Remedial Chaos (intro)
What are the bundle of sticks?
The right to possess or occupy.
The right to use or exploit.
The right to exclude others.
The right to transfer (by sale, gift, or will, for example).
The right to modify or destroy.
What are the elements of adverse possession?
25 Bonus Points: What property policies are advanced by adverse poessession?
Bonus Points: Certainity, economic efficiency, personhood, fairness
Actual: Use of the land in the same manner a reasonable owner would use it.
Exclusive: The possessor should not share possession with others, including the true owner.
Open and Notorious: Open means that the possession can't be furtive or hidden, while notorious connotes conspicuous or prominent possession.
Continuous: The possession must be uninterrupted for the length of time required by statute. The adverse possessor need not occupy the property all the time, but must be at least in constructive possession during this period.
Adverse, under claim of right: The possession must be contrary to the interests of the true owner.
Some jurisdictions interpret this to require a good faith claim of right- the occupation is the result of mistake. In these jurisdiction, good faith is the sixth element that must be met.
A few jurisdictions require the possession to be not only adverse, but hostile, These courts require the possessor to know that the land is not hers, but to intend to take to use it anyway.
what is the one type of estate that is pretty much never enforced in the US?
It is of course the Fee tail which goes against policies of economic efficiency and democracy. (Think Pride and Prejudice or at least I do)
What are the ways in which easements are created?
1. Express: A writing meeting the requirements of the Statute of Frauds.
2. Estoppel: The dominant tenant reasonably relied to his detriment on the servient tenant’s promise.
3. Implied: These situations arise when a grantor splits a piece of property into pieces and conveys one of the parcels. The court might determine that an easement was implied in the conveyance in two situations:
■ By prior use: if a particular use of the servient parcel already existed and was reasonably necessary to the use and enjoyment of the dominant parcel.
■ By necessity: if an easement became necessary due to the conveyance.
4. Prescription: Similar to adverse possession, the dominant tenant uses the servient parcel without permission for the prescriptive period. Also related to this category are easements established by custom and implied dedication.
What are the the types of leases and how do you terminate them?
Three Types of True Leases
■Term of years tenancy. The leasehold terminates on a date certain.
■Periodic tenancy. The leasehold continues for successive periods of equal length (e.g., month-to-month), unless one party notifies the other of its intention to terminate.
■Tenancy at will. The leasehold does not have a term of a fixed period and lasts until one party informs the other that the lease is terminated.
Note: Sufferance is also a type where a landlord has a holdover tenant
Describe the policies of property law
1. Economic efficiency: This term refers to the most productive allocation of scarce resources in a society.
2. Fairness: Property rights are a reward for the labor spent in creating or improving property. Fairness invokes the moral case for property ownership.
3. Certainty: Property law should create a system in which purchasers can easily determine that the seller is the rightful owner of a particular piece of property, thereby lowering the costs of transactions. Property rules should be clear and easy to administer.
4. Personhood: Owning property allows people to express themselves through creative uses of property and serves important ends like privacy and security.
5. Democracy: Unless one’s property is protected, all other freedoms may become meaningless. A nation of property owners provides stability, as more people have a stake in maintaining the rule of law.
What are the elements of a gift?
50 Bonus Points: Describe the delivery requirement and the types of delivery?
A gift of personal property requires three elements:
1) donative intent: the donor must exhibit the clear and unmistakable intention to make a gift. In addition, there must be an intention to make a present transfer of an interest in the property; the intent to make the gift sometime in the future won't do. In addition, the donor must intend to irrevocably and complete part with the property, a tentative or conditional intent is not sufficient
2) delivery of gift to the donee; and
3) acceptance of the gift to the donee
Bonus Points: Courts generally require the best form of delivery under the circumstances. In general there are three types of delivery: manual, constructive and symbolic
what are the two types of estates that automatically terminate when the current owner does something?
1). Fee Simple Determinable, the state lasts till the owner breaks the condition. Then the grantor has a right of reverter (not a type of remainder).
