Property Law I
Vested Remainder Subject to Divestment
Remainder that is vested but it is subject to a condition subsequent Remainder is vested subject to divestment if it is: 1) not subject to a condition precedent BUT 2)
Joint Tenancy
Right of Survivorship
Right to EXCLUDE
Right to Exclude others from the use or occupancy of the particular "thing" This is a critical component of property ownership. One of the most essential sticks Blackstone- you can keep someone off your property for no good reason any entry onto another's property entails a trespass whether or not it causes any damage This is not absolute. Ex: police officers entering your property pursuing criminals O might own title to Redacre subject to an easement that gives otherwise sue the land O might lease Redacre to a tenant for a term of years-- surrendering right to exclude
Natural Law Theory
Rights arise in nature as a fundamental justice, independent of govt. John Locke- the role of govt was to enforce natural law, not invent new law.
C) DELIVERY BY WRITTEN INSTRUMENT (type of delivery)
Since delivery has been established as a fraud-prevention device, most courts will accept a written document evidencing the gift. The execution and subsequent delivery of this written "deed of gift" should be sufficient to accomplish the gift.
Prah v Maretti
Solar panel.. Maretti wants to build a house next door that blocks sun to Prahs house Issue: Whether private nuissance law provides a cause of action Policies supporting old rule: jealously guarded right of landowners to use property sunlight had less value strongly pro-development New Policies: increased land use regulation to promote general welfare Sunlight is more prized (it's an energy source) Economic Policy- access to sunlight as an energy source is of significance both to the landowner who invests in solar collectors and to a society which has an interest in developing alternative sources of energy Holding: law used to balance the rights of landowners Private nuisance law applies, and the plaintiff has stated a claim upon which relief can be granted Court does NOT decide if P is granted relief *Expands legal limits on the right to use land -Can apply private nuisance law -does not require malice -may restrict useful conduct (building a house) No real evidence of malice
Exceptions to Right to Use
Spite Fence Doctrine Nuisance Doctrine
Actual Possession (Minority)
Statutes specify conduct that constitutes actual possession Generally, claim is based on the "claim of right," claimant must cultivate, improve or substantially enclose the property. Generally, if claim is based on the "color of title" need only perform minor activities
But if
Subject to Condition Subsequent
However
Subject to Condition Subsequent
On Condition That
Subject to Condition Subsequent
Provided that
Subject to Condition Subsequent
Grantor conveys "to Martin and Ryan as tenants in common"
TIC Words of Conveyance
Grantor conveys "to Martin and Ryan"
TIC Words of Conveyance
Grantor conveys "to Martin, a 1/2 undivided interest in my home Blackacre."
TIC Words of Conveyance
all joint tenants must acquire their interests at the same time
TIME
all joint tenants must acquire title by the same instrument
TITLE
1) Types of Delivery
The basic ways of accomplishing the delivery requirement are: (i) actual physical delivery; (ii) constructive delivery, (iii) delivery by written instrument; (iv) symbolic delivery
Anticipation of Death
The definition of a gift causa mortis includes the requisite that the donor be in contemplation of imminent death. As originally envisioned, the donor must have been suffering from an illness that realistically confronted her with a fear of death.
Gifts Causa Mortis 3)Delivery and Acceptance
The delivery and acceptance requirements that are essential to the validity of a gift inter vivos are also required for gifts causa mortis. a)Identical Test To accomplish a gift causa mortis, the requisite donative intent, in addition to delivery and acceptance of the subject matter of the gift, is required. The rules relating to delivery and acceptance are identical for both gifts inter vivos and gifts causa mortis, with one exception. b)Exception—Delivery by Deed of Gift (Symbolic Delivery) There are a significant number of states that hold that the donor may not accomplish a gift causa mortis by virtue of symbolic delivery. The rationale given is that execution of a written document that acts as a testamentary device should be sufficient to vest title in a donee only if drawn in compliance with the Statute of Wills. All other forms of delivery previously indicated as being acceptable for the valid accomplishment of a gift inter vivos will be sufficient and acceptable for the valid accomplishment of a gift causa mortis.
Gifts Causa Mortis 1) Present Mental Capacity
The donor must have the same present mental capacity to make the gift as is required for a gift inter vivos.
Mellow Mushroom wants to hire Blake Bortles to promote its restaurants. Due to his recent selection as a first round draft pick for the JAgs, Mr. Bortless' agent informs Mellow Mushroom that Mr. Bortles's fee for the product promotion is $1 million dollars. MM is not willing to pay that amount. Instead MM hires a tall, lean actor with an athletic build who resembles Mr. B. The television commercial features the actor throwing a football, driving an Audi (the car company Mr. B endorses), and posing wearing teal and black. Mr. B brings and action seeking an injunction to prevent MM from airing the commercial. Based on these facts, and presuming Mr. B brings his suit in a jurisdiction with common law right of publicity identical to California's Common Law rule, how should the court rule?
The facts of the case are too closely related to Mr. B and they're promoting a product. The injunction should be granted because the television commercial is designed to associate MM with Mr. B in violation of Mr. Bs right of publicity
Inclusio unius est exclusio alterius
The inclusion of one is the exclusiong of another
Future Interest
The owner of the right to possess the land in the future owns a "future interest" in the land.
Possessory Estate
The owner of the right to possess the land now, in the present, owns the possessory estate
Devisee
The person receiving the property is the "devisee" Heirs and devisees do not mean the same thing Devisees are beneficiaries under a will Heirs inherit property not disposed of by a will A will does not create any interest in property until the testator dies
What is a "devisee"
The person who receives the property is a "devisee"
3) Donative Intent Applies to Title
The requirement of donative intent should not be construed to require that the donor intends the donee to obtain full and complete rights of use and enjoyment in the subject matter of the gift. The donor may intend to immediately very title in the donee, and yet reserve right of possession until some future date. Notwithstanding this intention, a gift may be effective.
Special Problems in Delivery (d)Life Insurance Policy
The rules for delivery of life insurance policies are similar to those for delivery of stock certificates.
Anticipation of Death a) Imminence
There is recognition of a valid gift causa mortis as long as the donor was suffering from an actual illness that threatened her life. The mere abstract fear of death from a future cause (e.g., fear of flying, fear of death in war, etc.) is not sufficient. b) Death as Anticipated To validate a gift causa mortis, older cases held that the donor had to die as anticipated. If she died from some other cause, some early decisions indicated that the gift was revoked. There has been, however, considerable liberality given to this concept in more recent decisions.
Post owns a pet macaw. Post allows the bird to fly in the uninhabited woods near his home, and the bird always returns home to Post. Pierson sees the bird in the woods and captures it. Under Pierson, which is correct? A- Pierson is entitled to the macaw B- Post is entitled to the macaw
This is Post's bird
Bequeath
To "bequeath" is to pass personal property by will A Decedent who dies testate "bequeaths" his or her personal property to those named in the will
Devise
To "devise" is to pass real property by will. (Martin devised his property to his stepson)
(1/2) REQUIREMENTS for Delivery by Written Instrument
To be sufficient, the writing should manifest the donative intent, describe the subject matter of the gift, be signed by the donor, and be delivered.
Visitor Rights
Visitors can come to your home
Right to Possess and Use
What is the scope of an owner's right to use his or her property? Traditional English rule Absolute right to use one's own property in any manner one desires American rule Sic utere tuo ut alienum non laedas Right to use one's property in any manner so long as the use does not harm the rights of others Exceptions to right to use: Spite fence Nuisance Current practical reality zoning and other use restrictions affect almost all land in the U.S.
