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property
n/a
87
Law
Graduate
03/01/2010

Additional Law Flashcards

 


 

Cards

Term
what are the four kinds of property rights?
Definition
exclude; possess; use; alienate
Term
ejectment
Definition
tort action for recovery of real property
Term
action for tresspass on the case
Definition
action for indirect harm
Term
trespass and nuisance
Definition
recovery for damage of real property
Term
trover
Definition
recovery for damages to personal property
Term
replevin
Definition
recovery to get personal property back
Term
types of arguments
Definition
societal interests; custom; fairness
Term
tragedy of commons
Definition
if everyone has access to resource, the resource is depleted.
Term
possession according to holmes
Definition
relation of manifested power in relation to object in question and intent to exclude others from interfering with the object
Term
pierson v. post
Definition
certain future possession or physical possession rules
Term
lost property
Definition
unintentionally parts; goes to finder; finder is a bailee for the true owner; sometimes the landowner on which the property is found can prevail over the finder
Term
mislaid property
Definition
owner intentionally puts property somewhere and forgets where; goes to owner of the premises where property is found; owner has superior rights
Term
abandoned property
Definition
owner intentionally parts with possession and gives up most rights; property goes to find or the employer of finder
Term
what are the three kinds of found property
Definition
lost, mislaid, abandonned
Term
elements of bailment
Definition
lawful possession of another's property; property has been delivered by owner to possessor; delivery is pursuant an agreement [not necessary]
Term
bailee is strictly liable if...
Definition
conversion; mis-delivery
Term
if bailee benefits
Definition
slight negligence
Term
if bailor benefits
Definition
gross negligence
Term
if mutual benefit
Definition
ordinary standard of care
Term
burden of proof for bailee/bailor
Definition
bailee has to show what happened to the property
Term
adverse possession elements
Definition
actual, continual, exclusive, hostile, open and notorious
Term
test for exclusivity
Definition
did adverse possessor share use no more than a true owner would?
Term
how can hostility be defeated
Definition
if true owner shows possessor was there with true owner's permission
Term
fences?
Definition
can show possession but only if it is a boundary fence.
Term
how can true owners stop sol clock?
Definition
kick possessors off; staying on the land; filing for ejectment
Term
tacking
Definition
2 adverse possessors can tack their sol times 
Term
inverse tacking
Definition
if real title is transferred clock continues to run for adverse possessor despite transaction.
Term
what if you're just there on the weekends?
Definition
depends on the terrain and if you use it as a real owner would
Term
what is the standard for actual possession
Definition
whether possessor is acting in the same manner as the true owner
Term
what does hostile possession mean?
Definition
land is occupied without owner's permission and possessor acted toward land as if he owned it.
Term
what  is open and notorious when trespass is tiny?
Definition
for small pieces of land, the owner must know of the trespass.
Term
what is open and notorious?
Definition
others know about and they assume it is your property; you use it as your property and others see and think it's your property
Term
how can you tack adverse possession
Definition
must be intent to transfer property
Term
testate
Definition
transfer via will
Term
how many witnesses for a will?
Definition
3 to be safe.
Term
fee simple absolute
Definition
It is the 'largest' estate to the law and it is unlimited in duration.  The estate is inheritable, alienable, and devisable by will through the current owner of the estate.
Term
what is the language that conveys a fsa?
Definition
 1) to A and his heirs; 2) to A, his heirs and assigns; and 3) to A.
Term
defeasible fee estates
Definition
They are created so the owner, the owner's successors, or a third party can possess the estate conferred in light of the occurrence of specified events.
Term
fee simple determinable estate
Definition
The estate ends automatically.
Term
possibility of reverter
Definition
This is the interest left in the grantor after transferring a fee simple determinable.
Term
fee on condition subsequent
Definition
The estate becomes vulnerable to repossession and the grantor has the power to terminate the grantee's estate.  The grantor must expressly exercise his power to terminate.
Term
 Right of Entry/Power of Termination
Definition
The interest left in the grantor after transferring a fee on condition subsequent.
Term
Fee Simple Subject to an Executory Interest
Definition

The original owner may also convey to A an estate that will turn over to a third party, B, after the occurrence of the specified event.  This estate is fairly recent compared to the others (16th century).

