Term
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Definition
1. Bundle of Rights
2. Web of interests
3. Focus on right to exclude |
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Term
| Trepass to Land Damages and Rationale |
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Definition
Damages: Entitled to both compensatory and punitive because
1. Harm not to the land, but your right to exlude others
2. Not allowing damages would encourage trespass for adverse possession
3. Not allowing damages would encourage self help remedies |
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Term
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Definition
Damages: May only recover the actual damages suffered by reaons of the impairment of the property or the loss of use
1. This does not change if you are seeking damages are injunctive relief |
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Term
| What is a leasehold estate |
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Definition
| A possessory interest that normally gives the tenant the right to exclusive possession |
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Term
| Method for determining if something is a license or lease |
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Definition
| Look at the language of the agreement to find the intent of the parties |
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Term
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Definition
1. A possessory interest in land
2. NOT terminable at will |
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Term
| How to tell if it is a lease |
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Definition
1. Must include a definate discription of the property leased.
2. And an agreement for rental to be paid at particular times
3. Must be for a specificed term
4. Language to look for
a. "good tenantable condition"
b. the word "lease"
c. "space demise"
d. "monthly rental" |
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Term
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Definition
1.Authorizes the licensee to use the land in the possession of another
2. Is terminable at will |
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Term
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Definition
1. No designated space
2. Use of others names or trademarks
3. Limited access |
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Term
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Definition
| By the mere act of signing the lease, the landlord impliedly promises that she is granting the right to physical possession of the leased premises |
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Term
| 2 approaches to quiet enjoyment at start of lease term |
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Definition
1. Majority Rule
2. American Rule |
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Term
| Majority Rule for quiet enjoyment |
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Definition
There is a right to legal possession and actual possession.
No rent due if actual possession not given but reasonable time must be afforded |
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Term
| American Rule for quiet enjoyment |
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Definition
| Only legal possession needs to be given by the landlord, and it is the duty of the lessee to deal with holdover tenants or tresspassers |
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Term
| Quiet enjoyment during the lease term |
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Definition
1. If possession is distrubed by a third party acting independant of the landlord and w/o LL negligence, no action against LL
2. Where possession is disturbed by smoene with paramount title, actions against LL |
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Term
| Other claims similar to quiet enjoyment |
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Definition
1. Partial Actual Eviction
2. Consutrctive Eviction |
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Term
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Definition
1. Interferance by LL that falls short of physical exclusion but substantiall interefers with the tenant enjoyment by a. render unfit for living
b. perminately interfere with benefital use or enojoyment of property |
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Term
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Definition
| A wrongful eviction from part of the premises, no matter how important the part is |
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Term
| Questioin for looking at implied warranties |
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Definition
1. Did the LL make an implied promise
2. Does the LL failure to perform justify termination?
3. If not wish to terminate, what other remedies available? |
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Term
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Definition
| At the inception of the lease there will be no latent defects to vital facilities of residential use and they will stay in good condition for the term of the lease |
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Term
| Other important things about WOH |
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Definition
Cannot be waived
Defects causing a breach is a question of fact
Repair to wear and tear is implied |
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Term
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Definition
May continue to may the full rent and then bring action to receive reimbursement
May withhold rent to motivate LL to make repairs |
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Term
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Definition
FRV - value in defective condition
Contract rent - value in defective condition
Reduce rent by the percentage of enjoyment lost bc of disrepair |
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Term
| Implied warrant of suitability |
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Definition
| Same has WOH but for commerial leases, the premises must suitable for intended commercial purpose |
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Term
| Types of Common Law Tenancies |
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Definition
1. Tenacy for Years
2. Periodic Tenancy
3. Tenacy at Will
4. Tenancy at Sufferance |
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Term
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Definition
1. Tenancy for a fixed time
2. Created though express agreement
3. Terminate at end of term (but death deosn't end it) |
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Term
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Definition
1. A tenancy which continues for successive periods
2. Automatically renewed
3. Creation by express agreement |
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Term
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Definition
1. Tenancy at the will of both parties
2. created through express agreement or can be made from implied facts
3. Terminates at the will or death of either party |
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Term
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Definition
1. Results when a tenant holds over
2. Landlord may take rents or evict and remove
3. Hold over can not be treated as an agreement to new term |
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Term
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Definition
| Occurs when the teant trasfers the right of posession for the entire remaining term for the lease to someone else |
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Term
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Definition
Occurs when the tenant trasfers his property interest to another party for anytime less than the remaining time on the lease
- Right to possession for either party disapates if the lessor declares a forfiture of original lease |
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Term
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Definition
1.Contract between lessor/lessee and assignor/assignee.
