Acing Property
Author:
Medill, Colleen E.
Edition:
2nd
Copyright Date:
2012
15 chapters
have results for property
5. Co–Ownership 154 results (showing 5 best matches)
- a. Determining Marital Property.
- Disputes in divorce property settlements arise because it can be difficult to determine what is marital property. Some jurisdictions define marital property broadly as all property acquired during the marriage. Other jurisdictions limit marital property to property acquired using earnings during marriage and exclude property acquired before marriage or property acquired during marriage by gift, devise or inheritance.
- How is community property transformed (“transmuted”) into another form of property ownership? Couples who acquire community property can agree to hold their community property as the separate property of one spouse alone, or agree to hold the property as a TIC or as a JTWROS. Community property cannot, however, be changed by mutual agreement of the couple into TBE property so long as the couple is domiciled in a community property state. No community property jurisdiction recognizes the TBE form of co-ownership. Absent an agreement to transmute, the strong presumption of community property ownership prevails and applies to any property that meets the three-part definition (married, domiciled, earnings) of community property.
- Determine if the property is held as community property or in a common law form of co-ownership using Part A.1 of the checklist below. If the property is not community property, proceed to Part A.2 of the checklist to determine the specific type of common law co-ownership, and to Part B to analyze how subsequent events may affect title to the property. If the property is community property, proceed to Part C to analyze how subsequent events may affect title to the property.
- 1. Community Property.
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8. Recording Acts and Adverse Possession 74 results (showing 5 best matches)
- The classic dispute over superior property rights involves competing claimants who both claim to have acquired their property interests from the owner of the property through a written instrument. The property interests in dispute may be the fee simple absolute title to the property, or a lesser property interest such as a mortgage or an easement. The written instrument that conveys the property interest to the first grantee, although capable of being recorded in the land records system, is not recorded immediately. This omission makes it possible for the owner of the property to convey an interest in the property to a subsequent grantee, who may lack knowledge of the prior conveyance.
- A Mother Hubbard clause is a provision in a deed that purports to convey title to or a lesser property interest in “all of the grantor’s property located in” a specific county. A Mother Hubbard clause, which substitutes for a specific description of the property or properties affected by the deed, is not considered recorded because the indexing system used by title searchers relies on specific property descriptions.
- element is to give the owner reasonable notice of the adverse possessor’s occupation of the property. Courts look to the nature and type of the property to ascertain whether the actions of the adverse possessor are consistent with how an owner would use and possess the property. If the adverse possessor is using the property in the same manner as a typical owner would, then the true owner has notice of the adverse possessor’s potential claim.
- Issues of inquiry notice can arise based on a physical inspection of the property or references to prior unrecorded conveyances contained in recorded instruments in the subject property’s chain of title. Current possession or use of the property by someone other than the purported grantor that is visible, open, exclusive and unambiguous gives inquiry notice to the grantee.property by someone other than the grantor varies widely in application. The outcome in each case depends heavily on the unique factual circumstances.
- The relation-back feature of title acquired by adverse possession also impacts other persons with rights or interests in the property. The adverse possessor takes title to the property subject to all encumbrances (mortgages, liens, easements, real covenants and equitable servitudes) that were already in existence as of the moment of initial entry. The adverse possessor takes title to the property free of any encumbrances that were granted to third parties by the record owner of the property after the moment of initial entry.
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1. Captured and Found Property 84 results (showing 5 best matches)
- 1. Captured Or Abandoned Property.
- Generally, the first two elements of a conversion claim are undisputed. Proof of the third element often turns on whether the plaintiff possessed the disputed property before the defendant did. For captured property (which has no original owner), prior possession of the disputed property gives the plaintiff the superior legal right to the property under the fundamental Property law rule of
- c. General Rule For Mislaid Property.
- any students begin Property law by studying cases involving captured or found items of tangible personal property. Captured property has no original or true owner—it typically consists of things found in nature, such as wild animals, minerals, and other natural resources. In contrast, found property is assumed to have had a prior owner, who either lost, mislaid or abandoned the item. The underlying theme of captured and found property cases is the concept of possession, and how possession determines who has the superior legal right to the captured or found property.