Trespass Doctrine
What is trespass? Doctrine of tort law Action by a property owner against a party who enters the property "intentionally" and without "privilege" Intentionally = voluntarily Privilege = consent of the property owner (or some other legal right to enter, like necessity) One is liable under the tort of trespass even if there is no actual damage to the property
Bequest
What the property itself is called
B) CONSTRUCTIVE DELIVERY (type of delivery)
When an item, because of its size or location, would be impossible or impracticable to manually deliver, substitute delivery may be sufficient. In such cases, the delivery requirement will be satisfied if the donor surrenders as much control over the subject matter of the gift as he presently possesses.
D) SYMBOLIC DELIVERY (type of delivery)
When manual delivery is impossible or impracticable, symbolic delivery is permitted. Symbolic delivery occurs when the donor hands over some object, other than the item given, that is symbolic of the item. Symbolic delivery is most commonly effectuated by delivering a written instrument, as described above.
Acceptance of Donee
When the gift is beneficial to the donee, acceptance by her is presumed. However, the donee may refuse to accept a gift by an affirmative act.
Example of Intent to Make a Present Gift
Where the Donor intended to retain use of so much of her bank account as she desired during her life and to give the balance remaining at her heath to the donee, there was no valid gift, even though the bank book had been delivered to the donee. There being NO INTENT TO MAKE AN IMMEDIATE GIFT, and the transfer not being effective until the donor's death, the transaction was testamentary.
Advertising or Art? Does it make a difference?
Yes, art is an expressive form and usually isn't held to the same standard of Advertising. It also isn't necessarily selling a product. Example: Gatorade commissioning this painting this would be different. Public domain: allows us for having things such as art, comedy, parody.
Is there something wrong with this sentence? Since Harold did not have a will Maude is the devisee of his entire state
Yes, you cannot be a devisee if there is not a will in place
A constructs a windmill in her back yard to generate electricity. B now proposes building a home on an adjacent lot, partially blocking the wind. Should the court apply a nuisance law?
Yes-- look to the nuissance law elements
Is there something wrong with this sentence? All of Barbara's heirs are coming to visit her this summer
Yes. Heirs are to be determined at the time of death. Therefore, Barbara's heirs cannot visit her this summer and be called heirs.
alternative contingent remainder
a pair of remainders with opposite conditions precedent
alienable
a property interest that can be conveyed to another person is alienable
Sundowner, Inc. v. King
abatement- to shrink Spite Fence Doctrine- landowner cannot erect an unusually high fence along his property line for the sole purpose of annoying his neighbor. EXCEPTION- to absolute right to use property. It is plain that the right to use one's property for the sole purpose of injuring others is not one of the immediate rights of ownership. It is not a right of sake for which property is recognized by the law.
inter alia
among other things
Clarisse and Percy both are hunting raccoons in a dense, wooded forest. Percy's hunting dogs have scented a raccoon, and they pursue it over the course of a mile as the raccoon races through underbrush, climbs trees, and leaps from limb to limb. Before Percy can kill the raccoon, Clarisse arrives and shoots the raccoon, killing it. Under what circumstances would Percy be most likely prevail in a claim to recover the raccoon? a. Percy's hunting dogs have chased the raccoon up a tree b. Percy's dogs have wounded the raccoon, laming it so that it is unable to walk. c. Percy has shot the raccoon, injuring its tail. d. Percy's first shot has injured the raccoon's tail and, at the moment Clarisse arrives, Percy has sighted the raccoon, and is on the point of pulling the trigger.
b. Percy's dogs have wounded the raccoon, laming it so that it is unable to walk. Mere pursuit of a wild animal on uninhabited land does NOT give the pursuer (Post) a right to, or a property right in, the wild animal such that the pursuer should prevail over another (Pierson) who, with knowledge of the pursuer and in view of the pursuer, kills the animal and takes it away
Sandy Jones owns 50 acres of land in central Florida that are used as an orange grove. For three generations, the Jones family has harvested the oranges and sold them to Tropicana for its orange juice products. Sandy is tired of the hard work involved in harvesting the oranges. She wants to cut down all of the orange trees and convert the land to a nature preserve. Assume that the use of Sandy's land as a nature preserve is permitted under local law. Sandy's land is surrounded on all sides by orange groves owned by other people. The neighbors are also orange farmers who sell their oranges to Tropicana. The neighbors believe their property values will decrease if Sandy stops using her land as an orange grove. The neighbors are also concerned that the animals Sandy intends to keep on her land will damage their orange crops and that the nature preserve will attract bugs and pests that will reduce the volume of oranges that grow on their lands. If the neighboring owners sue Sandy and seek an injunction to prevent Sandy from cutting down her orange trees: a. The court should rule in favor of Sandy because she has the absolute right to destroy her property, regardless of the impact it may have on any neighboring properties. b. The court should rule in favor of Sandy because she has the right to destroy her property subject to limited exceptions, and none of those exceptions exist here. c. The court should rule in favor of the neighbors because the destruction of trees on Sandy's land constitutes a nuisance. d. The court should rule in favor of the neighbors because the use of Sandy's land as a nature preserve would result in decreased property values for the neighbors, thus Sandy's right to use her land should be restricted.
b. The court should rule in favor of Sandy because she has the right to destroy her property subject to limited exceptions, and none of those exceptions exist here. Eyerman Holding Property owner (here, the estate) does NOT have the right to destroy under these circumstances Property owner's right to destroy his/her property is not absolute Be careful! This is a very narrow holding where the court relies on: Architecturalandhistoricalsignificanceofthehouse Persondesiringtodestroyherpropertyisdeceased Fact that the will gave no reason for her desire to destroy the house
Hazel's will left a ________ [an item of personal property disposed of by a will] to her brother
bequest
Examples of person's issues
children, grandchildren, and all other lineal decendents
Statute de Donis Conditionalibus
created in order to abolish the Fee Simple Conditional and led to creation of the FEE TAIL
Trader Joe owns a coffee bean farm in the hypothetical jurisdiction of Beantown. Trader Joe employs workers on his farm. Three labor union representatives seek to enter Trader Joe's property to convince the workers to unionize to improve their working conditions. Trader Joe is opposed to labor unions. Based on the holding in State v. Shack (the migrant worker case), which is the best answer? a.The union representatives have an implied statutory right of access to enter the property. b.The union representatives have a right of necessity to enter the property. c.The union representatives have the absolute right to enter anyone's property. d.Trader Joe may exclude the union representatives from the property.
d.Trader Joe may exclude the union representatives from the property. A property owner's right to exclude others from entering his/her property is not absolute. Limits are narrow Ownership of real property does not include the right to bar access to government aid workers or services that are available to a class of people who are in need of protection Does that apply here?
The ______ [dead person] had no heirs
decedent
Francine had never married. She died without a will and all of her blood relatives had died many years before. Therefore, her property will ________ to the state
escheat
absolute
estate without any limitations at all (with no inherent limitations). Only fee simple can be absolute
Right to Use (Utilitarian)
fair to assume that the owner of land in an agricultural society knows best how to use it productively for the benefit of all without any need for governmental interference.
Right to Use- Traditional
had absolute right to use his property any way he wished, so long as he did not harm the rights of others "sic utere ut alienum non laedas" Doctrine of nuisance (CL)- principal limitation on an owner's right to use
What is the term for relatives like aunts, uncles, cousins, brothers, and sisters?
heirs
Coase Theorem
initial allocation of a resource is irrelevant to economic efficiency- in the absence of transaction costs- because the affected parties will reach an efficient allocation through bargaining
POSSESSION
is a conclusion you reach after you decide what the social goals are
Spite Fence Doctrine
landowner cannot erect an unusually high fence along his property line for the sole purpose of annoying his neighbor. (malicious intent is REQ'D) P MUST PROVE: 1) the structure is useless/serves no useful purpose/has no value 2) The structure was built with the INTENT of injuring property owner/built with MALICE It is NOT recognized in ALL states.
