Shared Flashcard Set


Team Awesome Property
Exam Prep

Additional Law Flashcards




Acquisition of Property
1) Title by discovery (or conquest)
2) Title by capture (Fox case->pursuit not enough)
3) Title by mixing labor (Locke) + proviso
Economics of Externalities
If I internalize all effects of my decisions I have an incentive to make them efficiently. But, if you have externalities over time or space, then there is no longer an incentive to make efficient investments. Won't take externalities into account.

Possible solutions:
1) Property rights: over time or over space, individual property rights can cause owner to take into account all externalities
2) Contract: Coase idea that parties can just contract to avoid inefficient externalities (but, problem of transaction costs)
3) Regulation: environmental laws, nuisance laws, etc. But, govt might not know what efficient choices are
Property Rules vs. Liability Rules
Property rules: we will defend your entitlement by forbidding people from taking w/o your consent (protects idiosyncratic value)
Liability rules: others can take if they're willing to pay you the value (ignores idiosyncratic value, also there is a transaction cost problem of the last airport holdout)
Intellectual Property
C/L: found a tort in Assoc. Press Case, but some cts hesitant to extend liability beyond statutory law like in silk case
Patent Law: gives 20 yr monopoly in your invention. Must be non-obvious, useful, novel. (Issue of monopoly, but want incentive to invent)
Copyright Law: gives created works (movies books, etc) for the life of the author + 70 years. (expensive to create, cheap to copy)
Trademarks: can create a mark in circumstances where there would be a "likelihood of confusion" (retaliation/trust in brand)
Property in One's Person
Locke says you own yourself b/c spill yourself on land.
Typically you do own yourself, but limitations on your property rights: can't sell body parts, or yourself into slavery, prostitution, etc.
General rule: finder gets title against all but the true owner. BUT,
Employee may have duty to employer.
Owner of locus in quo may have superior title to finder (consider nature of finder i.e. trespassing or invited, did owner ever have possession, is it buried in ground, was it lost or mislaid i.e. deliberately put)
Abandoned property: finder gets full title
Adverse Possession Elements
1) Actual occupation to a significant extent is required (gardening case)
2) Under a claim of right/adverse to the owner (can't be with consent of owner, needs to be hostile)
3) Mental state of adverse possessor probably does not matter
4) Open and Notorious (b/c we are blaming true owner for being negligent) cave case
5) Continuous, not episodic (but this is qualified, vacation house case)
6) Payment of taxes-->in CA this is crucial to a claim of adverse possession
Adverse Possessions of Chattels
Can have adverse possession of chattels, but it may be difficult to establish b/c of the requirement of being "open and notorious". But, maybe hang in a museum.
UCC 2-403
1) Where the seller had Voidable Title: BFP is protected (Voidable title=original owner did in fact intend to sell the item to the "seller", but it was by virtue of some kind of a trick, and then the person turns around and sells to BFP.) Reasoning: b/c seller is cheapest cost avoider, should have known better.
2) Void title BFP is not protected. This occurs when item is actually stolen, don't want to create market in stolen goods, so BFP doesn't get good title.
3) Where seller was in possession b/c entrusted w/ possession by the owner and the seller is a merchant: BFP is protected (Ex: jewelry store)
Statute of Limitations and Chattels
Discovery rule: Say my good is stolen, I don't necessarily have to bring COA w/in x years of stolen, but w/in x years of when I discovered or should have discovered it was stolen. Some cts go further and say SOL doesn't start running until you know which D took your chattel.
(Note: in the case of void title, the best/only protection for BFP is SOL)
Gifts (3 Elements)
1) Manifest intent
2) Delivery: physical or symbolic/constructive may be allowed in certain circumstances (like where physical is impracticable)
3) Acceptance: is rebuttably presumed where the gift is valuable
Note: gifts causa mortis cts disfavor b/c defeats statute of wills
Note: I can give a gift as a remainder interest and retain the life estate (painting to son case)
Fee Simple and Life Estate
Fee Simple: to A and her heirs.
Life Estate: to A for life.
Note: when determining what you are giving cts presume you are giving your full interest if you don't define what happens to the remainder interest
Note: Issue of waste in life estate owners, remaindermen can sue
Note: formula for valuing life estate
Fee Simple Determinable (CA doesn't have)
"To X as long as used for school purposes"
Limitation is part of description
Future interest in transferor is the possibility of reverter.
Fee Simple on Condition Subsequent
"To X, but if no longer used for school purposes..."
Conditional, gives a little then takes it back
Future interest in transferor is a right of entry (must be exercised to take effect)
Future Interests in Transferor (making out a will, an interest that will cause property to revert back to my estate, or if inter vivos, something that will cause the land to revert back to me)
1) Possibility of reverter
2) Right of entry
3) Reverter: arises when you convey less than what you own (as opposed to above where you give all you own but on a condition). when the estate terminates, the interest returns. (Ex. I own in fee, convey to A for life, when A dies it comes back to me)
Future Interests in Transferee
1) Vested Remainder: Ascertained person is going to take, and it is not subject to any condition precedent (ex: "to A for life, then to B and his heirs")
Note: there is also "vested subject to open""to A for life, then to A's children" A has a child. the child has a vested remainder, but it is vested subject to open b/c there might be more children born so we don't know the size of that child's interest
2. Contingent Remainder: 2 potential problems-->unidentified person or condition precedent
Note: Alternative contingent remainders: "to A for life, then to B if B survives A, and to C if B does not survive A"--->This is an alternative contingent remainder for B and C, NOT an executory interest., b/c part of what is given includes the contingency, and alternative b/c only one of the contingencies can occur
3. To A for life, but if no longer used for school purposes, to B. Not a fee simple on condition subsequent w/possiblity of reverter b/c it never comes back to O. B's interest is something that can cut short A's estate. B has an executory interest.
Common way of creating remainder and future interests.
Distinction between legal title vs. equitable title.
Give legal title of property to trustee (3rd party, bank, etc.) They are the legal owner of the property and can do what needs to be done with it (this way it doesn't go to waste like in life estate)
Equitable title: trustee is required to manage the property to benefit the beneficiaries
Rule Against Perpetuities
"An interest is void unless it must vest, if at all, w/in 21 years of a life in being at the time of the creation of the interest"
1) Decide, when must the interest vest. Remember, it will vest when either 1) person is identified or 2) condition precedent is met. So, can we assert for sure that all of the conditions will be met w/in 21 yrs of the death of a life in being at the time the interest is created
2) Interest created: will--at death. inter vivos deed--immediately.
3) Validating lives-->must exist when interest created