- If the court characterizes the property as by the true owner (e.g., a home run ball at a Major League Baseball game), the true owner has voluntarily relinquished her legal rights to the found property. For abandoned property, courts rely exclusively on the second and third judicial factors (rights of the owner of the locus and the conduct of the finder) to determine which claimant has the superior legal right to the property.
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3. Present and Future Interests 112 results (showing 5 best matches)
- This is just one of many illustrations of the fundamental Property rule that a grantor cannot convey more property rights, or a different set of property rights, than the grantor actually owns. The grantor can, however, always convey a lesser property right than the grantor owns and retain a REV in the property.
- “Shutting out” afterborn class members once the time arrives for the VRSO to come into present possession is known as the Rule of Convenience. The Rule of Convenience promotes certainty in property ownership. Closing the class of property owners once the property interest comes into present possession avoids the uncertainty and related inconvenience of giving afterborn class members a share (and a say) in the ownership of the property.
- Some of the illustrations below tell you to assume certain facts about who is alive and who is dead “at the time the grant is made.” The grant is made when it becomes effective to transfer a property interest. For property rights transferred by a will (a “devise”), the grant becomes effective at the time of the death of the testator O. For property rights created by inter vivos transfer (a transfer made by the grantor O while O is still alive), the grant becomes effective when the transfer becomes irrevocable, either under the property law of gifts
- In a modern jurisdiction that has abolished the Doctrine of Destructibility, upon A’s death present possession of the property reverts back to O, and B’s CR turns into a springing EI. O holds present possession of the property, but O’s present interest is subject to a springing EI held by B. Present possession of the property will “spring forth” from O to B once B attains age 25. If B dies prior to attaining age 25, B’s springing EI is extinguished at B’s premature death, and O owns the property in FSA.
- Modernly, almost all jurisdictions have abolished these ancient rules by adopting the Uniform Property Act. For this reason, many Property professors no longer cover these ancient rules. If your Property professor is still teaching these ancient rules, see the excellent treatise by Bergin and Haskell referenced in footnote 5 of Chapter 3 for a comprehensive explanation.
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9. Easements, Profits, Real Covenants and Equitable Servitudes 64 results (showing 5 best matches)
- Once you have classified the property right, exam questions tend to focus on the following four major issues: (1) creation of the property right; (2) transfer of the property right; (3) the scope of use and enforcement of the property right; and (4) termination or equitable nonenforcement of the property right. Given that easements, profits, real covenants and equitable servitudes have unique rules, learning to classify the property right correctly at the outset is crucial to success on the exam.
- Express easements and profits are illustrations of rights that are protected by a property rule —a voluntary transfer of property rights between private parties. Normally, an involuntary (“forced”) transfer of a property right from the owner to someone else is protected by a liability rule, which requires that the owner must be compensated for the loss of the property right by a judicial award of damages. Easements that arise by operation of law are an exception to the liability rule because no compensation is due to the owner of the parcel that becomes burdened by an easement right that arises by operation of law.
- A. CHARACTERIZE THE NATURE OF THE PROPERTY RIGHT.
- is that this element is satisfied even if the use is nonexclusive and is shared with the owner of the property (e.g., both the trespasser and the owner share and use a path across the owner’s property). The is that use must be exclusive and cannot be shared with the owner of the property. In a majority rule jurisdiction that permits a prescriptive easement right to be created based on the claimant’s shared use with the owner of the property, the owner usually argues (based on the fact of shared use) that no prescriptive easement right is perfected because the owner has expressly or implicitly consented and given permission for the use.
- hen viewed in isolation, the technical rules governing easements, profits, real covenants and equitable servitudes are not difficult. But the cumulative mass of the rules (and all of their fine distinctions) can be overwhelming at first blush. The main challenge is learning how to recognize each of these property rights. Ask yourself: Is the property right an easement or profit (or is it a defeasible fee simple or a lease or a license instead)? Is the property right a promise that forms a real covenant or equitable servitude (or is it a negative easement instead)?