Fee simple
largest of these estates no inherent ending no ending that is built into the estate by its very "nature" (tells us duration of that estate) the owner of the fee simple can keep the land forever, can sell/give it to someone else who can keep it forever, or can devise it to some who can keep it forever
Traditionaly, leasehold was seen as an estate in land
non-freehold estate
Landlord (lessor) transfers exclusive right to possession of the premises to the tenant (lessee) and retains a future interest (usually reversion) So lease was governed by property law concepts
nonfreehold estate
Private Nuisance
nontrespassory invasion of another's interest in the private use and enjoyment of land
Property rights
o Are defined by the government o Are NOT absolute o Can be divided (more than one person may have an interest in the same thing at the same time) o Evolve as the law changes
TIC Modern Trend
presumes that a grant to multiple transferees creates a tenancy in common UNLESS the instrument indicates OTHERWISE
Nature of the possessory estate
primarily tells us the duration of that estate
Orville conveys his farm, Blackacre, to Amelia for so long as Amelia shall live. Amelia moves in, but quickly discovers that farming is not for her. Ready to move to Nashville to start her singing career, Amelia gifts Blackacre to her sister, Bonnie, and her heirs. What is Bonnie's estate? a. fee simple absolute b. fee simple determinable c. life estate d. life estate pur autre vie
q
Personal Property
refers to rights in moveable items such as chairs, pens and computers and intangible things such as patents and shares of stock
POSSIBILITY OF REVERTER
retained by the owner of the FSA when he conveys a FSD
Property as Rights
rights among people that concern things
Real Property
rights in land and things attached to land, such as buildings, fences and tree Traditionally- this was the more important category
LegaL Positivism
rights including property rights arise only though government The title to lands... must be admitted to depend entirely on the law of the nation in which they lie Look to M'Intosh case: Court's decision could not rely merely on "principles of abstract justice" or on Native American Law, but rather must rest upon the principles "which our own govt has adopted in the particular case, and given us as the rule for our deicsion" Under laws established by the US, "Conquest gives a title which the Courts of the Conqueror cannot deny." Property rights, are defined by law
Name some examples of a person's collaterals
siblings, cousins, aunts, uncles, nieces and nephews
If Hazel had not died ______ [with a will], all of her estate would have passed to her daughter
testate
ascertained
the holder of a future interest is ascertained if that person is alive and identified. (the heirs of a living person are not ascertained if that person is alive and identified
Rule of Creation
the law usually vests title in the person who creates and entirely new thing
bequeath
to give an item of personal property by will
abatement
to shrink
Conveyance
two questions: 1) name of the person IF you can't give name(s) or are not told the name--> no vested interest 2) Is B's interest guaranteed to take effect when A dies?
Fundamental Precept of a free society
where a structure serves as a useful and beneficial purpose, it does not give rise to a cause of action.....utere tuo ut alienum non laedas even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state
Constructive Possession (deed or some type of legal doc) .. rule only applies if AP has color of title. Claimant with color of title who takes actual possession of a party of the land gains constructive possession of additional property described in deed or other instrument
you have title/deed and in the legal description it states what the property is.
Future Interests
• "O to A for life, then to B." • Ownership interests divided by time.
TIC Conveyance
• Grantor conveys the property to "Martin, Ryan, and Greg as tenants in common" • Martin, Ryan, and Greg each own an undivided 1/3 interest as tenants in common
Natural Law
Idea that universal laws are determined by nature, not government Focus on ethics and justice
Legal Positivism Natural Law
Property rights exist to the extent they are protected by the government Focus more on government authority, less on fairness
Tenancy in Common
"Unity of Possession" only: each entitled to simultaneous possession and enjoyment of the whole
Special Problems in Delivery (a)Checks
(1) Check of Donor The mere manual delivery of a check made by the donor does not fulfill the delivery requirement. Since the check simply orders the bank to perform the delivery of the real subject matter (i.e., the money), there is no delivery until such time as the bank makes payment. (2) Check of Another Since the check of another is not the directive of the donor to have complete delivery made by his agent, but rather a contract right given by another, its transfer fulfills the delivery requirement. It is important to note that even where a check must be indorsed by the donor for proper negotiation, the manual delivery of the unindorsed check (coupled with the requisite donative intent) completes the gift.
Examples of Constructive Delivery
(1) If A declares that he gives you an antique desk and all its contents to B and hands B the key to the desk, the delivery requirement may have been satisfied because A has given control over the desk. (2) Since a passbook to a savings account is evidence of control of that account, delivery of the passbook with the requisite donative intent is sufficient delivery.
Special Problems in Delivery (f) Joint Checking Account
(1) Rebuttable Presumption of No Gift In some jurisdictions, where a joint checking account is opened and one party puts in all or most of the money, there is a presumption that this is done for the convenience of that party and not as a gift, particularly where the person whose money is involved is an invalid or is otherwise unable to get to the bank easily. The presumption may be rebutted by clear proof of donative intent. It may also be rebutted by showing that convenience was not the reason; i.e., the person whose money was involved had ready access to the joint account. (2) Survivor Becomes Owner Other jurisdictions do not allow such a rebuttable presumption to be raised in the case of a joint checking account. If statutory formalities are complied with, the survivor of a joint account will automatically become the owner of the account (absent fraud, undue influence, mental incapacity, or mistake). [See In re LaGarce's Estate, 487 S.W.2d 493 (Mo. 1972)]
3 Requirements for Inter Vivos Gift
(i) Donative Intent (ii) Delivery; and (iii) Acceptance of the gift
CL Right of Publicity
**More open to interpretation. Must have all--> conjunctive test*** May be pleaded by alleging: 1) The Defendant's use of the Plaintiff's identity 2) The appropriate of Plaintiff's name or likeness to Defendant's advantage, commercially or otherwise; 3) lack of consent; and 4) resulting injury ***Not every state has this***
Charles Bennet conveys Longbourne "to my son Charles, Jr. and the male heirs of his body." Charles, Jr. moves onto the property. Charles has four children, Anna, Benjamin, Charlotte, and David. Charles leaves a will dividing all of his property equally among his four children. Anna has two sons, Edward and Frederick; Benjamin has three daughters, Gertrude, Helen, and Isabelle; Charlotte has one son, John, and two daughters, Katherine and Lydia; and David has one daughter, Margaret, and one son, Nicholas. Unfortunately, Charles, Anna, Benjamin, Charlotte, and David all die tragically and unexpectedly on the Titanic. Fortunately, all of Charles's grandchildren were safe at home when the ship sank. Who owns Longbourne? Assume the doctrine of primo geniture applies. a. All ten grandchildren inherit Longbourne equally. b. Anna's son Edward inherits Longbourne, and no other grandchild has an interest. c. Benjamin's three daughters, and David's son and daughter, each have a 1/5 interest in Longbourne. d. David's son Nicholas inherits Longbourne, and no other grandchild has any interest in the property.
