Personal Property –Chap 34 Legally protected rights and interests a person has in anything with an

ascertainable value that is subject to ownership Real Property vs. Personal property

o Real Property – land or anything permanetely attached to ito Personal Property – tangible and intangible (stocks & copyrights)

FixturesPersonal property that becomes permanently affixed to real propertyEX => furnace, hot water heater, chandelier

Intent that it become a fixtureo Property cannot be removed without causing damage to the realtyo Property adapted to being part of realty

Trade FixturesEX => counters, machinery, shelves, light fixturesFixtures installed for commercial purposes by a tenant

Remain the property of the tenant (removed when tenenat leaves)o Dameages must be repaired by tenant

Property OwnershipViewed as a “Bundle of Rights”

Right to possess Right to sell Right to give Right to lease Right to destroy

Fee SimpleOwner of “Bundle of Rights” = Owner of fee simple

Forever gives the owner maximum possible estate or right of ownership of real property

Concurrent OwnershipTenency in common – Figure 1

A and B own an undivided interest in the property. Upon B’s death interest passes to B’s heir, “C”.

Joint Tenency – Figure 2 A and B own an undivided interest in property but,

upon B’s death, B’s interest passes to A, the surviving joint tenant.

Tenency by the Entirety – Not common Between husband and wife

Community Property – Property acquired by couple during tier marrage is owned as an undivided ½

interest in property (real & personal)Maritial Property –

Similar to community propertyAcquiring Ownership of Personal Property –

Possession – Adverse Ppossession – a method of acquiring title of real property through

operation of statue of limitations Capturing Wild Animals (belong to no one) Finding an abandoned building

Production – Writers, inventors, manufacturersProduce personal property => acquire title to itGift – Voluntary transfer of personal property from donor (owner) to done (recipient) for no consideration

Types of Gifts-o Intervivos – while donor is still livingo Causa Mortis – made by donor in contemplation of imminent deatho Testametary - after death, by will & Inheritance

Requirements for valid gift – o Delivery—actual or “constructive” (symbolic, such as keys to car)

Donor must give up complete control or dominion. Delivery by a 3rd party is OK

o Donative intent on the part of the Donoro Acceptance by the Donee

Will & Inheritance – After death, possession right granted No consideration

Accesion – “something added” Someone adds value to a piece of personal property by use of either labor or

materialso Labor, alone, added

Increase in value Was conversion innocent or willful

o Goods added Who owns the principal goods

Confusiion – Commingling so that a person’s personal property cannot be distinguished

from another’s Fungible goods consists of identical particles such as oil or grain

o Proportionate shareo Party at fault must prove their proportionate share

Mislaid, Lost, or Abandoned Property Mislaid Property: Voluntary placed somewhere, then inadvertently forgotten.

Finder is caretaker for true owner. Lost Property: Involuntarily left. Finder acquires title against whole world,

except for true owner. Finder may be liable for:

o Conversiono Involuntary Bailment

Abandoned Property: Discarded by true owner with no intention of recovering. Finder acquires title against all the world, including the original owner.

o Trespassers: no titleo Treasure Trove: Title against all world except true owner

Bailments – Chap 35 A bailment is formed by the delivery of personal property, without transfer

of title, by one person (Bailor) to another (Bailee), usually under an agreement for a particular purpose.

The property must be returned by the Bailee to the Bailor, or a third party as directed by the Bailor, in the same or better condition.

Elements of Bailments Personal Property. (Tangible or Intangible - but not persons or realty.) Delivery of Possession.

o Bailee given exclusive control or possessiono May be actual or constructiveo Bailee must knowingly accept (Bailee must intend to exercise control

over chattel) Bailment Agreement.

o Express or Implied Ordinar Bailments –

Bailment for the sole benefit of the Bailor:o A gratuitous Bailment; Bailee owes Bailor a low duty of care, liable

only for gross negligence Bailment for the sole benefit of the Bailee:

o Bailee owes Bailor a high duty of care and is liable for even slight negligence

Mutual Benefit Bailment: most common o Each party owes the other a reasonable duty of care

Rights and Duties of the PartiesBailee-

Right To Possesso Bailee may acquire or use property temporarily. Title does not pass.