Note: atty can create a perpetuities saving clause
Note: statutory reform has occurred in this area (ex: CA USRAP interest is void if it hasn't vested within 90 years)
Note: some states allow Dynasty trusts. This lets interests be controlled by dead hand, but property is governed by trust mgmt.
Joint Tenancy
1. Right of survivorship--> land automatically vests completely in surviving parties. This avoids probate, land does not go in to dying partner's estate. Dying partner's interest is extinguished completely on death.
2. Have to be explicit to create, state right of survivorship (not as tenants in common)
3. Four Unities: time (vest at same time), title (get title in same way), interest, possession (to whole)
4. Transfer of an interest in a joint tenancy converts it to a tenancy in common (b/c breaking the unities)(lease or mortgage does not break joint tenancy)
5. Creditors must act while the debtor is alive, or interest will go to joint tenant on death of debtor and creditor won't be able to reach
6. Straw man is ok to break joint tenancy and create tenants in common (Wonnell thinks this is sneaky)
Tenancy in Common
1. No survivorship right. Half interest upon death just goes to estate.
2. Presumption that a tenancy in common when it is unclear whether might have joint tenancy
3. Technically, all have right to possess the whole
Tenancy by the Entireties
1. Only between husband and wife. (not available in CA)
2. No separate conveyances permitted. Must have both consent to sale.
Joint tenancy or tenancy in common-->can bring an action to partition, and have a right to partition.
When there are problems w/joint ownership, parties get a divorce (partition)
What form should it take?
Physical Partition vs. Partition by Sale
Physical: property rule like notion. makes sense when there is idiosyncratic value to protect.
Sale: liability rule like notion. good if separate parcels would be economically irrational.
Courts say physical is preferred, but it is more common for courts to award partition by sale
Supporting users have an ad free experience!