Property, Real and Personal Ch. 7

Inter Vivos Gift

What most of us think of as a gift (such as for a birthday) is actually an inter vivos gift, that is, a gift made during the donor's lifetime, as opposed to through a will that takes effect upon the donor's death.

Adverse Possession

When an individual possesses another's land openly, notoriously, and treats it as his or her own for a period set forth in a statute (usually 21 years) and the true owner makes no claim, the individual can petition the court to have title transferred into his or her name and become the owner of the property.

Conversion

Conversion is intentionally exercising dominion and control over the personal property of another and is a more serious interference with the owner or possessor's personal property.

Eminent Domain

Eminent domain is the government's right to take property for government use while providing the owner with fair market value for the taking.

Property Rights

Even though one plot of land may look much like another, our law considers each piece of real property unique and its owner has a right to claim it to the exclusion of all others.

Property Interests

Fee Simple Life Estate Estate for Years Remainder Reversion Tenancy

What are the different estates of real property the law recognizes?

Fee simple, life estate, estate for years, remainder, reversion, and tenant.

What is the most property right our law recognizes?

Fee simple.

How is title over wild animals acquired?

First to capture.

How are property interests held?

How property interest is held addresses how many people own a property together, and what legal rights arise from the type of ownership they possess.

Remainder

If the grantor of land orders that the land will go to a third party (i.e., not the grantor or grantee/life tenant) after the life estate is over, then the third party receives a remainder interest.

Sole Owner

If title to the property is held by only one person, then ownership rests solely with that single owner. The single owner owns the property and does not have to consult with anyone to determine how the property can be used.

Reversion

If, rather that have the interest after the life estate go to a third party, the grantor dictates that the interest is to return to the grantor, this is a reversion.

What implied warranty goes along with leasing a premise?

Implied warranty of habitability.

Property Law

Important legal rights come from property concepts and are included in the Constitution Property is the fundamental basis of our legal, social, and government systems Property provides rights against others

Possession of personal property

In addition to owning personal property, it is also possible to have only legitimate possession of the property, though not own it. This can occur through leasing, such as a car lease or an equipment lease, or it may occur through a bailment. In both cases, the owner of the property does not give up title to the property, but instead allows someone else to take possession for a limited time and/or purpose.

Trespass to real property

Intentionally coming onto the real property of another. intentionally - coming onto the property must be intentional rather than accidental. coming on to the land - the tort must involve real property, not personal property of another - the land does not belong to the trespasser or the trespasser otherwise does not have permission to be on the property. without his or her permission - In the absence of permission we don't have the right to be on property that does not belong to us. If the trespasser intended to come onto the property it does not matter whether or not it was done innocently. No harm need be proved to establish the tort of trespass to real property. The rental agreement gives exclusive possession and control to the tenant and that can form the basis of a trespass to real property action, though the lease can give the landlord permission to come on for emergency purposes or general upkeep such as period pest control.

Types of Tenancies

Sole Ownership Joint Tenants with Rights of Survivorship Tenancy in Common Tenancy by the Entirety

Tenancies Recognized by Law

Sole owner, tenants in common, joint tenants with right of survivorship, tenants by the entirety.

What are the different ways real property can be held?

Sole ownership, joint tenants with right of survivorship, tenancy in common, and tenency by the entirety.

How can those who hold property together create individual interests?

Partition the property.

What constitutes personal property?

Personal property is anything other than land. Anything other than land or something permanently attached to land is considered to be personal property.

Abandoned property

Personal property to which an owner has relinquished all right and title has been abandoned. The first to claim abandoned personal property acquires title to the personal property and becomes the owner of the property.

Gift

Property may be acquired as a gift. For a gift to be created the donor must 1) have a present intention to give the property to another with no intent to receive consideration in return. 2) deliver possession of the property or something that represents the property (such as keys and title to a car); and 3) the donee must accept the property. The one giving the gift is the donor and the one to whom the gift is given is the donee. A valid completed gift cannot be taken back by the donor, and the donee can now do whatever he or she wishes with the gift.

Property Rights

Property rights include what interest a person holds in the real property, as well as how that interest is held.

Attributes of Property

Provides power, wealth, status. Right to own and or possess. Right to exclude others. Right to protect and enjoy. Right to bequeath, sell.

What are the main two types of property the law recognizes?

Real and personal.

What is real property?

Real property is land and anything permanently attached to it such as houses, trees, fences, and so on.