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2. Gifts 43 results (showing 5 best matches)
- he concept of a gift arises in three distinct areas of the first-year Property course. For many Property students, the concept is introduced through gifts of tangible personal property. Gifts arise again in the study of partial ownership interests in property, where a donee may receive a present, a future, or a co-ownership interest in the gifted property. Finally, gifts of real property involve unique issues. This chapter addresses the concept of a gift in all three areas.
- As a general rule, if the donor fails to satisfy the donative intent and delivery elements while the donor is alive, the property that is the subject of the gift will continue to be owned by the donor. The donor may (while still alive) gift or sell the property that was the subject of a failed lifetime gift to someone else. If the donor dies without gifting or selling the property to someone else, the property that was the subject of a failed lifetime gift will become of the donor’s estate will distribute the property in the donor’s estate to the donor’s will beneficiaries (if the donor has a valid will that distributes the property) or to the donor’s intestate heirs (if the donor dies without a will that distributes the property).
- of the gifted property. Although a gift usually entitles the donee to immediate possession of the gift, the donor may gift a future interest in property. In this situation, although the donee does not have the right to present physical possession of the property, the gift of the future interest in the property nevertheless presently is operational and therefore satisfies the donative intent element.
- Under the modern view, courts have recognized constructive delivery and symbolic delivery as valid types of delivery. Constructive delivery occurs when the donor provides the donee with the sole means of access to the gifted property. The classic example of a constructive delivery is when the donor gives the donee the sole key to a safe deposit box or a vault that holds the gift. Symbolic delivery occurs when the donee receives a document or other item that is symbolic of the gifted property itself. The classic example is a writing that declares the donor is giving a valuable item of tangible personal property to the donee along with a photograph of the gifted property.
- A special rule applies for the delivery of a gift of real property. A gift of real property is valid only if the donor executes a written deed presently conveying the real property (or a partial interest therein, such as a future interest) to the donee. The deed must comply with the execution requirements of the Statute of Frauds
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10. Takings 101 results (showing 5 best matches)
- The Takings Clause requirement that the power of eminent domain can only be exercised for a public use is satisfied if forcing the sale of the owner’s property serves a public purpose. Actual sale to or use of the property by the government, or access and use of the property by the general public is not necessary to satisfy the The public use as public benefit standard is satisfied even when the government forces the transfer of private property from one private owner to another private owner, so long as the forced sale of the property serves a public purpose.
- The property owner also receives just compensation for a partial taking of property rights, such as the condemnation of only part of the property or an easement right to build or widen a public road or to install a public utility line. In addition to the value of the property rights taken, the property owner may receive compensation for any damages to the remainder. The amount of just compensation for remainder damages is calculated by doing a market value analysis of the property before and after the taking. The difference in the before and after values determines the amount of damages to the remainder.
- Of course, if only part of the owner’s property is impacted by a regulation, the savvy property owner may attempt to divide a single property into affected and unaffected parcels. For example, assume that due to an environmental regulation the property owner is unable to develop part of his land that abuts a protected wetlands area, but still may develop the other part of the property. Can the owner characterize his land as consisting of two distinct parcels, and then claim that the environmental regulation has taken of the portion of the property that cannot be developed because it abuts the wetlands area?
- In analyzing the impact on the property owner’s DIBE, requires that the owner’s expectations must be reasonable. A key fact in assessing reasonableness is whether the property owner is a pre-enactment or post-enactment purchaser of the regulated property. Although held that even a post-enactment purchaser may assert that the regulation works a taking of the property, the reasonable post-enactment purchaser naturally should have diminished DIBE concerning the property due to the pre-existing regulation.
