BusinessLAWFINALSTUDY Guide

Term of transferring ownership - Transfer Fee Simple

- Want to transfer Fee Simple of land to someone else = From A to B • A is the grantor • B is the grantee • What is being passed is whatever interest A has. • If A owns 100% then B gets 100% • If A only has right to posses then you only transfer the right to possess A's interest goes to B without any changes.

What are the three elements of bailment?

1. bailor transfers possession and control to the bailee (not ownership rights) 2. delivered to the bailee 3. bailee expected to return it to the bailor in the same condition that it was received

What court circuit is Utah in?

10th circuit

Non-possessory interest

An interest in property that does not include the right to possess and occupy the property; an encumbrance, such as a lien or an easement. opposite of bailment, you own it but you don't possess it.

What is apparent authority?

Authority that arises from a reasonable beliefs of the third-party. The principal directly or indirectly hold out another as possessing certain authority, thereby inducing reasonable reliance of others. Principle bound/liable by agent's actions. McDonalds example

What is the joint tenancy?

Both people are 100% owners of the building (THINK: Jeff 100% and Ericka 100%) • Advantages of this status- partner can't sell 20% of your interest since you would need Ericka's permission because she owns 100%, and she couldn't leave any of her property interests or anything in a will without Jeff's permission. • The benefit of this ownership is stability of not having to worry that they will sell out to someone you don't like. • Married people relate to land this way by default and have ownership through joint tenancy. • Protected from changes you don't like in relationship to the other owner. • For Example: If Jeff dies then nothing changes, Ericka is still 100% owner of property and since nothing changed hands then this is not a taxable event. • The right of survivorship— by default when the other person dies you retain what you already have, which is 100% ownership. • Negative Effect: if you are in debt and need to sell the land you don't have the flexibility to do that without other person's permission.

Duties of principal to agent

CRIP: Compensation, Reimbursement, Indemnification (protect the agent from suffering a loss due to the agent's reliance in information received from the principal), Performance (contract to perform)

Shelley vs. Kraemer "to actually own something is if you make the claim and the government agrees with you."

Decided in 1948 Supreme Court of US (highest court) really famous American Supreme Court case. Lawsuit comes from Missouri - August 11, 1945 • Shelley purchase home • 2 days after Nagasaki bomb (second atomic bomb) • Coincidental relationship But meaningful WWII ends 1945 This case represents something in the progression and change • Everything is different than how it was before SOME CASE FACTS: - Kraemer lives 10 blocks away from where Shelley bought a house. - Kraemer sues the Shelley's because there is a restrictive covenant (contract- from 1911) in the neighborhood. - Shelley bought the house from the Fitzgerald's who did not sign this covenant, meaning that both people in the purchase and selling of the home didn't sign it. - The covenant restricted the homeowners of sales to people of different races. - So, Fitzgerald was the one who violated this, BUT he is NOT the one who is getting sued. - Kraemer wants the Shelley's to give the house back to the Fitzgerald's and then have them give back the money to the Shelley's... - THE PROBLEM with that is that the Fitzgerald's probably don't want their house back, with the money from the sale they probably already bought another house— this is a crazy remedy request that Kraemer is making. - He hasn't been harmed, he is suing the wrong party, he is essentially just a racist. - In addition, there are already black people in the neighborhood so the property value won't go down as he claims. - Problems with Kraemers law suite- o 1: he has a very weak argument; trying to enforce a covenant that neither party that was involved in sale signed o 2: remedy he wants is crazy (how far back are we going to go unravel this?) o 3: can't show that he was actually harmed by the transaction. - Shelley wins the first time - Kraemers appeal and go to the appellate court of the State of Missouri - Who wins on appeal? Kraemer wins and Shelley appeals - Supreme Court of the State of Missouri: St. Louis was a really big/important city. Kraemer wins, 9 Justices hear these bad arguments and gives it to Kraemer and so the Shelley's have to appeal again. - Supreme Court of US- Thurgood Marshall was Shelley's lawyer - Marshall was the first African American Supreme Court Justice - did Brown v Education; he did it for free. 3 out of 9 justices refused to hear the case and not take part in the decision so now only 6 were present. - For the first time, very narrowly, Shelley finally wins. (The reason why 3 judges didn't participate was because if you can't unbiasedly hear the case then they don't get involved) - Why, finally, did Shelley win? The argument is with the 14th amendment o 14th amendment: By being a citizen of the US you have certain privileges and rights and no state can due process of law; nor deny to any persons within its jurisdiction the equal protection of the laws'. vs. the 5th amendment to the US constitution: nor be deprived of life, liberty, or property, without due process of law. Why is this idea twice in the same document? Because, the Federal government is being restricted by the 5th amendment but the 14th amendment restricts the right of the states. (Also found in the 5th amendment- If you are found not guilty the courts can't appeal that... in Italy they can (this is called double jeopardy). In the 14th amendment also discusses equal protection of the law.) - There is no language in constitution that restricts an individual from being racist or doing racist actions. It only restricts the power of the government, saying they can't do this (the Constitution takes away and gives power to the government.) - Thurgood says: There is nothing wrong with the covenant, it is completely fine and legal for them to have, but the problem is that if the Supreme Court upholds this covenant, allowing the state to deny persons equal protection of the laws, it is breaking the rules set out by the Constitution, so the Supreme Court Missouri ruling has to be reversed and Shelley wins. ... Essentially saying, the covenant is fine, it's just the government can't enforce it. - A contract that is unenforceable has essentially no value. By doing this the supreme court invalidated the covenant without really invalidating it. - Notes on activist judging: 'Activist judging of the highest order', some people don't like that but if you agree with this that means that you think Kraemer should have won. We only call them activists judges when you don't like the outcome. - How do you prove that you are the owner of a home? If you have a mortgage, deed/title that is filed with the county, contract for sale, property taxes, things inside the home, bills. What does it really mean to own something? — if the Supreme Court of the US said they didn't own their house, then all of the evidence in the world, will not allow them to own the house. - What it means to own something is that the government agrees with you when you say you do. - Ownerships is between human and things that the law will enforce, if the law declines to then you don't own it. Restrictive Covenant (starting 1911) for 50 years in neighborhood of Shelley's property purchase • No Negro or Mongolian Race (blacks or Asians) • Caucasian - southern Russians

Understand grantor and grantee, what type of interest they are passing, and which party has what?

Grantor - person deciding to do something with property; gift Grantee - person excepting property if grantee dies, goes to next airer or estate

Gruen v. Gruen "understand terms of acceptance and delivery for various gifts'

New York, 1986 Decided Case is arguing the distribution of the assets of Victor Gruen. • Plaintiff is Michael Gruen the son, and defendant is Kemija Gruen, the step-mother. • The argument is over a Gustav Klimt, Schloss Kammer an Attersee 2 painting. • The cost of the painting at the time was $2.5M o It was recently sold for $23M a few years ago. • Victor sent his son multiple letters regarding the painting o The 1st letter is problematic: it says to the son essentially, 'you can have the painting when I die and gives it to him for his 21st birthday'. o But, letter 2 from Victor (Dad) comes later and says, 'I need you to send me the first letter so I can destroy it along with this letter #2 because of legal advice that I received so we can avoid inheritance tax'. Inheritance tax: in the US, we tax the acquisition of wealth, the person that receives the value pays the tax. A trust- is a thing you create to own your things, the trust owns it for their benefits but not actually transfer ownership to the kids, it stays in the trust for their use not their ownership so they don't have to pay inheritance tax. Estate tax is only paid by very wealthy estates - the threshold today is $5.3M • If you die owning more than this then your heirs will pay estate tax on the excess of the threshold. o And a 3rd letter (see below) • In regards to this case, there is a good assumption that they are over the estate tax threshold. • Letter #3 is also received and pretends that the other 2 letters don't exist and in this one it essentially says, 'I give you this painting now for your birthday but I am going to hang on to it until I die'. o This is tax fraud o These letters have the intent to fraud the IRS because he is clearly not transferring the paintings ownership to his son until he dies o This is an attempt to avoid tax estate. • Victor dies and in the will, Kemija gets the painting (because she gets everything not specifically given to others in the will, the painting was supposedly given to the son so Victor didn't put it in the will specifically) • So the question is - did this gift of the painting to the son actually happen? • (Add note: If you sell something before you die that was in your will then you can't give it away again at death). o 'Everything else not specified in the will is given to Kemija— residual). Court Decision: 1. Intent- in the end of everything, Victor did intend to give the painting to son Michael 2. Acceptance- he never went to go get the gift but the court fudges this by saying that because it's worth so much, no one would not accept it. (REMEMBER: If something is valuable we can assume that it was accepted; assuming no evidence that you didn't want to accept) 3. Delivery - was it ever devilered? NEVER. a. Leopold Cohn got away with stock symbolic delivery because it is not physical goods (it wasn't Cohn's fault that he didn't deliver it timely because he didn't know he would die in 6 day). b. BUT Victor had 17 years to deliver it! c. The painting over that time period goes on exhibition and it was toured d. Painting was also restored - which is a very dangerous thing to do for an expensive painting. e. You would think the owner would do all of these things, but it was Victor and not the son. OUTCOME: Michael wins and gets the painting in the end. Even though all he had was the letter. SIDE NOTE: Testamentary, testimony- is related to the word testicle, because in ancient Rome you swore by putting hands on testis.

What does fasces have to do with real property?

Point of the bundle of sticks - you can divide them: • When all the sticks are together / you own all that there could be = Fee Simple Absolute Real property: You can divide sticks up in real property. o Think of the case Gruen v Gruen- the case with the painting o The case shows an attempt of trying to divide the sticks of ownership, keeping the right to possess it but giving everything else. o People do this with land a lot.