2). Fee Simple Subject to an Executory interest, this ends whenever the owner breaks the condition and then does to the third party who holds an executory interest
After Euclid when is zoning unconstituional?
Municipal zoning regulations are constitutional, unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.
What are the types of recording statutes?
50 Bonus: What type of purchaser be for the recording statutes to be in effect and what is the default if they are that type of purchaser.
Bonus: Bona Fide Purchasers and if not BFPs then first-in-time rule applies
There are three types of recording statutes:
Race :A race statute gives title to the party who wins the race to record the instrument conveying the interest.
How is the Rule of Capture applied to copyright?
A pltff must prove (1) that it possesses a mark; (2) that the def used the mark; (3) that the def' uses of the mark occurred "in commerce"; (4) that the def used the mark "in connection with the sale, offering for sale, distribution, or advertising" of goods or services and (5)that the def used the mark in a manner likely to confuse consumers.
Colonel Brandon and Marianne purchased a house during their marriage for $400,000. Marianne got money from her inheritance and contributed $80,0000. At the time of the divorce, they made joint efforts (50/50) to pay the mortgage and it remains at $200,000. How much should each spouse recieve?
Equity= $200,000
Marianne= $100,000
Colonel Brandon= $100,000
O -> B for life, then to B’s Children who are alive when B dies. B only has one child C. What interest does B have? what interest does C have?
B = Life Estate and C = Contingent remainder. C’s interest is difficult to define, but first you should ask is their anything C must do before he can take? The answer is yes, C must be alive when B dies there for the interest is contingent. We won’t know if C is alive when his father dies until his father dies, hence it has not been vested
What are the requirements to run with the land?
1.Intent
2.Touch and Concern: must relate to the use and enjoyment of the property, rather than a personal promise
3.Privity: horizontal (original parties) and vertical (successor parties)
4.Notice: for burden to run
What are the elements of marketable title?
Elements of Marketable Title:
1. The seller must be the “record owner” of the property the seller intends to sell.
2. The seller must have fee simple absolute ownership of the property, without encumbrances or limitations of any kind.
3. By purchasing the property, the purchaser will not be placed into a non-frivolous prospect of litigation over ownership.
What are the basic systems for how do we allocate water in the United States?
There are two basic systems of allocate surface water in the US: prior appropriation and riparian appropriation. Under prior appropriation system, water rights are acquired by diverting water from a watercourse and putting it to beneficial use. The first to in time to possess the water is the first in the right, as long as the use lasts. If there is insufficient flow to satisfy all users, the senior appropriator is entitled to its fill appropriation before junior users get any water. Water rights are generally transferable and may be used in a different location and for a different purpose as long as the transfer doesn’t injure the junior appropriators. In contrast, the riparian system assigns the right to use water to riparian and littoral landowners. Riparian land owners are entitled to make reasonable use of the lake, The test for reasonableness involves balancing the benefits of the youth against the rights and uses of other riparians. The factors considered are: 1) attention should be given to the size character and natural state of the water course, 2) consideration should be given to the type and purpose of the uses proposed in their effect on the water course 3) the court should balance the benefit that would inure to the proposed user with the injury to the other riparian owners
What are the classifications of found property and how does the classification affect the rights of a finder?
100 Bonus Points: What property policies are advanced by finders rules?
■ Abandoned property: Property is lost when the owner has unintentionally and unknowingly parted with its possession.The owner has voluntarily relinquished rights to the property; the finder obtains ownership of the property against all others, including the former owner.
■ Lost property: The owner has involuntarily and unintentionally lost possession; the finder obtains title subject to the rights of the original owner.
■ Mislaid property: The owner voluntarily and intentionally places the property somewhere and then neglects to return for it or forgets where it is; the owner of the locus in quo, rather than the finder, obtains the right of possession against all but the true owner.
■ Treasure trove (ARCHAIC): Coins, currency, jewels, gold, or silver found hidden in the earth or another private place; belongs to the finder, not the owner of the land where found, subject to the rights of the true owner.
