Property II 3/16

Inter Vivos Gifts: Acceptance

- The donee must accept the property. - Acceptance of a valuable item is presumed.

Inter Vivos Gifts: Donative Intent

- The donor must intend to make an immediate transfer of property. - The donor must intend to make an irrevocable present transfer of ownership - If the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by a will. (Gruen)

Inter Vivos Gift

- The present transfer of a future interest, creates an effective gift - The ordinary gift of personal property that one living person makes to another. - Generally cannot be revoked. NOTE: The future transfer of a present interest is ineffective under the Statute of Wills unless it is in writing.

Inter Vivos Gifts: Delivery

- The property must be delivered to the donee, so that the donor parts with dominion and control. - Burden of Proof is on the proponent by clear and convincing evidence

Testamentary Gifts

- transfers an interest to the donee only in the future when the donor dies vs. an inter vivos gift which transfers the interest to the donee right now. - Is valid only if it satisfies the statute of wills, which requires a writing signed by the donor and witnessed by two or more people.

Elements of Inter Vivos Gifts (DAD)

1- Donative Intent 2- Acceptance 3- Delivery

Elements of Gifts Causa Mortis (DADA)

1- Donative Intent 2- Acceptance 3- Delivery and 4- Anticipation of imminent death

Inter Vivos Gifts: 3 Types of Delivery

1- Manual 2- Constructive 3- Symbolic

Inter Vivos Gifts: Delivery: Symbolic

Donor physically transfers to the donee an object that represents or symbolizes the gifted item. - In many jurisdictions, symbolic delivery is allowed only if manual delivery is impracticable or impossible.

Adverse Possession

ECHOES 1. Exclusive 2. Continuous 3. Hostile (mindset?) 4. Open and notorious 5. Entry and actual possession 6. Statutory Period

Gifts: Engagement Rings Fault v. No- Fault Jurisdictions

Fault= Minority Rule: if the donor was at fault, the donee keeps the ring; if the donee was at fault, the donor regains the ring No-Fault= Majority Rule: the ring is returned to the donor if the engagement is broken, regardless of who was at fault.

O to A and his heirs

Fee Simple Absolute

Gifts Causa Mortis (donatio mortis causa= gift on the occasion of death)

Gift causa mortis is a gift of personal property made by a living person contemplating death and is effective when it is made. NOTE: unlike inter vivos gifts, gifts causa mortis are revocable. Donor may revoke at any time before her death and in most states it is revoked automatically if the donor does not die.

Causa Mortis

Gift conditioned on death 1. Intent 2. Donor apprehended death 3. Delivery (active, constructive, symbolic) 4. Death occurred

Inter Vivos Gift

Gift given during lifetime of over 1. Intent 2. Delivery (actual, constructive, symbolic) 3. Acceptance (ownership begins at acceptance even if possession hasn't occurred)

Actual v. Constructive possession

House vs. the property the house sits on Ss 38

Gifts Causa Mortis: Anticipation of Imminent Death

MAJORITY: Donor must die from the illness or peril or donor's recovery revokes the gift. (Brind) MINORITY: It is still effective if the donor does not die from anticipated peril if: 1- death occurs within the same proximate time frame OR 2- the cause of death is related to the anticipated peril.

Gifts Causa Mortis: Revocation

MAJORITY: if the donor recovers, the gift is automatically revoked. MINORITY: if the donor survives, she must expressly choose to revoke, but a delay is dangerous. NOTE: Failure to revoke within a reasonable time after the donor is no longer in apprehension of imminent death eliminates the right of revocation. (RST 2d Property § 31.3)

Gifts: Engagement Rings

MINORITY: the gift of an engagement ring is unconditional, completed gift upon acceptance. (Albinger) MAJORITY: the gift of an engagement ring is subject to an implied condition that the marriage occur. - the gift does not become absolute untilt he marriage ceremony.

Gift by Check

No gift occurs until the check is cashed because the donor retains dominion and control of the funds.

Rule Against Perpetuities

No interest is good unless it must vest,if at all, not later than 21 years after some life in being at the creation of the interest

Inter Vivos Gifts: Delivery: Manual

Occurs when the donor physically transfers possession of the item to the donee. - Traditionally manual delivery of the gift is required if practicable.

O to A

Old: Life Estate Modern: Fee Simple Absolute

Tacking

Only through privity

Requirements for Patent

Patentable subject matter, Novelty, Usefulness, Non-obvious to a person having ordinary skill in the art

Permissive waste

Reducing the vale through neglect

If the future interest following a life estate is in the grantee, what is it called?

Remainder

Type of future interest in grantee

Remainder Executory interest

Distinguish between a remainder and a reversion

Remainder = future interested created when a grantor conveys an inherently limited possessory estate and, in the same conveyance, conveys the future interest to a second GRANTEE. Reversion = future interest created when a grantor conveys an inherently limited possessory estate and RETAINS the future interest.

Inter Vivos Gifts: Delivery: Constructive

Requires that the donor physically transfer to the donee an object that provides access to the gifted item. - Constructive delivery of gift is allowed if manual delivery is not practicable.

Types of future interest in the grantor

Reversion Possibility of reverter Right if entry

Inter Vivos Gifts: Delivery Standard

The delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit. (Gruen)

To whom does a remainder belong?

The grantee

Gifts

The immediate transfer of property rights from the donor (person making the gift) to the donee (person receiving the gift) without any payment or consideration.

Legatee

Those receiving personal property upon death under a will

Divise

When you have a will you use it to DEVISE real property

Copyright

arises when works of authorship are captured in permanent form. Last entire life of author plus 70 yrs; original works of authorship fixed in any tangible medium of expression

Legacy or Bequest

giving personal property through a will

Conveying property

giving real property in lifetime through a deed

Heirs

heirs are determined upon death and not a moment before ; heirs are those who acquire property from those who die intestate (no will) Heirs take when there is no will

Patent: Novel

invention must be new and not previously sold, patented, or described

Collateral

legal term for siblings

Patent: Useful

needs to pass the threshold for usefulness in that value cannot be too speculative (don't have to establish market acceptance)

Patent: Non-obvious

some inventive step, originality that wasn't previously anticipated; cannot be developed as a natural matter-of-course by someone skilled in a specific art Holistic Standard: look at other related patents in community and marketplace and the background knowledge/skill of inventor

Divisees

those receiving real property in will

Distinguish between a remainder and an executory interest

A remainder never divests the prior estate (waits patiently) where as an executory interest almost always does

Distinguish between an executory interest and a right of entry or possibility of reverter.

An executory interest is a future interest held in a grantee, while a right or entry or possibility of reverter is a future interest retained by the grantor.

Copyright

Arises when works of original works of authorship are fixed in any tangible medium of expression

Rule Against Perpetuities applies to

Contingent remainder Executory interests Vested remainder subject to open

Affirmative waste

Intentionally depleting the value of the property (removing timber, oil) or changing the use of the property (old barn example) Open mine doctrine - can't speed up pace to remove value as fast as possible

O to A for life

Life Estate

Issue

Line beneath you