property

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Author:
lonio89
ID:
204136
Filename:
property
Updated:
2013-02-28 17:29:45
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property
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property
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  1. real property
    land and things attached
  2. personal property
    chattels
  3. chain of title
    to figure out current owner of property, start w/first owner & trace the "chain"
  4. constructive possession
    law treats someone as if they have literal physical possession even if they didn't 

    (mortally wounding an animal)
  5. action in trover
    $
  6. action in replevin
    get goods back
  7. acquisition of wild animals
    person who gets first literal physical possession of the animal is the one with first possession

    pursuit alone is not enough

    mortally wounding=constructive possession
  8. First in time is first in right
         legal right
         chattels
         wild animals (occupation)
    one must have a legal right to make a claim (native american case)

    chattels - first possession, not pursuit

    • wild animals - occupy the animal
    •      occupation = physical seizure, mortal wounding, killing & doing all that can be done to take the animal (whale case), & ownership of land animal sits on (duck decoy)
  9. labor theory
    person who puts labor in to obtain or improve property should have ownership interest equal to labor

    • trumped by clarity of rule/other PCs?
    •      fox case...
  10. values/policy considerations of acquisition by capture/discovery
    clarity of rule, power politics, justice, desire to reward labor, desire to punish malicious behavior
  11. acquisition by creation 
    news
    raw, factual information isnt property, an original article that is written using that info is property

    sometimes the value of property lies in being the only person who can exploit that property during a particular window of time (newspaper case)
  12. copying
    at CL, a person's property is limited to the chattels which embody his invention & others may imitate at their pleasure

    copier can also name check b/c value of product is in the fact that its a copy of the famous product (chanel no. 5 case)
  13. persona
    one has property in one's persona, includes face (likeness), voice, signature & name

    protects right to prevent others from using those aspects of your persona w/out permission

    can be assigned & inherited
  14. body parts
    no CL right to own body parts
  15. acquisition by find
    possession
    evidence of title; not synonymous

    only in chain if recognized as acquiring possession

    • owners of land - poss things embedded in land
    • poss of land - poss of loose chattels on land
  16. bailor

    bailee
    bailor - person who gives over real/personal prop; voluntary or involuntary

    bailee - person receiving prop; voluntary or involuntary
  17. lost property

    mislaid property

    abandoned property
    lost - prop possessor set down/dropped unknowingly

    mislaid - prop possessor set down knowingly but walked away w/o intent to abandon

    abandoned - prop possessor set down knowingly & walked away w/intent to not come back
  18. finder's rights
         trespassers/guests/invitees
         lost
         mislaid
         abandoned
    • trespassers cannot be finders; no legal right to title
    • guests & invitees can be finders

    lost/abandoned - finders have strong claims 

    • mislaid - finder has weak claim; can be deemed in bailment status (barber shop case)
    •      voluntary/invol bailees have duty to make reasonable effort to find TO
    •      principals - agents have no prop rights b/c act on behalf of principal
    •      non-agents - agents have prop rights as finders (chimney sweep's boy)
  19. values/policy considerations of acquisition by find
    desire to reunite prop w/TO, reward labor, reward efficiency (productive use of prop), respect principal/agent & bailor/bailee relationships
  20. adverse possession 
         elements
    entry - triggers action for trespass & SOL

    open & notorious possession - put prudent owner on notice

    continuous for statutory period - 6-10 years; requires AP use land the way reasonable TO would use so neighbors & others regard AP as exercising exclusive control

    • hostile & under claim of right 
    •      maine - hostile; know that you're not the owner of the prop
    •      connecticut - (majority) - no state of mind requirement, just make claim orally/written
    •      minority (val valkenberg) - believe in good faith that own land to show adversity; mistake
  21. color of title

    tacking
    • color of title - paper showing title to particular lot that, unknown to person in title, is false
    •      AP w/color of title: constructive possession of all land in title; whether/not he possessed/used it
    •      exception - if more than 1 lot, only entered onto some of the TO's land

    • tacking - when bona fide purchaser seeks to add time in possession onto time original AP has been in poss
    •      Can tack on time when he is bona fide purchaser w/privity of title to AP
    •      those seeking title through AP alone (w/o purchase) cannot tack on time prior (would be) APs
  22. doctrine of agreed boundaries (DAB)

    doctrine of acquiescence (DA)

    doctrine of estoppel (DE)
    DAB - oral agreement btwn parties enforceable if acceptance for a long time

    DA - long acquiescence (can be shorter than AP) is evidence of agmt btwn parties fixing the boundary

    DE - 1 neighbor silent in fact of expenditures by another that suggests neighbor's understanding of boundary's location; cannot later claim that land
  23. AP of chattels
    • absent fraud/concealment, SOL starts when victim of theft knew that prop was stolen & who is in possession of the prop (give rise to COA)
    •      law presumes SOL starts when chattels stolen, unless victim of theft shows otherwise (cant sleep on rights; O'Keefe case)
  24. values/policy considerations of AP
    • desire to reward expectations & avoid wrenching poss of land from long time possessor who is attached to it
    • desire to reward labor/improvement of land; efficient/productive use of land
    • desire to punish inefficiency/sleeping on ones right
  25. acquisition by gift

    present/future interest

    testamentary gift
    inter vivos gift
    in extremis
    donatio causa mortis
    gifts are irrevocable & can gift present & future interest in property (Klimt painting case: dad kept poss & life estate, but gifted remainder to son...title & possession dont need to be delivered together)

