Business Law Final

Eighth Amendment

- Freedom from excessive bail - Freedom from excessive fines - Freedom from cruel and unusual punishment

Fourth Amendment

- Protection from unreasonable search and seizure - Restrictions on warrants

Federal Crime-Fighting Laws

- Racketeer Influenced and Corrupt Organizations (RICO) Act - False Claims Act - Sarbanes-Oxley Act Federal regulations put in place to catch or deter white-collar crime

Patent Litigation

- patent holder must file patent infringement contentions that explain how defendant infringes the patent - companies self police their patents to avoid allegations

Extent of Ownership

1. Airspace above the land 2. Water rights 3. Mineral Rights

Options when landlord fails to repair leased property

1. Terminate lease 2. Withhold rent 3. Repair and deduct costs of repair 4. Sue landlord for damages

Exceptions to Fixture Status

1. Written agreement between parties 2. Trade fixture

Tenant transfer of interest:

Assignment: transfer of tenant's entire interest in leased property; original tenant and/or assignee can be sued for unpaid rent Sublease: transfer of less than all tenant's interest in leased property; ONLY original tenant can be sued for unpaid rent, not the sub-leasee

White-Collar Crimes

Bribery, Extortion, Embezzlement

Tenancy in Common

Co-ownership of property in which each party owns an undivided interest that passes to his or her heirs at death. Creditors can claim any owner's proportional interest

Joint tenancy

Equal shares of ownership, creditors can claim any owner's individual interest, deceased owner's share reapportion equally among surviving joint tenants

Real property

Land and everything permanently attached to it

Tenant (Lessee)

Party who assumes temporary possession of property

Leasehold Estate

Property subject to the lease

Quick-claim Deed (non-warranty deed)

Provides the grantee with the least protection of any deed - don't want the deed unless you're the buyer. It carries no warranties and conveys only such interest, if any, that the grantor may have when the deed is delivered. - grantor cannot be liable for broken promises - only get what the prior owner got

Property Crimes

Robbery: forceful and unlawful taking of personal property Burglary: unlawfully entering building with intent to commit a felony Larceny: Secretive and wrongful taking away of personal property of another Arson: intentional burning of another's dwelling (or business property)

False Claims Act

- Allows employees to sue employers on behalf of the federal government - Government may intervene and take the case government help - Employees retain a share of the recovery as a reward for their efforts - Encourages whistleblowers to come forward

Liability in Corporate Crimes

- Corporations can be held criminally accountable for almost any crimes except those punishable only be a prison sentence - Corporate executives may be personally liable for a business crime

Types of Leases

- Definite term - Periodic tenancy - Tenancy at will - Tenancy at sufferance

Difference between trademark dilution and trademark infringement

- Dilution additionally requires the mark be famous - Dilution does not require a showing of consumer confusion, as required by infringement

Fifth Amendment

- Prohibition on double jeopardy - Right not to incriminate oneself - "Plead the Fifth" Right to due process

Racketeer Influenced and Corrupt Organizations (RICO) Act

- Prohibits persons employed by or associated with an enterprise from engaging in a pattern of racketeering activity - RICO charge (civil or criminal) can be brought against the entire group based on only one member's actions

Termination of Lease

- breach of condition by landlord: landlord interferes with tenant's use of premises - forfeiture: tenant/landlord fails to perform conditions specified in lease - Destruction of premises: disaster destroys premises - Surrender : mutual agreement to end interest in the property - Abandonment: tenant moves out of leased premises before end of term

Sixth Amendment

- right to a speedy, public trial - right to trial by jury - right to be informed of accusations against oneself - right to confront witnesses (cross examination) - Right to present witnesses on one's side - Right to counsel at various stages at the proceedings

Interests in Real Property

1. Fee Simple Absolute 2. Conditional Estate 3. Life Estate 4. Future Interest 5. Leasehold Estate

Remedies for trademark infringements

1. Money damages (customer confusion) 2. Injunction

Landlord-tenant relationship requires the following elements

1. Name of tenants and landlord 2. Express or implied intent to create a landlord-tenant relationship 3. Description of the property 4. Specific time length of the lease 5. Amount of rent to be paid to landlord

To determine Fair-Use Doctrine as a valid defense to claim copyright infringement

1. Purpose and character of use 2. Nature and copyrighted work 3. Amount and substantially of portion used in relation to the copyrighted work