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Charlie bought a beach house in 2000. Because he was busy with other things, Charlie stopped residing in the beach house in 2010. Knowing Charlie was not residing in the beach house, his estranged brother Alan began adversely possessing the beach house in 2011. The statute of limitations for adverse possession in the applicable state provides: The statutory period for adverse possession is 10 years. If, at the time when a person makes entry onto the land, the property owner shall be under the disability of minority, imprisonment or mental incompetence, the property owner shall have a period of 5 years after such disability shall have ceased in which to bring an action to recover the land. 1. Assume Alan continues to reside in the beach house and meets all other elements required to establish adverse possession. Charlie, and no one on Charlie's behalf, takes any action to remove Alan from the beach house. Under these facts, what is the earliest year in which Alan can successfully obtain title to the beach house by adverse possession? a. 2020 b. 2021 c. 2025 d. 2016
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Charlie bought a beach house in 2000. Because he was busy with other things, Charlie stopped residing in the beach house in 2010. Knowing Charlie was not residing in the beach house, his estranged brother Alan began adversely possessing the beach house in 2011. The statute of limitations for adverse possession in the applicable state provides: The statutory period for adverse possession is 10 years. If, at the time when a person makes entry onto the land, the property owner shall be under the disability of minority, imprisonment or mental incompetence, the property owner shall have a period of 5 years after such disability shall have ceased in which to bring an action to recover the land. Assume the same facts as Problem 1 except also assume that Charlie is arrested on various drug charges in 2010. Charlie is sentenced to a 15-year prison term starting in 2010 and terminating in 2025. In 2012, while in prison, Charlie is declared mentally incompetent. Charlie is released from prison in 2025. After undergoing psychiatric treatment, Charlie is declared mentally competent in 2026. Under these facts, what is the earliest year in which Alan can successfully obtain title to the beach house by adverse possession? a. 2021 b. 2030 c. 2031 d. 2035
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Charlie bought a beach house in 2000. Because he was busy with other things, Charlie stopped residing in the beach house in 2010. Knowing Charlie was not residing in the beach house, his estranged brother Alan began adversely possessing the beach house in 2011. The statute of limitations for adverse possession in the applicable state provides: The statutory period for adverse possession is 10 years. If, at the time when a person makes entry onto the land, the property owner shall be under the disability of minority, imprisonment or mental incompetence, the property owner shall have a period of 5 years after such disability shall have ceased in which to bring an action to recover the land. Assume the same facts as Problem 1 except also assume that Charlie is declared mentally incompetent in 2010 and is placed in a mental health facility that same year. Also assume Charlie remains mentally incompetent indefinitely (and remains in the mental health facility indefinitely). It is now 2020. Under these facts, what is the earliest year in which Alan can successfully obtain title to the beach house by adverse possession? a. 2021 b. 2025 c. 2030 d. None of the above
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Charlie bought a beach house in 2000. Because he was busy with other things, Charlie stopped residing in the beach house in 2010. Knowing Charlie was not residing in the beach house, his estranged brother Alan began adversely possessing the beach house in 2011. The statute of limitations for adverse possession in the applicable state provides: The statutory period for adverse possession is 10 years. If, at the time when a person makes entry onto the land, the property owner shall be under the disability of minority, imprisonment or mental incompetence, the property owner shall have a period of 5 years after such disability shall have ceased in which to bring an action to recover the land. Assume the same facts as Problem 1 except also assume that Charlie is declared mentally incompetent in 2010 and is placed in a mental health facility until 2020 (at which time he is declared competent again). Under these facts, what is the earliest year in which Alan can successfully obtain title to the beach house by adverse possession? a. 2021 b. 2025 c. 2030 d. 2031
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Clarisse and Percy both are hunting raccoons in a dense, wooded forest. Percy's hunting dogs have scented a raccoon, and they pursue it over the course of a mile as the raccoon races through underbrush, climbs trees, and leaps from limb to limb. Before Percy can kill the raccoon, Clarisse arrives and shoots the raccoon, killing it. Under what circumstances would Percy be most likely prevail in a claim to recover the raccoon? a. Percy's hunting dogs have chased the raccoon up a tree. b. Percy's dogs have wounded the raccoon, laming it so that it is unable to walk. c. Percy has shot the raccoon, injuring its tail. d. Percy's first shot has injured the raccoon's tail and, at the moment Clarisse arrives, Percy has sighted the raccoon, and is on the point of pulling the trigger.
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Emily was planning to host a study group at Coastal Café. As she was walking in, she noticed a Gucci purse lying on the floor near the door. Emily picked up the purse, and opened it so see if she could find anything identifying the owner, but the purse was empty. Emily showed the purse to the Coastal Café manager and asked him to advertise for the true owner. The Coastal Café manager posted a flyer with a picture of the purse on the daily specials board. At the end of the semester, Emily learned that no one ever came forward to claim the purse. Emily asked the Coastal Café manager to return the purse to her, but he informed her that he had sold the purse on Ebay for $500. The purse was actually worth $2000. Based on these facts, under the common law rules, it is most likely that Emily can: a. recover the purse from the person who bought it on Ebay. b. recover $2000 from the Coastal Café manager, but not the purse from the Ebay purchaser. c. recover $500 from the Coastal Café manager, but not the purse from the Ebay purchaser. d. recover neither the purse, nor its true value, nor the consideration paid for it.
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Ernestine started a jewelry business, and made various styles of earrings, bracelets, necklaces, and rings using gold, silver, and semi-precious stones. Typically, Ernestine sold her jewelry at jewelry shows and in boutiques. Ernestine wanted to give a bracelet and a pair of earrings made of amethysts and 14k gold to her friend Brittney who was traveling abroad on a semester at sea program. Ernestine called Lizzie, invited her to her home, and gave the bracelet and earrings to Lizzie. Ernestine, who had a cold, but tended to be a bit dramatic, told Lizzie she wanted to be sure that Brittney got the bracelet and earrings, but Brittney would be gone for so long she wasn't sure she'd ever see her again. Ernestine made Lizzie promise to give the bracelet and earrings to Brittney. Lizzie took the bracelet and earrings home, and put them in a drawer. Six months later, Ernestine died in a freak sky-diving accident. She is survived by her mother, her only heir, and she left no will. Brittney came to Ernestine's funeral, and Lizzie gave the bracelet and earrings to Brittney. If Ernestine's mother sues Brittney to recover the bracelet and earrings: a. Ernestine's mother should recover the bracelet and earrings because there was no completed gift. b. Ernestine's mother should not recover the bracelet and earrings because there was a completed gift. c. Even if the gift was complete, Ernestine's mother should recover the bracelet and earrings because the gift was causa mortis. d. Ernestine's mother should not recover the bracelet and earrings because Ernestine's intent was clear
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Government Rights
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In 2010, Carrie Underwood built a new home located across the street from the ocean in Jacksonville Beach, Florida. Large windows provide beautiful ocean views from every room in the house. Tim McGraw now decides to build an oceanfront home in Jacksonville Beach, his hometown. He purchases a lot on the ocean that is directly across the street from Carrie's house. Tim's home will partially block Carrie's ocean view. Based on these facts, which of the following is correct? a. Carrie can prohibit Tim from building a home that will block Carrie's ocean view because Carrie's home predates Tim's home. b. Carrie can prohibit Tim from building a home that will block Carrie's ocean view only if Tim is locating the home in such a manner as to block the view because of spite. c. Carrie cannot prohibit Tim from building a home that will block Carrie's ocean view unless Carrie's ocean view is completely blocked. d. Carrie cannot prohibit Tim from building a home that will block Carrie's ocean view unless Carrie can prove Tim's home is a nuisance.
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In her will, Olive devises her family home to her daughter, Anne, for life as long as the house on the property remains standing. After the conveyance, Anne dies and leaves all of her property to her daughter, Beth, in her will. The house is still standing on the property. What is Beth's estate? a. life estate determinable b. life estate subject to condition subsequent c. fee simple d. none
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J.R. Ewing is on his deathbed, and is surrounded by his family. His faithful assistant, Louella Lee, also is by his side. In the presence of his family, J.R. says, "Louella, I want you to have my antique desk and all the money in the top drawer." J.R. died the next day. Under traditional common law principles, to what is Louella entitled? a. nothing. b. the desk, but not the money. c. the money, but not the desk. d. both the desk and the money
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Mellow Mushroom wants to hire Blake Bortles to promote its restaurants. Due to his recent selection as a first round draft pick for the Jaguars, Mr. Bortless' agent informs Mellow Mushroom that Mr. Bortles's fee for product promotion is $1 million. Mellow Mushroom is not willing to pay that amount. Instead, Mellow Mushroom hires a tall, lean actor with an athletic build who resembles Mr. Bortles. The television commercial features the actor throwing a football, driving an Audi (the car company Mr. Bortles endorses), and posing wearing teal and black. Mr. Bortles brings an action seeking an injunction to prevent Mellow Mushroom from airing the commercial. Based on these facts, and presuming Mr. Bortles brings his suit in a jurisdiction with common law right of publicity identical to California's common law rule, how should the court rule? a. The injunction should be denied because Mr. Bortles does not have the right to sue Mellow Mushroom until the television commercial actually airs b. The injunction should be denied because the television commercial does not use Mr. Bortles's picture, name, voice, or image c. The injunction should be granted because the common law right of publicity prohibits advertisers from using actors to promote their products if the actors resemble celebrities or famous athletes d. The injunction should be granted because the television commercial is designed to associate Mellow Mushroom with Mr. Bortles in violation of Mr. Bortles's right of publicity
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O conveys "to Alice for life, then to Brad for life, then to Alice."