- The compensation due to Eden as the owner of the Easy Green Golf Course is based on the market value of the property at the time of the taking. Market value is the price in cash or its equivalent that the property should sell for in a competitive market after reasonable exposure assuming a reasonable buyer and seller. Eden is unlikely to receive the market value of $12 million for the property as a retail center because the existing zoning does not permit the property to be used for retail use. Eden has evidence, however, that the market value of the property would increase to $6 million if the recreational use of the property were changed from a golf course to an entertainment and sports complex. An entertainment and sports center is an alternative legal use of the property under current zoning law. A court may award more that $2 million in compensation (the price Eden paid for the property) based on this alternative legal use and the resulting higher market value.
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7. Real Estate Transactions 114 results (showing 5 best matches)
- Differing Views If Price of Property Has Declined.
- the property to prospective buyers. Depending on the jurisdiction, the broker or agent showing the property may have an affirmative duty to disclose latent defects that materially affect the value of the property. To protect against these “failure to disclose” claims, brokers and agents typically require the seller to complete a disclosure statement that lists or describes problems or defects that affect the property.
- For the buyer, loss of bargain damages are awarded if the contract price is less than the value of the property at the time of the breach. In other words, if the property has appreciated in value since the sales contract was executed, the savvy seller is more likely to breach by refusing to close so that the seller can sell the property at a higher price to someone else. The savvy buyer generally will prefer the remedy of specific performance in this situation over the remedy of loss of bargain damages or rescission because the buyer desires to own the appreciated property at the lower contract price.
- condition of the property. The modern trend is to extend the seller’s affirmative duty of disclosure to include off-site conditions that impair the value of the property. If the buyer’s property is residential, the buyer can also sue a builder, contractor or developer who constructed or remodeled the property for breach of the implied warranty of quality (“IWQ”). The detailed rules for analysis of these types of claims are contained in the Checklist at the end of Chapter 7.
- Under the doctrine of merger, a presumption arises that the buyer’s contract-based claims against the seller that relate to defects in the legal title to the property merge into the deed that is accepted by the seller at the closing and are extinguished. Post-closing, the buyer’s remedy for a defect in legal title is limited to claims for damages based on a breach of deed covenants. Claims that are based on a defect in the physical condition of the property do not merge into the deed. The buyer may sue the seller for damages based on the seller’s misrepresentation or nondisclosure of a defect in physical condition of the property or an off-site condition that impairs the value of the property. For residential property, the buyer may sue a merchant of housing for damages to residential property based on a breach of the implied warranty of quality (“IWQ”). Proceed to Parts D.1 and D.2 to analyze claims based on breach of deed covenants. Proceed to Part D.3 to analyze claims based on...
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6. Landlord and Tenant 101 results (showing 5 best matches)
- Any intermediate assignee who later assigns the property is liable for rent due and damages for failure to keep the property in good repair while the intermediate assignee was in legal possession of the property. This result occurs because the intermediate assignee is liable only for the period when the intermediate assignee is in privity of estate with the landlord. The intermediate assignee who later assigns is not liable for rent that accrued or damages incurred after the intermediate assignee assigned the property because privity of estate terminates with the assignment.
- 2. Other Property Arrangements.
- • The tenant’s primary obligation is to pay rent. For a commercial property, the tenant must keep the leased premises in good repair. For a residential property, the implied warranty of habitability requires the landlord to maintain and make any repairs to the property throughout the duration of the tenancy.
- • If the dispute involves a residential property, always consider both a breach of the covenant of quiet enjoyment and a breach of the implied warranty of habitability as potential tenant defenses. If the dispute involves a commercial property, focus only on a breach of the covenant of quiet enjoyment as a potential tenant defense. The implied warranty of habitability does not apply to a commercial property.
- the property. The landlord has a different set of options to deal with the tenant who has abandoned the leased property without paying all of the rent due under the terms of the lease.
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4. The Rule Against Perpetuities 18 results (showing 5 best matches)
- : Once you have studied the real estate transactions part of your Property course, come back to Problem 4.4 and let your imagination run wild. After studying the rules unique to real property transactions, you will understand how the sections of your Property course on present and future interests and the RAP intersect with the rules for buying and selling real property, the concept of marketable title and deed warranties, and the concept of a recorded chain of title to the real estate. Problem 4.4 presents a basic fact pattern that you can use to add layers of additional imaginary facts, and then expand your analysis to practice applying the unique rules for real property transactions.
