Term
|
Definition
| A legal relationship among person with regard to a thing |
|
|
Term
|
Definition
| Exercising control over a thing for a period of time |
|
|
Term
|
Definition
| Finder has superior rights against all the world but for true owner and prior possessors. |
|
|
Term
|
Definition
Prior possessor prevails over subsequent possessor but must prove prior possession.
Policy Reason - peace and order |
|
|
Term
|
Definition
Delivery of property from one person to another for a specific purpose.
Ex: UPS |
|
|
Term
|
Definition
|
|
Term
|
Definition
|
|
Term
| Traditional Rule of Bailment |
|
Definition
If for the benefit of Bailor, must act with slight care (housesitting)
If for the benefit of bailee (borrow friend's car) must act with extraordinary care |
|
|
Term
|
Definition
All act with reasonable care.
Policy reason for this is to encourage respect of another's property and return it if found. |
|
|
Term
| Winkfield Bailment Rule (Majority) |
|
Definition
If you've paid once, you do not have to pay again. True owner cannot take a COA against the subsequent owner if he/she has paid the prior possessor for the item. Applies even if prior possessor obtained property unlawfully.
Policy reason - keeps possessors from hiding found objects and puts them back into the stream of commerce |
|
|
Term
|
Definition
True owner can take a COA against subsequent owner even if paid prior possessor.
Policy reason - allows owners to recover items. However, subsequent owner can seek damages from prior possessor thru subrogation |
|
|
Term
|
Definition
property unintentionally parted with.
|
|
|
Term
Found Property
Employee/Employer Relationship |
|
Definition
British Rule - servant finds for the master; therefore, goes to OLIQ.
American Rule - GR Finders |
|
|
Term
|
Definition
| Voluntarily placed but inadvertently forgotten and left behind. Goes to the owner of the locus in quo. Policy reason - protect TO's interest. TO is to likely retrace steps and return to claim item. |
|
|
Term
|
Definition
| Intentionally and voluntarily left with no intent to reclaim. GR applies and goes to finder unless the finder is a trespasser. |
|
|
Term
|
Definition
American Rule - property concealed to be recovered at a later time. Goes to finder unless trespasser.
British Rule - something of value hidden in the earth by someone who intended to return for it (i.e., coin, jewels.) Goes to Crown. |
|
|
Term
|
Definition
| An equitable remedy that a court imposes against one who has obtained proeprty and is unjustly enriched at the expense of the true owner. |
|
|
Term
|
Definition
| Person who creates trust and settles trust property to trustee for benefit of beneficiary. |
|
|
Term
|
Definition
| Possession of real property under claim of right without the true owner's permission. |
|
|
Term
| Adverse Possession Elements |
|
Definition
Actual
Hostile
Exclusive
Open and Notorious
Continuous and Uninterrupted |
|
|
Term
| Adverse Possession - Remedy |
|
Definition
Actions forQuiet Title &
Ejectment |
|
|
Term
| Adverse Possession - 2 ways an owner can defeat |
|
Definition
1. permission
2. ejectment |
|
|
Term
|
Definition
When a possessor holds title to property and physically possesses part of it, the law will deem the possesor to hold title via Doctrine of Constructive Possession if the following exist:
1. actual possession
2. Color of Title
3. single parcel/tract
4. single ownership
5. no actual possession by another |
|
|
Term
|
Definition
| No written instrument gives a right, only entitled to the property you actually possess. |
|
|
Term
| Adverse Possession - Actual Possession |
|
Definition
| Real, physical possession |
|
|
Term
| Adverse Possession - Hostile |
|
Definition
Possessor occupies and uses the land as if they own it without true owner's permission.
|
|
|
Term
Adverse Possession - Hostile Intent
2 Approaches to Determine |
|
Definition
1. Objective Majority (NC) Approach - AP intent is irrelevant. Outward manifestations show that AP acted as if he/she owned the land.
2. Subjective Minority Approach - courts consider APs state of mind to determine whether possession is hostile. Split in jurisdictions - (a) some consider larcenous intent - whether AP knew the land wasn't his but set out to take it from TO anyway; and (b) good faith belief - whether AP had a good faith belief that he actually owned the land |
|
|
Term
| Adverse Possession - Exclusive |
|
Definition
| AP must show that no one, especially true owner, has interfered with his/her possession without permission or consent. |
|
|
Term
| Adverse Possession - Open and Notorious |
|
Definition
| Must prove possession was visible to the public and anyone else, especially TO, who might be interested. This puts TO on notice and gives reasonable opportunity to discover someone is in wrongful possession of their property. Actual notice not required. If on reasonable inspection could have determined wrongful possession, then this element is satisfied. |
|
|
Term
| Adverse Possession - Continuous and Uninterrupted |
|
Definition
| AP must show that during the applicable SOL his possesion was regular and consistent with the character of the land. |
|
|
Term
|
Definition
| Something that is built entirely on a tract of land. |
|
|
Term
|
Definition
| Something that the landowner builds that is partly on his land and partly on his neighbor's land. |
|
|
Term
| Improvements and Encroachments |
|
Definition
CL - lost your property
ML - Betterment Statutes - Ct looks at intent to determine remedy.