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Orville, realizing that Amelia may not turn out to be a farmer, conveys Blackacre "to Amelia and her heirs, but if Amelia uses the property for non-agricultural purposes, to Bonnie and the heirs of her body." What is Amelia's estate? a. fee simple b. fee simple subject to executory limitation c. fee simple determinable d. fee simple subject to condition subsequent
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Orville, realizing that Amelia may not turn out to be a farmer, conveys Blackacre "to Amelia and her heirs, but if Amelia uses the property for non-agricultural purposes, to Bonnie and the heirs of her body." What is Bonnie's estate? Presume the common law applies. a. fee simple b. fee tail c. executory interest d. executory interest in fee tail
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Oscar is very worried about Andrew, the young man engaged to his daughter, Brittney. As a wedding gift, Oscar conveys a home "to Andrew, but if Andrew and Brittney divorce, then the ownership will revert to Oscar." Andrew and Brittney divorce, but Oscar has not reentered the property. What is Andrew's estate? e. fee simple determinable f. fee simple subject to condition subsequent g. fee simple subject to executory limitation h. none
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Oscar is very worried about Andrew, the young man engaged to his daughter, Brittney. As a wedding gift, Oscar conveys a home to Andrew for so long as Andrew remains married to Brittney. Andrew and Brittney divorce, but Oscar has not reentered the property. What is Andrew's estate? a. fee simple determinable b. fee simple subject to condition subsequent c. fee simple subject to executory limitation d. non
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Owner C is 10 years old in 2000. D begins adversely possessing C's land in 2000. C dies in 2003, and all his rights in the land are inherited by his heir H (who is not under a disability). The normal adverse possession period is 10 years, but an owner under a disability may bring suit within 5 years after his disability is removed. Under these facts, what is the earliest year in which D can successfully obtain title by adverse possession? a. 2008 b. 2010 c. 2013 d. 2015
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Owner C is 10 years old in 2000. D begins adversely possessing C's land in 2000. C dies in 2003, and all his rights in the land are inherited by his heir H. H has been mentally incompetent since 2002. The normal adverse possession period is 10 years, but an owner under a disability may bring suit within 5 years after his disability is removed. Under these facts, what is the earliest year in which D can successfully obtain title by adverse possession? a. 5 years after H is declared mentally competent b. 2008 c. 2010 d. 2013
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Peyton is out jogging through Metropolitan Park. While he is jogging, he loses his Rolex. Eli, while walking through the park the next day, spots the Rolex and, seeing no one around, puts it in his pocket. After wearing the watch for about a week, Eli is robbed at gunpoint by Tim, who takes the watch from him. A month later, Tim loses the watch, and Archie finds it. Please list who has a claim to the watch, from strongest to weakest: a. Peyton, Eli, Tim, Archie b. Peyton, Eli, Archie c. Peyton, Archie, Tim, Eli d. only Archie
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Sandy Jones owns 50 acres of land in central Florida that are used as an orange grove. For three generations, the Jones family has harvested the oranges and sold them to Tropicana for its orange juice products. Sandy is tired of the hard work involved in harvesting the oranges. She wants to cut down all of the orange trees and convert the land to a nature preserve. Assume that the use of Sandy's land as a nature preserve is permitted under local law. Sandy's land is surrounded on all sides by orange groves owned by other people. The neighbors are also orange farmers who sell their oranges to Tropicana. The neighbors believe their property values will decrease if Sandy stops using her land as an orange grove. The neighbors are also concerned that the animals Sandy intends to keep on her land will damage their orange crops and that the nature preserve will attract bugs and pests that will reduce the volume of oranges that grow on their lands. If the neighboring owners sue Sandy and seek an injunction to prevent Sandy from cutting down her orange trees: a. The court should rule in favor of Sandy because she has the absolute right to destroy her property, regardless of the impact it may have on any neighboring properties b. The court should rule in favor of Sandy because she has the right to destroy her property subject to limited exceptions, and none of those exceptions exist here c. The court should rule in favor of the neighbors because the destruction of trees on Sandy's land constitutes a nuisance d. The court should rule in favor of the neighbors because the use of Sandy's land as a nature preserve would result in decreased property values for the neighbors, thus Sandy's right to use her land should be restricted
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Trader Joe owns a coffee bean farm in the hypothetical jurisdiction of Beantown. Trader Joe employs workers on his farm. Three labor union representatives seek to enter Trader Joe's property to convince the workers to unionize to improve their working conditions. Trader Joe is opposed to labor unions. Based on the holding in State v. Shack (the migrant worker case), which is the best answer? a. The union representatives have an implied statutory right of access to enter the property. b. The union representatives have a right of necessity to enter the property. c. The union representatives have the absolute right to enter anyone's property. d. Trader Joe may exclude the union representatives from the property.
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3 aspects of property law
1) Adverse Possession 2) Vertical Limits of ownership and 3) water law
Private Nuisance Elements
1) Intentional 2) Nontrespassory use of Defendant's land that 3) Unreasonably and 4) Substantially 5) Interferes with Plaintiff's use and enjoyment of land
Adverse Possession Justifications
1) Preventing Frivolous claims- barring old, stale claims of ownership of land 2) Correcting title defects- technical mistakes often occur during process of conveying title to land. AP resolves such problems by protecting title of person who actually occupies the land. *lengthy possession serves as proof of title 3)Encouraging Development- AP legal tool encourage economic development. Reallocate title from idle owner to the industrious squatter. Promotes use of land 4) Protecting Personhood "A thing which you have enjoyed and used as your own for a long time... takes not in your being and cannot be torn away without your resenting the act"
Property
1) Property is not a "thing" - think of it as a "bundle of rights" 2. Property rights represent a balancing of interests between the individual and society 3. Property rights are not absolute 4. Property rights are relational and vary according to the parties involved 5. Property rights are always evolving
2 Categories of Property
1) Real 2) Personal
Bundle of Sticks (ETPUD)
1) Right to EXCLUDE 2) right to TRANSFER 3) Right to POSSESS and USE 4) Right to DESTROY rights can be divided in other ways, notably by TIME and PERSON Example: Tenant T might have the right to use and possess Greenace for one year, while Landlord L is entitled to use and possession when the year ends.
4 Possessory Estates
1) fee simple 2) fee tail 3) life estate 4) term of years the key distinction among these estates is how long they might last
Nuisance Law
1) intentional 2) nontrespassory 3) unreasonable and 4) substantial interference with 5) the use and enjoyment of the Plaintiff's land **Most difficult question is whether the conduct is unreasonable Modern--conduct is unreasonable if the "gravity of the harm outweighs the utility of the actor's conduct -court must determine whether the D's conduct causes more harm than good
Right to Publicity (CL)
1) the defendant's use of the plaintiff's identity 2) appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise 3) lack of consent; and 4) resulting injury not just appropriation of Ps name or likeness but relevant only for determining whether D has in fact appropriated Ps identity Does not require that appropriations of identity be accomplished through particular means to be actionable
Joint Tennacy
4 UNITES: Time, Title, interest, Posessession Enetitled to simultaneous possession and enjoyment of the whole Right of survivorship Not devisable or descenable Often used by married couples Can be severed
Joint Tenancy
4 UNITIES: TTIP Time Title Interest Possession
TIC Creation
4 unities NOT required May be created at different times
Tenancy by the Entireties
5 UNITIES: TTIPM TIME TITLE INTEREST POSSESSION MARRIAGE
Tenancy by Entireties
5 Unities: Time, title, interest, possession and marriage NOT devisable/descenadble
Gift
A Gift is a voluntary transfer of property by one to another without any consideration or compensation. To be valid, a gift must be executed or actually made. Gratuitous promise to make a gift in the future is not binding.
