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| lawsuit to obtain taken goods rather than damages (involving personal property) |
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| A common-law action to recover damages for property illegally withheld or wrongfully converted to use by another. |
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| rights in land and things attached to the land (fences, trees, ect.) |
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| rights in things other than land |
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chattels: movable items of property
ex) cars, jewelry |
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| an intentional interference with the possession of personal property...proximately caus[ing] injury; wrongful interference with one's possessory rights in [real] property |
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| a finder of property prevails as against all but the true owner or prior possessor |
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| rightful possession of goods by a person who is not the owner (bailee) |
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when the owner of goods (bailor) gives possession to the bailee
Ex) leaving your clothes at the dry cleaners |
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finder chooses to take possession and so takes on obligations to protect the property
ex)find a lost wallet or keys |
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| "the occupier of a house will almost invariably possess any lost article found on the premises" |
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| owner of land on which property was found |
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| finder has prior possession if the locus owner never actually occupied the land; finder has right of title |
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| finder does not have the same right to hold mislaid property as he would if it had been lost |
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property deliberately placed somewhere then unintentionally forgotten
Question of intention of the true owner. |
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| finder has right to possession IF TO's intent was to relinquish all rights to the property |
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| method of transferring interests in land without the consent of the prior owner, even with dissent of owners |
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| suit brought by the owner of property to recover possession of land |
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| elements of Adverse Possession |
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Definition
1)Actual entry giving exclusive possession
2)open and notorious possession
3)Continuous for statutory period
4)Possession is hostile(adverse)to rights of TO under claim of title |
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| objective claim of right test |
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| possessor uses the land as a reasonable owner would without permission from the TO *objectively hostile |
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| Good Faith Test (claim of right) |
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AP must innocently and mistakenly (in good faith) believe that he is the TO
(rewards AP for improving the land while TO was ignoring it) |
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| Intentional Tresspass Test (Piracy Test) (claim of right) |
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| AP must:1)know he does not own the land 2)subjectively intend to take title from TO *very few jurisdictions follow this |
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| adding together of consecutive times of occupation or possession by different persons, and treating those periods as a single continuous one |
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| is permitted only if successive occupants are in "privity" |
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| rule of ordinary occupancy/use |
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possession requires such possession or dominion as "ordinarily marks the conduct of the owner in general holding, managing, and caring for the property of like nature and condition"
Ex) summer house is not supposed to be occupied all year long |
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| a voluntary, immediate transfer of property without consideration from one person(donor)to another(donee) |
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| gift made by one living person to another; once effectively given, it is irrevocable |
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| present gift made between living persons, in the anticipation of the donor's imminent death; if donor survives, it is revoked |
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| Common law requirements for valid gift: |
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Definition
1)Intent
2)Delivery
3)Acceptance |
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donor must intend to make a voluntary immediate transfer of property
Evidence:1)words/statements(oral or written)2)circumstanial evidence |
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| donor must transfer physical possession of the gift to the donee if practicable;if not,constructive or symbolic delivery required |
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| donee must accept gift (presumed in most jurisdictions if intent and delivery aspects are met, unless there is actual expressed rejection of the gft) |
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| contractual relationship between parties involving voluntary transfer of estate or possession from one occupant to another |
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| shifting executory interest |
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Definition
divests previous grantee
*goes from one grantee to another upon the occurrence of some condition |
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| springing executory interest |
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divests a grantor
*go from the grantor to a grantee upon the occurrence of some condition
**when there is an unavoidable gap in ownership of a present possessory estate in the land |
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Divides interest equally and maintains ownership interest separate from other cotenants
*courts prefer this approach b/c it is less forceful |
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| separates interests of cotenants ("escape hatch") (can have a partition even if all of the parties do not want it |
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sell off interest and split proceeds between cotenants; lose all interest
*forceful by courts and disadvantages parties with lesser resources b/c they do not have the $$ to bid on the property |
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| the wrongful dispossession (putting out) of a rightful owner or tenant of real property |
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| non-freehold estate; form of leasing rather than owning real property; gives holder of estate immediate possession and use of property |
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Term
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Definition
agreement of parties to a contract to substitute a new contract for the old one. It extinguishes (cancels) the old agreement.