Right to Use Bailed Property Rights of Compensation

o Reimbursed for costs or services as provided in the agreement Right to Limit Liability Duty to Return bailed property in same condition to Bailor. Bailee may liable

for conversion and/or negligence. Bailor –

Right to have property protected and used as agreed

Right to have property back at end of bailment with service or repair done properly

Right to have the Bailee not convert Right to not be bound to limitation of liability unless Bailor knows

Termination of Bailments – Mutual agreement of both parties Demand by either party Completion of the purpose of the bailment Act by the bailee that is inconsistent with the terms of the bailment

Common Carriers – Publicly licenses to provide transportation services to general public Common Carriers are strictly liable for damages except if the damages

caused by: o An act of Godo An act of the public enemyo An order of the public authorityo An act of the shippero The inherent nature of the goods

Warehouse vs. Innkeepers – Warehouses:

o Owe duty of reasonable careo Can’t exculpate, can limit

Innkeepers:o Owe duty of strict liability, modified by state statutes; if innkeeper

provides safe and notifies guestso If parking area provided and innkeeper accepts bailment, then may be

liable

Real Property Ownership – Chap 36Types of Rights

“AIR” RIGHTSo RIGHT TO BE FREE OF UNREASONABLE INTRUSIONS

SOLAR COLLECTORS (yes) vs. FLIGHT PATHS (no) SUBSURFACE RIGHTS

o MINERALSo OIL

WATER RIGHTSo 1. RIGHT OF BORDERING LAND OWNER TO MAKE REASONABLE USE

OF WATER (“RIPARIAN RIGHTS”), oro 2. FIRST USE (FIRST IN TIME)

RIGHT OF PUBLIC TO USE NAVIGABLE WATERWAYS FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS

Types of Estates

Fee simple Absolute – The entire bundle of rights a person may possess in property

ABSOLUTE OWNERSHIPo FREELY TRANSFERABLEo EXCLUSIVE RIGHT TO POSSESS

Fee Simple Defeasible – A fee, but subject to one or more conditions and possibility of termination

Possibility of reverter – a future interest in property existing in the grantor or his successor in interest after creation of a fee simple determination

o “To Jones and his heirs so long as premise are not used for the sale of alchololic beverages”

Power of termination – future interest existing in property in the grantor or his successor in interest after creation of a fee simple subject to a condition

o “… if they are so used then Smith and hi heirs may enter and terminate the estate hereby conveyed”

Life EstateIs an interest in property limited in duration to the life of a person

EX => family man leaves property to a surviving spouse to provide until death then transfer to the children

Remainderman – receives property upon death of person of measuring lifeLife TenantThe owner of the life estate

Entitled to the use and possession of the propertyo Paying rento Profits the property generateso Repairso Paying taxeso NOT commiting WASTE

Waste – conduct by the life tenant in the use of the land resulting in substantial and unreasonable reduction in the value of the property

Holder of injured estate may bring action for damages or the injunctionLeasehold EstatesLessor => LandlordLessee => Tenant

Tenancy for Years o Set dates, specific period of timeo More than 1 year => must comply with Statue of Frauds

Enforceable with a written contract signed by the lessee Names of parties Description of property Term of lease $ amount of rent payment time of payments

Periodic Tenency o Automatically renewed until either party gives a notice of termination

Notice Required 30 days prior to termination Periods => Month to Month, Week to Week, Year to Year

Co-OwnershipMultiple people hold interests representing a successive right to possession of or income from the same property

Joint Tenants o Right of survivorship – In case of one of the joint tenents dies, the

deceased’s shares of property are distributed equally amoung surving tenents left until sole ownership

Beneficiaries within will have no legal claim Not subject to claim for joint tenants creditors Automatically resides in the survivors (usually married couple)

o “Four Unities”– All Joint Tenenats must have: time –interests must vest at same time title –must acquire in same way (deed or will) interest – the fractional shares of interest must be equal

(3 people = 1/3 ownership per tenant) possession – undivided interest and equal rights to entire

property Tenants in Common

o No right of survivorshipo Can prevail unequal interests

EX => tenant A (1/2), tenant B (1/3), tenant C (1/6) ownerships

o Only the unity of POSSESSION is requiredo Ex => Rose conveys ½ interest to Sally in fee simple and leave a life

estate in the remaining ½ to Tom in her will Termination

o May be terminated whenever any of the Four Unities are not presento Ex. => Carol, ANN, and Betty are joint tenents