Example of Physical Delivery
A Husband places certain securities in an envelope. The envelope bears the following inscription: "The enclosed are for my wife, Mary." The envelope is then place with its contents into the husband's safe deposit box. There would be no valid gift. The delivery requirement is NOT satisfied because the husband has not physically transferred the securities to his wife, and has retained dominion and control over his own safe deposit box.
condition precedent
A condition (other than the termination of the prior estate) that must be fulfilled before a future interest-holder's right to eventual possession is assured. If a condition must be fulfilled before the remainder-holder can be assured of the right to possession upon the termination of the prior estate and if that conditions is placed within the description of remainder, the remainded is said to be contingent upn the fufillment of the condition precedent,
Fee Simple Conditional
A could convey a fee simple IF a child were born to A. Thus, A's estate was thought of as a fee simple conditional upon having issue (children, grand & great grandchildren). If A had issue, A could convey a fee simple and transfer the land outside the family, cutting off the rights of A's issue and the revisioner
Decedant
A dead person
Intestate
A decedent dies "intestate" if he/she dies without a will
Gifts Causa Mortis
A gift causa mortis is one given in contemplation of death. For the gift to be valid, the following elements must exist: 1) Present Mental Capacity 2) Gifts must be personal property 3) Delivery and Acceptance
Inter Vivos Gift
A gift given during the course of a person's life which is considered completed when the elements of intent to give; voluntariness; and acceptance are satisfied- this is irrevocable.
O conveys "to A for life, then to B."
A has a possessory estate in a life estate O has nothing B has a vested remainder in FSA
PROMISE- Example
A mother tells her daughter, "I shall make a gift of this wristwatch to you tomorrow." The requisite mental state is NOT present. The mother, the would-be donor, has not indicated that she wishes to vest title in the daughter at the moment. The mother has made a mere gratuitous promise to make a gift in the future.
Convey
A person "conveys" land when that person transfers it to someone else. The land can be conveyed by sale or by gift. In either case, the transaction is a "conveyance"
Ancestors
A person's biological forbears all the way up the line. Ancestors include: parents, grandparents, great-grandparents, and all other lineal forebears.
Issue
A person's lineal descendants all the way down the line. Includes children, grandchildren, and all other lineal descendants to the point where the biological line dies out
State v Shack
A property owner's right to exclude others from entering his/her property is not absolute - there are some (very narrow) limits on the right to exclude Ownership of real property does not include the right to bar access to aid workers or services that are available to a class of people who are in need of protectionRationale for State v. Shack When is it permissible to limit the farmer's right to exclude others from his property? 1. Necessity? Examples: police, fire trucks, and ambulances have the right to enter private property Does permission to meet in farmer's office offset this argument?
Testamentary Transfer
A transfer of property that occurs after a person's death in accordance with his/her will.
VESTED REMAINDER IS SUBJECT TO DIVESTMENT
A vested remained is subject to divestment if the divesting condition could happen before the remainder becomes possessory
Tenancy in Common
Alienable Devisable Descendable
Collaterals
All blood relatives other than the issue or ancestors Collaterals include: siblings, cousins, aunts, uncles, nieces, and nephews.
GIFTS INTER VIVOS
An inter vivos gift, once made, is irrevocable.
What is the term for a person's parents, grandparents, and great-grandparents
Ancestors
Lender Rights
Bank can foreclose Transfer title Bank can kick you out with proper notice
Special Problems in Delivery (b)Promissory Notes
Because a promissory note, drawn by the donor, is merely a promise to deliver money in the future, the execution and manual delivery of a promissory note is not a valid gift. However, if a promissory note has been drawn in favor of the donor, and thereafter the donor transfers it to a third person (i.e., the donee), the gift is valid.
Anne Smith has made an appointment with her lawyer to have her will draw. She intends to ______ her house to her son.
Bequeath
Bundle of Sticks
Bundle of "sticks" metaphor: The right to transfer The right to exclude The right to possess and use The right to destroy All rights in "bundle" not necessarily held by one person
Doctrine of Nuisance
CL- principal limitation on an owner's right to use. Used to resolve land use conflicts(intent isn't really relevant)
Right of Tenancy
Can be SEVERED
In 2010, Carrie Underwood built a new home located across the street from the ocean in Jacksonville Beach, Florida. Large windows provide beautiful ocean views from every room in the house. Tim McGraw now decides to build an oceanfront home in Jacksonville Beach, his hometown. He purchases a lot on the ocean that is directly across the street from Carrie's house. Tim's home will partially block Carrie's ocean view. Can Carrie prohibit Tim from building a home?
Carrie cannot prohibit Tim from building a home that will block Carrie's ocean view, unless Carrie can prove Tim's home is a nuisance. Sundowner The Court rejected the English rule that a property owner has an absolute right to use his property in any manner he desires "No man has a legal right to make a malicious use of his property...for the avowed purpose of damaging his neighbor" Property owner may not build and maintain an 18' high fence near the border of the adjoining property where the fence is a useless structure and is built with malice (meaning it was done for the sole purpose of injuring the adjoining property owner) Prah Broader than Sundowner Nuisance law may apply to use of neighboring land A private nuisance is an (1) Intentional, (2) Nontrespassory, (3) Unreasonable and (4) Substantial interference with (5) The use and enjoyment of the plaintiff's land.
Tenancy in Common
Co Tenant Rights Each has undivided, fraction interest in the property Each has the right to use and possess the ENTIRE property Each may transfer, sell or devise his.her interest to another (unless prohibited by written agreement between tenants 4 Unities NOT Req'd May be created at diff times Modern Trend- presumes that a grant to multiple transferees creates a tenancy in common unless the instrument indicates otherwise. MARKETABILITY
Right to Own- Traditional
Cujus est solum, ejus est usque ad coelum et ad infernos- you own everything up to the sky
Testate
Decedent dies "testate" if he/she dies with a will
Special Problems in Delivery (e)Bank Savings Deposits
Delivering a bank book to the donee with intent to make a gift is a sufficient symbolic delivery. Since withdrawals may be made from a savings account only upon presentation of the bank book, the savings bank book represents dominion over the amount on deposit.
Special Problems in Delivery (c) Stock Certificates
Delivery of shares of stock with the requisite donative intent constitutes a valid gift. This may be true though the donor continues to receive the dividends thereon up to the time of his death. In addition, indorsement of the stock certificate is not a prerequisite to valid and complete delivery. Also, it is not necessary that the donee's name be entered on the corporate books in order to complete delivery.
During
Determinable
So long as
Determinable
Until
Determinable
while
Determinable
David's father has just written a will naming David as the beneficiary of the family business. What property interest does David has as a result of being named in the will?
Devisee
Tenancy in Common
Each co-owner owns a FRACTIONAL, UNDIVIDED share of the property
TIC Co-tenant Rights
Each has: Undivided, fractional interest Right to USE and POSSESS ENTIRE property Transfer, sell or devise interest to another person (unless prohibited by written agreement between tenants in common -the new owner becomes a tenant in common w/remaining original tenants in common Interests are ALIENABLE/DEVISABLE/DESCENDIBLE
TIC Conveyance
Each may convey or devise (or pass by intestate succession) his/her interest to one another or to a 3rd party • If Martin conveys his 1/3 interest to Ryan, Ryan now owns a 2/3 interest and Greg owns an 1/3 interest • If Martin dies, his interest will pass under his will or by intestate succession • His devisee or heir will then own his 1/3 interest
Reasonable Person
Evaluated based on the conduct of an average or REASONABLE owner given the location, nature, and character of the land.