    • testamentary - after death (will)
    • inter vivos - between the living
    • in extremis - on verge of death
    • donatio causa mortis - in expectation of impending death
  26. elements of a gift
    intent - can be oral

    • delivery - requires objective action; can be:
    •      actual - literal phys delivery (trad - if gift is phys capable of being handed over, must be)
    •      constructive - something that is a means of taking possession of gift (key, combo...)
    •              trad - acceptable if (& only if) impossible/impracticable for actual delivery
    •              if object has value self, not necessarily delivery of whats inside; if prop is meant to hold another thing, get everything inside
    •              modern - even if phys delivery possible, constructive delivery legally binding as long as intent is clear

    • symbolic - something symbolic of gift
    •      trad - dont recognize symbolic delivery (bost case)
    •      modern - acceptable as long as it fits the nature & circumstances of gift & intent is clear (suicide check case; Klimt painting case)

    acceptance - upon delivery
  27. values/policy considerations of acquisition by gift
    • want to accomplish "wrench of delivery"
    • want to ensure mental/evidentiary clarity by having objective act constitute delivery
    • want to avoid fraud
    • equities are very influential in gift cases...
  28. Joint Ownership
    TIC
    separate undivided interest in property

    • interest alienable (can be sold, devised or inherited)
    •      notice to other TIC to sell not required

    creditors can only reach prop debtor has power to alienate unilaterally (can reach co owner's interest)
  29. TIC

    survivorship

    judicial partition
    no survivorship rights - upon death, interest passes into estate to be divided if will or heirs if intestate or no specification

    • 1 party may seek judicial partition of whole or sell their portion
    •      in kind (favored) - avoids "wrench" of prop loss
    •      sale - if in kind is not feasible & highest & best use of land achieved via sale
    •             highest & best use - greatest good
  30. transfer TIC to JT
    • one can (and prob should) use "straw man" rather than transferring interest from self to self 
    • modernly, many jxns dont require 2 to transfer, but its safest way to go
  31. JTWROS

    PITT
    • language must be explicit; if not, prob TIC
    • both own prop as undivided whole

    • 4 unities:
    • Possession - each must have = right to poss of whole (2 purposes: use for self & exclusion of everyone else)
    • Interest - all must have equal undivided shares
    • Time - interests of all JTs must be acquired at the same time
    • Title - all JT must get title by same instrument or by AP (never by intestate succession or other act of law)
  32. JTWROS

    severance

    judicial partition

    death
    • severance - JT severed if any of the unities severed (intentional/unintentional)
    •      1 party can unilaterally transfer interest in prop during life, but severs time & interest unities & auto TIC

    • 1 party can seek judicial partition of whole/sell their portion
    •      in kind (favored) b/c avoids "wrench" of property loss
    •      sale - courts presume in kind unless: it isnt feasible & highest & best use of land will be achieved via sale
    •               highest & best use - greatest good
    •             burden on co owner seeking sale to prove both of above elements...

    after death, interest doesnt pass, it vanishes (so avoids probate)
  33. JTWROS
    mortgage
    lease
    creditors
    • mortgage - doesn't sever
    • lease - doesn't sever as long as no JT blocked from using prop
    •      1 JT can lease w/o notice but other JT have right to fair rent
    •      if co-owner in poss, doesnt have to pay rent, as long as they have access to entire prop
    •      JT managing prop has fiduciary duty to other JTs

    creditors - creditor can reach co owner's interest in property
  34. JTWROS
    rights of survivorship
    ouster
    notice
    • rights of survivorship - interest of person who died "vanishes" upon death & remaining JTs or spouse auto owns whole thing; nothing passes into the estate
    •     advantages: prop avoids probate

    ouster - denying JT access to any part of the prop; asserting complete ownership

    notice - notice not required before selling one's portion (even if changes to TIC)
  35. TBE (WROS)
    elements
    unilateral transfer
    severance
    judicial partition
    creditors
    4 unities + marriage

    neither spouse can unilaterally transfer or seek partition; must do it jointly

    • severance - divorce, agreement, death
    •      death ends TBE b/c remaining spouse then holds prop in fee simple absolute; not TBE

    cannot seek judicial partition

    • creditor of 1 person in TBE cant get to TBE, but creditor of both can 
    •      more unfair to invol creditors (tort) than voluntary creditors (k)
  36. marital property

    english system

    married women's property act

    continental system
    english system - prop ownership after marriage separate but husband has full control (wife keeps title over own prop, but no control)

    married women's prop act - wife gained possession of own prop & protected prop held in TBE from creditors of either spouse

    continental system - prop after marriage is combined ("community" owns it all)
  37. English = death
    Continental = divorce
    IRS exception
    increased earning power
    english system preferred for death (during marriage prop separate)

    continental system preferred for divorce (during marriage prop united)

    IRS can trump state prop law & reach interest in TBE to satisfy debt of 1 spouse

    • increased earning power - states differ whether 1 spouse's IEP acquired during marriage is prop upon divorce
    •      CO=no
    •      NY=yes
    • some courts that recognize degree as asset measure value by cost of tuition; others measure value in likely future earnings increase
  38. values/policy considerations of co ownership
    • efficient use of prop; greatest use for greatest number
    • taking good care of prop
    • fairness to each of the co tenants
    • fairness can mean more than just monetary fairness (barn case)

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