Foster v. Reiss "causa mortis gifts and the significance of wills"

Supreme Court New Jersey, 1955 On the surface - looks similar to Gruen v. Gruen Decedent is Ethel Reiss, the defendant is her husband Adam Reiss. The executrix of the estate Foster (plaintiff) is suing Adam Rice. - History of Ethel and Adam: o When they were married Ethel only left Adam $1 in the will. o They went through some hard times and separated but then they ended up getting back together. o It appears that the will where she left him only $1 was drafted when she wasn't happy with him. o Then, Ethel gets sick and before surgery writes a letter to her husband. o She thinks that she is leaving a will by writing this letter to him. o However, it is not a will! There has to be witnesses that are not getting anything from it to sign it to be official. A will also has to be legally notarized by a government official. o While Ethel is in the operating room Adam finds the note that Ethel left for him (she informed another patient in the hospital to tell him where it was when he came). o When she gets out of surgery she falls into a coma and dies 9 days later. o Adam, after reading the note, goes and gets the money and does everything in the note (the note explained where money was hidden in different places and that he could have it and told him where objects were that should be given to others). o Adam said that it was a gift donatio causa mortis (caused by death), which is a Gift given while you are alive but because you are expecting to die very soon because of a specific cause. Requirements of a donatio cause mortis gift: 1. Gift given in contemplation of imminent death 2. Must actually die from the peril contemplated o Example: diagnosed with brain cancer and only 6 weeks to live, but then dies of a car accident so the gift doesn't go to you because they died of something other than the reason that they contemplated when giving you the gift o HAVE to die from EXACTLY what you thought you were going to die from for it to be a valid gift 3. Intent o In this case - Ethel did have intent/want to give those things to Adam 4. Accept o In this case, yes - if things are valuable we can assume acceptance 5. Delivery o In this case, no! o There was no delivery o ARGUMENT: But didn't she have symbolic delivery throught the letter saying to take the things? This isn't enough though, because it can't supersede her official will without perfect delivery! Foster wins the case, husband Adam loses. Why is Foster vs Reiss different from Cohn (shares of stock) and Gruen (painting)? • Gift causa mortis vs intervivos gift o Gift intervivos you can fudge some of the details because at the end of the day you can ask the donor if they gave the gift This leads to a different treatment in the Reiss case because for causa mortis you can't just ask the donor (because they died) Need more perfection in all of the 5 requirements (including the delivery requirement) o The will and the note are mutually exclusive Meaning you have to choose one or the other. o Why would the judges choose the will? They chose the will because it is a notarized and official document compared to the letter that does not have any of the requirements for an official will.

Understand the right of first refusal

The right of first refusal (if in the contract) is if when one person wants to sell out and they have to offer it to you so that you can buy their share - if you refuse then they can sell it to whoever they want.

What does 'undisclosed' mean?

Undisclosed principle 3 peeeps and third party has no idea about actual existence of principle

Can a court create agency:

Yes, a court assigning a public defense attorney

Can non-possessory interest become ownership interest

Yes, through Adverse Possession a transitional idea between ownership and not ownership. • A way someone can gain real property by possession from the real owner

Consider the rule of fixtures and how you are able to take a fixture with you:

You can take your fixtures with you when you leave IF you can remove them and put the property back in such a way that no one would have noticed a difference. • If it looks the same as when you first started renting the property. • The idea of Fixtures helps transition into the ideas of real property.

Vested Interest

an interest (such as a title to an estate) carrying a legal right of present or future enjoyment; • EXAMPLE: From A to B for 10 Years, then to C o C doesn't have contingent remainder because it WILL happen o This is called a vested interest. o B has a duty not to commit waste, anything that would devalue the property. o B has a defeasible interest.

What is Eminent Domain?

can lose ownership interest in your property, private property is taken for public use (even just economic development purposes) by the state or national government. e.g. Trump wall taking interfering with people property.

Power of Attorney

grants power to a representative of your choosing to legally act and make decisions on your behalf.

Consider the unique aspect of innkeepers and the act of providing a safe:

interesting because at a hotel they have a strict liability BUT (because of their strong political lobbying power) do not have strict liability for personal property if they provide a safe • Anything in the safe they have strict liability for, but everywhere else they DO NOT. BUT when we talk about a 'safe' it is not the safe in the room. • We are talking about the BIG safe in the managers hotel safe. • And if it meets the criteria that they accept to put in the safe, then they will keep it there and have strict liability (i.e. passport, jewelry, etc.)

What is concurrent ownership?

land interest given to multiple people not just one, owning property with someone else at the same time.

Property Law

not really concerned about the actual property (noun), but overall ownership this is not a thing but a relationship between human beings and things that are not human this relationship is negotiated through our legal system.

How to end a tenancy at will relationship

o A reasonable amount of notice. o In regards to reasonability, a Grandmother (for example) probably deserves more notice time to have to move out. o Recommended: nothing less than 30 days to be safe. o Implied Lease can only be shorter than a year or it would have to be in writing. - How much notice with no specified period? Reasonable amount. - What is reasonable? Depends on the circumstances. - General rule - less than 2 weeks seems unreasonable - 30 days? Basically always be safe

Easements

ownership interest you have in someone else's property, or someone else has on your property [non possessory ownership in property - two flavors: appurtenant, en gross] • Example: There is an alley between your and the neighbors property. o It is used by all of the neighbors because an area in the back is a parking lot. o The section of your land that the alley is on has an easement on it that is owned by the neighbors. o The neighbors in the past gave him money for this land to use it for a driveway to the parking lot— he owns the land, but they have the right forever to drive over it. • The easement travels with the property not the people. • These easements are found in a deed and are very common • Easements are why it is almost impossible to have fee simple absolute. • They bought a right to the property, not the actual property.

What does the idea of a 'dead hand' refer to?

the person that is dead is still controlling and effecting others lives. e.g. o Leave property to B... o But if C gets married - then C will get it (because say I really want C to get married) • A way the dead can still control things! o Leave things upon certain conditions

When is Eviction an appropriate course of action

— a landlord never ever has the right to go in and forcefully evict someone to leave • "Self Help"; only the SHERIFF can evict someone. • Landlord can't go in and take all of their stuff, can't change locks, can't turn off the power, etc. • If they do that they will be sued and the tenant will win. • If you want a tenant out that is in violation of a lease then you must evict them through a formal legal proceeding— there is normally expedited proceeding for this. • Steps you have to take: o Post notice (3 days fix) o Draft a complaint and fill with the court o A process server physically puts eviction papers in hand the service to get out (lawsuit doesn't start until the papers are in dependent's hand or someone older than 18 that lives in the house) o 10 days are given to respond o Set a date for court. o If the court agrees with the plaintiff then only the sheriff or sheriff's deputy can evict them. If they LIVE there then they are a tenant. Overall, any tenancy that is behind (beyond) the terms of the leasehold arrangement.

Term of transferring ownership - From A to B for C's Life, Then to D (Vested Remainder Interest)

• This means that A is giving up the reverter interest - aka, they will never get the property back. • B's interest will evaporate upon C's death • Then D will be the owner when C dies. • D necessarily will someday become the owner of the property. • D's interest is Vested Remainder Interest (fully perfected at the moment A gives to B, D does nothing) LIFE ESTATE - VESTED REMAINDER • Now: • Blackacre from A to B for B's lifetime, then to C • C = vested • We do not know when C will become the owner... but we know they will eventually - C is going to get the interest • When B dies, it will then go to C • Interest/ownership will transfer after a particular event (i.e. B's death then transfers blackacre to C) • Invested interest in C instead of reverter interest in A • Automatically going to happen - you know it will happen

Race/Notice Jurisdicion

• Utah is this jurisdiction. • Whoever gets their first is the owner, unless, (in Wendy's case) had knowledge of it. • If you know that someone else had already purchased the property then you cannot be the rightful owner. • Most recent in time so long as they don't have notice of competing claim... but if neither of them know about each other - then it is whoever gets there first • Combines best parts of both • Most states are now this!

Katzenbach "anything affecting commerce"

(Acting Attorney General Katzenbach v. Ollie McClung) (restaurant owner)— 1964 Supreme Court, Originally in Alabama, Justice Clark gives opinion. {CASE EVALUATION #1} • This case was heard in argument the same day as Heart of Atlanta Motel, just after it. o Jeff says: 'The Supreme Court wants you to see these 2 cases together because they relate'. • McClung's own the Ollie's Barbecue restaurant, which is located in Alabama. • Katzenbach is the attorney general who McClung sues to stop him from enforcing the law. • McClung's thought (after hearing the Atlanta Motel outcome) that Atlanta Motel was definitely interstate commerce but thought that their restaurant wasn't. • Ollie's barbecue differences: - local customers only for the most part (they survive quite exclusively on local customers) - they don't advertise out of state - they do serve African Americans, they wouldn't even be charged a different price. However, they can only get it for take-out. African Americans can't sit down at the tables or come through the front door. The majority of the workers are all African Americans. -these are arguments based on arguments that were made from the motel. Government Says: - the food they serve: the majority of the food they serve does not come from Alabama (so it is interstate commerce) They buy food from a butcher that got the food from out of state. They say they aren't regulating you, but the food that is sold is part of out of state commerce (and how the government regulates this is by saying who it can be sold to) - which in this case would include African Americans Government regulates who can and cannot be sold certain items. Gov. says you can't refuse to sell to certain people // and what manner it can be sold in as well.