Example of DI Applies to Title
Father tells his son, "This wristwatch is now yours; however, I wish to use it until my new one arrives," As long as all other requirements for the valid execution of the gift are complied with, the gift is effective even though the donor has retained possessory rights in the subject matter of the gift.
Right to Transfer
General Rule: Property is freely alienable BUT-law may impose restrictions on: Who E.g. legal incapacity What E.g. body parts, E.g. Spendthrift trusts How much E.g. life estates How E.g. Statute of Frauds E.g. Deed requirements
Key Points: Sundowner Inc. v Sundowner King
General Rule: Property owner may use his land however he wants so long as it does not harm the rights of others. EXCEPTION- Spite fence doctrine: P MUST prove: 1) the structure is useless/serves no useful purpose/ has no value 2) The structure was built with the intent of injuring the neighboring property owner/built with malice The spite fence doctrine could possibly apply to structures other than fences (e.g. trees) THIS IS A NARROW HOLDING. It is NOT recognized in ALL states. Natural law-- the right to breath the air, and to enjoy the sunshine, is a natural one..
Right to Transfer
General: Property is freely ALIENABLE. Right to transfer the holder's property rights to others. If you have a property right to something you can sell it. Exceptions: The law is allowed to place restrictions on what you can sell. Who: e.g if there is a legal incapacity What: e.g. body parts, e.g. Spendthrift trusts How much: e.g. life estates How: e.g. Statute of Frauds e.g. Deed requirements O (owner of Redacre) has broad power to transfer his rights either during his lifetime or at death. Ex: O might sell his rights in Redacre to a buyer, donate them to charity, or devise them to this family upon death. Crucial for O to transfer rights freely Restrictions: O can't transfer title to Redacre for the purpose of avoiding creditors claims. Can't impose any condition he wishes incident to the transfer (O conveys to his daughter D on condition... INVALID!!) O cannot refuse to sell his rights in Redacre bc of color, race,e national origin, religion or gender
Hiers v Devisees
Heirs and devisees do not mean the same thing Devisees are beneficiaries under a will
Tenancy by Entireties
Historically- any CONVEYANCE to a H/W=T.B.E
all joint tenants must have the same ownership share, equal in size and duration
INTEREST
Gift Through Agent (b) If Agent of Donor
If Agent of Donor If a gift is given through the agent of the donor, the gift is effective when the agent delivers to the donee, unless the agent has assented to hold the property for the donee. Thus, where such assent is missing and the donor delivers the item to his agent for delivery to the donee, if the donor dies before delivery is made, there is no gift. The agent's authority to deliver terminated upon the donor's death, and no delivery was made.
Escheat
If a decedent has no heirs or devisees, the interest in land "escheats" (passes) to the state
Gift Through Agent (a) If Agent of Donee
If a gift is given through an agent of the donee, the gift is effective when the donor delivers to the agent.
2) Donee Already in Possession
If the donee is already in possession of the article, the donor need not repossess the article and then return it to the donee, because the law will not require a useless act. But the donor must do something to make his intent objectively clear.
A) PHYSICAL DELIVERY (type of delivery)
If the donor physically vests the donee with possession of the subject matter of the gift, the delivery requirement is satisfied. To show that delivery has been accomplished in this manner, there must be a showing that the donee has received dominion and control over the subject matter of the gift.
2) PROMISE to make a Gift in the Future (Donative)
If, by the act of the donor, it can be determined that the donor manifested her intention to have title pass to the donee at some future date, the requisite mental state is not present and no gift follows.
DELIVERY
In addition to the requirement that the donor possess the requisite donative intent, delivery in one form or another must be made in order to effect a valid gift inter vivos.
Tenancy by the Entireties
In medieval times, used for H&W because H&W were viewed a SINGLE LEGAL UNIT CONTROLLED BY H
why should Jacques be able to exclude Steenberg?
Individuals and society have significant interests in deterring intentional trespass to property regardless of whether actual damage occurs - why? Constitutional right to the exclusive enjoyment of his/her own property Right to exclude is one of the most essential "sticks" in the bundle of rights Right to exclude is meaningless if the legal system does not adequately protect it Risk of losing ownership of land if one allows repeated trespassers Confidence in the legal system reduces the likelihood that property owners will engage in self-help
1) INTENT to Make a Present Gift (Donative)
Intent to Make a Present Gift The donor MUST have a present medical capacity and MUST intend to make an effective gift of her property
Jeremy Parker died _______ [without a will]
Intestate
Color of Title
Is a deed or title that says you own a piece of land based on the legal description. Sometimes the legal description can be wrong. Normal AP laws- you would get only the part you are ACTUALLY using. would not get the rest of the parcel. EXCEPTION- bc you have a deed you can get everything that the deed describes
Estate System
Is able to divide the land ownership into time periods
What is a term for a person's children and grandchildren?
Issue
FOUR UNITIES: TIME TITLE INTEREST POSSESSION
JOINT TENANCY
4 Unities MUST be present
Joint Tenancy
Has a RIGHT OF SURVIVORSHIP
Joint Tenancy
NOT DEVISABLE OR DESCENDIBLE
Joint Tenancy
Often used as an Estate planning device
Joint Tenancy **two people buy a home together. Each own 50%. One dies; ownership is transferred to the remaining owner.
Grantor conveys "To Martin and Claire, as joint tenants with right of survivorship"
Joint Tenancy Words of Conveyance
Landlord Rights
Landlord can't come in without notice unless there is an emergency Landlord can sell unit Landlord can exclude people from entering the property
Actual Possession
Majority Approach: AP must take actual possession in that same manner that a "reasonable owner" would Differs based on the character of the property EXCEPTION- Constructive Possession (deed or some type of legal doc) .. rule only applies if AP has color of title. Claimant with color of title who takes actual possession of a party of the land gains constructive possession of additional property described in deed or other instrument
Tenancy in Common
Most Common- kind of default unless instrument has clear intent to file joint tenancy No right of survivorship Alienable devisable, descendable Each co-owner owns a fractional ,undivded share of the property
Gifts in Contemplation of Marriage
Most jurisdictions hold that engagement gifts are made in contemplation of marriage and are conditioned on the subsequent ceremonial marriage taking place. If the marriage does not occur, engagement gifts must be returned. While an engagement ring by definition is given in contemplation of marriage, this may not be the case with other gifts given during the engagement period. Courts consider factors such as the type of property given, fraud, conditions attached to the gift, and the intent of the donor to determine whether the gift will be deemed to be given in contemplation of marriage (and thus recoverable by the donor if the marriage does not occur).
Tenancy by Entireties
NOT devisable or Descenable
Right of Tenancy
NOT devisable or descendable
Is there something wrong with this sentence? All of the heirs gathered at the lawyer's office to learn what the decedent had left in his will
No
Are "convey" and "sell" synonyms? If not, why not?
No because to convey property it can be done by sale or gift.
Transformative Use Test
No bright-line test (1) cases where the defendant has borrowed for the purpose of creating a new work, and (2) cases where the defendant distributes copies with the aid of new technologies. In the first situation (new work), courts tend to take a more permissive attitude toward "transformative" works, and are more likely to find fair use. But what does "transformative" mean? Various court decisions are inconsistent.
