RE LAW Midterm 1

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RE LAW Midterm 1
2013-09-12 21:20:39

re law, sc
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  1. Creation of Law Doctrine
    Property is created by government, property rights are granted by law
  2. Personal Property
    Property that is moveable, and not fixed
  3. 10th Amendment
    All rights not delegated to US gov, go to states. (States control most RE laws)
  4. Stare Decisis
    Courts apply prior appellate case holdings as precedent
  5. Diversity of Citizenship Jursidiction
    • 1. Case when parties are of different states
    • 2. Amount is question is >$75,000
  6. Supplemental Jurisdiction
    Authority of US federal courts, to hear additional claims substaintially related to orginal claim, even if additional claims are not federal question.
  7. Choice of Laws Clause
    Parties of contract choose which state has jurisdiction over disputes
  8. Types of Arbitration
    High Low: Decision between high and low amount agreed to by parites.

    Baseball: Arbitrator choses one of two figures submitted by parties

    Med-arb: Use mediation, unless no agreement is reached. Then mediator is converted into an arbitrator
  9. What is the Bundle of Property Rights
    • Ownership
    • Use
    • Possesion
    • Enjoyment
    • Encumbrance
    • Disposal
    • Exclusion
  10. Majority v. Plurality Decision
    Majority: Most justices agree on OUTCOME and RESONING of decesion

    Pluarilty: most justice agree on outcome but NOT reasoning
  11. Arbitration v. Mediation
    Mediation: Does NOT make factual finding or binding decesion

    • Arbitration:
    • Binding: Decesion of arbitrator is final
    • Non Binding: Decesion cannot be enforced, although arbitrator does determine fault/liabilty
  12.  Rule of Capture
    Owner title to gas and oil produced from well on property, even if gas/oil flowed to property from another
  13. Unitization/Pooling
    Prevents drilling from taking disproportionate amount of underground resources. Often number of acres owned is proportioned to oil and gas rights
  14. Lateral Support
    Rights involving removing or changing soil on adjacent property
  15. Subjacent Support
    Parties mine/extract below the surface
  16. Riparian Doctrine
    • (Eastern US States)
    • Right of landowner to reasonable use of water on, under, or adjacent to his property

    natural uses supersedes artifical

    Applies only to natural
  17. Prior Appropriation Doctrine
    Western States

    "first in time, first in right to use water over later users"
  18. Littoral Rights
    Waterfornt property owner's right to water from adjacent lake, sea, or ocean

    Cannot alter its position by artificial means
  19. Civil Law Rule
    Uppper property owners have easement to have surface water flow naturally from their land onto land of lower owner
  20. Common Enemy Rule
    every landown has right to fight surface waters
  21. Reasonable Conduct Rule
    Each case of surface water flow stand on its own facts
  22. Nusiance Per Se
    Activity by its very nature is always a nuisance (Lead exposure, etc)
  23. Attractive Nuisance Doctrine
    Landowner liable for injuries caused to trespassing children (pool, tire swings)
  24. Licensse
    • Person who eneters land with permission of owner.
    • ex. salesman, social guests, emergency crews
  25. Invitee
    • Person who enters land that is generally open to public or for a business purpose
    • ex. Parks, churches, customeers visiting a business, service men
  26. Landowner Duties w/ Licensees
    Warn against or make safe any known dangers on the property
  27. Landowner's Duties w/ Invitees
    • Must warn against or make safe any known dangers on the property.
    • Must reasonable inspec and discover non-obvious or hidden dangerous conditions and warn agisnt or make safe
  28. Column v. Air Lot
    • Column: surface of ground to 23ft in air
    • Air: Airspace above 23 ft in air
  29. Transferable Development Right
    Sale of unused air space from exisiting building located near future development

    ex. US Bank Tower
  30. Ownership theory of mineral rights
    oil and gas owned at the time of the deed and can be severed/sold (TX)
  31. Non Ownership Mineral Rights
    Oil and gas like migrating animals. Mineral not owned unless captured (CA. NY. OK)
  32. Tests for Naviagable Water
    Body of water subject to ebb and flow of tide

    Connects with continuous interstate wateway

    navigable capacity

    actually navigable
  33. Who has jurisdiction over naviagle water
  34. Tests for Private Nuisance
    interference was substantial and unreasonable

    interference was offensive to average person in the community
  35. Test for PUblic Nusiance
    Affects, annoyws with considerable number of persons in community
  36. Two Elements of Tresspassing
    Intentional:  (regardless of whether or not they knew were on another persons land)

    Tanigble objects (ex. Not lights)
  37. Elements of a Tresspass Defense
    • Consent
    • Necessity (community interest)
    • Recapture Personal Property