Bailment broken into three flavors

(based on who is benefiting) • Mutually benefit = both bailee and bailor benefit o Vallet: bailor (me) giving the car does not have to walk and the car gets parked for me and returns when I ask - bailee gets the money, I pay for the service • Bailor Benefit o Handing over coffee cup "hey can you watch my cup for a second why I run to the bathroom?" • Bailee Benefit o Bailee taking possession of tools (with assumption to return later) and only for me to benefit, doing a favor

Hold over Tenancy/Tenancy at Sufferance (leasehold estate)

- Any relationship where it is unwilling on one party. - EX: You are supposed to be out at July 31st but you are still there. o They are still your tenant o The relationship is still there. o It is at the sufferance of the landlord so it is subject to eviction. - Example: Someone in the apartment that shouldn't be there / someone who you didn't rent it to lives their now o You have the same responsibilities owed by tendency at sufferance but to get them out you can evict them.

Tenancy for years (leasehold estate)

- DEFINED DATE OF BEGINNING AND END - Misnomer, any tenancy that is for a fixed length of time. - Example: a lease that lasts for 3 weeks is a tenancy for years. - When tenancy begins you already know when it ends. - A tenancy that is for any particular definite amount of time - defined start and end date. {Misnamed, nothing to do with years....} - Tenancy that lasts for defined period of time o i.e. Lasts 2 months o i.e. Lasts 3 years - Defined time when it begins and ends - ADVTG - no one questions when things are over, can arrange somewhere else to go/they can find someone else to live there.

Periodic Tenancy (leasehold estate)

- Example: MONTH-TO-MONTH lease, don't know when it is going to be over. - Could be week to week. - Think of a hotel room if you don't say how long you are going to be there. - If the landlord wants to kick out the tenant to remodel, how much notice to they have to give? o You get the next available full period and finish the period you have paid for. o You have to give the notice of the length of a regular period. o If you have a month-to-month lease, or a day to day lease - the time periods during which you pay are regular and recurring. o Example: if send the note on November 13th that you want them out, and it is a month to month, than you have to give them till January 1st to move out. - Less time / less specified than tenancy for years - Lacks an end date o i.e. Month to month lease - Last month you will live there? - PROBLEM - when is it over? - You get next available full period - common law (longer time) - Landlords have more power - want to be able to move quickly - By statue - amount of time is shorter (i.e 14 days) - If you do not know what state you are in = common law! o Absence of statute = common law = next available full period

Tenancy at will (leasehold estate)

- People staying at a place without any formal agreement. - This is a tenancy relationship, you are tenant and they are landlord - You have responsibilities and so do they. - Even less specific and less sure in duration as periodic tenancy - Tenancy at will = landlord tenant relationship o i.e. Grandma living in basement - how long is she there? Does she pay rent? We don't know.... o i.e. Friend on your sofa - If it is their residence and live there with no other place to go, then they are your tenant - As your tenant they have those rights - Must provide notice of termination - How much notice with no specified period? Reasonable amount. - What is reasonable? Depends on the circumstances. - General rule - less than 2 weeks seems unreasonable - 30 days? Basically always be safe

3 distinct categories of property:

1) real property- land and everything (permanently attached to it) 2) personal property- things that can be moved (i.e. chattels) 3) intangible property- ideas that have some legal protection, not physical but you still own them (the right to money--sports betting example) (intellectual property, copyrights, insurance, patents, right to paycheck, right to social security, right to medical care, etc.) *did not really discuss this in class

2 exceptions to strict liability:*****

1. Acts of God (property destroyed by tornado) 2. Intentional Criminal acts of 3rd parties (theft)

What are the five conditions/elements of adverse possesion:

1. Actual Possession • Actual physical possession • Example: physically living there. 2. Has to be Adverse • Be there without permission 3. Has to be Open and Notorious • Not hiding. • Treating it like it is yours. E • Examples: Lights on, smoke from the chimney, etc. • The whole world sees that you are treating it like it is yours. 4. Has to be Continuous • Does not mean using it 24/7 • Means that you are not only there on the weekends, or in December, but more or less continuous in the way the proper owner would own it. 5. Has to be for the Requisite Time • Every state has a certain amount of time • For Example, Utah = 7 years o So - if you lived in a house for 7 years, and the owners show up 8 years later you can say it is not their house, but it is yours. • This idea is talking about the way occupants that live there for long enough without permission it can become theirs. • The idea behind this is that if you are not even checking on your own property for over 7 years then the person that is actually using it deserves to own it. o No more land is being made in the world so it should go to the people that make the most use of it. Good faith - taxes paid or ways to demonstrate residency

What are the five landlord duties in a landlord/tenant relationship?

1. Actual Possession of the Premises: Two Rules [American Rule] the landlord doesn't have to give actual possession, just constructive (i.e. just give you the keys) - don't have to guarantee to you that there isn't someone else stuff there. [English Rule] you have to provide actual possession, they have to be able to actually move in when the lease starts- have to make sure they can have actual possession of the property (i.e. 2 sets of keys) 2. Maintenance: o Duty to repair (AC unit broken in summer). o Maintain common areas: parking garage, front yard, hallways, clearing the snow, etc. 3. Quiet Enjoyment: o The landlord cannot disturb your possession of the property o Cannot bother you at all hours; come into it when you are not there. o Constructive Eviction: EXAMPLE 1: Imagine the neighbor has a dog that barks all night long - this could breach this duty. EXAMPLE 2: no place to park your car because they are redoing the parking lot. EXAMPLE 3: heat went off in the middle of winter, that is a warranty breach of habitability and quiet enjoyment = it is constructive eviction o It is basically running you out of the apartment because you can't live in those conditions. 4. Habitability: o The property being rented will be habitable o Property has to be fit for human habitation (i.e. doors, windows that close and lock, roof, heat in the winter, etc.) 5. Anything by Contract: o Follow the provisions of the lease.

What are three businesses in the business of bailment?

1. Common Carriers: does as a regular part of business of transporting personal property (Delta, UPS, moving companies). Common carriers hold themselves open to the public as being in this business. Ex: if your luggage doesn't arrive they have strict liability for this. 2. Warehouses/valet/storage: storing personal property 3. Innkeepers: take possession of personal property, when people stay there. These 3 all have strict liability for property bailed with them.

Ownership: 7 ways to become the owner (personal property)

1. Creation- If you are the creator of something then you are the owner of it by default, you made it exist. 2. Capture - exists already in the world but if it has no owners, but by capturing it you become the owner of it. Example: fishing, no one owns it but when you caught it, is is now yours. 3. Finding - the property found has an owner but we don't know who that is, they aren't present or known. The new owner has claim to what was found to everyone else but the real owner. (Read Bridges v Hawkesworth notes below). Know difference between mislaid vs lost property. 4. Purchase - Exchange of goods or services, another party transfers their ownership right to you. 5. Gift - voluntarily transferring their ownership 6. Confusion- only applies to property that is fungible (mutually interchangeable) Becoming the owner of something that originally belonged to someone else, but don't care. Happens when property is confused with another's property. example: if you go to the bank and deposit $100 and then later withdraw $100 most likely you aren't getting the exact same bill but you don't care. example 2: at a pizzeria pour beer into two glasses for you and a friend, then back in pint then pour again into two glasses. Beer is beer, you have become owner of something that wasn't normally yours, some of the beer in your glass could have been actually your friends beer, it doesn't matter. 7. Accession - a mode of acquiring property that involves the addition of value to property through labor or the addition of new materials

What are the five tenant duties owed by a tenant in a landlord/tenant relationship?

1. To pay rent o In an agreed upon amount, in the time period, etc. o Not all tenancies require rent, but most have the expectation of some amount of rent paid 2. Not commit "waste" on the property o Or to do anything on the property that diminishes it or the property o Including Ameliorative Waste - good waste, like putting in a swimming pool, making the property more valuable 3. At Common Law: Maintenance o Duty to repair damage on the premises Landlords normally take this responsibility in the lease, but they don't have to. If they don't put it in the contract then the tenant has to repair. A landlord wouldn't normally want you to repair it because you would buy the cheapest replacement and they won't want that 4. Not Sublet or Assign: o No assignments or subleases Assignment: when you transfer your right of tenancy to another person; Sublease: you maintain the relationship but you are the landlord for a 3rd person that is living there (i.e. you rent it out). This is a violation of the tenancy duties. 5. Anything by Contract: o Follow the provisions of the lease o Example: no alcoholic beverages, no dogs, etc.

What are the three different types of property you can find?

1. lost property 2. mislaid property (put in their on purpose and forgot) 3. abandoned property (if found in the trash) Example: a wallet in the trash - it is improbable it fell out of someone's pocket and into trash, and it is unlikely someone is coming back for something that they put in the trash LOST PROPERTY in PUBLIC place belongs to the finder (unless the real owner of the property comes back and claims it) - vs Lost Property in PRIVATE place the owner of land or place is owner. MISLAID is always owned by the property owner. ABANDONED is just like lost idea but there must be evidence of abandonment. - Rightful owner can get it back if it is lost or mislaid but not abandoned.