Tenancy in Common
No right of survivorship
Tenant Rights
No right to sell unit Right to use and possess it Can exclude landlord i.e. can't come in at 10pm to take beer out of fridge --usually needs to give tenant notice
SNL airs a skit in which actors resembling Alex Trebek and various celebrities compete on a game show set resembling Jeopardy. Would Alex Trebek and the celebrities prevail in a suit against SNL?
No, because this would stifle creativity. This is different from Vanna White because it was used as an ad and this is a parody where they are not selling/promoting a product.
EA sports sells a video game that features virtual players. The jersey number, height, weight, hometown and playing statistics for each virtual player is the same as a current college player. The names ad likenesses of the college players are not used. Under White v Samsugn, is EA Sports liable to the college players for misappropriating their likenesses?
No. College athletes are not celebrities so they don't have a protected right of publicity. The real celebrity is the team.
Post keeps a pet fox that he has raised since it was a cub. Post allows the fox to roam, but it always returns to Post. Pierson captures Post's fox. What if the fox wears a collar with a name tag?
No. This is still considered a wild animal and would not fall into the category of "domestic" even if it has been domesticated.
An author writes a children's book about the life of MLK. which sold to the public. Is the author liable to the King Estate?
No. look to the Transformative Use Test
C builds a new home with large, south facing windows. The windows function much like a greenhouse, trapping warm air inside and thus reducing heating bills; they also provide a lovely view of the countryside. D now plans to build a home on her adjacent lot, which will partially block the sunshine from C;s windows and also block the view.
Not as strong. In general someone could build a house blocking your view. It's reasonable to think someone else could build a house near your home.
Concurrent Interests
O to A and B Multiple parties own the same property at the same time
Adverse Possession
Obtaining title of personal property of another by occupation of one's land over a significantly reasonable amount of time
Right of Tenancy
Often used by married couples
(2/2) Physical Delivery if Possible (Delivery by Written Instrument)
One may accomplish delivery by written instrument even though the subject matter of the gift was capable of being manually transferred. Note that some courts that do not recognize the validity of delivery by written instrument may still treat the writing as a form of symbolic delivery (see below) if manual delivery is impossible or impracticable.
White v Samsung
Overview Defendant advertising agency prepared a series of advertisements for defendant electronic company. One particular ad depicted a robot dressed in a wig, gown and jewelry, selected to resemble plaintiff's hair and dress. Unlike the other celebrities used in the advertising campaign, plaintiff neither consented to nor was paid for the ads. Plaintiff commenced an action against defendants alleging infringement of various intellectual property rights under state and federal law. Plaintiff appealed the district court's grant of summary judgment in favor of defendants. The court affirmed the grant of summary judgment on the right of privacy claim, but reversed the judgment on the right to publicity and the Lanham Act claims. The court held that for the advertising to be effective, it must evoke the celebrity's identity. Defendants attempted to elevate its ad above the status of garden-variety commercial speech by pointing to the ad's parody of plaintiff. Defendants' argument was unavailing. Unless the first amendment barred all right of publicity actions - and it did not, then it did not bar the case. The court reasoned that plaintiff pleaded claims sufficient to go to a jury. Outcome The court affirmed the grant of summary judgment on plaintiff's right of privacy claim, but reversed the judgment on the right to publicity and the Lanham Act claims because plaintiff pleaded claims sufficient to go to a jury. CL Right of Publicity (must have all) Appropriation of "name or likeness" is NOT an element, it's a DESCRIPTION of cases where the cause of action exists. Rule of Creation- the law usually vests title in the person who creates and entirely new thing
Johnson v M'Intosh
P brought suit to eject the D from the property D prevailed at trial 2 Native American tribes sold large tracts of land to investor groups in 1773 and 1775 The investor groups leased the lands to tenants (including plaintiff) The US govt later conveyed part of the same property to the Defendant **Introduces Chain of Title- who has owned this property **Route of Title- for title to be good you have to trace it back to the sovereign The US Supreme Court held that Native American tribes did NOT have the RIGHT TO TRANSFER tribal lands to any transferee other than the US Govt. ***You can hold LESS than all of property rights
all joint tenants must have equal rights to possession, use and enjoyment of the whole property
POSSESSION
Heirs
People who inherit real property from a decedent who dies intestate (without a will). Heirs are identified by statute in each state. Usually include the person's spouse and children. If no spouse or children have survived the decedent, heirs my also include grandchildren, parents, siblings, or other relatives. Because heirs are determined at the time of death, living people have no heirs- only heirs apparent. Heirs inherit property not disposed of by a will
Limitations on the Right to Exclude
Permission Necessity Consent Easement
Post shoots a deer and grazes its ear. The deer is stunned but nit hurt. Pierson grabs the deer and puts it in a sack. Post arrives while the deer is still stunned. Under Pierson, which is correct? A_ Pierson is entitled to the deer B-Post is entitled to the deer C- Neither- let the deer go free
Pierson is entitled to the deer b/c he has more occupancy and it has been perfected. Post hasn't
Post nets a wild rabbit, paints "Property of Post" on it, and sets it free. Pierson shoots and kills the rabbit. Under Pierson, which is correct? A- Pierson is entitled to the rabbit B- Post is entitled to the rabbit
Pierson is entitled to the rabbit because it is a wild animal. The difference is a domesticated animal/livestock and a wild animal. You cannot claim a wild animal by painting "property of post"
First in Time Rule (Pierson v Post)
Pierson v Post is an example of this rule A prior possessor prevails over a subsequent possessor Today labor may matter more than first in time rule Advantages: 1. protects possession 2. creates stability of expectations 3. easy to administer 4. has weight of history iv. Disadvantages: 1. requires protection of state 2. entrenches old injustices
Post's dogs chase a fox into a cave. Before Post gets there, Pierson shoots the fox and mortally wounds it. Post arrives minutes later. Under Pierson, which is correct? A- Pierson is entitled to the fox B- Post is entitled to the fox
Post because he has better possession
C buys $2million worth of rare stamps. As a "public art project," she begins burning the stamps, one by one. Her children protest. Should C be permitted to continue burning the stamps?
Probably would be different. Under these facts she could burn the stamps. Challenging her competence is different than challenging her right to Destroy.
Concurrent Interests
Property is co-owned by multiple person, each of whome holds an "undivided, fractional interest" Each co-owner has the right to use and possess the ENTIRE property, not just a portion of it
Concurrent Interests Key Characteristics
Property is co-owned by multiple persons Each hold undivided, fractional interest Each co-owner has the right to USE and POSSESS the ENTIRE property
Rule of Capture
Property rights can arise from the first possession or capture of an existing, unowned thing
Humanitarian and Utilitarian Principles (Shack)
Property rights exist not to benefit the individual but to benefit all of society Fundamental Human rights cannot be denied on the basis of property law The well being of a population susceptible to abuse must remain the"paramount concern of a system of laws" Property owner may not deny the migrant worker his privacy, interfere with his opportunity to live with dignity, or restrict his right to receive visitors
First in Time (M'Intosh)
Property taken via conquest do the original owners have the right to transfer it?? very limited on who they can transfer it to. NA weren't entitled to full ownership of the lands base on: The N.A. nomadic use was not sufficient to create property rights N.A. were too "warlike" to assimilate peacefully
Doctrine of Trespass
Protects the Right to Exclude Action by a property owner against a party who enters the property "intentionally" (voluntarily-there on your own volition) and without "privilege" (consent of the property owner, or some other legal right to enter, like necessity) Exception: necessity One is liable under tort of trespass even if there is NO ACTUAL damage to the property
Punitive Damages
Purpose: Punish wrongdoer Deter future wrongdoing Punitive damages are available in trespass cases even if there is no actual damage to the property "The actual harm is not in the damage done to the land, which may be minimal, but in the loss of the individual's right to exclude others from his or her property..." (p. 53)
Gifts Causa Mortis 2) Gift Must Be Personal Property
Real property cannot be conveyed as a gift causa mortis.