2. Privity of estate betweeen lessor and asignee |
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Term
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Definition
1. Both lessor and assignee are liable for nonpayment of rents
2. Assignee may assign again, at which point the original asignee loses any liability (unless the new assignment is fraudlent or colorable) |
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Term
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Definition
| Privity of contract and estate b/w lessor and lessee/ same between sublessor and sublessee. |
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Term
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Definition
1. Lessee liable to lessor
2. Assignee liable to assignor
3. No liable between lessor and assignee |
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Term
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Definition
1. In the absence of a lease provision restricting it, allowable without any permission.
2. Even in restriction, withholding sublease can only been with a good faith and reasonable objection
3. Only a freely negotiated lease can have complete bar |
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Term
| LL remedies to tenant breach |
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Definition
1. Traditionally "surrender doctrine"
2. Now, have a duty to mitigate |
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Term
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Definition
1. Must take steps reasonably calculated to effect a re-letting
2. Burden on breacher to prove absense of a good faith effort to mitegate
3. In bringing suit, the LL may collect all rents due to trial, then court will keep jurisdiction over future claims |
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Term
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Definition
| When two or more people own the same interst in the sampe property at the same time |
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Term
| Types of concurrent estates |
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Definition
1. Tenancy in common
2. Joint Tenancy
3. Tenacy by the entirety
4. community property |
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Term
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Definition
1. Undivided interest (do not have to be equal, but presumed equal in silence)
2. No party can be exluded from property |
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Term
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Definition
Same as tenancy in common but
1. Right of survivorship (other parties get interest upon death)
2. Can be conveyed into a tenancy in common by the unilateral act of a party |
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Term
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Definition
Only between husband and wife
right to survivorship
equal shares
debtor protection |
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Term
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Definition
1. Voluntary
2. Judicial (yes for TIC and JT, no for TIE and CP)
3. Can be through division in kind (divided it up, everyone gets equal piece of land) or division by sale (sell and everyone gets equal piece of moeny) |
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Term
| Creation of joint tenancies |
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Definition
You need the four unities
1. Time (take interest at same time)
2. Title (take interst from same source)
3. Interest (equal and identical interest)
4. Possession (All must have posessory interst in the whole) |
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Term
| Termination of Joint Tenancies |
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Definition
1.May be voluntarily or involuntarily severed through the act of one party, just need to break one of the 4 unities
2. Court divided on whether a lein breaks unity of interest
3. May convey yourself the property to break JT |
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Term
| Old Common law marital property |
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Definition
1. Widow entitled to a "dower": 1/3 of the estate
2. Widower entitled to a "curtsey": 1/2 of the estate
3. Not in use anymore |
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Term
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Definition
1. All possessions (excluding gifts) gained during the marriage.
2. Surviving spouse entitled to 1/2 of community property. |
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Term
| New common law marital property |
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Definition
1. Each spouse manages and controls their own property during marriage
2. Not allow to disinheret spouse (statute says how much they are automatically entitled to get)
3. At termination, property equitabily divided |
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Term
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Definition
| Easement and convenants; various rights one may have in the land of another. Obligations usually run with the land meaning subsequant owners must comply with the servitude. |
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Term
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Definition
Owner of interest has certain rights in real property possessed by another
Easements and convenants are NPI. |
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Term
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Definition
| Absolute ownership interest in property |
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Term
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Definition
| The holder of the easement has a non-possessory right to use the land in the possession of another |
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Term
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Definition
| Prevents the possessor of the servient estate from doing a partiuclar act |
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Term
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Definition
| The land benefitted by the easement |
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Term
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Definition
| The land burdened by the easement |
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Term
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Definition
The easement must attach to and benefit a particular parcel of land (the dominent estate).
Attaches to the dominent estate not the person and run with the land |
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Term
| Transfer of Easement Appurtenant (dominent estate) |
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Definition
1. Easement transfers with the land unless otherwise stipulated
2. May be converted into an in gross |
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Term
| Transfer of Easement Appurtenant (servient estate) |
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Definition
Subject to the easement burden unless they do not have actual or constructive notice.
