Law 5

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bngriffin13
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117525
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Law 5
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2011-11-19 20:25:47
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Law
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  1. Real Property
    • Land
    • Anything attached to land
    • Fixtures

    Governed by state law

    • land
    • buildings
    • timner
    • fixtures
    • mineral rights
    • air rights
    • water rights
    • easements
  2. Personal Property
    • Anything not attached to land
    • Movable
    • Trade fixtures
  3. Fee Simple Absolute
    • Most compler from of ownership
    • has full ownership of the property (use, sell, exclude all others at times)
    • Most residential realestate is owned in fee simple
  4. Fee Simple Defeasible
    • Complere Ownership, but with a condition set forth in the deed
    • current owner could lose title if the condition arises
    • this depends on how the condition is written
    • - either fee simple determinable - automatice reversion if the condition arises
    • - fee simple subject to condition subsequent - prior owner must get court to reacquire the title
    • Often used in wills or gifts to charity
  5. Life Estate
    • The owner has the right to occupy and use the land for his of her lifetime
    • often used in wills
    • or sale of family home to children, and mom retains a life estate
  6. Remainder
    • a future interest following anything other than a fee simple absolute
    • held by someone other than the prior owner
  7. Reversion
    Same as remainder, but held by the prior owner
  8. Concurrent Ownership
    • More than one party can own real property
    • the way the ownership is characterized affects the rights of the owners
    • also defined at the time of the transfer
    • called a "tenancy"
  9. Tenancy in common
    • Default tenancy if deed is ambiguous and owners are not married
    • No right of survivorship - if one of the owners dies, his interest passes to his heirs
    • any tenant is permited to transfer his interest
    • creditors of one tenant can attach his interest
    • All tentants have an equal right to possess the property
    • ownership does not have to be equal
  10. Joint Tenancy
    • Must be clearly stated in the deed that a joint tenancy is created
    • right of survivorship among tenants - If one tenant dies, his interest is equally divided among the remaining tenants
    • Any tenant is permitted to transfer his interest - upon transfer, the joint tenancy is destroyed with respect to the new tenant, who becomes a tenant in common, the remaining tenants still share a joint tenancy in their fractional interest
    • creditors of one tenant can attach his interest
    • all tenants have an equal right to possess the property
    • ownership among joint tenants is equal
  11. Tenancy by the entirety
    • available to married couples only
    • default tenancy is owners are married when they acquire the property
    • right of survivorship among spouses - if one spouse dies, his or her interest automatically passes to the surviving spouse
    • neither spouse is permitted to transfer their interest to a third party, or mortgage theri interest - any such conveyance without the signatures of both parties is void
    • creditors of one spouse can NOT atach the property
    • both spouses have an equal right to possess the property
    • upon divorce, converts to a tenancy in common
  12. Community Property
    • Property acquired during the marriage by either spouse is considered to be owned equally by by each spouse
    • Property owned seperately at the start of the marraiage, any any property acquired by one spouse by gift or inheritance, remains seperate property
    • Arizona, Cali, idaho, louisiana, nevada, new mexico, texas, washinton, wisconsin
  13. Cooperative
    • residents of a cooperative own shares in a corporation, which in turn owns the building
    • ownership in the corporation entitles the shareholder to occupy a particular unit
  14. Condominium
    • residents own their individual units
    • common areas are owned concurrently as tenants in common
  15. Easement
    • Non possesspory interest in real property
    • grants teh owner the right tp use another's land in a particular way
    • ex. Driveways
  16. Profit
    Grants the owner the right to go on to another's land and take away part of the land or a product of the land

    minerals, oil, gas, etc
  17. ways to trasfer ownership
    • Statute of Frauds - Writing requirement - deed
    • sale
    • foreclosure
    • gift
    • will

    Two exceptions - Inheritance and adverse possession
  18. Adverse possession
    • Ownership of propertycan be acquired by possessing the property of 20 years if certain requirements are met
    • - Open Visible and Notorious - possessor is not possessing the land in secret
    • - actual and exclusinve - possessor is physically using the land as an owner would
    • - Continuous and Peacefully - possessor uses the land for 20 years without interruption as an owner would and does not use force to exclude the owner
    • - hostile and adverse - occupancy must be without the permission of the owner

    accidentally - you put up a fence that is on your neighbors property and neither party realizes it, after 20 years, you can claim the property inside the fense by adverse possession

    intentionally - occupant possess the land in the hopes of obtaining ownership to it
  19. deed
    • a written document by which the title of real property is transferred fromt eh grantor to the grantee
    • evidence that title was conveyed on a certain date
    • not a proof of ownership
  20. Deed requirements
    • in Writting
    • identification of the parties
    • signature of the grantor
    • description of the property
    • words of conveyance - "is being conveyed"
    • description of the estate
    • - acknowledgement - witnessed by a notary
    • delivery
    • acceptance by the grantee