Isle Royale Mining Co. v. Hertin "accession as it relates to expended labor, increase in value, and substantial changes"

1877 (in comparison, Weatherbee was 1871, just 6 years earlier) Supreme Court of Michigan Same Judge (Cooley), same court, same state and subject (wood) of Wetherbee v Green. Background: • The Hertin's accidentally go onto the land of the mining company. • They didn't know that they were not on their own land. • They cut down the trees and cut them into cords (have to split the wood, remove the bark, remove the branches, pile it up, bind it). • Then they took it to their property by the lake and stored them there. • Then the Mining company went and took the wood back to their land and sold it. • The Miners don't sue them for taking their wood and cutting down their trees - it is the Hertin's who sue, for payment of the labor. o Hertin cut down someone else's trees, without permission, and wants to be paid for the labor. {CASE} • Adjoining property owner - forest territories with no real distinct property lines • Mistake of property line distinction - Hertin's are mistaken and went on mining company land to cut the trees o Think they are on their land o Good faith - honest mistake o Innocently done o Do not know they are on the neighbors property - no one disputes this fact • Trees cut on mining company property o Hertin cuts the tree down - strips the bark - cuts branches - cut in lengths - split - transported - etc. o Puts cut wood on edge of the lake o The lake is on the Hertin's land • After piling the wood - Mining company realizes the trees were cut and go take the wood back • Hertin sues the mining company - wants the wood back (says that is MY wood) o Took in good faith o Significant labor o Value go up? Yes... o But you do not want a world in which people (Hertin) can be careless (simply ignoring property lines, while good faith is just stupid) and just take things

Wickard v. Filburn "understanding of the commerce clause/regulating interstate commerce"

1942, Ohio, Delivered by Jackson • This is a case about the constitutionality of the law of the regulation of commerce • Fighting about the Agricultural Adjustment Act— o Which tells farmers how many acres they can grow every year because of the great depression/dust bowl resulting in really low prices for wheat. o Low prices because no one was buying it - hence the prices are lowered in the hopes people will purchase - but when they lower prices they go out of the business because they can't make a living. o If a lot of people go out of the business then the price goes up - because now there is very little wheat o So with very few farmers they can make the price whatever they want. o Even further, to figure out how much wheat will be grown the Secretary of Agriculture (Wickard) determines how much wheat people can grow. • Farmer Filburn has 23 acres and the government says he can only grow 11.1 acres o Filburn grows wheat on all of it. o His punishment is .49 cents per bushel o $117 is what he owes as a fine for growing too much. o The price he can get for the wheat is high because of subsidy but you have to follow the regulation or you are going to be punished. Filburn's argument that the law is unconstitutional or shouldn't be applied to him: 1. commerce clause doesn't give the federal government the right for local commerce • Filburn's farm is in Ohio (not in any other states) • This is intrastate commerce for sure. 2. growing the wheat for his own personal use so it is not commerce • Filburn is not selling it, he is just using it for himself. GOV RESPONSE: • The government says in response that interstate commerce is anything that EFFECTS interstate commerce o Hence, the Federal Government can regulate it. • They also argue that he would have been part of commerce if he wasn't growing his own (because Filburn would then purchase wheat) and therefore making him effect commerce. • Overall this judgement is forcing people to buy things that they don't necessarily need or want • Forcing them to participate in a market (health care law is similar to this idea). • Filburn's over produced amount is extremely trivial to the total amount produced. • Americans are the most productive farmers in the world, twice as effective of other nations. o AGAIN - - Filburn argues that he isn't messing up interstate commerce. o The court recognizes that it is trivial but if everyone did that then it WOULD have a huge impact on interstate commerce. o This is a very broad interpretation of their power— they can regulate not just what you do, but view it in the aggregate: If everyone did what you did would it have an effect on interstate commerce? 5th Amendment Rebuttal: • We aren't taking your land or wheat • We are just telling you how much you can grow • This is not the idea of eminent domain. OUTCOME: 1) Government is able to force you to participate in commercial market even if you don't want to be in. • THINK - Anything that affects interstate commerce in the aggregate.

Scherer v. Hyland "when can a gift causa mortis trump a will?"

1977, NJ, Supreme Court Same state and court as Foster v Reiss, just years later! Notable similarities in the cases. • Catherine Wagner was in a car accident in 1970 • Wagner suffered very severe facial and hip injuries. • She is suicidal because the facial scarring and wounds were so serious. • In 1974 she took her life o She had also slit her wrists at an earlier time as an attempted suicide. • Her and Robert (boyfriend) were both in the car when the accident happened • The couple sued for damages and won the lawsuit as evidenced by them receiving $17,400 in the mail. o It took 4 years to get this money o This doesn't even come close to covering her medical costs, pain, and lost wages. • After receiving the check in the mail she writes 2 notes: o NOTE 1: says she wants all of her things to go to Robert (boyfriend) o NOTE 2: a separate note that says sorry for taking her life that is addressed to Robert. • Wagner seems to believe that the one paper will be used as a will. • She endorses the check and signs it. • She leaves these notes on the table, not hidden, in a position designed to be immediately found by Robert. • However, it is not Robert who first finds these things, it is the Police o The police entered her apartment after the suicide so her delivery attempt is ineffective. • Wagner was clearly waiting for the check to come in before committing suicide. • Robert sues Hyland o Hyland is the administrator of her estate o The court appoints Hyland because Catherine Wagner has no will. Robert Scherer (boyfriend) has to prove the following things for a causa mortis gift: 1. given for imminent death 2. dies from the peril contemplated 3. intent to give 4. acceptance • Remember: from Gruen and Gruen case - if it is valuable then we can assume acceptance (if there is no countering evidence) 5. Delivery • In this case, not really • BUT it worked because Catherine Wagner did not have an official will that would have trumped this unofficial will (as it did in the Reiss case) Robert Scherer wins the case - the boyfriend gets the money because he successfully argued a causa mortis gift. This case does not over turn Ethel Reiss's case, it says that it is a different scenario. • Reiss has an official will and a not perfect gift, so the court is forced to choose one of them o The court picks the more formal one - the will. • If there isn't a formal will (like in this case with Wager) then the court allows the gift requirement to be more lenient. o Also, Catherine Wagner put the check out in the open where her boyfriend could find it o Unlike Ethel's who left the letter hidden. o She interacted physically with the things she is giving.

Kilo vs. City of New London "understanding eminent domain"

2005, Connecticut, US Supreme Court case which significantly changed the definition of public use. The Court held that local governments can condemned homes and businesses for private or Economic Development purposes. • Kilo is an older woman among 15 other property owners that do not want to sell • Kilo wants to keep her house. • The corner stone of the project is industrial—pharmaceutical company Phizer, is one of the largest corporations on earth that is being persuaded to build their R&D plant in the city. • The city is buying the land with the intent to give it to this company. • Having a research and development plant there will be a greater drive for the reconstruction because this company will pay a lot of taxes. • Largest chunk of taxes goes to schools o Good schools in your town and good education means higher income so overall better neighbors. o Good schools essentially means safe neighborhoods. o It also brings people to work there so more people will move there or move close to there. • The city is correct in thinking they will revitalize the city with Phizer coming there. • The city is going to take over her house and GIVE it for free to this profitable company. • The idea is that if you can make the offer really good (free) the company will decide to come there. • Why does the city think they can do this? o They believe they can take her land against her wishes because of the 5th amendment— (SIDE NOTE: double jeopardy is not allowed - can't be tried twice for the same crime), 'nor be deprived of life, liberty, or property without due process of law'— implying that with due process of law you cannot be deprived of these things. 'Nor shall private property be taken for public use, without just compensation'. • She (Kilo) is getting paid compensation but the ARGUMENT she is making is that her private property is being taken for public use. o Her problem is that it is not like building a school, freeways, etc o The people that will have access to the land is just the company, not all of the city. • New London thinks she is wrong about this because it is public use - because even though the public won't have direct access, it will benefit the public at large. • This counts as eminent domain: o The government has the power to take your land and give it for free to a large corporation because that will increase the economic activity in the area. o This is proper eminent domain.

What are the three requirements for accession?

3 requirements to do this: 1. Good faith action (believes erroneously. For example, like Wetherbee— not a thief) 2. Addition of labor to the property (private property only) 3. A significant increase in value

Leasehold Estates

4 kinds that relate to property not as the owner. Leasing is the real property equivalent to bailment. They differ from each other in length of time they are active and the manner in which they are terminated. Less complex and specified as you move down this list. LEASEHOLD ESTATES {landlord tenant relationship} 1. Tenancy for Years 2. Periodic Tenancy 3. Tenancy at Will 4. Tenancy at Sufferance (& holdover tenancy) "the four are less complex and specified as you move down the list"

What is defeasible interest?

A defeasible estate is created when a grantor transfers land conditionally. Upon the happening of the event or condition stated by the grantor, the transfer may be void or at least subject to annulment. (An estate not subject to such conditions is called an indefeasible estate.) • EXAMPLE: From A to B but if C ever graduates from Harvard, then to C. o B has a defeasible interest because it can be taken away. o C still has a contingent remainder (it may or may not happen)

Ameliorative Waste

A life tenant must not engage in acts that will enhance the property's value UNLESS all future interest holders are KNOWN and CONSENT. Ameliorative Waste: improves the property but is still a form of waste • Material change of property value without the interest of the owner of the property • You owe a duty to not make changes to property without the consent of the people that have a vested interest in the property.

Quitclaim Deed

A quitclaim deed is a legal instrument that is used to transfer interest in real property. The entity transferring its interest is called the grantor, and when the quitclaim deed is properly completed and executed, it transfers any interest the grantor has in the property to a recipient, called the grantee. • The lowest form of deed in number of promises it makes. • It makes no promises but one: o Guarantees that whatever I own I am transferring that to you. selling AS-IS ****

Seven ways of how to terminate agency relationship

Acts of the Parties Job is complete Lapse of Time Mutual agreement of the party Revocation of authority (principal fires agent) renunciation by the agent (agent quitting) Operation of Law Death Incapacity Change in circumstances

After you have a deed, does this make you the owner?