Bonus: Fairness, economic efficiency and certainity
O-> A so long as the land is never used as a law school, if it is used as a law school then to my heir apparent V. 13 years later A sells the land to a law school, who then build a new law school. What type of estate did A have? Who now owns the land?
A had Fee Simple Subject to an Executory interest. V had the executory interest. However This goes against RAP, because the land could go to V, 21 years after A or V dies. As such we would redline this, and the Estate would actually be a Fee Simple Determinable, leaving the future intent in O, that is a reverter. Once the law school started building on the land, it would have automatically been transferred back to O because the condition was broken
What are the types of judicial review of covenants?
Reasonable Standard: a legal benchmark evaluating if restrictions on land use are reasonable in scope, duration, and geography. Courts use a balancing test to weigh the covenant's protective benefit against the burden it imposes on the landowner.
Arbitrary and Capricious: In its broadest sense, the arbitrary and capricious standard requires the reviewing court to determine whether there has been a clear error in judgment. An arbitrary or capricious decision is one that is not based on any course of reasoning or exercise of judgment, or one that disregards the facts or circumstances of the case without some basis that would lead a reasonable person to reach the same conclusion.
What is the merger doctrine and what are exceptions to the merger doctrine?
The merger doctrine eviscerates seller’s pre-closing promise to deliver marketable title. With few exceptions, any promises regarding title that seller made in the contract disappear. The purchaser is left only with any warranties contained in the conveyancing deed.
Exceptions to Merger Doctrine:
■promises collateral to conveyance;
■promises parties expressly denote as “surviving closing”;
■promises that are subject to mutual mistake of fact;
■promises extracted by fraud.
What are some of the limits of how a person can use their property or exclude others from using their property?
Ad Coleum Doctrine states that whoever owns the land it is theirs all the way up to heaven and down to hell.
An individual cannot use his property in such a way as to intentionally injure his neighbor if that use of his property is undertaken for strictly malicious purposes and provides no benefit to himself.
Covenants and Rights for others to Use.
Property owners can voluntarily grant easements and covenants
State v. Stack: Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. The needs of occupants may be so imperative and their strength so weak that the law will deny the occupants the power to contract what is deemed essential to their health, welfare or dignity.
When may a word or logo be trademarked?
To be protectable, a word or logo must be “distinctive,” which means it must distinguish the goods or services of your company from those of others.
Fanciful. A mark consisting of a word that was created especially for this product
Arbitrary. The word exists, but it has no relationship to the particular product it is used to identify.
Suggestive. A word that suggests the features of the product, but is not descriptive of the product.
If a word is descriptive of the product or service, it is protectable only if it has acquired secondary meaning in the minds of consumers.
NOTE: If a word is (or logo becomes) generic, it is not entitled to trademark protection.
O -> B for life, then to all of B’s Children who obtain a masters degree. At the time of conveyance B had one child with a Masters Degree S. What interest does everyone have in the land? What would happen if this was governed by Iowa Law?
B = Life Estate, S = A vested remainder subject to open. Normally this would be against RAP because we will not know, 21 years after B’s death if all of his children will have gotten masters degree. Iowa is a wait and see jurisdiction which means instead of redlining the conveyance, Iowa courts will just wait and see if 21 years after B’s death if either all of his children have masters degree or if only S does
What are the 8 most common ways to terminate an easement?
1. Release.
2. Expiration.
3. Abandonment.
4. Merger.
5. Estoppel.
6. Condemnation.
7. Prescription.
8. Notice. A subsequent purchaser of the servient tenement who takes title without notice of the easement may be a bona fide purchaser under the jurisdiction’s recording act, and thus not be bound.
Describe the two types of warranties contained in a general warranty.
Present and Future Warranties
Present Warranties (Also Known as Covenants of Title)
Present Warranties:
Seisin. Grantor warrants that he has rightful freehold possession
Authority to convey. Grantor warrants that he has the authority to convey the interest in property.
No encumbrances
Future Warranties:
Defense-grantor warrants that he will appear in court and defend grantee against a third person alleging a superior title.
Quiet enjoyment
Future assurances- later title problems will be corrected