 

Term
Executory interest
Definition
The interest the third party, B, holds
Term
Determinable language
Definition
 To draft a transfer of fee simple determinable, the lawyer must use language to indicate duration and specifically provide for automatic termination upon the happening of the stated contingency and revesting to the grantor.  Catch phrases:  'so long as,' 'until,' 'during that time.'  However, language that only notes special limitation without an express provision for reverter will still suffice--but only for determinable estates.
Term
Condition Subsequent language
Definition

 To draft a transfer of fee on condition subsequent, the lawyer must use language expressing condition and expressly provide for a right of entry upon breach of the condition.  Catch phrases:  'on condition that,' 'provided that.'  Language that only expresses a condition but not right for entry is generally not enough to create a defeasible estate in the United States--but it is, to some extent, up to the courts.


Term
life estates
Definition
 A life estate holds future interests for either the original grantor or a third party.
Term
language for life estate
Definition

1) to A for life; 2) to A for and during his natural life; 3) to A until he dies; 4) to A for the life of B.


Term
PUR AUTRE VIE
Definition
When the possessor of the land possesses the land for the duration of a life other than his or her own.
Term

LEASEHOLD ESTATES


Definition
Usually any estate that is granted for a limited number of years other than life.  These estates are usually condition subsequent estates as well [pay rent, etc.] and can usually be terminated through merely not wanting to be there or not wanting someone else to be there.  It's a lot like renting an apartment.
Term
future estate
Definition
owned in the present and is received at the moment of conveyance; however, the possession of the property lies in the future, which is why the interest is 'future.'  Any estate that is not a FSA has a future interest element since there is always a possibility the land may go to someone else by way other than the current possessor's intentional transfer. 
Term
CONDEMNATION
Definition
If the government takes the land, the government will have to pay compensation to the individual who has future interest in the land along with the individual who holds the estate presently.
Term
TRANSFER of future estates
Definition

 B can transfer his future interests--it is inheritable and perhaps sellable.


Term
POSSIBILITY OF REVERTER
Definition
Future interest created through a fee simple determinable; grantor has the right
Term
RIGHT OF ENTRY/POWER OF TERMINATION
Definition
 Future interest created through a fee simple on condition subsequent; right to grantor
Term
REVERSION
Definition
Any future interest created in the grantor that does not follow a fee simple determinable or fee simple on condition subsequent:  life estates and leaseholds.
Term
rules of remainders
Definition

1) The future interest must be created at the same time as the present estate is conveyed.

2) A remainder must follow a life estate.

3) There must be natural termination.

4) There must not be a time gap; remainder must be effect immediately.

Term
contingent remainders
Definition

1) The taker of the remainder is unascertainable

2) The remainder is subject to an unfulfilled condition precedent:  a death is not considered a condition precedent.

Term
what if the condition precedent is not met in a contingent remainder?
Definition
THE GRANTOR RECEIVES A REVERSION IF THE CONDITION PRECEDENT IS NOT MET
Term
is a contingent remainder devisable and descendible
Definition
yes unless expressly limited.
Term
indefeasibly vested remainders
Definition
The remainderman/his heirs are absolutely assured of receiving the land when A dies.  There is no risk of fractional or complete loss.  These are certain to become possessory and also certain not be prematurely cut off or cut down in size.  
Term
REMAINDERS VESTED SUBJECT TO COMPLETE DEFEASANCE
Definition
 Rests on condition subsequent as opposed to contingent remainders which rests on condition precedent; sometimes the working can provide very little difference between the former and latter types.  However, RVSCD is not subject to destructibility; they are also not subject to the Rule Against Perpetuities.  
Term
language creating remainders vested subject to complete defeasance
Definition
 If the conditional language comes in a later clause than the language granting the remainder itself, it will likely be said to create a condition subsequent; usually begins with 'but if.'  If it comes before, then more likely to be a condition precedent.  Most courts tend to prefer a vested construction when in doubt.  
Term
REMAINDERS VESTED SUBJECT TO OPEN/PARTIAL DEFEASANCE
Definition
A remainder in favor of a class of persons that is capable of increasing in membership [like to A's children].  If the class cannot expand or decrease, then it is not a remainder vested subject to partial defeasance--it is a indefeasibly vested.
Term

EXECUTORY INTEREST


Definition
Executory interests work by springing or cutting short a previous vested fee simple estate while remainders take effect at the expiration.  In other words, executory interests are what follow a fee simple defeasible.  
Term

RULE AGAINST PERPETUITIES


Definition
 "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest."
Term
 INTERESTS COVERED BY THE RULE
Definition
executory interests, contingent remainders except in the possibility of destructibility; class gifts.
Term
 INTERESTS EXEMPT FROM THE RULE
Definition
Reversions, vested remainders except for class gifts, possibilities of reverters and rights of entry.
Term
REMOTENESS OF VESTING
Definition
The courts look at whether or not the future interest will vest or fail to vest within 21 years of conveyance; if it is at all possible it will not vest then the conveyance is void.  The fact the interest does in fact vest during the 21 year period is irrelevant.
Term
A LIFE IN BEING
Definition
21 years after the life of someone who dies; must be someone already living.
Term
EFFECT OF A VIOLATION
Definition

Only the parts that are void are struck from the conveyance.