Carol sells her interest to ANN, ANN (now owning 2/3) holds 1/3 of the property as joint tenant with Betty, and 1/3 as a tenant in common. Ann’s death, 1/3 the property goes to Betty by right of survivorship and 1/3 passes as estate.

o Partition physically dividing up the property into distinct portions

Court ordered or Agreement of parties Usaully property is sold

sale proceeds divided relevant to share %

Condominiums Each resident purchases a living unit and shares common areas

o Resident declares own liability of loan to finance the purchase Condominium Association

o Each resident is responsible for operating building

o Residents pay monthly fee to cover costs and maintain common areas

Cooperative Form of real estate ownership by which residents in a multiple-unit building

own shares in a corperation that owns the buildingo Entitles each resident to lease a unit in the building and use common

areas monthly payment (lease)=> cost of repaying loan for purchase

of builing and maintenanceo Any failed payment => other tenants pay that share (avoid default)

Real Property Transfer – Chap 37

Regulating Land Use – Chap 38An owner’s right to possess, use and enjoy land may be limited by private agreement or by act of public authority.

Zoning the State’s power to control the use of land through legislation without

having to compensate the owner Must be rational in advancing state interest and must be non-discriminatory

Variances Permit a different use or modification than that authorized by ordinance Does not threaten neighboring property with an incompatible use

Building Permits document authorizing the holder to construct a building of a particular kind

on a particular lot

Restrictive Covenants Private restriction on use of land or acts that may be performed upon it

o binding to purchaser and on subsequent purchasers “runs with land”o Breaching landowner is liable to neighboring property for $ damages

“Runs with the land” – liability to perform it or right to take advantage of it passess to a transferee of the property

Requiremnets:o Written Agreement satisifing Statue of fraudso Binding to all subsequent ownerso “touch & Concern” – not to decrease value of the lando Actual/Constructive Notice

Recorded document containing restrictions

Wills & Trusts – Chap 39

Will – formal instrument by which a oeron makes a disposition of her property to take effect upon death

Probate Laws Uniform Probate Code (UPC)

o Uniform state law designed to modernize state law and provide greater uniformity amoung the various states

Probate – refers to any matter or proceeding pertaining to the administration of descendents estate

o To Probate a will to establish its validity appoint an administrator

(personal representative or executor) affairs of the estate supervised by the probate court

Wills provides for a Testamentary disposition of property after death

o Testate - dies with valid Willo Intestate – dies without valid Willo Codicil – a supplement that adds, subtracts, modify or revokes

provisions to the existing will Gifts by will

o Devise => gift of real estateo Bequest or legacy => gift of personal propertyo Specific gif t => one of particulary designated property

EX => “my 1955 Chevy”o General Gift => gift payable out of the testators assets

EX => “I leave 2000$ to Troy”o Residuary Gift => gift where all of the leftover property or residual

property is gifted away EX => and the rest of the property goes to Bob

o Lapsed Legacy => which fails to take effect as a result of the death of a legatee before the death of the testator or before the legacy is payable. 

Intestacy Laws A person who fails to leave a valid will dies intestate “Statues of descent and distribution” => the state attempts to carry out the

likely intent and wishes of the decedento persons entitled to the intestate decedents property => heirs

Spouse, children, grandchildren, parents, siblings

Distribution to DescendentsPer stripes distribution

o Method of dividing an intestate share by which a class or group of distributees take the share that their deceased parent would have been entitled to inherit had that parent lived

Example:

Per Capita Distributiono Each person takes equal share of the estate

Example:

Requirements for a Willo Testamentary capacity and intento Writing requirementso Signature requirementso Witness requirementso “Publication” requirements

Revocation of Willso Revocation by a physical act

o Will is revoked by physical act if burned, torn, canceled, or destroyed “with intent and for the purpose of revoking”

o Revocation by a subsequent writingo New Willo Written revocation

But does not dispose of any propertyRights outside a Will

o Some states force the testator to give a certain amount of their estate to their surviving spouse and/or children

o Beneficiaries can renounce (“disclaim”) their shares

o Spouses in some states can renounce what is given them in the will and elect to take the forced share