After you have the deed, that doesn't make you the owner; it is when you RECORD the deed. o You record it with the county recorders deed. o Recordation. o You file the deed, so that everyone that wants to know can know who owns what. • Provides no warranty at all • Totally effective, but not protective • Effective in transferring ownership, but no protection or guarantees • If things turn out different than expected, you cannot bring a claim against them Once you have a deed, it must be recorded in the County's accorder's office - they keep a record of title on every piece of property in that county:

Armory v Delamirie Case Case on #3 finding* "finders keepers, losers weepers"

Almost 300 year old case - in England • Armory sweeper boy find a ring • Cannot find rightful owner • Takes ring to goldsmith's shop • Removes ring jewel and weighs it • Ring = three halfpence (penny and a half) • Didn't want the money, but wanted the ring back • Goldsmith won't give stone back o Real reason - lying about its value, knows the stone is worth a lot more o Legal reason - says it isn't yours Armory, you just found it so it is no more yours than mine • Go to court • King's Bench = highest court in Britain very big case! • Court of Kings Bench = Armory boy wins o Armory = rightful owner against the world EXCEPT the original owner Finder is the superior owner without a real owner Finder has actual ownership • Award granted = value of BEST jewels o Since we don't have the actual stone, it must be the most valuable stone that fits It is a 1722 case, a very old England case - In that case their is a chimney sweeper who found a ring on the street and wanted to see if it was worth anything, he went to a jeweler and the apprentice took the ring and evaluated it, his master told him to tell the chimney sweeper that it was not worth a lot and to offer him 3 cents for it. The chimneysweeper said he would rather have the ring than 3 cents. However, the apprentice gave him the ring back but not the stones and refused to return them. Outcome of case: 1. finder of a jewel, can keep it from all but the proper owner.. "finders keepers losers weepers" 2. respondent superior: apprentice is the agent of the golds smith, so suing the golds smith is appropriate through agency laws 3. if the Jeweler doesn't produce the actual jewel then the court assumes it was the most valuable jewel possible and that is what the chimney sweep will be compensated.

Two Types of Easements

Appurtenant - Travels with land the land, owned by the property itself. e.g. there is an alley between your and the neighbors property. o It is used by all of the neighbors because an area in the back is a parking lot. o The section of your land that the alley is on has an easement on it that is owned by the neighbors. o The neighbors in the past gave him money for this land to use it for a driveway to the parking lot— he owns the land, but they have the right forever to drive over it. • The easement travels with the property not the people. • It is a permanent condition to the land. • There is no expiration date. In Gross - belongs to a person or company. e.g. power companies

Example of Adverse Possession

Brian and Lindsey are your neighbors and they have 10 inches of your property within their fence that is over just a little too far. If you argued with them about it they could say that this has been true for over 7 years so it is now theirs. However, you could go to the government and say you don't want to have to pay property taxes for the land that they have control and possession over.

Edwards v. Sims Dissent

By Judge Logan- Doesn't agree with the ideas of all the way up and down property lines. o In Ancient Rome that worked but in today's world this idea changed when the airplane was invented. o Every airplane that flies over your house has trespassed? o The way you own property, post airplane times, is that you own it as very up in the air as you can subject to your control or derive some beneficial use from. o If we think that way about going up in air, we should think that way below the surface too. o Yes, you own below it but only to the extent you can make use of or make benefit from. o He cannot access the cave or get benefit from it. o He isn't losing a benefit by leaving it alone so he shouldn't be allowed to own that part of the cave under his property. o Another argument: to own something Logan argues, such as the cave is for Edward's because it is now valuable because of Edwards's effort. o Owning something should be, who made it useful, who created the thing so it could be appreciated and used? o When Lee wins the cave really doesn't exist anymore because people can no longer use it. o By Lee winning, Lee is in no way improved but lots of things in Edwards world and to all the community gets worse.

PRINCIPLE RESPONSIBILITY TO 3RD PARTY DEALING WITH AGENT:

Disclosed undisclosed concealed (if principle identity and issue arises must agree to honor new terms of deal) agent misconduct (When an agent commits a wrong or tort or fraud while acting within his actual or ostensible authority, the principal is liable for his acts.)

Inter Vivios (Regular Gift while alive)

Donatio Inter vivos (gift made during life), just an ordinary gift. There are 3 elements for this type of gift: 1. Intent to give (donative intent) 2. Donee has to accept 3. Delivery

Compare and understand the ideas of the Dormant Commerce Clause and the Awake Commerce Clause

Dormant Commerce Clause: Supreme Court has no authority over commerce, that is congress's job, but the Supreme Court is doing it. o Idea that: 'Congress right now is sleeping, so don't wake them up - we will take care of it for them'. o If the Supreme Court sees a local/ state law that restrains interstate commerce the supreme court will then declare it unconstitutional and you won't have to go to congress to have another law supersede it to change it. vs Awake Commerce Clause: Federal government makes the law and the Supreme Court tests to see if the law is constitutional o vs Dormant Clause: Federal government didn't pass law, a state did, that restrains interstate commerce and the supreme court won't let it stand and will just get rid of it.

Two examples to help better understand finding property:

EXAMPLE 1: a house cleaner in your home that finds an earring • Only someone that works for you could find that. • So, if they find something while they are working for you then it is yours. EXAMPLE 2: Chili's • You as an employer (manager) of a Chili's restaurant legally makes you Chili's • Therefore, the real property owner of the Chili's restaurant owns whatever a waiter finds.

What are the 3 ways an easement can be acquired?

Easement is an interest in someone else's land - acquired in the following ways: a. by contract b. by necessity i. EXAMPLE: imagine you have a big farm and you want to divide it into different parcels to sell them individually; the home in the middle has no access to the street so it is a necessary condition that it can go over the land of another and get the right to travel over to access the street even without a document to prove it. However, to trespass on their land you have to prove that it is the least burdensome path. c. Adverse Possession i. Can acquire easements through adverse possession (Described Below) - but the thinking is that at some point of always walking across land for over 7 years, someone could get an easement to cross the property that way. Overall, easements are an ownership interest in someone else's land. HOW TO GET AN EASEMENT • Purchase it - must be done in writing (property interests in land MUST be in writing, i.e. deed or contract) • Gift - someone gives you an easement • Will - left an easement • Necessity - EXAMPLE big farm all owned by one farmer and now he no longer wants it so he subdivides for residential use to become a neighborhood. The middle subdivisions have no direct access to public streets, so in order to do so they must go over another's property. You have full right to do so - so you would go to court and state your necessity (the need to access the street to get to your own house) and get granted an easement. By proving you do not have access to your property - the court will get you access. You have a necessity and the easement will be given. Court weighs how disturbed it is to the other neighbors and how important it is for the owner to access the streets - need to come up with the most just means. ANOTHER EXAMPLE - access to water. • Prescription - someone acquires easement simply by length of time they are doing it - EXAMPLE two houses in a subdivision are friends and one has access to the street while the other does not. Being friends, they just extended the driveway down to the other guy and it was no big deal. The first house on the street then gets sold and they no longer want the long driveway so they place a rock in front of the driveway and prevent their access. Sure the second guy could go get an easement to access the street from another property, but that would cost money and it would take time/money to make a new driveway (not a good necessity argument). However, since the second guy has been using the long drive way for so long he still has the easement to do so. Second guy ended up paying the first guy (with the driveway) a small amount to get the boulder moved to access the street. This payment was cheaper and easier than a new driveway.

Fixtures

FIXTURES- things can migrate between personal property and real property. • Trees on real property can be cut down and then become personal property. • The door of your home was constructed separately from the home (it was at that point personal property), but once they become attached to the structure/land, they become part of the structure and part of the land and they are called fixtures. FIXTURES - Personal Property that is attached permanently (mostly) to the land and becomes part of the land themselves. • Example: Sofa bolted into the ground would be a fixture. • Example 2: Imagine you are renting a piece of property (building lease), and the person that is leasing it now wants to use it as a restaurant - so they have to install fixtures such as outlets, gas lines, hole drilling etc. o All of those things are installed. o When they permanently attached it to the real property it then becomes the landowner's. o Permanently affixing them they become part of the property and they are the landowners.

Qualified Fees and Contingent Remainders

From A to B for so long as B... • "Operates the property as a farm, and if not then to C" o C doesn't have a vested remained interest because it isn't for sure (not guaranteed that he will get the property - it is called a contingent remainder • CONTINGENT REMAINDER is contingent on something happening. o From A to B but if B ever starts smoking, then to C. o This shows the idea of the 'Dead Hand' because the person that is dead is still controlling and effecting others lives. • EXAMPLE: From A to B but if C ever graduates from Harvard, then to C. o B has a defeasible interest because it can be taken away. o C still has a contingent remainder (it may or may not happen) • EXAMPLE: From A to B for 10 Years, then to C o C doesn't have contingent remainder because it WILL happen o This is called a vested interest. o B has a duty not to commit waste, anything that would devalue the property. o B has a defeasible interest. QUALIFIED FEE • Another way to grant ownership • Blackacre from A to B, but if B ever grows a mustache then to C • Qualification on the grant • B's interest is perfect, perfect ownership (including alienation), but there is feasible interest on B • Feasible interest = can lose the property (based on some event) • C is only a maybe to get the property o C = contingent remainder o Not vested o Contingent upon some particular happening (in this case - B growing a mustache) o It is not automatic/not guaranteed • Could do anything here... o Leave property to B... o But if C gets married - then C will get it (because say I really want C to get married) • A way the dead can still control things! o Leave things upon certain conditions • Doesn't only have to happen in a will - can happen in a sale • Can have as many contingencies as you'd like • If there is a qualification on the interest then = qualified fee • Ex - blackacre from A to B but if B ever goes to BYU, then back to A o A reverter interest (because reverting ownership back to the original) o But also has qualified fee - a qualification

What are the three varieties of deeds?

General Warranty Special Warranty Quitclaim

What is the best kind of deed? Why?

General Warranty is the best kind of deed -- PERFECT PROTECTION -- all t's are crossed and i's are dotted.

How many justices are on the Supreme Court?

Nine judges — called justices — make up the Supreme Court of the United States. The Supreme Court is led by one justice, called the Chief Justice of the United States. The other eight justices are known as Associate Justices. Justices are nominated by the President and confirmed by the Senate. Once confirmed, justices serve for life. They only leave the Supreme Court if they die, resign, retire, or are convicted on impeachment for bad behavior.

