GBL 323 - Chapter #9

Variance

A deviation from the zoning ordinance and is issued due to special circumstances applicable to a specific property, which may include unusual shape, topography, size, and location

Trademark

A distinctive symbol, word, name, device, letter, number, design, picture, or combination in any arrangement that a person or company adopts or uses to identify the products it manufactures or sells, and distinguish them from products manufactured or sold by others; deals with appearance or image

Life estate

A life estate is an interest in property that lasts for the life of a specified person

Easement

A limited, irrevocable right for the restricted use of another's property for a specific purpose without taking anything from the property

Production

A manufacturer of a product has title to that product

Possession or capture

A person can acquire title to personal property by merely taking possession of it or simply capturing it

Trade fixture

A personal property affixed to a building as part of a business or a trade for commercial purposes

Rent

A possessory right to another person for a temporary period for a legal consideration

Copyrights

A property right of an author or originator of a literary or artistic work, or other production that falls within any specified category under the Copyright Act, to have the exclusive use of the work for a given time period; tangible writings

Profit

A right to enter his or her property to remove something from it, such as timber, minerals, or produce

Gift

A voluntary transfer of property ownership when one person transfers property to another without receiving anything in return, which means without consideration

Deed

A written document that transferred the title

Quitclaim deed

A written document where the grantor does not make any warrantees of title but simply conveys whatever interest he or she has in the property

Purchase

Acquiring title to personal property by purchasing it is the most common form of acquisition

Fee simple defeasible

Also called a qualified or conditional fee simple, is an estate that grants the owner all the benefits of a fee simple absolute except that the benefits may be lost if a specified condition occurs or does not occur

Real property

Also known as realty, includes land, buildings, and everything else permanently attached to the land

Fee simple absolute

An estate in fee that provides the highest possible form of ownership of real property because it grants the owner the utmost bundle of legal rights that a person can have in real property

Freehold estate

An estate in which a person has ownership and present possessory interest in real property

Nonfreehold/leasehold estate

An estate that creates a possessory interest and not an ownership interest

Utility patent

Any "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof."

Trade secret

Any formula, device, pattern, or compilation of information with some attributed value to a business; will lose its protection if it is revealed or made publicly known either by lawful or unlawful means

Actual eviction

Cccurs when the landlord physically prevents the tenant from occupying or using the leased property

Sale transaction is completed through a process called

Closing

Mislaid property

Considered personal property whose owner voluntarily places the property somewhere, and then inadvertently forgets about it; finder of this property has no title to the property but the owner of the premises where the property is mislaid has the right of possession against everyone else except the true owner

License

Created by an agreement granting permission to a person to enter another's property for a specified and usually short period of time; a personal privilege that can be provoked at any time

Easement by necessity

Created when a landlocked property needs to have access to a main road by using a neighboring property

Easement by implication

Created when a property owner by his or her conduct demonstrates to another person that he or she has the right to use a portion of the owner's property

Tenancy at sufferance

Created when a tenant continues the possession of the property after the expiration of another tenancy or a life estate without the consent of the property's owner; terminates upon the death of the tenant or the vacating of the property

Express easement

Created when an owner expressly grants the right to another person to use a portion of his or her property for a specific purpose

Easement appurtenant

Created when an owner of a property gives permission to an adjacent property owner to use a portion of his or her property

Tenancy at will

Created when either party (landlord or tenant) can terminate their relationship at any time; death of the landlord or tenant will terminate this tenancy

Tenancy for years

Created when the lease term is for a fixed term regardless of its duration; does not terminate upon the death of either landlord or tenant but rather upon the expiration of the lease term

Periodic tenancy

Created when the term of the lease is not specified but the lease provides specific intervals of payment; does not terminate upon the death of either landlord or tenant but rather upon either party giving adequate notice

Three basic elements to establish a bailment:

Delivery of personal property, not real property Transfer of possession, not title, from bailor to bailee Agreement that the bailor will return the property to the bailee, or dispose the property according to the bailor's directions

Three elements to a valid gift:

Donative intent, delivery, acceptance

Acceptance

Donee must accept it voluntarily

Donative intent

Donor must intend to make a gift for it to be valid

Types of freehold estates

Estates in fee and life estates

A finder acquires title to lost property good against the whole world, including the original owner. T/F

False

The future interest receive red either as a remainder or as a reversion will be converted to a...