No notice needed for tratuitous transferees (gift or inheritance) |
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Term
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Definition
| Does not attach to and benefit a particular parcel of land, but rather is personal benefit to the holder |
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Term
| Transferability of Easement In Gross |
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Definition
1. does not run with the land and is assignable unless goes agasint parties' intent or public policy
2. Traditional view presumed easements
a. Commercial in nature assignable
b. Non commericial non assignable
3. Restatement: Assignability of a conditions |
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Term
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Definition
1. Look at the language of the instrument (rules is clear and direct)
2. Look to intent and reaosnable expectations |
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Term
| Easement Scope (Location and Use) |
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Definition
1. Owner assumes duty of repair
2. Assumer increase in intensity but not change in kind of use of easement
3. Grant of easement does not grant right of exclusive possession of easement |
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Term
| Change of easement location |
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Definition
1. Usually not allowed
2. Restatement allows where the burden is not increased or purpose not frustrated |
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Term
| Termination of express easements |
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Definition
| Can expire by its terms (time, use fullfilled, condition breached) or as the result of subsequent events (abandonment, misuse, adverse use, foreclosure) |
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Term
| Non-Express easements: How to find an implied easement |
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Definition
1. Unity of ownership
2. Apparent
3. Continuous use
4. Reasonably neccessary |
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Term
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Definition
1. unity of ownership
2. Easement must be neccessary at the of severance
3. Duratioin: So long as neccessity exists |
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Term
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Definition
| Basically it is selling and exchanging property |
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Term
| Restraints on alienation of property |
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Definition
1. Usually not allowed
2. Only allowed if
a. Interst in protecting the land
b. limited in duration
c. not absolute
d. not a violation of PP
e. numbers of persons affected small |
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Term
| Defenses to Enforcement of Convents |
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Definition
1. Changed Circumstances: No enforcement if CC adversly affect the benefited lots. Minimal deviations not enough needs to be radical.
2. Relative Hardship: No enforcement if hardship outweighs the benefits of continued enforcement |
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Term
| Common interest communities |
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Definition
| Burdened by CC & R's (covenants, conditions and restrictions) |
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Term
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Definition
1. Does the HOA have standing?
2. Can the HOA amend the convenant
3. Was proper due process afforded to tose in breach of convenant?
4. Has the covenant been waived based on inaction? |
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Term
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Definition
1. Capacity to serve adversarial role
2. Representative
3. Adverse effect on group that it seeks to represent is weighed
4. Full participating memebrship is available to resident and property owners |
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Term
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Definition
1. Notice of restrictions
2. Reasonable time to comply
3. Awarded judicial procedure in compliance with state and federal law |
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Term
| Trademark distinctiveness |
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Definition
4 levels
1. Descriptive
2. Generic
3. Suggestive
4. Arbitrary and Fanciful |
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Term
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Definition
1. A name the belongs to public domain
2. Never registerable bc it would be stifling competition instead of facilitating it |
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Term
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Definition
1. Describes a product
2. Needs secondary meaning to be registerable |
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Term
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Definition
1. Names that provide hits/clues about the product
2. No need to establish secondary meaning |
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Term
| Aribitrary and Faniciful Marks |
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Definition
1. Coined by producer with no relationship to product
2. Immediately registerable. |
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Term
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Definition
1. Need to show likelihood of confusion
which can be proven through the Polaroid factor test |
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Term
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Definition
1. Strength of Mark: (distinctiveness level)
2. Degree of similarity
3. Proximity of the products
4. Likelihood prior owner will bridge gap
5. Actual confusion
6. D's good faith
7. quality of D's product
8. sophistication of buyers |
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Term
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Definition
Based on the idea that some words can't be trademarked.
D's must show
1. They used a mark in a non trademark use
2. Phrase is descriptive of their goods and services
3. Used the phrase fairly and in good faith only to describe goods |
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Term
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Definition
1. Non use
2. Intent not to resume (in forseeable future)
3. 2 years of non use = rebuttable presumtion of abandonment |
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Term
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Definition
A work recieves protection as soon as it is created, thus a copyright notice is not currently required to obtain protection.
Rewards creativity and originality, thus facts not copyrightable |
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Term
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Definition
1. Registration is a prerequisite for bring infringement actio for works originating the the US.
2. Registration within 5 years of publication is prima facie evidence of valid copyright |
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Term
| Requirements of originality and fixation |
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Definition
Fixation: For registration work should be embodied in a perminant or stable copy so that it can be perceieved reproduced for a period of more tan transitory duration
Original: Not copeied from another work. Diffulty comes from derivative work (copy right only applies to the additions to the stuff derived from) |
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Term
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Definition
| Reproduce, distribued, perform and display work. Such rights are transferable |
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Term
| Work for Hire (where someone else does work and employer gets credit) |
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Definition
1. Work prepared by an employee within the scope of employment
2. A work specially ordered or commissioned for use as a a contribution to a collective work if parties agree in writing that work is a work made for hire |
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Term
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Definition
| look to see if there was control over employee, how they are paid, where work is done, who provides tools. |
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Term
| Duration of copyright protection |
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Definition
Normally: Life of author plus an additional 70 years, after that material is public domain
Work for Hire: 95 years from 1st publication or 120 years from creation |
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Term
| Fair use defense in copyright |
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Definition
Affirmative defense, 4 factors
1. Purpose and character of use
2. Nature of copryrighted work
3. Amount and substnatiality of the portion used in relation to the copyrighted work
4. Effect of use on the potential market for or value of the copyrighted work |
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Term
| Adverse Possession Requirements (must be proved by adverse possessor) |
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Definition
1. Hostility (intent to hold title against record title holder)
2. under a claim of right (no longer required, a man can not think himself out of possession, tied into hostility)
3. actual possession
4. openness and notoriety
5. exclusivity
6. continuity (must meet statutory length of time) |
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Term
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Definition
| 1. Can eject any other tresspassor and bring nuisance actions |
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Term
| Adverse Possession and Color of Title |
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Definition
| When one enters under color of title (hosest believe bad title is good) no proof of hostility needed |
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Term
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Definition
| Court rejects subjective test, uses objective test, allowing mistaken adverse possessor to meet hostility requirement |
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Term
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Definition
One must enter upon the land claiming a good faith right to do so.