Duties of Agents to Principal

Obedience Good conduct Diligence Inform Account Fiuciary duties (involving trusts) Conflict of interest self-dealing duty not to compete misappropriation confidential information duty to account for financial benefits 1). Duty of Loyalty -Put the principals interest first in everything 2). Duty of Obedience and Performance -Must do what the principal says unless you can't, don't want to for moral reason or illegal 3). Duty of Reasonable Care/Good conduct -Ex). If you were the one picking a car up and taking it across the country. 4). Duty to Account -Don't intermingle funds, don't pad your expense account. 5). Duty to Notify/Inform -If there is anything that goes wrong, you must contact the principal and tell them about it. {Only time the agent doesn't put the principal first it is when it is for their own good}

What are irrevocable powers?

Powers that cannot be eliminated (taken away); must be specified in contract that they are not revokable

What is a fasces and what does it have to do with real property?

Property represents different "sticks of property" publication example. You get the Deed, but what do you get? Fasces- symbol of ancient Rome. They didn't have flags; they stated in Rome that their national symbol was the fasces. America is trying to re-conceptualize the Roman Republic. Romans had a republic (the matter of the people/state), a system of representative democracy. The Senate is a Roman idea. 18th century British century built Roman architecture. This fasces symbol is everywhere: Lictor's at this time period carried them, they protected and represented the consul. The Fasces is made of sticks of birch wood bound by leather and there is an ax pointing out to the side representing the strength of the Roman army. However, people weren't allowed into Rome proper with military personnel or weapons in the city so there was no ax on the end of the fasces in the city. This symbol is a metaphor - each stick could break easily, but a bunch of them bounded together is very strong and cannot be broken. Many peoples interest's combined are strong 'el plubris unim'— out of many, one. Where you can see a fasces: George Washington leaning on one = symbol of western democratic society trying to capture the meaning of the Roman republic. Fascism term meaning- consciously trying to evoke the Roman Empire; hyper nationalist, pro army. (Mussolini) • Fascismo

How you record a deed, the three flavors of recordation

Race Jurisdiction Notice Jurisdiction Race/Notice Jurisdiction

South Staffordshire Water Co v Sharman

Really old case!--Court of Queen's Bench • Sharman has been hired to clean out the Companies pond. • While doing so he finds 2 gold rings. • Sharman gives the rings to the police, and asks if they could you put an ad in the paper to find the owner. • Since the police didn't find the owner (like bridges v hawkesworth) they give the rings back to Sharman. • However, Staffordshire says they should be the owners of the rings • The case goes to the highest court in England. • Reference to the case above: Hawksworth shop is open to the public o In this situation it can belong to the finder o BUT the water company isn't accessible to the public (public at large isn't invited to be there) o Sharman was only there because he was hired to be there. o This shows that it was a private place and that Sharman was an agent. • South Staffordshire Water Company wins.

Constitution, know the commerce clause A1S8

Relevant Information: Article 1 (Constitution) creates and empowered the legislative branch of congress (section 8- called the enumerated powers clause = the portion where the specific powers of this branch are listed) - Enumerated Powers- the first power is to lay taxes, the purposes of these taxes are as follows: 1) provide for common defense 2) provide for the general welfare— (doesn't include what welfare is so we will constantly argue about this.) 2nd power is to go into debt to foreign powers. 3rd right is to regulate commerce with foreign nations among the several states, and Indian tribes. AKA Commerce Clause (example: California can't sign a trade agreement with France) Article 2 creates the office of the president and executive branch of government Article 3 creates the judicial branch of government Article 4 gives rights to the states relative to the government

Heart of Atlanta Motel, Inc. v. United States "intrastate commerce vs. interstate commerce"

Supreme Court, 1964, Originally from Georgia. Fighting about the constitutionality of the law: • Civil Rights Act of 1964 o Regulation of commerce - not equality or fairness. • 14th Amendment (on the other hand) - ONLY applies to state and federal governments having to treat you equally through 'the equal protection of laws' o But any average person can treat you unequally. • There was nothing about discrimination until the Civil Rights Act. • Idea is that discriminating against people affects interstate commerce o Therefore - the government can regulate it by prohibiting it. This motel is the first entity to fight this law - they have a problem with it because they claim they could lose business by allowing African Americans to stay there. Their argument is that the law shouldn't be applied to them, for the following reasons: - They argue that it isn't Interstate Commerce: o The motel says that they do business in Atlanta - which is for sure just in Georgia o Not just on the border, but they are INSIDE (so only in Georgia) o Arguing that it is intrastate commerce. - They also argue the 13th Amendment: o "The government is making us slaves by being forced to serve African Americans" o So every regulation makes you a slave? o You are a slave by having to get a drivers license to drive? Why the government says the motel is wrong (3 reasons): 1) 75% of the guests come from outside of Atlanta. • The hotel is right next to 2 interstates • They have a goal of trying to attract out of state customers. • So they are definitely not just intrastate. 2) They are advertising outside of Georgia on billboards. • They send their Georgia dollars to purchase goods and services in other states • This is interstate commerce. • They also have ads in magazines. 3) Traveling for African Americans is then more difficult because they don't have anywhere to stay - so they decide not to travel at all • This is restraining trade. • In the aggregate this makes a big difference • If hotels are discriminating against African Americans, this will also affect gas stations, restaurants, etc. (if African Americans don't travel). Heart of Atlanta Loses.

What are the three types of gifts?

THREE KINDS OF GIFTS 1. Inter vivios • Regularly gifts 2. Testamentary gifts • Wills 3. Causa Mortis • Circumvent actions of will - can beat will if perfect • No will? Then can fudge the rules

United States v. Lopez (1995) "gun free school zone act & appropriate commerce clause use"

This case was the first time in 75 years that law went to the Supreme Court on grounds of interstate commerce and lost (Lopez wins). • Lopez brings gun to high school in TX - says he is going to sell it to someone else • Gun Act = 1990, Bush was president o 25 years ago Republican president passed a law preventing guns in school • What does Act do? o Cannot possess gun near school (1,000 ft) Live near school - no gun Driving past school - no gun o Nothing to do with 2nd amendment o About business - commerce power - interstate commerce! • Argument: o Affects Education - people care about schools when moving into a neighborhood. If kids constantly have guns in school, people probably do not want to be around that or send children there (what a lot of people think) Even if this is wrong - people still think it People prefer to move where there are no guns in the school No one moving there = property value goes down All impacts interstate commerce • Lopez wins the case - out of prison! • Law declared unconstitutional o Immediately after - UT state legislature passed law allowing guns on campus • Why does Lopez win? o Public school is not really interstate commerce o Lopez literally engaged in commerce (going to SELL the gun), but law criminalizes possession of gun - just because you own it does not mean you are engaged in commerce o How can government power regulate things that aren't even commerce? o If regulating commerce - it has to be commerce! o Lopez is engaging in commerce, but as per the law, possession of it is not commerce o Possessing a gun, it may never be sold again

What circuit court is Washington D.C. in?

United States Court of Appeals for the District of Columbia Circuit While it has the smallest geographic jurisdiction of any of the United States courts of appeals, the D.C. Circuit, with eleven active judgeships, is arguably the most important inferior appellate court. The court is given the responsibility of directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government based in the national capital, often without prior hearing by a district court. Aside from the agencies whose statutes explicitly direct review by the D.C. Circuit, the court typically hears cases from other agencies under the more general jurisdiction granted to the Courts of Appeals under the Administrative Procedure Act. Given the broad areas over which federal agencies have power, this often gives the judges of the D.C. Circuit a central role in affecting national U.S. policy and law. Because of this, the D.C. Circuit is often referred to as the second-most powerful court in the United States, second only to the Supreme Court.

Wetherbee v. Green "understanding accession"

Wetherbee is a hooper o A hooper = a very skilled profession (for wagon wills, barrels etc.) • Green owns land and has tenants on the land o Camp, Brooks, and Summer are the tenants on the land. • Summer licensed Wetherbee to cut trees on Greens land but he doesn't actually own the land and therefore doesn't have the authority to authorize Wetherbee to do this o BUT Wetherbee doesn't know this. • After Wetherbee cuts down the trees and makes the hoops, Green comes and demands that he owns the hoops because they were made with wood from his property without his permission. • This is the same fight of Edwards v Sims o Green makes Lee's argument: that it is on my land so it is mine o Wetherbee makes Edward's argument: that these aren't your hoops because I made them. (Remember Edward's argument was that it is was his cave because he put in all the effort to make it something valuable). REVIEW: Green's land, Summers (tenant on Green's land) gives license to Wetherbee to cut down wood on Green's land; Summer doesn't have the authority to grant this license though. Green sues because he wants the wood back that is now in the shape of hoops (Wetherbee had already changed the wood into hoops that are now much more valuable). The hoops are worth about $700 (around $25,000 today). The value was only $25 before he turned them into hoops. Wetherbee is willing to pay the price of the wood but he is now the owner of the wood that he took without permission. ACCESSION (Accede to an ownership interest). Wetherbee wins because: 3 requirements for a valid ownership of accession. 1. he believed in good faith that he had acted correctly 2. he expended labor among the personal property (only for personal property, not land or intellectual) 3. increased it in value

Can businesses in the business of bailment exempt themselves for certain property they won't carry?

YES they can exempt themselves for certain property that they won't carry (UPS won't carry, cash, human organs, animals) • They can remove everything they want as long as it is published and applied uniformly to everyone. • For Example: they wouldn't have to pay for cash that they lost because they said they wouldn't bail cash.