Fee simple absolute

Types of estates in fee

Fee simple absolute and fee simple defeasible

Teo exceptions of copyright law infringement:

First sale doctrine and fair use doctrine

Possessory interest estates

Freehold estates and non-freehold estates, or leasehold estates

Lease agreement

Grants the tenant an exclusive possession right to the leased property so long as (1) the lease term has not expired, and (2) the tenant has not defaulted on the terms of the lease

Easement of gross

Grants to a person who does not own adjacent property the right to use another person's property; creates a personal right, which means it does not run with the land; therefore subsequent owners do not have this right

Landlord

Has a duty to deliver possession of the lease property to the tenant, not to interfere with the tenant's right to quiet enjoyment, to maintain the leased property, and to maintain the implied warranty of habitability

Tenant

Has to the duty to pay rent, obey all the covenants of the lease, not to commit waste by destructing the leased property, not to use the leased property for illegal or non-agreed purposes, and not to disturb others

Remainder

If the future interest is reserved for someone other than the original grantor, the future interest is called

Reversion

If the future interest of a life estate is reserved by the original grantor, the future interest is called

Zoning

Imposed by the government usually in the form of zoning ordinances; a primary method of government control over land use, and it is exercised through a government's police power for the benefit of the community

Nonpossessory interest

Means that he or she has no possession of the property but simply a right to use it

Delivery

Must also occur for the gift to be valid; can be physical or constructive

Constructive eviction

Occurs when the landlord allows the property to become unfit for the intended use

There are four major types of intellectual property:

Patents, trademarks or servicemarks, copyrights, and trade secrets

Intangible personal property

Personal property that cannot be reduced to physical form, such as bonds, stock certificates, and certificates of deposit

Fixture

Personal property that is permanently affixed to land or buildings

Tangible personal property

Physically defined personal property, which means a property in a fixed form, such as animals, consumer goods, and minerals

Types of rights in real property

Possessory interest and non-possessory interest

Restrictive convenants

Promises to use or not to use their property in a specific way

Marital estate

Property acquired during divorce

Marital asset

Property acquired during marriage

Intellectual property

Property created through the mind

Lost property

Property that is left involuntarily by either a negligent or careless act of its owner in a place where the owner does not know; if the true owner fails to find the property, or demand its return within a reasonable time, the finder will acquire title

Design patent

Protects a new, original, and ornamental design of a manufactured product. The design patent protects only the appearance of the product and not its structural or functional features

Patents

Protects a product, process, invention/machine, or plant produced by asexual reproduction for a certain period, and grants an inventor a monopolistic right to make, use, or sell his or her property to the absolute exclusion of others for a specified period

Plant patent

Protects the exclusive right to reproduce a new and distinctive variety of asexually producing plan

Lanham Act

Provides the following remedies for trademark or servicemark infringement: (1) injunctive relief, (2) an accounting for profits, (3) damages, (4) destruction of infringing products, (5) attorney fees if applicable, and (6) costs.

Warranty deed

Provides the highest protection to the grantee

Title to personal property can be acquired voluntarily by:

Purchase, production, gift, will or inheritance, possession or capture, accession, confusion, and divorce

Two general forms of land use restrictions:

Restrictive covenants and zoning and other government regulations

Easement by prescription

Simply an easement created by adverse possession, which means that all of the elements of adverse possession must be met to create this type of easement

Fair use doctrine

States that someone can exercise limited use of copyrighted materials without the owner's permission for limited purposes, such as criticism, comment, news reporting, scholarship and education, parody, or research, so long as the use is reasonable

First sale doctrine

States that the owner of a legally acquired copyrighted material can sell or otherwise dispose of the copyrighted material without retaining a copy or any rights

U.S. Patent Act

States when a patent is infringed, its owner may sue in the federal court and receive any of the following remedies: (1) injunctive relief, (2) damages adequate to compensate the owner but not less than a reasonable royalty for the use made of the patent by the infringer, (3) triple damages when applicable, (4) attorney fees if applicable, and (5) costs

Title is obtained without a deed by establishing through judicial proceedings the following elements:

Statutory time period Open, visible, and notorious Actual and exclusive Continuous and peaceful Hostile and adverse

Four types of tenancies

Tenancy for Years Periodic Tenancy Tenancy at Will Tenancy at Sufferance

Six distinct forms of ownership enabling two or more individuals to own property at the same time:

Tenancy in common, joint tenancy, tenancy by the entirety, community property, condominiums, and cooperatives

Net lease

Tenant is responsible for paying rent and property taxes

Double net lease

Tenant is responsible for paying rent, property taxes, and utilities

Triple net lease

Tenant is responsible for paying rent, property taxes, utilities, and insurance

Gross lease

Tenant is responsible only for paying rent

For the gov't to use eminent domain they must establish two elements:

The acquisition is for the benefit and use of the public, and it must pay just compensation to the owner of the real property, meaning the fair market value of the property as of the time of the taking

Accession

The appreciation or increase in value of personal property belongs to the owner of that property in which the title to this value is passed

Estate

The bundle of legal rights that a person has to possess, use, and enjoy the real property

Covenants of the warranty deed

The covenant of seisin The covenant of the right to convey The covenant against encumbrances The covenant of quiet enjoyment The covenant of further assurances

An inventor must meet three elements to obtain a patent for his or her inventions:

The invention must be novel, non-obvious, and useful (utility)

Tenancy in common

The most common form where each co-owner has an undivided interest in the property (each owner does not claim any specific portion of the property) and the right to possession; may sell his or her interest without the consent of the owners; upon the death of any owner, his or her interest in the property passes to heirs

Joint tenancy

The most significant feature of this form of ownership is the right of survivorship; upon the death of a co-owner, his or her interest will transfer to the surviving co-owners in equal shares

Open, visible, and notorious

The possessor must occupy or use the property in a manner that is noticeable by the true owner, which means the occupation or use is not secretive

Continuous and peaceful

The possessor must occupy or use the real property in a manner that is continuous and uninterrupted for the required statutory period of time; cannot use force to occupy or use the property

Hostile and adverse

The possessor must occupy or use the real property without the express or implied consent of the true owner

Statutory time period

The possessor must occupy the property for a certain period of time provided in the state statute, usually between 10 and 20 years

Actual and exclusive

The possessor must physically occupy or use the real property in ways such as farming, building, maintaining, or living on the property

Eminent domain

The power of a government provided under the 5th Amendment of the U.S. Constitution to acquire private property for public use, also called taking

Title to personal property can be acquired involuntarily after:

The property is lost, mislaid, or abandoned

Bailment

The relationship created when one person, called the bailor, voluntarily transfers possession of his or her personal property to another, called the bailee, for a specific time and purpose

Assignment

The tenant's transfer of all of his or her interest under the lease

Sublease

The tenant's transfer of only part of his or her interest under the lease constitutes a sublease; landlord has to no contractual relationship with the sublessee

Community property

This form of ownership is available in certain states authorizing it and applies to spouses; created at the time of marriage and continues until either divorce or death; means that each spouse possesses an equal share of the interest in property acquired during marriage, regardless of which spouse provided the funds for the acquisition of the property

Tenancy by the entirety

This form of ownership is available only to married couples; each spouse has a right to survivorship, which means that upon the death of one spouse, full ownership of the property passes to the other; a spouse cannot sell or devise his or her interest without the other spouse's consent

Sale or conveyance of title

This form of transferring title is the most common and it requires a written agreement between the parties

Condominiums

This is a common form of ownership in multi-dwelling buildings; the owners of a condominium may sell or mortgage their units without the consent of the other owners; managed by the condominium association elected by the owners

Cooperatives

This is a form of co-ownership of a multi-dwelling building in which the corporation is the owner of the building; managed by the board of directors elected by the tenants and is responsible for the management and maintenance of the building

The covenant of quiet enjoyment

This is a promise that the grantee will not be disturbed by anyone with a better claim of title and a promise to defend the grantee's title against such claims or to reimburse the grantee for any expenses to defend or settle such claims

The covenant of the right to convey

This is a promise that the grantor has the right to convey the property

The covenant of seisin

This is a promise that the grantor owns the title interest that he or she is conveying

The covenant of further assurances

This is a promise that the grantor will furnish to the grantee any additional documents that the grantee may need to protect his or her title to the property

The covenant against encumbrances

This is a promise that there are no mortgages or liens against the property not stated in the deed

Implied warranty of habitability

This means that the leased premises should be habitable, or fit for ordinary residential purpose, by having adequate weatherproofing, heat, water, and electricity, and being clean, sanitary, and structurally safe