OR when one party takes on the debt of another, leaving the original debtor free from obligation. |
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| common law rule of self help (of landlords) |
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Definition
| Landlord may rightfully use self-help to retake leased premises from a tenant in possession without incurring liability for wrongful eviction provided two conditions:1) landlord is legally entitled to possession, such as where a tenant holds over after the lease term or where a tenant breaches a lease containing a reentry clause 2)reentry is PEACABLE |
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| Public Policy Issue with C.L. Rule of Self help |
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Definition
| no longer exists; LL's must resort to judicial process to retake property b/c reentry can almost never be peacable |
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| mitigation of damages rule (doctrine of avoidable consequences) |
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| LL has a duty to take steps to avoid accruing damages that can be avoided through reasonable effort |
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| a hidden flaw, weakness or imperfection in an article which a seller knows about, but the buyer cannot discover by reasonable inspection; not obvious |
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| flaw that is noticable upon visual inspection |
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| doctrine of constructive eviction |
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1) wrongful act or omission by landlord that
2) substantially interferes with the T’s use and enjoyment (possession) |
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| 4 stages of real estate sales transaction |
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1)locating a buyer
2)negotiating contract
3)executory period (prep for closing)
4)closing |
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Definition
1)contractor/inspector report
2)termite inspection
3)obtain financing
4)title report prepared-most contracts contain a mortgage contingency that if financing is not obtained, then contract is rescinded |
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Definition
Buyer executes written promissory note in favor of lender secured by a first priority mortgage that will encumber the property
Purchase loan is made by lender
Sales price is paid to the seller
Commission is distributed to brokers
Seller conveys title to buyer through a written warranty deed
Buyer receives a title insurance policy insuring her title to the property
Deed and mortgage are immediately recorded |
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Term
| possesory estate/present estate |
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Definition
| legal interest that entitles the owner of an estate to immediate possession of real or personal property |
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| non-possesory interest in real or personal property that may become a possesory estate in the future |
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Term
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an estate of potentially infinte duration
*Grant to A or to A and his heirs |
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an estate whose duration is measured by the lives of the lineal decendants of a designated person, when the blood line dies the estate ends
*a grant to A and the heirs of his body |
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estate whose duration is measured by the lives of one or more specified persons
*to A for his life |
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forms of leasing land:
1)tenancy for a term of years
2)periodic tenancy
3)tenancy at will |
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| lease from L to T for an intial fixed period that automatically continues until either L or T terminates |
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| lease with no fixed duration that endures only so long as both L and T desire |
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potentially indefinite, but if a person with the estate dies without a will or heirs, the estate will "escheat" to the state
*most absolute rights of ownership you can have, but still has limitations
**(to A, to A forever, ect.) ("and to his heirs" is implied in modern law) |
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| will end when the life of the person holding the estate ends |
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| defeasible freehold estates |
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Definition
language that creates the estate indicates that it may end prematurely if a particular future interest occurs:
1)fee simple determinable
2)fee simple subject to condition subsequent
3)fee simple subject to executory limitation |
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| automatically expires at the time when a particular event occurs, immediately giving the original transferor the legal right to possession |
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| fee simple subject to condition subsequent |
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| does not automatically expire, but future interest holder is given the power to take affirmative action to end the estate |
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| fee simple subjecto to executory limitation |
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Definition
automatically expires when future event occurs, but gives right to possession to a transferee without any affirmative action by the future interest holder
*is a FSD or FSSCS in which future interest has been conveyed to a third party |
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| words that describe the type of estate being created |
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| language that describes who it is that is taking the estate presently - person the estate is being conveyed to in the deed or will |
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| means that there is no contingency to ultimate possession other than the natural termination of the prior estates |
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| an interest in land that is less than ownership, but can be bought, sold, inherited, ect. |
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| persons who survive the decedent and are designated intestate successors |
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all persons related by blood to the decedent
*brothers, sisters, nieces, nephews |
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| future interest given to a person that is capable of becoming possessory upon the natural end of a prior estate created by the same instrument |
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1)given to a presently existing, ascertained person
2)nto subject to condition precedent |
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1)given to unascertained(unborn) person
OR
2)made contingent upon occurence of some event other than natural termination (conditional language)
ex) O to A for life then to the heirs of B |
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