Term
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Definition
| Entails the sighting or finding of hitherto unknown/unchartered territory |
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Term
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Definition
| Means of asserting possession |
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Term
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Definition
| Taking through use of force and annexation. Can only be done by a state, NOT individuals |
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Term
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Definition
| The links are the transactions (conveyances) by which a parcel of land moves from owner to owner over time |
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Term
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Definition
| Personal property arises by mixing labor w/ something from the commons |
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Term
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Definition
| Means of acquiring possession of fugitive resources |
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Term
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Definition
| Deal with access and exclusion. Thought of as a bundle of sticks where it is possible to have some but not all sticks |
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Definition
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Term
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Definition
| Implied possession through ownership of land. A man possesses everything which is attached or under his land, but does NOT necessarily possess something lying unattached on the surface of his land |
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Term
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Definition
| Constructive possession of resources on one's land |
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Definition
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Term
Acquisition by Capture:
RULE: Pierson vs Ghen |
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Definition
| Pierson: to capture ferae naturae, one must deprive it of its natural liberty or mortally wound it during pursuit. Ghen: to gain possession all that is practicable to sufficiently control it must be done. |
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Term
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Definition
| Being there first justifies property rights in land/chattel |
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Term
Acquisition by Capture:
POLICY |
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Definition
| Firm rules prevent vigilante justice/fisticuffs in the woods/self-help. Important economic activity needs to be incentivized. People would not engage in foxhunting/whaling if saucy intruders could appropriate the hunter's fruits of his labor. |
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Term
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Definition
| Open to capture. Includes ferae naturae as well as oil/gas/water. First to capture and use beneficially will gain possession. |
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Term
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Definition
| Different degrees of ownership |
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Term
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Definition
| Relationship to potential claimants to property |
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Term
Acquisition by Capture:
CRITICISM |
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Definition
| Race to capture resources first causes resources to be overused. Promotes over-investment in one particular economic activity. Private property developed to counter this effect. |
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Term
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Definition
| Permanent, intentional, and voluntary relinquishment of possession |
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Term
Locke's Labor Theory:
Creation |
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Definition
| The foundation of proprietary rights is the expenditure of labor and money (money represents past efforts) thus the first in time to create has the right to exploit |
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Term
Acquisition by Creation:
POLICY |
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Definition
| A balance must be struck between the incentive to create and the public interest. Imitation is the life blood of competition. Copiers serve an important public interest by offering comparable goods at lower prices. Monopolies promote creative activity but limit advancement. |
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Term
Acquisition by Creation:
RULE |
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Definition
| Absent a recognized right, a man's property is limited to the chattels which embody his invention. Others may imitate these at their pleasure. |
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Term
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Definition
| Granted for processes or products that are NOVEL, USEFUL, and NONOBVIOUS. n/a for laws of nature, physical phenomena, or abstract ideas. Give a 20 year monopoly right. NOT renewable |
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Term
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Definition
| Protect original expressions in a fixed media. Need NOT be novel. Last life of author + 70 years after death. |
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Term
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Definition
| Words/symbols indicating the source of a product or service. Protect against use of similar marks by others when such use would result in confusion |
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Term
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Definition
| Limited use of copyrighted works allowed for education and parody |
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Term
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Definition
| A master answers for actions against his apprentice |
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Term
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Definition
| Temporary transfer of possession. Anytime anyone other than the owner is in possession. Bailee has a duty to use reasonable care |
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Term
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Definition
The strength of one's title follows the chain of title.