Types of Property

Real property, Personal Property, Intellectual Property, Tangible and Intangible Property

Fee Simple

A fee simple interest in real estate is the most rights our law recognizes in property. The owner of a fee simple interest has the most ownership rights in that he or she owns his or her land, particularly if it is owned solely by him or her, outright, forever and ever, and is only constrained in its use by law.

What is a gift inter vivos?

A gift made during a donor's lifetime.

What is a conditional gift?

A gift made in anticipation of the happening of an event which triggers the gift.

What is a gift causa mortis?

A gift made in contemplation of death.

Life Estate

A life estate is an interest in land that is only good for the life of the life tenant who holds the interest. The life tenant only owns the land during the measuring life and after the death of the life tenant, the land goes either back to the grantee of the life tenancy or whoever else he or she interest designates. While possessing the property during his or her lifetime, the life tenant cannot do anything that would undermine the interests of those taking after the life estate.

Tammy executed a deed granting a house to Esmerelda, and after Esmerelda's life ended, to Tammy's grandchildren. What interests has Tammy conveyed?

A life estate to Esmerelda and a remainder interest to the grandchildren.

What is it called if a property owner grants a life estate, then has the property go to a third party after the life estate?

A remainder.

What is it called if a property owner grants a life estate, then has the property returned to the grantor afterwards?

A reversion.

Will

A will is a legal document providing for the disposition of the property of the one making a will, called a testator (if female, testatrix) after the death of the testator. If the will is executed correctly under the state's law regarding wills, title passes to the one to whom the personal property is bequeathed. A will is not effective until the testator dies, and can be changed any time until the death.

Acquiring Title to Personal Property

Abandoned property, Lost property, Mislaid Property, Gift, Purchase, Sale, Stolen Property.

Rent

As with real property, if the owner of personal property wishes to retain title to the property, but allow another to possess the property for a period, this can be done through rental or lease. The renter/lessee does not have title or ownership of the property, but only legal possession.

Bailor - Bailee, Lessor - Lessee

Bailee or Lessee must return property in substantially the same condition it was in when he or she took possession Exception: If repairs are made, must be agreed upon

Tenants in Common

It is possible for more than one person to hold title to a piece of property at the same time. Each of the owners has an undivided proportionate share of the whole. Each owns his or her share and can do with it as he or she pleases, including willing it to a non-owner upon his or her death. Each of the owners owns each inch of the land. If the tenant in common owners wish to deal with their interests separately, they can request from the court a partition of the property into their respective interests.

Why is property so important in our law?

It undergirds our legal system, our social system, and our government.

Joint Tenants with Right of Survivorship

Joint tenancy is much like a tenancy in common except that when one of the owners dies, his or her share automatically goes to the other owners and is divided up proportionately.

Purchase

Like real property, personal property can be acquired through giving something of value to the owner in exchange for the property. This is also known as a sale.

How is title to personal property acquired?

Like with land, an owner of personal property may wish to relieve him or herself of the property at some point.

Lost property

Lost property is personal property that the owner has accidentally allowed to leave his or her possession and control. The finder has superior claim to the property against all except the true owner.

What is the difference between lost and mislaid property?

Lost property is personal property that the owner has accidentally allowed to leave his or her possession and control. Mislaid property is personal property that has been placed somewhere by the owner or rightful possessor and he or she has forgotten where the property is located.

Mislaid property

Mislaid property is personal property that has been placed somewhere by the owner or rightful possessor and he or she has forgotten where the property is located. The owner of the premises where the property is found is entitled to claim the mislaid property if the true owner is not found. Courts generally look at the totality of the circumstances to see if they can make a determination. The fact that the property was in a protective bag, in a protected place that it would not otherwise have been kept indicates that the property was probably mislaid. Since the property is most likely mislaid, the owner of the premises where it was found has the right to claim it until the true owner is found.

Must a government taking be for a governmental purpose?

No.

Must real property be harmed in order for a trespass to occur?

No.

Is a will effective for a present conveyance of an interest in property?

No. A will takes effect only after the donor dies.

Does a landowner have absolute right to access property he or she has rented to a tenant?

No. Not without the tenant's permission. Without that she can only do so in an emergency, such as a lightning strike, to see if everything is ok, or on a pre-determined basis such as for monthly pest control.

What real property interests does the law recognize?

One of the most important questions about real property is the nature of the property interests that is held. It determines what the owner can do with the property regarding his or her possession of it. There are several different types of interests, called estates or interests, recognized at law.