Donatio Causa Mortis Gift

a gift given by a living person who expects to die from a known cause 4 Elements to DCM: 1. Donative Intent (in contemplation of imminent death) 2. Actually dies from the peril contemplated 3. Acceptance 4. ACTUAL delivery (the donor transfers them physically) This type of gift can defeat a 'will' if it is done perfectly.

Testamentary Gift

a gift made through a will Elements listed for TG: : Very formal: a will (wills have very formal procedures two witnesses) Donatio Causa Mortis is always in conflict with Testamentary gifts. • If not perfect, the Donatio Causa Mortis will lose to the will because the will is a much formal document. • However, a PERFECT gift Causa Mortis will defeat a will. o An Imperfect gift causal mortis will always lose to a will.

Review on Bailment

deliver possession and control of property, to another person, and the property will be cared for and returned.

According to Justice Rehnquist (US v Lopez case) what are the three categories for appropriate government use of the commerce clause?

o Channels - Channel in which commerce moves / Path of interstate commerce- highway, river, railroad, internet, telephone lines, air space, (not the thing moving around, but the place in which it moves) Sounds like Gibbons v Ogden - still good law Give people license to travel o Instrumentalities - not the river, but the boat - not the internet, but the computer, etc. (the actual instruments of commerce Sounds like Heart of Atlanta and Katzenbach Like hotels and meat moving across state lines Still regulatable Remains constitutional o Activity that Substantial Effects - government can regulate this Sounds like Wickard v Filburn, wheat case Still good law All about things in aggregate that still affect interstate commerce Not unraveling entire constitutionality of law Why we have every single aspect of government regulation Everything government does not about military or taxes = commerce clause Commerce Clause is regulation of business, basically everything the federal government does Everything we do is basically a way of saying it's a way of regulating business

Fee Simple Absolute

o If you own every stick of the property you have Fee Simple Absolute—perfect complete, and total ownership o FEE SIMPLE ABSOLUTE - no one else has any claim of any kind of your property. o 100% of property is being turned to you with no conditions. o Fee simple is that there are no conditions on what I am granting you. (A is grantor and B is the grantee)

Three different types of bailment

s (distinguished by who benefits from them) 1. exclusive benefit for the bailor a. EXAMPLE: can you watch my computer for a minute? — essentially a favor for the bailor by the bailee b. It is going to be easier to argue you out of liability if you are the bailee. c. If they are doing a favor than the responsibility is a little lower. 2. exclusive benefit of the bailee a. EXAMPLE: I forgot my pencil can I borrow yours? b. If the Bailor is giving you a favor then there is much higher responsibility. 3. mutually beneficial a. EXAMPLE: valet parking - there is the benefit of not looking for a spot and there is payment to do it b. Responsibility of reasonable care These distinctions matter because the bailee is assumed to have reasonability for damages. • But if it is a benefit exclusively for the bailor then it is a lower liability and responsibility for the bailee. • But, if it is just for your benefit then you have high responsibility. • In the middle, where both benefit then the responsibility is reasonable care. o Example: coat check valet - bailee still has responsibility but only reasonably.

Tenancy in Common

the default way people together own property. • Example: Jeff and Ericka own land, they each own the percentage of the property that is equivalent to the percentage they put in of the purchase price o i.e. Jeff has 60% and Ericka paid 40% so has 40% ownership o NOTE: You can make a contract to change the amount of ownership percentage not equivalent to the price they put in. • Imagine it is a piece of commercial real-estate and they are going to lease that space, if it makes profit Jeff gets 60% and Ericka gets 40%. • Also, if you have to put up a new roof for damage then they both have to pay the cost of their percentages. • Negative Effect of this type of ownership: If Jeff wants to sell out his 60% and he can sell it to 2 new people at 30% each, he can do that regardless of what Ericka wants o Even if Ericka doesn't want to be in business with them - 'tough' o Ericka can just sell out if she wants (POSITIVE EFFECT) • Positive Effect: Being able to sell out whenever you want is the benefit o The benefit of flexibility. • In the contract you can say a lot of different things but without a contract these are the default things. o EX: If Ericka dies and in her will gives 40% to Jeff then it is a tax on Jeff, because income for the year is taxed on acquisition. • Overall, the building is shared between the people. • In addition, the person with the majority gets to make the decisions and the person with less percentage has to do whatever the majority decides, which is also a negative.

Declaration of Independence, July 4, 1776

why the colonies had chosen to separate themselves from Great Britain.

South Staffordshire Water Co v Sharman cont.

{CASE OVERVIEW #2} • South Staffordshire = business - own 'pool' (maybe a pond or small lake?) o Privately owned • Sharman employed to clean pool o Finds 2 gold rings o Gives rings to police - find rightful owner o No owner found • Pool = private zone (privately owned by Staffordshire, only accessed by Sharman because invited there) o Rings lost or mislaid? o Rings lost - no one lays a ring at the bottom of a lake... But if no one has access, how did the rings get there? Are they really lost? Instead of lost or mislaid is there a third way the rings could get there? ABANDONED • Chattels can turn up on land: lost, mislaid, or abandoned • Reason for lost vs. laid dichotomy? o Advantage of mislaid = protective of rights of rightful owner o If there was no distinction and the finder ALWAYS became rightful owner... then you would lose things all the time o Maximize possibility rightful owner will get their stuff back • Abandoned property - is the rightful owner ever going to come back? o No o Should belong to the finder o Rightful owner demonstrated the removal of themselves from the item Ex. Find sunglasses at Starbucks on the ground (lost), on the counter (mislaid), or in the trash (abandoned) • Sharman also employed to be there! o If you are an employee and find something - it belongs to the employer o Create a world where employees are agents that can claim ownership.... Then you have incentivized dishonesty about where things are found o Create a world where the employee cannot claim items from those who control the space... • Agency relationship makes a difference

Special Warranty

• Anything less than general warranty. • Imagine if there are 20 warranties and you are only getting 19; anything less than perfect, is a special warranty deal. • Example: house bought from the lenders (investors in this scenario haven't ever lived there) - they couldn't promise you the house roof wouldn't leak because they hadn't lived there. o In exchange you are getting a lower price for not getting all of the general warranty. • Any kind less protected than general warranty • Says we will not provide X X and X • Get all these promises, but not that one

Term of transferring ownership - From A to B for B's Lifetime (Reverter Interest and Life Estate)

• B is getting what looks like perfect ownership, but for a limited time and that is determined by how long B lives • When B dies the interest in the land is gone so it goes back to A. o This is called a reverter interest: A passes every stick to B but keeps the reverter stick (to get property back at the death of B) This means that B can't sell the property or get rid of it B doesn't have the right of alienation (sell or give away property) - this is called a Life Estate (they are the owner until they die. Also, if A dies then it goes back to A's heirs through the estate). LIFE ESTATE - Reverter Interest • Blackacre from A to B fro B's lifetime • Time limited grant • B is owner of property (not a lease) • A transferred ownership to B - but with one stick in the box • B cannot give property away, cannot sell it, and cannot bequeath it • B has it in every way that matters besides this... • Upon B's death the property goes back to A (automatically) o Reverter interest • No right of alienation • A has the right to get the property back • B is the owner - but only for their lifetime • When B dies, it goes back to A

General Warranty

• Best kind of deed • The deed that contains all the possible guarantees that you could possibly get. • Example: Promise from the grantor that they are the actual owner of the property, that the property is the exact way it was described, promise that the grantor has the right to sell you that property. If they actually don't have the ability to sell then you can sue them. Promise that what you are buying is how it is said to be; that there are no other people that are owners of the property in any other amount. If I say you are getting 100% then that is what you are getting. o If you promise all of those things then it is a general warranty. • General warranty deed is perfect protection. • Every guarantee you can have is there • Grantor will fix all problems • Is very good • Reveals problems to you and if they don't, have violated the warranty

Bridges v Hawkesworth (1851) Totally public space = finder owns it Totally private space = owner of space owns it "Understand finding and how it pertains to ownership"

• Bridges finds envelope full of money on shop floor • Hawkesworth owns the shop • Bridges takes money to shop owner Hawkesworth o To find rightful owner o Haweskworth takes the money • 3 years later Bridges comes back - did you ever find the owner? • Owner never found • Bridges says finders keepers • Hawkesworth won't give money back: o Real Reason - he already spent the money o Legal Reason - not Armory v Delamarie, you found it in MY shop Finding in my shop makes it different My shop = mine (belongs to Hawkesworth) • Court says - it is a public location o If someone had kicked the envelope of money out in the street and then found outside - clearly Bridges o But it is the same - Hawkesowrth did not notice the money o Shop is no different than outside on the sidewalk • Shop is accessible to the public - anyone can go in o Similar to Armory v Delamari in this sense o Finders Keepers!! Envelope money found on shop floor. Dispute between shop-keeper and finder over who has better title. Court held that the finder had the better title. This decision was later interpreted as being because was found in 'public part of shop' where shop-keeper did not have sufficient control.