1. larcenous intent - make you tear structure down or lose it to owner.
2. accidental - remedy would be equitable. pay for land and get good title or TO can pay for improvements. |
|
|
Term
|
Definition
| When two different owners claim under deeds or grants cover the same land. Still have to satisfy all elements of AP and requisite SOL. If neither party possesss then the one with better title will prevail as first in time. If only one person possesses it goes to that person regardless of superior title. If both are on land, superior title takes all but what person with inferior title actually possesses. |
|
|
Term
|
Definition
| A legally recognized status which might excuse a landowner from not bringing an action to recover possession of real property within the applicable SOL. |
|
|
Term
| NC recognizes 3 disabilities |
|
Definition
1. minority
2. insanity
3. incompetence |
|
|
Term
|
Definition
| The joining of consecutive periods of possession by different persons to treat the period as one continuous period |
|
|
Term
|
Definition
| Written instrument that purports to transfer title but for some reason fails to do so. Significant for two reasons: 1. can shorten SOL; and 2. gives rise to the doctrine of constructive possesion. |
|
|
Term
|
Definition
| Transferring property while still alive. |
|
|
Term
|
Definition
| Transfer of property upon death |
|
|
Term
|
Definition
| The connection or relationship between two parties, each having a legally recognized interest in the same subject matter. |
|
|
Term
|
Definition
| When more than one person has an interest in property (present and future), according to the law of waste, the property should ont be used so as to interfere with the other's interest in the property. Factors considered are: 1. the nature of the property interests; 2. conduct in question; and 3. remedy sought. The greater one's interest, the more freedom one has in using the property. |
|
|
Term
|
Definition
| Occurs when party in possession fails to perform some act which he is legally obligated to perform |
|
|
Term
|
Definition
| Voluntarily does something that substantially decreases value or changes nature of the property. (Exception - Open Mine Rule) |
|
|
Term
|
Definition
Elements:
1. intent
2. delivery
3. acceptance |
|
|
Term
|
Definition
| Those persons who would inherit someone's property under the Intestate Succession Act if that person dies without a will. Heirs can be anyone. However if alive, no heirs, only heirs apparent. |
|
|
Term
|
Definition
descendants
children, grandchildren, etc. |
|
|
Term
|
Definition
| parents, grandparents, etc. |
|
|
Term
|
Definition
| Persons that can inherit that are not descendants |
|
|
Term
|
Definition
| If no heirs are found, the property goes to the state. |
|
|
Term
|
Definition
| Title that is voluntarily passed but there is something wrong about the transaction (i.e., bad check) |
|
|
Term
|
Definition
words identifying who is to get the property
"to A" |
|
|
Term
|
Definition
Words identifying what the conveyance is giving
"in fee simple absolute" |
|
|
Term
|
Definition
| Words that described the duration of the estate. How long? |
|
|
Term
|
Definition
Words that place a condition of the estate
"but if" |
|
|
Term
|
Definition
Describe the future interest in a defeasible estate
"while, until, during"
|
|
|
Term
|
Definition
| an interest in land which is, or may become possessory, and which ownership is measured in terms of duration; including, both present and future estates. |
|
|
Term
|
Definition
| Ownership or possession of property by two or more persons at the same time. |
|
|
Term
| Types of Concurrent Estates |
|
Definition
1. Tenancy in Common
2. Joint Tenants with Rights of Survivorship
3. Tenants by Entirety |
|
|
Term
| Fee Simple Absolute (FSA) |
|
Definition
| An interest in land that, being the broadest property interest allowed by the law, endures until the current holder dies without heirs. Potentially infinite duration. Fully alienable. No restrictions. At CL conveyance must say, "to A and heirs" or a LE is conveyed. ML - presumption is that the conveyance is FSA unless specified otherwise. |
|
|
Term
| Fee Simple Determinable (FSD) |
|
Definition
| Can only end when state event occurs. To create a FSD the conveying instrument must contain language of duration ("so long as") Should also include language to expressly establish the possibility of reverter. Duration can be potentially infinite. Present interest is conveyable, devisable and inheritable but transferred with condition. Future interest is either a POR in transferor or Executory Interest in Transferee. If condition breached, it will automatically revert back to grantor or to 3d party. |
|
|
Term
|
Definition
| Type of estate that may be defeated by some condition that may occur in the future. |
|
|
Term
| Fee Simple Subject to Condition Subsequent (FSCS) |
|
Definition
| An estate subject to grantor's power to terminate the estate if some specified event occurs. Does not automatically terminate but grantor may terminate at his election. When condition is breached, title remains in A until legla action is taken to remove it. Language used to create is condition, "on condition that" Duration is potentially infinite. Every FSCS is accompanied by a future interest (ROE) For estate to end: (1) must have breach of condition; (2) transferor must exercise his ROE. Can be conveyed, devised, inherited with condition. Future interest lies with Grantor only. MMaj - right of entry is transferable intervivos and devisable. MMin - (1) ROE is not transferrable; (2) mere attempt to transfer destroys it; (3) not transferable inter vivos except to owner of possessory fee. CL - ROE only descended to heirs on death of owner. |
