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Definition
-First-to-possess, first-in-right.
-Case: Pierson v. Post (Fox case)
-Policy: Social good to eliminate foxes. |
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Term
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Definition
1. Custom should apply where...
a. Limited to an industry
b. Recognized by the entire industry
c. Requires all that is practicable
d. Necessary for survival of the industry
e. Works well in practice
f. Unlikely to disturb the general understanding of mankind (comports with what we think is acceptable; has to agree with policy)
*** Encourage/Support competition *** |
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Term
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Definition
Whaling Case.
Why Courts are suspicious of custom:
(1) Custom might be crafted to benefit that industry rather than all of society;
(2) Custom may be dangerous to those employed in the industry;
(3) Custom could waste the resource; &
(4) Overinvestment in technology. |
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Term
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Definition
-Scaring ducks away from decoy.
-1. Malicious interference with trade is actionable when:
a. acting lawfully in a trade
b. acting illegally when interfering with trade (instrumental)
c. Society is served by promoting the trade (formalistic) |
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Term
| International News Service v. Associated Press |
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Definition
Facts: INS reprinted AP's news stories right after AP released them.
Doctrine of Misappropriation: When a P has by substantial investment created an intangible thing of value not protected by patent, copyright, or other intellectual property law, and the defendant appropriates the intangible at little cost so that the P is injured P's continued use of the intangible property is jeopardized, an action for misappropriation will lie. |
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Term
| Cheney Bros. v. Doris Silk Co. |
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Definition
Facts: Company put out new clothing designs each season, other co. copied them.
Rule: Clothes are not protected. |
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Term
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Definition
| habit of return. If an animal habitually returns to your property, you constructively own that animal. Promoting of the domestication of wild animals. |
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Term
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Definition
The owner of the mother of the animal, absent of some agreement, owns the offspring. As policy it would further the species.
1. It way easier to identify the mother of a deer than trying to identify the father. Promotes certainty. |
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Term
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Definition
1. Unpatented products can be imitated
2. Just because you have an economic interest in something doesn’t give you a property right in it |
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Term
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Definition
1. Property in one’s persona – right of publicity
2. Incentive for becoming famous
3. Public officials do not have the right to publicity
4. Is there a parity |
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Term
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Definition
Facts: Neighbor built steps that encroached 15 inches onto neighbors land.
Rule: 15 inch encroachment is not open and notorious. |
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Term
| What are the elements of Adverse Possession? |
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Definition
1) Entry by claim or right that is:
2) Open and notorious;
3) Continuous;
4) For Statutory period.
*Majority: Intent doesn't matter.
*Minority: Must Be in Bad Faith
*Minority Minority: Must be in good faith. |
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Term
| What are you two major policies behind Adverse Possession? |
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Definition
1) Sleeping Theory: Punish owners who don't work and improve their land.
2) Earning Theory: Rewards those who work the land. |
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Term
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Definition
Facts: Georgia O'Keefe's painting stolen. Didn't report it. Thief sold to another.
Rule: hostile, actual, visible, exclusive, and continuous. Open and visible in this context will now be upon the discovery of the missing chattel |
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Term
| How is principal and interest on a mortgage divided between a life tenant and remainderman? What does the life tenant owe when third party rents are being rec'd? |
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Definition
| A person holding a remainder in mortgaged property has a duty to pay the principal. A life tenant has a duty to pay the interest on the mortgage. However, the life tenant's duty is capped at the rents and profits derived from a third party in possession of the property, or the reasonable rental value of the property if the life tenant remains in possession. |
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Term
| How is principal and interest on a mortgage divided between a life tenant and remainderman? What does the life tenant owe when third party rents are being rec'd? |
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Definition
| A person holding a remainder in mortgaged property has a duty to pay the principal. A life tenant has a duty to pay the interest on the mortgage. However, the life tenant's duty is capped at the rents and profits derived from a third party in possession of the property, or the reasonable rental value of the property if the life tenant remains in possession. |
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Term
| When two parties own property acquired before marriage as tenants in common, then subsequently get married, how is there ownership classified? |
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Definition
| A tenancy by entirety does not arise subsequent to marriage when the conveyance of property was made prior to marriage. |
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Term
| Termination of Tenancy by the Entirety by Conveyance |
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Definition
| One tenant by the entirety cannot unilaterally sever the tenancy. Is, however, automatically severed upon divorce. |
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Term
| Whether an adverse possessor takes title to land subject to any restrictions imposed on the record owner's land (e.g., equitable servitude) |
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Definition
| Every possessory interest in land is bound by an equitable covenant burdening that land. Commentators have suggested that an adverse possessor would be bound by an equitable restriction, although no case has so held. One theory that would support that principle is set forth by this choice—that the adverse possessor's occupation of the property was not adverse to the rights of those who would enforce the equitable restriction. |
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Term
| Factors in determining whether chattel becomes a fixture (4): |
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Definition
(1) Are the chattels firmly embedded or connected to the soil or some pre-existing structure?
(2) Are the chattels peculiarly adapted or fitted to the particular premises?
(3) Would removal of the chattels largely destroy the chattels or damage the premises?
(4) Did the person who annexed the chattels have a substantial and permanent interest in the land (e.g., owner of fee simple interest) |
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Term
| What a mortgagor may do with regard to fixtures on mortgaged property |
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Definition
| A mortgagor is permitted to do such acts on the mortgaged property that are considered usual and proper, including remodeling structures and removing fixtures in a reasonable manner. An injunction will not be granted for the removal of fixtures as long as there remains adequate security for the mortgagee. Most courts follow the rule that threatened waste by the mortgagor will not be enjoined unless the injury to the land would bring the value of the security dangerously close to inadequacy or "the danger zone." |
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Term
| What happens when the seller of property that is subject to a contract for sale of real property dies during the executory phase of the contract? |
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Definition
| Under the doctrine of equitable conversion, upon the signing of the purchase and sale agreement, the seller acquires a legal interest in the property (the right to obtain the purchase price), and the buyer acquires equitable ownership in the property (the right to conveyance of the realty). Thus, the seller has a right in personalty (the purchase money), and the buyer has a right in realty. A person who inherits the seller's realty must convey title if the buyer tenders the purchase price. The person who inherits the seller's personalty will receive the purchase money paid by the buyer. |
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Term
| When is a license freely revocable and under what circumstances does a license become irrevocable? |
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Definition
| A license is a right to enter the land of another. A license coupled with an interest is the right to enter land on which personalty in which the licensee has an interest is located. Here, the miller holds a license coupled with an interest because the developer (the licensor) has granted the miller (the licensee) the right to enter his property to remove personalty (the hardwood). A license is generally revocable at the will of the licensor. However, a license may become irrevocable in two situations: (1) A license coupled with an interest exists when one person owns personal property on the land of another and has a privilege incidental to such personal property to come on the land to use or recover the personalty. (2) An executed license is based on estoppel and often involves substantial expenditure of funds in reliance on the promisor's promise to allow the promisee to use the land. An executed license is sometimes deemed to be the equivalent of an easement. |
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Term
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Definition
| The shelter rule provides protection for a subsequent purchaser who does not satisfy the applicable recording statute. Under the shelter rule, a person who is a successor in interest to a person protected by the recording statute is also protected. |
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