    • does NOT require
    • Signature fo teh grantee
    • purchase price
    • recording
    • the type of tenancy being received
  21. General Warranty Deed
    • greatest level of assurance to the grantee
    • default if not specified

    • Grator makes the following covenants:
    • Grantor owns the property
    • grantor has the right to convey the property
    • property is free fomr encumbrances not disclosed in the deed
    • gratee will have "quiet enjoyment" of the property- no one will assert a valid claim of ownership
    • grantor will defend the gratee's title against legitimate claims
    • grantor will take reasonable steps to perfect and imperfect title

    grantor will be liable for a breach of any of the covenants
  22. Special Warranty deed
    • Grantor makes promises only in the connection with the time that the grantor owned the property
    • - grantor has not previously conveyed the property to another party
    • - grantor hs caused no encumrances to be placed on the property
  23. Quitclaim Deed
    • grantor makes no covenants
    • "as is"
    • grantor conveys whatever interest she holds
  24. Recording Statutes
    • recording a deed provides a permanent legal record of conveyance in order to prevent galse claims and honest mistakes
    • Only becomes important when third parties are involved
    • Provides notice to the world of a conveyance
    • once a deed is recorded, all potentioal grantees are treated as having knowledge of it
    • becomes important when grantor conveys the property twice - if the first deed is recorded before grantor executes a second deed to a second grantee, the second gratee has no claim
  25. Notice Statute
    • the secod grantee obtains title to the property upon execution of the deed provided she had no actual notice of the first conveyance
    • the first grantee can sue the grantor for damages
  26. Race Statute
    whichever grantee first records their deed gets to keep the property. notice or lack thereof is irrelevant
  27. Notice Race Statute
    the second grantee gets the property if she had no actual notice of the first conveyance AND she records the deed before the first grantee records his deed
  28. Mortgage
    • a lien on real property that allows the creditor to sell the property through foreclosure to satisfy the underlying debt
    • mortgagor owns the property
    • mortgagee is the creditor

    The underlying loan is a separate instrument - typically a promissory note, like a secured transaction but with real property as the collateral

    • Considered to be a conveyance of an interest in real property
    • the requirements are same as for deed
    • recording rules are same as for deed
  29. Three- Party Mortgages
    • Deed of Trust
    • Borrower conveys a deed of trust to a trustee
    • trustee holds the deed until either
    • - the underlying debt is satisfied and the deed of trust becomes null and void OR
    • - the borrower defaults, and the trustee has the power under the deed to sell the property
    • Eliminates the need for foreclosure proceedings
    • courts not involved
  30. Gifts
    Once a gift is properly made, it is irrevocable

    • 3 requirements
    • delivery by donor
    • donative intent to make and immediate gift
    • acceptance by donee
  31. Inter Vivos gift
    • any type of gift of personal property made during a person's lifetime
    • irrovocable if all three requirements are met
  32. bequest
    made in a person's will to be gifted upon death
  33. Gift causa Mortis
    • "deathbed" gift
    • made in contemplation of one's immediate death
    • still needs all three requirements
    • But is revocable before death and is automatically revoked if donor recovers
  34. Conditional Gifts
    gifts can be made conditionally, and if the condition is not satisfied, the gift reverts to the donor
  35. Engagement Rings
    • No-fault
    • engagement ring is by nature a conditional gift
    • if condition does not occur, donor is legal owner
    • woman must return ring

    • fault-based (MD)
    • donditional gift, but donor cannot rerieve ring if he is the one who breaks off the engagement

    • Not a conditional gift, intervivos gift
    • woman does not have to return the ring if the engagement is broken
  36. Abandoned Property
    General Rule - title transfers to finder, but requires intent to abandon and actual relinquishment
  37. Lost Property
    General Rule - finder has good title against all except true owner
  38. bailments
    • Bailor transfers possession of personal property to the bailee
    • to be used as agreed
    • for an agreed upon time period
  39. bailee's standard of care
    • Gross Negligence is bailor benefits
    • ordinary negligence is mutual benefits
    • strict Liability(almost) if bailee benefits

    • Bailee won't be liable if
    • act of god
    • contract
    • postings (assumption of the risk)
    • statutes that overrule common law
  40. Common Carriers
    • Licensed to provide transportation services to the public
    • strictly liable for any loss or damage to the personal property they are transporting

    • exceptions
    • act of god
    • act of public enemyu
    • act of the shipper
    • inherent nature of the good
  41. Innkeepers
    Common law - strict liability for loss or damage to guest's personal property
  42. Agency Law
    An agency relationship occurs when an agent is authorized to act for and on behalf of a principal for the Principal's benefit

    If an agent is authorized to act for and on behalf of the principal, an agency is created and therefore the principal is responsible(and leagally liable) for the acts of the agent