|
|
Term
| Fee Simple Subject to Executory Limitation (FSSEL) |
|
Definition
| Similar to FSCS but two major differences: (1) future interest is executory interest in a 3d party; and (2) if condition is breached, title terminates and automatically vests in 3d party. Language of condition is used to create such as, "to A but if..then to B" Duration is potentially infinite. Conveyable, devisable and inheritable with condition. |
|
|
Term
|
Definition
| An estate in land that is inheritable only to specified descendants of the original grantor and that endures until its current holder dies without issue. A fee Tail always has a future interest. All jurisdictions have abolished except: DE, MA, ME, and RI. |
|
|
Term
|
Definition
| A present ownership interest in the conveyed property that is measure by the duration of one's life. CL - presumption was a LE unless specified otherwise. ML - presumption is FSA unless otherwise specified. Life Estate pur autre vie is a LE measured by the life of another. Life Estate always has a future interest either in reversion or remainder. |
|
|
Term
|
Definition
| A nonfreehold estate (landlord/tenant) typified by lease for a specified period of time identified in transferring instrument. Duration for the term stated in transferring instrument. Transferability depends on the language of the transferring instrument. Always a future interest in transferor when time runs out. |
|
|
Term
|
Definition
| Any interest that takes effect upon the termination of a present interest |
|
|
Term
|
Definition
| Grantor's future interest in an estate when he transfers an estate of less duration than the one he started with. A reversion occurs automatically at the end of a naturally ending estate (LE, TOY, FT.) Reversions are alieanble and fully transferrable. May or may not be certain to become possessory in the future. |
|
|
Term
|
Definition
| When an owner transfers an estate subject to condition subsequent and retains the power to cut short or terminate the estate (FSCS). Title and possession in the land are not automatic. Grantor must excerise his power of termination in the present estate holder upon the breach of condition. CL - ROE only desceneded to heirs upon death of owner, was not transferable during life or devisable. MMaj - ROE is transferable inter vivos and devisable. MMin - (1) ROE is not transferable; (2) mere attempt to transfer destroys it; (3) not transferable inter vivos except to owner of possessory fee. |
|
|
Term
| Possibility of Reverter (POR) |
|
Definition
| POR retained by transferor who has FSA but transfers FSD. CL - POR descended to heirs upon death of owner, was not transferable during life or devisable. MMaj - POR is transferable inter vivos and devisable. MMin - POR is not transferable inter vivos except to owner of possessory fee. |
|
|
Term
|
Definition
| Future interest created in a transferee following a naturally ending estate (i.e., LE) Two general types: (1) vested (given to ascertained person not subject to condition precedent); and (2) contingent (given to an unascertained person and contingent upon some event occurring) |
|
|
Term
|
Definition
1. indefeasibly vested remainder (IVR)
2. vested remainder subject to open (VRSTO)
3. vested remainder subject to total defeasance (VRSTD)
The law has a preference for vested remainder and where an instrument is ambiguous the courts construe it in favor of a vested remainder. |
|
|
Term
| Indefeasible Vested Remainder (IVR) |
|
Definition
| A reminader in which the remainderman is certain to acquire a present interest some time in the future. Cannot be defeated. |
|
|
Term
| Vested Remainder Subject to Total Defeasance (VRSTD) |
|
Definition
| Remainder that is given to an ascertainable person and is not subject to a conditio precedent, but is subject to a condition subsequent which could divest or destroy the interest. Interest will be vested, but may still lose it all before going into possession. |
|
|
Term
| Vested Remainder Subject to Open |
|
Definition
| A remainder created in a cloass of persons is vested if one member of the class is ascertained, and htere is no condition precedent. The remainder is vested subject to open if later born children are entitled to share in the gift. Class of people may increase in size. The class will remain open unti lit is clear that no one else can be added. In case of children, follow the fertile octogenarian rule. |
|
|
Term
| Fertile Octogenarian Rule |
|
Definition
| Must presume that A can have children until A dies and in the case where A is male, up to 10 months following As death. |
|
|
Term
|
Definition
|
|
Term
|
Definition
| An act or event (other than lapse of time) that must occur. |
|
|
Term
|
Definition
| A condition that if it occurs will bring something else to an end. |
|
|
Term
|
Definition
| A remainder that is either given to an unascertained person or is subject to a condition precedent. |
|
|
Term
|
Definition
| A future interest held by a third party that either cuts off another's interest or begins after the natural termination of a preceding estate. |
|
|