TrustsAn interest in property (real and personal), created by the owner (grantor or settlor) but managed by a “trustee” for the benefit of the beneficiaryParties:

o Grantor (settlor) – person who created the trusto Beneficiary – person who holds beneficial or equitable titleo Trustee – person who manages and possess the trust

Fiduciary relationship – which one person under a duty to act solely for the benefit of another concerning matters within the scope of the relationTypes of Trusts

Revoable v. Irrevocableo Must resrve power of revocation in terms of the trusto Expiration of time period stated in trusto Consent of all beneficiaries and settlor

Living Trustso Any trust created during lifetime of settloro Settlor names themselves as trustee until resignation, incompetence,

or deatho Upon death, the trust acts as a willo Trustee manages and distributes property according to the trust

Testamentary trustso Created in deceased willo Beneficiary receives after the death

Constructive Trustso Used when a beneficiary would be unjustly enriched retaining

propertyo The trustee holds the duty to give property to person who should

have it

TaxesInheritance Taxes

Tax, imposed by some States, on an individual recipient of an inheritance based upon the amount received by that individual recipient

o The closer the relation to settlor = a lower % of taxes imposed

Estate Taxeso Imposed by federal government (35%)o Based upon the total value of the assets a person owns when they die

Cash Accounts Personal Property Real Estate Investment Accounts

Life Insuranceo Marital Deduction

No estate tax on any amount that passes to the surviving spouse

“Credit Shelter Trust” – married couples ability to take advantage of thier $5,000,000 exemption from estate taxes

Lifetime GiftsGifts made during lifetime are added to a person’s estate when they die

o Exceptions:o Can gift up to $13,000 (indexed for inflation) to unlimited number

of persons annuallyo This amount will not be included in estate when the person dieso Must be a “completed gift” (no strings attached)

Intellectual Property – Chap 59“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Trademarks - ®• Word, name, motto, emblem, symbol or device that identifies goods and

distinguishes them from those manufactured and sold by others• Register through US Patent and Trademark Office

Lanham (or Trademark) Act (1946) – o federal government grants exclusive use for ten years from date of

registration and renewed for successive periods of ten years so long as mark continues to be used

o To prove trademark infringement party must prove another’s use of mark confuses consumer

Trademark Dilution – o Giving the owner of a famous trademark standing to forbid others from using

that mark in a way that would lessen its uniqueness. o Usaully on products that do not compete with, and have little

connection with, those of the trademark ownerTypes:

o “Tarnishment” – harms the repusentation of the famous markEX => “Nke” trademark used by another company for condoms

o “Blurring” – impairs distinctiveness of the mark (similar marks of parties)EX => Famous computer trademark “Microsoft” used for “Microsoft Deoderant” Protected Aspects under Trademark:

Trade Dress - Refers to the image and overall appearance of the producto distinctive décor, product names, packaging of Starbucks coffee shops

Trade Names – Specific name applied to companies, protected by federal lawo IBM, Coca-Cola, NBC

Service Marks - A distinguish services of one person/company from another

Cyber Marks - Online trademarks, Domain Names

Copyrights Form of protection providing the right to reproduce and distribute “original

works of authorship” fixed in a tangible form of expressiono literary, musical, choreographical, films, graphic, software, soundso Copyright protected for creators life + 70 years

Work For Hireo employer employs a person to create copyright worko Protected 95 years from publication or 120 years from creation

Exemptions (or permitted uses): First Sale

o copyright owner’s right terminates once copyright work is legally sold or a license sold

Fair Use Doctrine o limited amount of work can be used for research, education, criticism

and news reporting Public Domain

o materials include government publication, generic terms and materials whose copyright has expired

Patents The exclusive right to make, use and sell an invention for a term of years (20)

Requirements: Novelty – only new inventions are patentable Nonobvious – Noticeable difference from prior invention Utilty – Invention must have usefulness

Infringment: without authority makes, uses, offers to sell or sells a patented invention or a

imports patented inventionDoctrine of Equivilents – Liable of infringement yet not the exact copy of an invention

Trade Secrets Any device or information that is used in a business and gives its owner a

competitive advantageo Formulas, blueprints, research, customer list, marketing techniques

Economic Espinage Act of 1996 – cannot sell government or business secrets