Three elements of a trade-dress infringement

1. Trade dress is primarily nonfunctional; 2. Trade dress is inherently distinctive or has acquired a (recognized) secondary meaning; and 3. Alleged infringement creates a likelihood of customer confusion

General Warranty Deed

A deed in which the grantor fully warrants good, clear title to the premises. Used in most real estate deed transfers, a general warranty deed offers the greatest protection of any deed. - transfers all legal promises - grantor can be liable for broken promises

Trademark

A mark, word, design, picture or arrangement used by a producer in conjunction with a product that tends to cause a consumer to identify the product with the producer - must be registered with the uS Patent and Trademark Office and renewed between the 5th and 6th year after the initial grant, and then every 10 years

Adverse Possession

A person takes possession & use of a property belonging to another. Possession must be open, notorious, hostile & uninterrupted for a certain period of time. "legal stealing"

Title Examination

A search of the public record to ensure seller has appropriate title rights and is allowed to transfer the property

Elements of a Crime

Actus Reus (Guilty Act): Wrongful behavior Mens Rea (Guilty Mind): Wrong state of mind - Ex: purpose, intent, knowledge, recklessness, or negligence

Types of Involuntary Transfers

Adverse Possession Condemnation

Exclusionary Rule

All evidence obtained in violation of the fourth, fifth, and sixth amendments is not admissible in court as "Fruit of the poisonous tree" - not explicitly in the fourth amendment

Easement by prescription

An easement acquired by continuous, open, and hostile use of the property for the period of time prescribed by state law.

Easement by necessity

An easement allowed by law as necessary for the access of property

Tenancy by the entirety

Available to married couples only; shares are equal and absolute, one owner's creditors cannot claim property, and deceased owner's share passes to surviving spouse

Alterations

Changes that affect conditions of premises generally cannot be made without landlord's consent

Rent Escalation Clause

Clause included in lease that allows landlord to increase rent for increases in cost of living, property taxes, or tenant's commercial business

Periodic tenancy

Created for recurring term

Leasehold Estate

Exclusive right for tenant to possess property for a stipulated period of time generally in exchange for regular rent payments; no ownership rights associated because it's a lease; landlord has limited rights to property during leasehold period

Voluntary Transfer of Real Property

Execution: preparation and signing of deed Delivery: transfer of deed to grantee (buyer), with tent of transferring ownership to them Acceptance: grantee's expression of intent to possess and own property

Airspace above land

Extends to the atmosphere above the property 1. Not absolute - don't own the airplanes that fly over 2. Control the rights of drones to fly over private property

Recording

Filing deed with appropriate county office to protect interests of grantee - not required

Admissible exceptions to the Exclusionary Rule

Good faith Inevitable discovery Exigent circumstances

Condemnation

Government acquires ownership of private property and pays just compensation for "public use" over the protest of the property owner

Deed Requirements

Identification of grantor and grantee Expression of grantor's intent to convey the property Legally sufficient description of the property (including its physical boundaries and any easements) Any warranties/promises made by grantor with the conveyance that are intended to convey along with the land - legally enforceable

Financing

If not all-cash transaction, mortgage financing quite common. Can blow up a deal if a buyer is unable to obtain financing

Defenses to Crimes

Infancy (can be tried as an adult) mistake of fact (negates mens rea) involuntary intoxication Duress Insanity Entrapment Necessity Justifiable use of force

Conditional Estate

Interest comparable to fee simple absolute, except that interest will terminate on occurrence/non-occurrence of a specified condition Ex: You will get this money as long as you use it for 'x reason'

Landlord Liability for Injury on Premises

Landlord can be held liable for injuries sustained in common areas and injuries occurring outside common areas due to lack of repairs that should have been made

Landlord transfer of interest

Landlord may transfer property; new owner becomes landlord until tenant's lease expires

Actual Eviction

Landlord physically prevents tenant from entering premises; can be full (prohibited from all parts) or partial (prohibited from some parts)

Landlord's Lien

Landlord's right to some/all of tenant's property when rent unpaid

Water rights

Legal ability to use water flowing across or underneath the property (subject to state law) - not allowed to affect downstream flow via diversions of natural passageways

Patent Terms

Length of protections: 20 years non renewable Remedies for patent infringement: - money damages - injunction Restrictions: patent holder may license use of idea for royalties provided they don't enter into tying arrangement or engage in cross-licensing