Owner>prior possessors>finder>world |
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Term
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Definition
| Subsequent possession arising by finding lost/mislaid/abandoned property. A finder's right is in POSSESSION, NOT transfer |
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Term
Acquisition by Find:
POLICY |
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Definition
| Overall goal: get property back to true owner. By giving a finder rights, the property is more likely to stay out in the open and thus be found by the true owner. Also prevents vigilante justice |
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Term
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Definition
| P receives $ for damages in place of getting property returned |
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Term
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Definition
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Term
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Definition
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Term
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Definition
| When the property is left involuntarily. Lost goes to the finder |
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Term
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Definition
| When item is placed voluntarily w/ an intent to retrieve it. Mislaid goes to the owner of the locus in quo. |
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Term
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Definition
| Owner of locus in quo more likely to secure rights of true owner because a person will retrace their steps |
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Term
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Definition
| All property is lost, NO mislaid distinction. Lost property must be given to the police and if the true owner does not retrieve it w/in 30 days, finder gains title. Imposes due diligence on the true owner |
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Term
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Definition
| Generally embedded property goes to the owner of the locus in quo |
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Term
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Definition
| Was intended to be retrieved, hidden (usually buried), goes to finder |
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Term
Adverse Possession:
DEFINITION |
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Definition
| Mechanism by which a subsequent possessor can rest title from the owner and vest title w/in themselves |
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Term
Adverse Possession:
POLICY |
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Definition
| EFFICIENCY: ensure land shifts to its highest value usage and penalize dormant owners sleeping on their rights. MORALITY: when a person occupies and invests in property, he becomes attached to it. PRACTICALITY: correct mistaken deeds |
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Term
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Definition
| Actual ENTRY; OPEN and notorious; CONTINUOUS for the statutory period; ADVERSE and under a claim of right (hostile); EXCLUSIVE of the true owner |
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Term
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Definition
| Real property=going onto the land. Chattel=possessing it |
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Term
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Definition
| Typical use of the property as an ordinary owner would do. Sufficient to put the owner on notice |
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Term
Continuous for the Statutory Period:
LAND |
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Definition
| Uninterrupted, time begins to accrue at entry, 10 years |
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Term
Continuous for the Statutory Period:
CHATTEL |
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Definition
| Uninterrupted dispossession of the true owner, 3 years |
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Term
Continuous for the Statutory Period:
CHATTEL: DISCOVERY RULE |
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Definition
| SOL does NOT run until the true owner discovers or should have discovered the whereabouts of the chattel. Owner must use due diligence to look for the chattel from when it goes missing. POLICY: puts onus on the owner. MAJORITY |
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Term
Continuous for the Statutory Period:
CHATTEL: NY RULE: DEMAND AND REFUSAL |
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Definition
| SOL runs when the owner demands return of a found chattel and the finder refuses |
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Term
Continuous for the Statutory Period:
TACKING |
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Definition
| Successive, continuous title of different owners used to establish AP. Continuous years between privy title holders are added together. Used for both AP of land and chattel. Privity (voluntary transfer) REQUIRED |
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Term
| Adverse and Under a Claim of Right |
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Definition
| AP cannot be subordinate to the owner (w/ permission). |
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Term
Adverse and Under a Claim of Right:
Standards of Hostility |
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Definition
| OBJECTIVE: state of mind irrelevant (majority rule). GOOD FAITH: "I thought I owned it." PURE (bad faith): "I knew I did NOT own it but I want it." |
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Term
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Definition
| A claim founded on a written instrument that is defective/invalid (example: faulty deed). Constructive AP of the whole property |
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Term
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Definition
| An owner's knowledge is NOT required to start AP SOL |
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Term
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Definition
| An owner's actual knowledge is required to start AP SOL |
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Term
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Definition
| Improvements cost time and labor therefore punishment of mistaken improvers should be avoided. Shift away from harsh common law ejectment of mistaken improvers |
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Term
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Definition
| Ejectment; AP invoked to force sale of encroached area; injunction to remove encroachment |
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Term
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Definition
| Rights of use gained over time |
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Term
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Definition
| SOL delayed; must be present when SOL begins to run; SOL runs when its removed; death removes all |
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Term
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Definition
| When title can be voided by the true owner. If title is not voided before a bona fide purchaser buys, the purchaser gets clean title. |
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Term
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Definition
| Temporary bailment for limited use to a merchant of that kind. When chattel sold to a bona fide purchaser, purchaser gets good title and owner has action of trover against the merchant |
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Term
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Definition
| Consumer protection; encourages good faith purchases from legit dealers; discourages trafficking stolen items |
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Term
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Definition
| Between living people. Irrevocable (except engagement rings because these are conditional gifts). NO requirement for re-delivery |
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Term
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Definition
| Made in contemplation of impending death. Revocable until death. Revoked by ambiguity of intent; recovery; dying of something else. Re-delivery required. Courts are skeptical thus more stringent requirements |
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Term
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Definition
