Law Chapter 48

Gift inter vivos

A gift made during the donor's lifetime

gift causa mortis - must meet 3 requirements: intent, delivery, and acceptance - does not become absolute until the donor dies from the contemplated illness or event, and it is automatically revoked if the donor survives

A gift made in contemplation of imminent (about to happen) death

to acquire ownership through possession is the capture of wild animals --> a hunter who kills a dear has assumed ownership of it those who find lost or abandoned property can acquire ownership rights ----- HOWEVER, simply finding something and holding onto it does not necessarily give the finder legal rights in the property. different rules apply

A person can become the owner of personal property merely by possessing it. Give some examples.

Dominion - the outcome of disputes often turns on whether the control has actually been relinquished

An effective delivery also requires that the donor give up complete control and _____?_____ (power, ownership, rights) over the subject matter of the gift

YES! Real property turns into personal property by detaching it from the land. Trees, bushes, plants growing on land are considered RP. If property is sold, all the vegetation growing on the land is transferred to the new owner. Once the items are severed (removed) from the land, they become PP. PP can be converted into RP by permanently attaching it to the real property --> fixture

Can real property be turned into personal property and vice versa?

Constructive Delivery (equivalent to the acts of real delivery) - always necessary for gifts of intangible personal property, such as stocks, bonds, insurance policies, and contracts. The rights are delivered.

Confers the RIGHT to take possession (rather than the actual possession) of the object in question

Property - in the US, a substantial body of law protects the rights of property owners. The protections is not absolute - Property is divided into real property and personal property - both types can be owned by an individual or by some other entity

Consists of the legally protected rights and interests a person has in anything with an ascertainable value that is subject to ownership

The gift must be delivered to the donee. Delivery may be accomplished by means of a third person who is the agent of either the donor or the donee. No delivery is necessary if the gift is ALREADY in the hands of the donee. --> some objects cannot be relinquished physically

Delivery of a gift (2nd element of gifts):

Estry statutes - these laws provide an incentive for finders to report their discoveries by enabling them, at the end of a specified time, to acquire legal title to the found property - generally, the item must be lost property for stray statutes to apply - usually require the finder or the county clerk to advertise the property in an attempt to help the owner recover what has been lost

Encourage and facilitate the return of property to its true owner and reward the finder for honesty if the property remains unclaimed

Gift

Essentially a voluntary transfer of property ownership for which no consideration is given

Personal property can be transferred with a MINIMUM of formality Real property transfers generally involve a written sales contract and a deed that is recorded with the state

Establishing ownership rights is simpler for personal property than for real property. What is the formality difference when transferring these types of properties?

1. Donative intent of the donor 2. Delivery- can be actual delivery or constructive 3. Acceptance by the donee (the one receiving the gift) - until these 3 requirements are met, no effective gift has been made

For a gift to be effective, the following 3 elements are required:

Bailment - agreements usually made for a particular purpose - to loan, lease, store, repair, or transport the property

Formed by the delivery of personal property, without transfer of title, by one person (bailor) to another (bailee)

By looking at the language of the donor and the surrounding circumstances. A court might look at the relationship between the parties and the size of the gift in relation to the donor's other assets ex. when a person has given away a large portion of his or her assets, the court will scrutinize the transaction closely

How might a court determine if donative intent exists (1st element of gifts)?

Accession - generally, there is no dispute about how owns the property after accession occurs, especially when the accessions is accomplished with the owner's consent - if an improvement is made wrongfully - without permission of owner - the owner retains title to the property and normally does not have to pay for improvement (this is true even if accession increased value substantially)

Means "something added". Occurs when someone adds value to an item of personal property by the use of either labor or materials

Real Property --> immovable - everything else is personal property / personality / chattel --> capable of being moved

Means the land and everything permanently attached to it, including structures and anything permanently attached to the structures

Writers, inventors, manufacturers, and other who produce personal property may thereby acquire title to it exception to this --> when a researcher is hired to invent a new product or technique, the researcher may not own what is produced

Production - the fruits of labor - is another means of acquiring ownership of personal property. Give an example.

Abandoned property - someone who finds this acquires title to it, and that title is good against the whole world, including the original owner. If a person finds abandoned property while trespassing on another's property, the trespasser will not acquire title

Property that has been discarded by the true owner, who has no intention of reclaiming title to it

Mislaid property - a person who finds mislaid property does not obtain title to the goods. Instead, the owner of the place where the property was mislaid becomes the CARETAKER of the property, because it is highly likely that the true owner will return

Property that has been voluntarily placed somewhere by the owner and then inadvertently forgotten

Lost property - a finder of lost property can claim title to the property against the whole world - EXCEPT the true owner. If the true owner is identified and demands that the lost property be returned, the finder must return it. In contrast, if a third party attempts to take possession of the lost property, the finder will have a better title than the third party

Property that is involuntarily left

Intangible property ex. stocks, bonds, patents, trademarks, copyrights - as well as digital and virtual property

Represents some set of rights and interests, but it has no physical existence

Confusion - frequently occurs with fungible goods, such as grain or oil, which consist of identical units - if confusion occurs as a result of agreements, an honest mistake, or the act of some third party, the owners share ownership in proportion to the amount each contributed - if goods are confused due to an intentional wrongful act, then the innocent party ordinarily acquires title to the whole amount of goods

The commingling (mixing together) of goods to such an extent that one person's personal property cannot be distinguished from another's

Generally, each state assesses property taxes on real property. Typically, the tax rate is based on the market value of the real property and the services provided by (near) the city, state, and country in which the property is located Businesses also often pay taxes on personal property they own, use, or lease. Individuals may pay sales tax when purchasing personal property, but generally they are not required to pay annual taxes on it that is not used for business

Two types of property are usually subject to different types of taxes. Explain the taxes on personal and real property:

Possession is transferred without passage of title or intent to transfer title

What distinguishes a bailment from a sale or a gift?

No consideration is given with a gift unlike a contractual obligation

What is the difference between a contractual obligation and a gift?

By purchasing it. - another way is often through a will or inheritance

What is the most common way of acquiring personal property?

Conversion - many states require the finder to make a reasonably diligent search to locate the true owner of lost property

When a finder of lost property knows the true owner and fails to return the property to that person, the finder is guilty of the tort of _____?_____

Fixture --> RP becomes PP

When personal property is affixed (attached) to real property in a permanent way, as when the tile is installed in a house.

Concurrent ownership

When two or more persons own real or personal property together, what exists?