Life Estate

Limited in duration to the lifetime of its owner (life tenant) Right to property terminates upon life estate holder's death and property passes to party designated by original grantor ("future holder") - holds fee simple absolute

Criminal Law

Meant to punish guilty parties for bad acts that "society" has deemed worthy of criminal punishment - only the government can instigate a criminal lawsuit

Remedies for copyright infringement

Money damages Injunction

Fair-Use Doctrine

Most common defense against copyright infringement - provides that a portion of a copyright work may be reproduced for purposes of criticism, comment, news reporting, teaching, scholarship, or research

Closing

Mutual exchange of consideration - keys/deed/ownership in exchange for money. Recording of deed and mortgage transfer happens after this

Mineral rights

Ownership of subsurface rights includes the right to enter onto the property to remove the underground materials

Sarbanes Oxley Act (SOX)

Passed by Congress in 2002 in response to Enron scandals - set limits on tasks an accounting firm can do for a business - extends the Statute of Limitations - used to be only 2 years, extended to be 5 years

Future Interest

Person's right to property ownership and possession in the future

Trade fixture

Personal property installed on leased property for the purpose of the tenant's occupation or profession Ex: barber chairs in a barbershop - the chairs will be removed at the end of the barbershops tenancy

Constructive Eviction

Premises becomes unsuitable for use due to acts of landlord

Fair Housing Act

Prohibits landlords from discriminating on basis of race, color, sex, religion, national origin, or familial status

Trade Dilution

Prohibits the use of "distinctive" or "famous" trademarks even without a showing of consumer confusion

Intellectual Property

Property that results of one's intellectual mind and create efforts, rather than physical efforts, protected by trademarks, patents and copyrights

Copyright

Protects fixed form of the expression of an original, creative idea - no registration required but strongly encouraged to use notice of copyright to sue others for infringement -Length of protection: life of creator plus 70 years

Zoning

Restriction of use of property put in place by local government to allow for orderly growth and development of community and to protect health, safety, and welfare of its citizens

License

Temporary, revocable right to use another's property Ex: theater tickets - right to be in those seats for a set period of time

Co-Ownership of Real Property

Tenancy in Common Joint Tenancy Tenancy by the Entirety

Tenant's Liability for Injury on Premises

Tenant must keep premises in a reasonable safe condition, but tenant is responsible only for those areas where customer or visitor is reasonable expected to go

Tenancy at will

Termination may occur at any time

Fee Simple Absolute

The maximum possible estate or right of ownership of real property, continuing forever.

Trade Dress

The overall appearance and image of a product - entitled to the same protection as a trademark

Bribery

Transfer of money or valuables in exchange for judgment/favor from person in position of trust

Waste

When the holder of a life estate uses property in a way that reduces its value to a future holder for no possibly beneficial purpose. It is unlawful and the future holder can take action before the life estate expires

Common Areas

areas used by all tenants for which landlord is responsible

Definite term

automatically expires at end of designated term

Nonpossessory Estates

easement, profit, license

Landlord-Tenant relationship

established by an oral or written contract; if lease exceeds one year, it must be in writing

Fixtures

items of personal property that become attached or annexed to real property

Restrictive Covenents

limitations to the use of property imposed by a past owner or current owner that are binding on future grantees.

Special Warranty Deed

no representation of guarantees contained in generally warranty deed; grantor is merely promising he or she has not done anything to lessen value of property transferred

Patent requirements

novel, useful, non-obvious

Covenant of Quiet Enjoyment

promise that tenant has right to quietly, freely enjoy the land

Landlord (Lessor)

property owner

Patent

protect a product, process, invention, machine, or plant produced by asexual reproduction

Implied Warranty of Habitability

requirement that premises be fit for ordinary residential purposes

Right of surviviorship

right of one joint tenant to ownership of property when the other joint tenant dies

Waste (landlords and tenants)

tenant conduct that causes permanent and substantial injury to landlord's property

Deed

the official document transferring ownership from seller to buyer

Profit

the right to go onto someone's land and take part of the land or a product of it away from the land Ex: harvest timber from another's land

Easement

the right to use land for a specific and limited purpose without taking anything from the land, i.e. traveling through land

Extortion (blackmail)

threatening action in exchange for another's behavior or conduct

Tenancy at sufferance

when tenant fails to leave property after terminating of lease