    • Principal - Employer
    • Agent - Employee
  43. By expressed contract
    • Contract
    • Written or Oral - statute of frauds - needs to be in writting if the agent wil be entering contracts on behald of principal that are required to be in writting

    Power of Attorney - written agreement giving the agent the authority to act on the principal's behalf under certain citcumstances, and within a certain scope
  44. Implied authority
    • by the conduct of the parties
    • by the usual duties of the agent
    • "actual Authority circumstantiall proved"
  45. Apparent Authority
    NO ACTUAL AUTHORITY

    • Principal's conduct gives third party reason to believe the agent has authoruty
    • Third party relies on that conduct
  46. Ratification
    • Agent has no actual authority - neither expressed nor implied
    • Agent has no apparent authority - based on conduct of the principal
    • but principal accepts agent's unauthorized action after the fact - does not try to undo the agent's action
    • Provided the principal has complete knowledge of all material facts and principal ratifies agent's action in its entirety
  47. Employee or independent contractor
    • General Test: How much control does the employer have over the day to day operations of the worker
    • - more control - worker is an employee
    • - less control - worker is an independent contractor
  48. Contract Liability
    The principal will be liable on any contract the agent enters into on her behalf as long as one of the types of authority is present

    When an agent exceeds the scope of his authority, or has no authority, the agent is liable on the contract - the principal will not be liable unless ratification occurs

    • Can the agent be liable to the thrid party f the principal breaches the contract?
    • - Fully disclosed - Agent NOT Liable
    • - Partially disclosed - Agent Liable, unless the agent and the third party agree otherwise
    • - Undisclosed principal - Agent Liable

    If agent is liable would be entitled to indemnification from principal as long as agent is acting within his scope of authority
  49. Principal's duties to agent
    • Compensation
    • Reimbursement - for planned expenses
    • Indemnification - for losses when principal breaches the contract
    • cooperation
    • safe working conditions
  50. Agent's Remedies against Principal
    Tort remedies - compensatory and punative damages

    contract remedies- compensatory, consequential, and specific performance

    Demand for an Accounting
  51. Agent's Duties to Principal
    • Duty of Loyalty
    • Duty f Notification
    • Duty of preformance - with reasonable skill and care
    • Duty of Obedience - so long as instructions are lawful
    • duty of accounting
  52. Breach of the Duty of Loyalty
    • Unless the principal is informed and consents, and agent may not engage in:
    • Dual agency 0 agent cannot be an agent for more than one principal in the same transaction
    • Usurping and opportunity - whe the agent located an opportunity relating to the agency, the agent cannot take the opportunity for himself
    • Self dealing - agent cannot be simulaneously on both sides of a transaction without disclosure
    • misuse of confidential information
  53. Principal's remedies against the agent
    • Constructive Trust - of unlawfully acquired property
    • Avoidance - nullufy contracts agent entered into
    • Indemnification - when breach of contract occurs due to agent's negligence
  54. Termination of an agency
    • Lapse of time
    • fulfillment of purpose
    • occurance of a specific event
    • mutual agreement
    • revocation of authority by principal
    • renunciation by agent
    • by operation of law - death, insanity, bankruptcy, impossibility, disloyalty, war
  55. Prima Facie case
    • duty of care
    • breach of duty
    • causation - cause in fact, proximate cause
    • injury (damages)

    • defenses
    • - contributory/ comparative negligence
    • - assumption of the risk
  56. When is a principal liable for injuries caused by an agent due to negligence
    Test: was the agent acting "within the scope of employment?"
  57. Frolic and Detour
    Principal not liable if agent has abandoned the duties of the agency to pursue his own interests, even temporarily
  58. Coming and Going Rule
    Principal not liable for torts committed by employees on their way to and from work
  59. Dual-Purpose Mission
    Principal liable if agent is performing personal and agency business at the same time
  60. Failure to follow instructions
    principal still liable if within scope of employment
  61. When is the principal liable for injuries caused by an intentional tort on the part of the agent?
    2 tests

    Motivation test - Majority of states - Principal can be held liable if the agent was motivated by the principal's best interests, even if agent was misguided in the motivation

    Work-Related Test - Minority - Did the intentional tort occur in a work related time or space, If so the principal can be held liable

    Negligent Hiring or Employment - If employer knew or should have known that employee had a tendency to commit a totious act - Employer acted "unreasonably" by hiring the employee for the position
  62. When is a principal guilty of unauthorized crimes committed by an agent?
    Basic requirement for crime is INTENT

    • Therefire there is no vicarious liability in common law. The principal would have t be found guilty of the crime also
    • - conspiracy
    • - obstruction of justice
    • - perjury
    • - fraud
    • - aiding and abetting

    • Unless
    • 1. statute provides for strict liability
    • 2. statute provides that somehow the employee's act can be imputes to the employer - controlling person provision

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