- any students punt learning the Rule Against Perpetuities (“RAP”) and still pass Property. But it is unlikely you will ace Property without being able to perform a RAP analysis.
- After classifying the interests in the grant, the second step in a RAP analysis is to determine when the perpetuities period begins. The perpetuities period begins when the grant becomes effective to transfer a property interest (when the grant is “made”).
- If the future interest has not RAP-vested within the perpetuities period, under these modern approaches the court will reform the grant language. In reforming the grant language (unlike the common law’s striking approach), the court will consider the grantor’s intent. To the extent possible, the court will rewrite the grant to RAP-vest the future interest while still approximating the grantor’s intent for the disposition of the property.
- “To my son Ben for life, then to the Red Cross and its heirs, successors and assigns, but if the Red Cross ever fails to respond in a timely manner to a tornado in my home State of Kansas, the property shall go to my Uncle Joseph and his heirs.”
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Introduction 7 results (showing 5 best matches)
- These inherent difficulties are compounded if your Property teacher tends to hide the ball. Your casebook may not clearly identify the fundamental concepts and rules that you must understand to perform well on the exam. You easily may find yourself wandering, lost in the proverbial Property forest of the historical, the obscure, or the irrelevant. Students who ace their Property course know how to navigate the Property forest in an efficient manner.
- This book is not intended to be a scholarly treatise on Property law, or even a comprehensive student study aid. Coverage in the first-year Property course varies widely, and so your particular professor may or may not teach all of the topics addressed in this book. This book is a teaching and learning tool that focuses on the parts of the typical Property course. After listening to and learning from my own Property students for many years, I have taken my teaching methods and incorporated those methods into this book. These methods simplify and distill Property law down to its essence so that you can at least understand, and may even come to enjoy, Property.
- uring the course of teaching first-year Property for over fifteen years, I have read all of the student study aids in the area. This book is the rules for you so that you can analyze and answer Property problems. It shows you how to about Property.
- After the Review, the rules are organized in the form of an outline-like checklist (the “Checklist”). At a minimum, you can compare your own outline with the Checklist to determine if your outline is missing a key rule or principle of Property law. Ideally, you can use the Checklist as a tool to train your brain for the exam. The Checklist shows you the order in which you should consider and apply the rules of Property to solve problems. Studying the organizational structure of the Checklist and using it to develop your own course outline will train you how to think about Property issues in a systematic, efficient, and thorough fashion—the hall-marks of an “A” Property student.
- This book provides you with a navigational roadmap. Each chapter begins with a student-friendly summary (the “Review”) of the fundamental rules for a specific area of Property law. The Review only talks about the important rules and shows you how these rules fit together. The Review also highlights for you those key points of intersection where the rules in one area of your Property course may intersect with the rules in other areas. Some Property professors highlight these points of intersection for their
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About the Author 1 result
- is the Robert and Joanne Berkshire Family Professor of Law at the University of Nebraska College of Law. She has taught first-year Property for over fifteen years, beginning at The University of Tennessee College of Law (1997–2004) and currently at the University of Nebraska College of Law. Professor Medill has won the Outstanding Teacher Award at both institutions. She also is the author of
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Dedication 1 result
Table of Contents 3 results
- Publication Date: August 16th, 2012
- ISBN: 9780314280954
- Subject: Property
- Series: Acing Series
- Type: Exam Prep
- Description: This study aid uses outline-like checklists to lead students through the analytical steps necessary to evaluate and resolve property issues. Each chapter begins with a review and explanation of the important rules, concepts, and principles that govern a particular area of property law. The review material is then synthesized into a checklist. Each chapter concludes with practice problems and solutions that illustrate how students can use the checklist to analyze property issues when writing their exams. The systematic analytical approach represented by the checklists in this book is unique among study aids.