Under the covenant of quiet enjoyment, a landlord promises that a tenant will not be disturbed in the possession of the premises. T/F

True

Upon the death of a tenant by the entirety, the property of that tenant goes to the surviving spouse. T/F

True

When a joint tenant passes away, the property of that tenant is divided among the other joint tenants. T/F

True

Exclusive possession

Upon receiving signing the lease agreement, which means that the landlord has no right to go on the leased property except to collect the rent or if access is reserved in the lease for maintenance and inspection

Servicemark

Used to identify or distinguish the services provided by a person or a company from those services provided by other

Federal law classifies patents into three categories:

Utility patents, plant patents, and design patents

A zoning ordinance provides for:

Variance permits

Transferring of title through adverse possession is not done: Vol/Invol

Voluntarily

Types of common deeds

Warranty and quitclaim deed

Inheritance

When personal property is received by an heir upon the death of a person as prescribed by a statute, because the person died without a will

Will

When personal property is received upon the death of a person as a result of a written document

Abandoned property

When the owner of personal property intentionally quits claiming title to it by discarding the property

Confusion

When two or more owners of personal property voluntarily comingle their property, then the property is owned by all of them in proportion to the amount contributed by each owner

Closing

Where all the necessary documents to convey title are executed and all required payments are made

Baker owns a life estate in Greenacres Farm. On Baker's death, fee simple absolute ownership of the land will pass to Betty. Betty has which of the following? a. A future interest b. A leasehold c. An easement d. A life estate

a. A future interest

Which of the following is true about a leasehold? a. It is a possessory, not an ownership interest. b. It is an ownership, not a possessory interest. c. The lessee has less rights than does the holder of a future interest. d. The lessee has more rights than does the holder of an easement.

a. It is a possessory, not an ownership interest.

Which of the following is the most common form of co-ownership? a. Tenancy in common b. Joint tenancy c. Leasehold d. Cooperative e. Condominium

a. Tenancy in common

Gifts are different from purchases in that a. there is no consideration for a gift. b. gifts involve private property, purchases involve public property. c. gifts involve personal property, purchases involve real property. d. a purchase requires delivery and acceptance.

a. there is no consideration for a gift.

Which of the following is an example of a fixture? a. A portable television set left behind by the tenant b. A built-in microwave oven installed by the tenant c. Clothing left behind by the tenant d.The back yard of a residential lot

b. A built-in microwave oven installed by the tenant

Which of the following could Gerry protect by trademark law? a. A short story hand-written by Gerry. b. A logo used to identify Gerry's business c. The product formula Gerry uses to manufacture his famous iced tea. d. The bottling machine Gerry purchased from a friend

b. A logo used to identify Gerry's business

Which of the following is an example of a bailment? a. Mary sells her guitar to Paul. b. Mary leaves her guitar with Paul for the afternoon to try it out c. Mary gives her guitar to Paul. d. Mary writes in her will that her guitar should go to Paul upon her passing.

b. Mary leaves her guitar with Paul for the afternoon to try it out

Shawn's property is landlocked. The only possible say to the main road is through Ben's farm. Which of the following property interests would most likely exist? a. Shawn has a conditional estate to use Ben's property. b. Shawn has an easement by necessity to use Ben's property. c. Shawn has an easement by prescription to use Ben's property. d. Shawn has a leasehold interest in Ben's property. e. Shawn has a possessory interest by adverse possession.

b. Shawn has an easement by necessity to use Ben's property.

Grace has a temporary right to enter a business for the purpose of purchasing goods or services. Which of the following property rights does Grace have? a. Present estate b. Leasehold c. License d. Easement e. Future estate

c. License

Which of the following could Liz protect using trade secret law? a. A short story written by Liz on her typewritter. b. A logo used to identify Liz's business. c. The product formula Liz uses to manufacture her famous energy drink d. The bottling machine Liz purchased from a friend

c. The product formula Liz uses to manufacture her famous energy drink

Which of the following cases best describes an easement by prescription? a. Wally leases a barn to a friend for the purpose of storing furniture. b. Amps Power Company enters into a written agreement with Wally to install power lines in Wally's front yard. c. The state takes Wally's property by eminent domain. d. A neighbor openly uses Wally's back yard as a short cut to a park a few times per week for thirty years.

d. A neighbor openly uses Wally's back yard as a short cut to a park a few times per week for thirty years.