personal property can be acquired?

Answer 32

Purchase (buying) Creation (making) Capture Accession Finding

Question 33

What is capturing property?

Answer 33

- the first person to seize something existing in nature owns it (most commonly referring to fish and game) - Subject to a variety of regulations (such as licensure, catch limits, etc) - Often, title in wild animals is only good so long as one has physical possession of them – once they escape it’s fair game (literally)

Question 34

What is accession of property?

Answer 34

Natural increase. If your livestock have babies, you own the babies

Question 35

What is finding property?

Answer 35

Personal property can also arise out of finding – claiming property that others originally owned. The nature of ownership here depends on how the property is found.

Question 36

What is lost property?

Answer 36

Property that the owner has unintentionally parted with and doesn’t know where it is

Question 37

What are the rules of lost property?

Answer 37

- **Lost** property – the finder can claim possession against anyone except the true owner - The finder *may* be required to hand over the item to authorities, or publicize its finding for a period of time, after which the property becomes fully theirs if unclaimed. This is especially true for livestock and other domesticated animals

Question 38

What is mislaid property?

Answer 38

Property that the owner intentionally left somewhere, but forgot about

Question 39

What is the rule about mislaid property?

Answer 39

Mislaid property – goes to the owner of the premises where mislaid, who must follow similar rules to the finder of lost property

Question 40

What is abandoned property?

Answer 40

Property that the owner has no interest in retrieving, regardless of how it was left

Question 41

What is the rule about abandoned property?

Answer 41

Abandoned property – finders keepers

Question 42

Other rules:

Answer 42

- Employees who find property in the course of their employment must turn it over to their employer, who has finders rights to it - Trespassers are secondary to landowners when finding property on the landowners estate - When **fungible** **goods** are intermingled and subject to **confusion** – there is no claim to individual items, just claims to a proportional amount to what was originally owned

Question 43

Who is a donor and who is a recipient?

Answer 43

The person giving is the donor and the recipient is the donee

Question 44

What is donative intent?

Answer 44

The donor must have donative intent – the intent to relinquish all property rights for nothing in return

Question 45

What is actual delivery? What is constructive delivery?

Answer 45

- Actual delivery – the item is physically transferred from one party to another (dropping off the car to the donee) - Constructive delivery – when the parties conduct themselves as if a transfer of property has occurred without an actual or symbolic transfer (giving the donee the keys to the car)

Question 46

Can gifts be conditional?

Answer 46

Yes

Question 47

What are trusts?

Answer 47

Trusts are a way to convey property to a beneficiary without giving them total control (the grantor transfers control/ownership of property to the trustee who holds and manages them on behalf of the beneficiary

Question 48

What are the two forms of trusts?

Answer 48

Revocable and Irrevocable

Question 49

What are the terms of a revocable trust?

Answer 49

- The grantor - May terminate the trust - May change the trust - Can freely access the assets - Do NOT provide protections from creditors or tax savings

Question 50

What are the terms of an irrevocable trust?

Answer 50

- **Irrevocable Trusts** - Cannot be terminated or meaningfully changed by the grantor - The grantor gives up ownership and control (except for anything explicitly provided for in the trust)

Question 51

What are the responsibilities of the trustee?

Answer 51

- Control and protect the assets - Handle accounting and taxes - Manage and invest the funds - Disburse funds to the beneficiary as appropriate - Most importantly: **act impartially in the best interest of all beneficiaries** - This can get complicated when there are difficult choices to make, or multiple beneficiaries

Question 52

What is probate?

Answer 52

The process of executing a will after a person dies, distributing property, and settling any disputes

Question 53

What is a will?

Answer 53

The document that outlines how the deceased would like their property divided up - The person creating a will is referred to as the **testator** (male) or **testatrix** (female) - The collection of property owned by the decedent is their **estate** - NOTE: if the deceased had debts or other obligations, **creditors** may be able to recover some assets from the estate, even against the declaration of the will. - Although, close family often have at least some protected claims even above creditors

Question 54

What is the term for a person who dies without a will?

Answer 54

Intestate

Question 55

How is the estate of a person who died intestate distributed?

Answer 55

The estate of a person who has died intestate will be distributed according to the rules of intestate succession

Question 56

Intestate succession

Answer 56

- In GA: - If both spouse and children are alive, they split everything evenly, except that the spouse gets at least 1/3 - If spouse and no children, spouse gets everything (and vice versa) - If no spouse and no children, parents get everything - If no spouse, children, or parents, siblings get everything - If no **heirs** can be found, the property **escheats** back to the state

Question 57

What is eminent domain?

Answer 57

Eminent Domain is a legal procedure by which the government can seize ownership of private land for “public use”

Question 58

What is "public use"?

Answer 58

Public “use” does not literally mean use, but is more appropriately thought of as public “purpose” or “benefit”

Question 59

What is a taking?

Answer 59

- There is no clear line for what is or is not a taking. A finding of taking is more likely when - There is a physical intrusion, in whole or in part (physical taking) OR - Regulatory action renders the land in question valueless or nearly valueless - Courts are reluctant to find that a regulatory taking has occurred if land retains at some economic value or use - Takings to shut down or prevent a **nuisance** are also not entitled to just compensation

Question 60

What is a nuisance?

Answer 60

Nuisance refers to actions by someone or something within their control that interfere with rights of either the public or private citizens outside of their property.

Question 61

What is zoning?

Answer 61

Zoning is a process by which local governments dictate what types of activities may be conducted on certain parcels of land - The basic idea of zoning is to do things like prevent industrial zones or sewage treatment from existing right next to private residences - Zoning does not typically constitute a taking, and while zonings are subject to suit, they are presumptively valid and will only be overturned on clear and convincing evidence