Stolen Property

One who steals personal property does not acquire title to the property and thus, cannot convey title to a buyer by selling the property to the buyer. The true owner retains the right to the goods, even though he or she is not in possession of them, and that right is good against all others.

Property Rights

Our law considers property as important, but it considers real property as of truly unique significance.

Property Rights

Our law recognizes property rights in land as far down as we can go, and as far up as is feasible.

Bailment and Lease

Owner of personal property gives up possession only (not title) for a limited time and purpose

What is the difference between tangible and intangible property?

Tangible property can be touched. Intangible property cannot be touched.

How do most married people hold real property?

Tenancy by the entirety.

Tenants by the Entirety

Tenants by the entirety is a form of holding property that is specific to married couples. This is usually the same as a joint tenancy with right of survivorship, except that the owners are married.

Four sisters plan to purchase a piece of real estate together. If they wish to each be able to will their share to their significant others and children, the best way to hold the property would be as

Tenants in common.

What are the limitations imposed on transference of property by joint tenants with right of survivorship?

The decedent cannot pass his or her interest to anyone other than the joint tenants.

In the majority of states who gets an engagement ring if the engagement is called off, and why?

The donor gets the ring back.

In whom does title to abandoned property rest?

The first to claim it.

Estate for Years

The grantor can have the transferee hold the land for a period less than the grantee's life. In such a case, it is called an estate for years.

Gifts Causa Mortis

The law also recognizes gifts causa mortis, a conditional gift where the donor gives a gift to the donee because the donor is contemplating the possibility of death

What limitations are imposed upon a life tenant?

The life tenant only owns the land during the measuring life.

Trespass to personal property & Conversion

The line is not always clear when the tort is one or the other. The real difference between trespass to personal property and conversion lies in the remedy. The remedy for trespass to personal property is to give the property back to its owner and have the trespasser pay damages for any harm to the property or the owner or possessor's loss of use while it was no longer in his or her possession. Conversion is a more serious intrusion into the possessory rights of the owner, and the remedy is a forced sale. The converter pays the owner the value of the personal property and the converter keeps the property rather than give the property back to the owner.

Tenant

The owner of property may not wish to give complete title and control of the property over to another. The landowner/landlord can instead rent the property out for a period of time and the one to whom the property is rented is known as a tenant. Title and ownership to the property does not pass to the tenant; only possession does. Aside from the lease, the warranty of habitability requires that a landlord provide premises that are safe and at least reasonably habitable.

If personal property is found to be mislaid, then superior right to the property lies with...

The owner of the premise where the property is found.

How is title to real property transferred?

Transferring title to the property can occur in several different ways. The owner can give the property away as a gift, will the property to another upon his or her death, or sell the property to another. When someone sells a house or building, the full legal description must be given or the transfer will not convey the property to the transferee. It is also important to register the land transaction with the proper land authorities in the county in which the land is located so that the public will be put on notice of the transfer and lessen the possibility that the same property will be sold again without the purchaser knowing it belongs to someone else.

Intentional Torts against Property

Trespass to Real Property Trespass to Personal Property Conversion Ethical considerations

Trespass to personal property

Trespass to personal property actually involves two different torts: trespass to personal property and conversion. Trespass to personal property involves intentionally interfering with the possession and control of the another's personal property. intentionally - as with trespass to real property, the interference with the plaintiff's property must be intentional, not accidental interfering with possession and control - this is taking the owner or possessor's personal property so that he or she no longer has possession of it. of someone else's - as with trespass to real property, the trespass must be against the true owner of the property or someone in legitimate possession of the property. personal property - this tort applies only to personal property, not real property. Conversion is intentionally exercising dominion and control over the personal property of another and is a more serious interference with the owner or possessor's personal property. intentionally - again, as an intentional tort, the taking must not be an accident on the part of the tortfeasor exercising dominion and control - this is more than a mere interference with the owner or possessor's right to the property. It is virtually excluding the owner from the property and treating the property as if it belongs to the converter. over personal property - again, it involves personal property, not real property. of another - again, the property can be that of the true owner or someone in legitimate possession of the property.

What is the difference between an action for trespass to personal property and conversion?

Trespass to personal property involves intentionally interfering with the possession and control of the another's personal property. Conversion is intentionally exercising dominion and control over the personal property of another and is a more serious interference with the owner or possessor's personal property.

What intentional torts against property does the law recognize?

Trespass to real property & Trespass to personal property

If personal property is found to be lost, then superior right to the property lies with

the finder of the lost property.

Can the government take property that belongs to an individual?

Yes.

Must a government taking of property be compensated?

Yes.