| Donor intended a permanent transfer |
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Term
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Definition
| MANUAL: puts the gift in the hands or dominion of the donee. MUST use manual when possible and it suits the gift. POLICY: ensure owner feels the wrench of giving to ensure seriousness. CONSTRUCTIVE: provides access (example: key). SYMBOLIC: handing over something symbolic of the gift. |
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Term
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Definition
| Presumed if the gift is of positive value; rebuttable presumtion |
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Term
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Definition
| Free and voluntary exchange permits resources to move to higher valued uses |
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Term
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Definition
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Term
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Definition
| All parties must be present |
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Term
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Definition
| Seller shall convey good and marketable title (implied). Must be lawfully executed: in writing; signed by grantor; meets statutory prerequisites. Must be lawfully delivered: manual; grantor must intend to be immediately bound |
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Term
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Definition
| Protects title; optional; typically only covers purchase price; does NOT run w/ the land; bought by purchaser at closing |
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Term
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Definition
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Term
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Definition
| Shows specific defects. Higher standard than Affidavit of Title |
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Term
| Damage to Real Estate Prior to Closing |
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Definition
| Common law: after K but before closing, buyer gained equitable title, thus loss was borne by the purchaser. Statutes have put loss on the seller because he is better positioned to protect the property from loss |
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Term
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Definition
| Buyer beware. NO duty to disclose defects. "As is" conditions have been modified by mandatory disclosure laws |
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Term
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Definition
| Unknown and undiscoverable at the time of purchase |
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Term
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Definition
| Must have signatures, description of real estate, and price in land Ks |
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Term
Statute of Frauds:
EXCEPTION: Part Performance |
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Definition
| A party making payments, moving in, and improving the property are evidentiary proof of NO fraud. These are actions that are UNIQUELY REFERABLE to the K-->the action makes no sense w/o a K therefore there must have been a K. REMEDY: injunction or specific performance |
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Term
Statute of Frauds:
EXCEPTION: Estoppel |
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Definition
| Where denying enforcement for detrimental reliance on a K would be unjust, a court can enforce a legally fictitious K. REMEDY: damages |
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Term
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Definition
| Not necessarily perfect. A reasonable person would pay value for it |
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Term
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Definition
| A burden or claim on the property |
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Term
| Implied Warranties in Every Land Sale K |
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Definition
| Marketable title and NO false statements of material fact |
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Term
| Covenant (Public/Private) |
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Definition
| Promise to use property in a certain way |
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Term
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Definition
| Defect must be substantial and one from which the buyer will suffer |
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Term
Public Covenant:
Municipal Restrictions/Ordinances |
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Definition
| Mere existence at the time of the K's execution NOT encumbrances to make unmarketable. BREACH does make title unmarketable |
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Term
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Definition
| Mere existence DOES make title unmarketable unless it is specifically excepted to in the K |
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Term
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Definition
| Permission to install/maintain something on the property. IS an encumbrance; knowledge irrelevant; BUT when it is open/obvious it does NOT make title unmarketable because it is assumed that buyer knew of it during negotiations |
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Term
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Definition
| In buyer during the K phase |
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Term
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Definition
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Term
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Definition
| Where a condition materially impairs the value of the K and is peculiarly w/in the knowledge of the seller or unlikely to be discovered by a prudent buyer exercising due care, nondisclosure constitutes a basis for rescission |
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Term
Material Defect:
Objective |
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Definition
| Affects the market value of the property |
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Term
Material Defect:
Subjective |
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Definition
| Affects the value of the property to the buyer |
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Term
Duty to Disclose Defects:
POLICY |
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Definition
| Relief should not be denied to a prudent purchaser. Steady erosion of caveat emptor to further protect buyers. Trend towards nixing the distinction b/w non and misfeasance. Trend towards increased duties on the seller. Brokers have pushed for legislation because they have been found liable for nondisclosure on behalf of clients |
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Term
| Disclosure of Hazardous Waste Disposal |
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Definition
| CERCLA imposes strict liability upon any current owner AND any prior owner at the time the site was contaminated. MUST disclose, even off-site sites |
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Term
| Contemporary Caveat Emptor |
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Definition
| Generally, "as is" clauses will still be upheld if defects are reasonably discoverable and NO fraud |
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Term
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Definition
| When buyer accepts the deed, the K merges into the deed. Buyer can no longer sue on K but must sue on warranties in the deed |
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Term
| Implied Warranty of Workmanlike Quality |
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Definition
| Duty on new construction to ensure a customary standard is met. Privity b/w subsequent purchaser and builder NOT required to sue on this implied warranty for latent defects which manifest themselves w/in a reasonable time after purchase and which cause economic harm. Only applies to new construction |
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Term
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Definition
| Warrants title against all defects, whether they arose before or after grantor took title. Runs w/ the land |
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Term
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Definition