However, claim of right and hostility may be considered legal equivalents |
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Term
| Analyzing requirement of exlusive use |
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Definition
| The ultimate test whether the exercise of dominion over the the land is in a manner consitatn with actions the true owner would take |
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Term
| Analyzing open and notorious |
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Definition
| The posession must be actual and visable to the point where the owner should know about the land use |
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Term
| Analyzing actual and continous |
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Definition
Tacking: using one parties use of the land for a time to your use of the land for a time in order to meet staturoy requirements (there must be privity)
However if you use it for time, then leave and come back, you start all over again
Tolling: Disabilities like being under age or in the military will toll the counting for time for adverse posession |
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Term
| Methods of deed descriptions |
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Definition
1. Plat (subdivisions
2. Survay
3. Metes and Bounds (desribing the boundriesusing physical objects and such) |
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Term
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Definition
| If done in good faith, he has a limited right to go into court and ask for equitable relief |
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Term
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Definition
| A converyance or rentention of an interest in real property as security for performance of an obligation |
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Term
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Definition
| Mortgagor buys property from mortgagee and agrees to pay for it later |
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Term
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Definition
If mortgagor defaults, the lender may require mortgagor to pay full amount immediately (acceleration clause)
Foreclouse is the decree directing the property to be sold if loan is still not paid off |
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Term
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Definition
| Property transfered to mortgagee without sale |
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Term
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Definition
| Right of mortgagor to pay mortgagee even if late. Mortgagors cannot waive this right, but it can be limtied by foreclosure. Exists only before the sale |
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Term
| Statutory right of redemption |
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Definition
| Permits debot to redeem property during specified period AFTER forclosure sale byt paying the purchaser the amount paid plus interes and exprenses |
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Term
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Definition
| Common law rule, first in time first in right. However later legal title prevails over earlier equitable title |
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Term
| Flavors of Recording Statutes |
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Definition
1. Race: The first to record gains priority
2. Race - Notice: A second grantee must do two things to prevail over the first. 1. Record first 2. purchase w/o notice of the first grantee's claim
3. Notice: If a purchaser record without notice of a prior convayee, then it does not matter if the prior recorded first, the purchaser without notice get priortiy. |
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Term
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Definition
record notice:constructive knowledge
Off record notice: Evidence of onwership in addition to official records, what a party should know
Time of notice: purchasers claim not barred if he get notice of another claim after he pays consideration |
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Term
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Definition
| Once title is vest in A by virtue of recording, a subsequent grant of will receieve good titlte even if she is not a bona fide purchaser for value. |
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Term
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Definition
1. Delivery: Deeds are valid once delivered, no when they are recorded.
2. Forged deed mot good even if recorded |
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Term
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Definition
| A deed that contains one or more covenants of title, esp a deed that expressly guarantee the grantor's good, clear title and that contains convenatns concerning the qualitiy of title. (quiet enjoyment, right to convey) |
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Term
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Definition
A deed recorded too early usually goes to the grantee (deed by estoppel)
A deed recorded too late can still be valid |
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Term
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Definition
| unreasonable interference with a right common to the general public, incl activities dangerous to health, safety, morals, or confort of public. Need to suffer an injury in kind ton have standing |
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Term
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Definition
| Wrongful unreasonable interference with the use or enjoyment of land of another |
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Term
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Definition
Injunction
Damages
See if harm to P is greater than benefit to D |
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Term
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Definition
| Prevents the unauthorized commercial use of an individuals name, likeness, or other recognizeable aspect of one's persona. |
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Term
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Definition
| An unauthorized use of an individuals identify in connection with a "news" or "public interest" story require that there be a reaosnable relationship between the person's identify and the subject of the story. When this exists, right yields to 1st amendment |
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Term
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Definition
| govt has the inherent power to take private property for public use. Taking clause requires just compensation" |
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