Differences between a deed and a title

• Deed is a piece of paper with writing on it. • A deed describes your title and how it is transferred • Documents expressing title and transfer • Title is a legal relationship of a human being to property, an idea that is abstract. • Title is not a document - not a piece of paper • Title is a legal concept - means ownership in legal aspect - doesn't exist anywhere, just is • Deed asserts title, a document. • Real property can't be transacted without being in writing (example: land) o Therefore there has to be a deed.. a piece of paper that is essentially a contract. • Deed comes in different flavors and is defined by what the deed guarantees to the person it is given to. o 2 parties involved: Grantor owns the property and gives it to the grantee

Race Jurisdiction

• Example: sold house for $400K to Angie, and she didn't file it quickly and then a week later sold the same house to Wendy. • The rightful owner depends on the jurisdiction. • Race Jurisdiction = whoever files first o Even if the second person knows of the first person that bought it. o Record ASAP with this jurisdiction. • Whoever gets there first to record the deed is the rightful owner • Even if you know about each other... • Second largest group of states are race jurisdictions

Gibbons vs. Ogden "arguments of what 'among the states' means"

• First case to deal with federal government regulating commerce • Article I, Section 8 - enumerated powers clause o Most of the time, constitution resists explain itself with specificity o BUT this describes specificity - legislation branch of government o Sets out actual duties of what congress will be o First defined power = taxes (do not have to like or think they are right, but cannot pretend something is wrong about people in government collecting taxes. First part described as a power and has 3 purposes:) 1 - to pay debts (#1 defined purpose, implying we will always have debt... assumed we will run a debt and pay off by getting taxes from the people) 2 - provide for common defense (i.e. military) 3 - provide for general welfare (what does it include? What is part of this? What should it include? No answer, it is not a defined term) • Weird part of constitution = no answers (people will ALWAYS have to argue about the powers of the government) • Strength in this - always an opportunity to fight, nothing is ever over (i.e. abortion) • Constitution prefers flexibility over specificity - also how it manages to be 6 pages long (shortest in history - why it survives, flexible and breathable) o Second defined power = borrow money on credit o Third defined power = regulate commerce (business) Most powerful line in entirety of the constitution Commerce Clause Focused on commerce among the states - undefined! • What does it mean to be commerce, regulated, among the several states? • Very clear government can regulate interstate, but NOT intrastate (inside the state) o This is the first case to address this issue

Differences between public and private places

• Fully private - lost or mislaid or abandoned = owner of space • Fully public - lost or mislaid or abandoned = owner is finder • Hybrid - o Lost - belongs to finder o Mislaid - belongs to who owns zone o Abandoned belongs to finder as long as they are not an agent If you are an agent - you will never get ownership no matter what! Who found it? • Employee or agent? • Invited there? • Etc. For the exam ask yourself: - 2 situations: is it a private or public place, and are you an agent or not? o HELPFUL: there is a good guess that even if it is a guest at the house then it belongs to the home owner. For the exam consider: 1) what type of property is being found (lost, mislaid, abandoned) 2) where is it found.. accessible by the public or not? 3) who is it found by? EX: If someone is working for the landowner - then it belongs to the landowner who is employing the agent that found it By using these 3 criteria you can figure out who the owner of the property is.

Restrictive Covenant

• HOA (home owners association) - take language of restrictive covenant and enforce it • Restrictions include: cannot paint house a certain color, no political signage in lawn, lawn a maintained at a certain standard, holiday decorations, etc. • If you live in a planned community, extremely common • Restrictive covenant are a completely ordinary thing

Term of transferring ownership - From A to B for C's Life (Life Estate Pour Autre Vie)

• Interest goes to B for as long as C is alive. • When C dies it goes back to A • C's life is just a reference for the amount of time. • C doesn't even have to know about it - it is B that gets the property interest. o This is called Life Estate Pour Autre Vie. o In the normal Life Estate scenario (above), it is B's life that is the 'expiration time' but in Autre Vie it is C's life who doesn't have the property interest. LIFE ESTATE - Pour Autre Vie • For another's life • Blackacre from A to B for C's lifetime • Now instead of for how long B is alive... but rather for how long C is alive • C has no interest in the property • C will never get the land • C is a way of measuring time o "I grant you this property for as long as George Clooney is alive" • Do not want the property out of the family, for example, and I want it to go to someone.... But not yet • The simpler way to do this is a trust • Most people do not do this

Fasces- metaphor of legal power - think of ownership like this:

• Normally people think of ownership as black or white and owned or not owned. • Real property is not like that. • Ownership is a number of discrete interests bound by ownership. • EXAMPLE 1: Writing a Book o If you wrote a book, you are the owner by creation and the book is yours. If you want the book to be published you have to sell the publication rights. Now, imagine the book becomes a big success and new people want to make a movie of it. Now the owner can sell the movie rights because he only sold the publication rights before to someone, he can still sell the movie rights. o He still owns the 'stick' called merchandising rights and can sell that separately as well. • Example 2: Renting an apartment. o They are dividing their sticks of ownership o They are the only one with rights to sell the house. o They passed you the stick of possession and power of regress and ingress. • Ownership is a bunch of discrete rights that can be separated in anyway you like, like the fasces. • The metaphor can also be extended to the ax on the fasces representing that you have the power to enforce these ownership rights. • Property is like a fasces = a bundle of sticks and rights.

Edwards v Sims (great onyx cave) Decided 1929 Kentucky ownership

• People in the case aren't all involved in the drama of the lawsuit— Edwards is but Sims is not. • Sims is a Judge • Edwards is suing the judge because the judge made a decision to invade his land. • Edwards wanted an order for the court prohibiting Sims order. • Lee v Edwards is the original case before this one o In that case Lee sues Edwards because he believes that the cave that has an entrance on Edwards land goes onto his property. o Lee sues Edwards because Edwards leads tours through this cave. o Lee is suing Edwards for trespassing. o Lee doesn't know if this is true or not, no one truly knows. o Sims is the judge in Lee v Edwards and orders a surveying of the cave— which allows people to go into the cave and determine if it is on Lee's land. • Edwards is suing Sims— Edwards doesn't want the survey to happen because if it is on Lee's land then he could shut down his business and say 'get off my land'. • The other legal argument that Edwards thinks is inappropriate is that the surveyors are trespassing. • Edwards argument is that: Lee has the burden of proof to make the prima fascia case of proof that Edwards is trespassing. • Majority Opinion- Judge Stanley's argument is that Sims wins (the Judge that ordered the survey of the cave), which means Lee wins. • This results in: the surveyors do go onto Edward's property and discover that the cave DOES go under Lee's property. • Stanley says when you own property you own everything about it and everything below it, "Cujus est solum, ejus est usque ad coelum ad infernos" is a Latin phrase meaning to whomsoever the soil belongs, he owns also to the sky and to the depths— the depths of hell and the origins of the stars". o This is Roman law, very old law of what it means to own land. • After Sims wins, Lee goes down into the cave and builds a brick wall so no one has access to the cave. • Several years later and the Great Onyx Cave is now a National Park. • Conclusion: Sims allowed Lee to go on Edwards's property (through a surveyor) and do what he needed to do to stop trespassing onto his land.

Two main types of Concurrent Ownership:

• Tenancy in common • Joint tenancy

Allen v. Hyatt Regency-Nashville Hotel "bailment"

• The hotel (Hyatt Regency) has a parking garage where anyone can park there. • He (Allen) believed that the garage was safer than other ones, because they have security guards (and advertised this!) • Allen also knows this because there is a human being at the exit. • There is only one way in and out of the garage and they are the same. • He knows there are security guards because there is a sign that advertises that from the Hotel and it encourages people to park there. • Allen parks his car there and when he comes back, it is gone. • The Allen's then ask the attendant at the entrance/exit if they saw that car and the attendant responded saying that the car didn't go through there o This statement is false o To exit the garage you have to pay and show your ticket o There is no other way the car could have exited. o The person that took the car wouldn't be able to show the ticket. • The Allen's sue o They don't sue for conversion— which would mean they would be suing for, 'you took our car' o They are suing them for bailment they claim that there is a bailment created when they parked their car there. • Bailment is: o Bailor maintains ownership of the property o The baillee gains possession and control of it (but not ownership). o Bailment is the way you can become possessor and gain control of property but not ownership (personal property only). o For bailment to occur there has to be delivery. o Another necessary component is that the bailee has the expectation and understanding that they will return it and that it will be returned in the same condition, or at least as good of condition, as it was given. - Hyatt Hotel Argument: • The ticket says they are not responsible for damage or theft, etc. o Did Allen see this language on the back of the ticket? Probably not. • The hotel doesn't believe that it is a bailment o In their opinion they don't do bailments of cars. o For them, they think they are not providing protection of property, but simply leasing the parking spaces o They are in the business of renting space on the ground. • They also argue that it is not a bailment because they didn't take the keys of the car. o Allen has the keys to the car demonstrating it can't be a bailment because he didn't transfer possession and control of the property. EXAMPLE: if there was a fire, what could they do to protect the car? o Overall, they argue that they didn't have control so it wasn't a bailment. • Allen wins though. • This is a very peculiar case. • Parking garages get sued a lot, and the parking garage always wins. • If you don't have the keys to the car then you don't control it o HOWEVER the advertisement of a security guard, in addition to the fact that someone had called the guards to tell them that someone was messing with a car and the guards waited and didn't go until later - all leads the court to let Allen win. o The hotel guards after receiving the call should have then let the attendee know that if anyone comes through that looks suspicious then stop them. o Hyatt is being punished and that is why Allen won o If you advertise that it is safe then it should be. o Every parking company after this case in the country stopped having security guards. Where there are security guards, they are there for the protection of people not the cars. • BLACK SWAN EVENT o (there are no black swans... very very rare) o Black swan = imaginable (not inconceivable) but just never going to happen o That is this case • Tens of thousands of law suits filed against parking garages and no one ever wins - cannot win against a parking garage... and yet - here is a black swan

Notice Jurisdiction

• Wendy would be the owner from the example above. • Whoever most recently acquired the property owns it o Unless the most recent knew that the first person had already purchased it. o Wendy (2nd person) is the owner; only her bad faith would keep her from owning it. • Whoever is later in time is the owner, unless they knew about Angie having already bought the property. • Preference for the person who most recently acquired the ownership interest in the property • UNLESS they had notice of the other person's claim • If you know of someone else with interest in the property, you cannot claim it • Has to be in good faith • Once you record it - it counts as notice • Most recent in time as long as you didn't know about someone else competing • Most states that were notice have now become race/notice