| Warrants against grantor's own acts. NO encumbrances made by grantor; grantor has not conveyed to anyone else. NOTE: grantors are responsible for AP, thus this type of warranty includes AP |
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Term
| Quitclaim ("Shitclaim") Deed |
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Definition
| NO warranties of any kind. Merely conveys title |
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Term
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Definition
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Term
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Definition
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Term
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Definition
| Liability arises at closing; SOL accrues from the date of the delivery of the deed. Do NOT run w/ the land, BUT subsequent purchasers are impliedly assigned the right to sue for breach of present covenants |
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Term
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Definition
| Grantor warrants that he owns the title he purports to convey |
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Term
Present Covenants:
Right to Convey |
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Definition
| Grantor warrants that he has the right to convey the property. Generally the same as seisin, but a trustee may have legal title but be forbidden by the trust to convey |
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Term
Present Covenants:
Against Encumbrances |
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Definition
| Grantor warrants that there are NO encumbrances on the property (mortgages, liens, easements, and private or enforced public covenants). Can only be breached if the encumbrance existed at the time of conveyance |
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Term
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Definition
| Run w/ the land; assurances follow the deed into the future; SOL begins to accrue when the cause of action arises (eviction (constructive or actual), necessary purchase of paramount title, etc.). Includes implied warranty of workmanlike quality. Title or possession required to invoke these |
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Term
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Definition
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Term
Future Covenants:
General Warranty |
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Definition
| Grantor warrants he will defend against lawful claims to the property and will compensate grantee for any loss from assertion of superior title |
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Term
Future Covenants:
Quiet Enjoyment |
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Definition
| Grantor warrants the grantee will not be disturbed in possession and enjoyment by assertion of superior title. Same as general warranty, thus often omitted in general warranty deeds |
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Term
Future Covenants:
Further Assurances |
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Definition
| Grantor warrants that he will execute any other documents required to perfect the title conveyed (paying off a lien, etc.) |
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Term
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Definition
| Mere existence does NOT breach a covenant, the person holding paramount title must interfere w/ right of possession to be actionable. Purchase of paramount title must be forced to breach covenant of general warranty, the purchase cannot be voluntary |
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Term
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Definition
| Where a saucy grantor conveys land he does NOT own and subsequently acquires title to said land, the grantor is estopped to deny that he had title at conveyance. Purchaser's title relates back to the time of purchasing the forged deed |
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Term
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Definition
| 3rd party who is handed deed by grantor and hands it to grantee. Oral instructions given to the escrow agent are given effect because 3rd party less likely to lie and can attest to the validity of the condition |
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Term
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Definition
| Must be delivered w/ the INTENT that it be presently operative. Conditional delivery requires the deed be placed in the hands of an escrow agent until the condition is met. Manual delivery w/o INTENT to transfer immediately is revocable, while delivery to an escrow agent is NOT revocable |
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Term
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Definition
| An instrument that protects the power of revocation |
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Term
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Definition
| Promise to pay guaranteed by the value of the asset |
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Term
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Definition
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Term
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Definition
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Term
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Definition
| Slow and formal. A proceeding in which the mortgagor is ordered to pay w/in a given period and if he does not pay, a foreclosure sale is ordered |
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Term
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Definition
| Can foreclose any time after default. Mortgagee gets quicker remedy in return for the lack of capacity to sue for a deficiency judgment |
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Term
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Definition
| An extension of first in time. 1st mortgage is paid off 1st. As a result, subsequent mortgages usually carry higher rates |
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Term
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Definition
| An order to mortgagee to pay any deficiency b/w debt owed and price fetched at foreclosure sale. Foreclosure price must shock the conscience to deny deficiency judgments |
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Term
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Definition
| Allows mortgagee to call for entire sum of debt at once |
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Term
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Definition
| An arrangement whereby the purchaser takes possession and the seller Ks to convey title when purchase price is paid. Requires a foreclosure proceeding after default |
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Term
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Definition
| Before closing. ACTUAL: knowledge of other claims before purchase. CONSTRUCTIVE: recorded. INQUIRY: a reasonable person would make an inquiry into the quality of title |
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Term
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Definition
| Define priority of right to land. Must be subsequent and bona fide to qualify for protections |
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Term
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Definition
| The person who records first prevails. POLICY: certainty and efficiency |
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Term
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Definition
| Must be w/o notice. Protects against prior unrecorded instruments even though the subsequent purchaser fails to record |
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Term
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Definition
| NY. Subsequent purchaser protected if w/o notice AND first to record |
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Term
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Definition
| Shelters anyone, even if they had notice, who purchased FROM a bona fide, subsequent purchaser who did NOT have notice |
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Term
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Definition
| Link in the chain of title is NOT recorded and unlikely to be found in the indexes w/ reasonable effort |
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Term
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Definition
| Statutory limit on title searches to a reasonable period, typically 30-40 years. Enacted for efficiency and to void old interests |
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