Term
THE LAW OF WASTE: 
Definition
 operates to restrict a possessor in her use if her possessory estate is limited [less than a fee simple absolute--even defeasible estates].
Term
Definition

unreasonable use of the property by the owner of the possessory estate which reduces the value of a future estate.  Though, if you can prove something has been removed from the soil, you do not need to prove decrease in the market value of the land.  


Term
PERMISSIVE WASTE
Definition

When a tenant breaches the obligation of repair; example, failure to repair a leaky roof which omission will result in more than ordinary wear and tear.


Term
DEFEASIBLE FEE and waste
Definition

If an individual possesses a defeasible fee that has a high probably the future interest will become a present interest, the individual will be held liable for waste only if he commits an unconscionable waste.


Term

BROKAW V. FAIRCHILD


Definition

The court holds whether or not the construction of the apartment will result in a greater profit for the remainderman is not the test for waste; instead, the test for waste is whether the act will so change the estate so as to be an injury to the inheritance.  It is clear from the will, the testator intended the residence as part of his estate.  The court also holds the π is attempting to exercise ownership over the land, which π does not have the right to.


Term

BAKER V. WEEDON


Definition
The court holds selling the entirety of the land would be too extreme for the provision of π's financial needs.  The court holds a sale of this kind must consider the interests and benefits of both life tenant and remaindermen.  The lower court used a theory of waste--it considered the unproductivity of the land to be a type of waste and therefore, the land should be sold in order to prevent a waste of resources and for the benefit of both π and ∆.  I think this case contrasts with the previous one because they're very similar in fact pattern but different in result.  The court here allows π to sell part of the land because selling all of it would deprive ∆ of their vested interests.
Term
 JOINT TENANCY
Definition

The principle characteristic of a joint tenancy is the right of survivorship and the last remaining tenant is the one who keeps the property in what is assumed to be fee simple absolute (unless specifically provided it is in fee simple defeasible or with a life tenancy).  Each tenant has the right to the whole, which means the interest is undivided; however the interest can be divided through partition [partition in kind or partition and sale].  However, the right to partition is limited by statutes and perhaps the will of the transferror (can't partition the common areas of a condo, for example).   Joint tenancy cannot be passed down by will or descent because survivorship comes into play immediately.  Joint tenancy can be terminated without notice to or the consent of other tenants.


Term
JOINT TENANCY LANGUAGE
Definition
The safest thing to do is to explicitly say you are not creating a tenancy in common but a joint tenancy.  States are divided as to what kind of language is sufficient.
Term
FOUR UNITIES OF JOINT TENANCY
Definition
time [the interests of the tenants must arise at the same time], title [the interests are acquired by the same instrument], interest [identical interests], and possession [common right of possession and enjoyment].
Term
TENANCY BY THE ENTIRETY
Definition
same as joint tenancy only between spouses and non-severable
Term
 TENANCY IN COMMON
Definition

Only requires the unity of possession; no right of survivorship; and is freely alienable inter vivos and passes to his devisees or heirs.


Term

CROWTHER V. MOWER


Definition
The recording statute has no effect against survivorship as it only applies to people who are purchasing a second time.  Also, a joint tenancy is reduced to a tenancy in common when a joint tenant conveys her interest to another.  In this case, π's mom did and thus the tenancy became tenancy in common and not joint tenancy.  Furthermore, a deed does not need to be recorded in order to be valid.
Term

PORTER V. PORTER


Definition
A divorce does not sever a joint tenancy unless the joint tenancy is explicitly severed in the divorce settlement.
Term

WRIGHT V. WRIGHT


Definition
The elements of adverse possession against a co-tenant are the usual adverse possession elements and at least one of the following elements:  the adverse possessor must first effect 1) an actual ouster [sale without consent is enough]; 2) retains exclusive possession after demand; or 3) gives his cotenant express notice of adverse possession.
Term

ARK LAND COMPANY V. HARPER


Definition
 1) property cannot be conveniently partitioned in kind; 2) the interests of one or more of the parties will be promoted by the sale; 3) the interests of the other parties will not be prejudiced by the sale.
Term

CARR V. DEKING


Definition
The cotenant can lease his own land without seeking the approval of the other; when the land is leased, the lessee steps into a cotenants shoes and basically becomes a cotenant himself.
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