PROPERTY OUTLINE 1. Types a. Land b. Intellectual c. Method of Business d. Personal Property 2. Definition a.

Relationship between parties and rights to properties 3. Copyrights a. Copyright Act 102 i. Power granted by congress ii. Elements 1. Original work 2. Of authorship 3. Fixed 4. To a tangible medium of expression 5. That can be communicated or otherwise reproduce iii. Exceptions : Copyright Act 102(b) 1. Idea 2. Procedure 3. Process 4. Method of operation 5. Functionality it NOT copyrightable a. Done to promote science and discovery b. Case i. Oddzon Products v. Oman 1. Copyright of Koosh Ball 2. Familiar shapes not copyrightable 3. Functionality not copyrightable 4. Trademark a. Elements i. 1127 1. Word, name, symbol or device 2. Used by a person OR bonafide intention to use AND register 3. Identifies and distinguishes goods 4. Indicates products source ii. 1052 1. Exceptions a. so resembles another registered trademark as to cause i. confusion ii. mistake iii. deceive customers 1. e.g. Golden arches b. is merely descriptive c. is part fictional

i. e.g. red for fire equipment b. Important Caveats i. Generic 1. Fails elements that identify and distinguish 2. Did color take on a 2nd meaning [functionality] a. E.g. splenda 5. Found Property a. Jury tries to interpret the intent of the True owner b. 4 categories of Found property i. Abandoned 1. Intentional: getting rid of title a. Finder rest of the world 2. Involuntary lost w/o hope or expectation to reacquire a. True owner finder rest of world b. E.g. throwing things overboard to lighten ship ii. Lost 1. Involuntarily parted with through neglect or carelessness 2. Owner does not know where it is 3. Does not intend to pass ownership a. True owner Finder Rest of the world iii. Mislaid 1. Intentionally Placed 2. Forgotten 3. No intent to pass title a. True owner Land Owner finder 4. Case: Terry v. Lock a. Depending on how money is found is basis for categorization iv. Treasure Trove 1. Concealed 2. Owner unknown 3. Gold, silver and equivalents 4. Antiquity: true owner probably dead a. True Owner Finder rest of the world c. Exceptions i. Money found in the wall of a house 1. Sale of house transferred rights of everything in the house a. True owner is the current owner of the house. 6. Bailments a. Prima Facie Case of Bailment i. Elements: all must be met 1. Express or Implied agreement to create bailment 2. Delivery of property in good condition 3. Bailee Acceptance of Property 4. Bailee failure to return property or property is damaged a. Damaged: worst condition than on arrival

ii. IF all 4 elements are met 1. Rebuttable Presumption of Negligence of Defendant a. Presumes Liability b. Burden of Proof shifts to defendant 2. Negligence is calculated by if the activity of the defendant was the cause of damages b. Bailor: Owner of property c. Bailee: receives possession of Property d. Types i. Gratuitous 1. Bailor is only party that benefits 2. Standard of Care: Slight Diligence ii. For Hire 1. Both parties benefit a. E.g. exchange of money 2. Standard of Care: Reasonable Care e. Case: Wausau v. Chicagoland 7. Fugacious Property a. Has no true Owner i. Intentionally abandoned ii. No original true owner b. Rule of Capture i. The one who reduces fugacious property to actual complete possession 1. True owner ii. Variations 1. Whaling a. Invluntary parting with property b. Marking of property by harpoon 2. Oil and Gas a. Compulsary pooling b. Everyone who has stake will receive a portion of the revenue generated by propertys sale 3. Baseball a. Equitable division 8. Transfer of Title a. Buy gets what seller had b. Once void always void i. Voidable Title 1. Can become good title 2. Elements a. True owner entrusts b. To merchant in goods of that kind Voidable c. Sold to BFP in ordinary course of business GOOD TITLE c. Security Interest i. Gives creditor some power

ii. Not the same as title d. Splits title into equitable and legal title 9. Torts To Property a. Trespass i. Intentional damage to property b. Trespass on the Case i. Negligent or careless damage to property c. Conversion i. Exercising control on property ii. Converting to own use iii. Preventing true owner from realizing value d. Trespass to Chattels i. Exercising control on Property ii. DID NOT convert to own use iii. Interferes with true owners use 10. Common Law of Publicity a. Cause of action can be brought i. Use of identity or likeness ii. Use of name or likeness lend to advantage commercial or otherwise iii. Lack of consent iv. Resulting in damages 11. Property Interest of Gifts and Purchases a. Gift i. Elements 1. Intend to part with title 2. Delivery 3. Acceptance ii. Alive; Inter vivos 1. irrevocable iii. Imminent death: Causa Mortis 1. Revocable 2. Cause of death must be same as reason for giving gift 3. Imminent death must be reasonable 12. Adverse Possession a. Elements: All elements must be met for person to receive title i. Possession of Property ii. Open and notorious 1. True owner is notified of use iii. Hostile 1. Non permissive iv. For statutory period 1. Each state has statue on how long possession must be for 2. If not otherwise stated it is 20 years. b. Social Policy i. Wants owners to maintain their property c. Exceptions

i. Color of title 1. Person receives faulty deed 2. Meets all 4 elements of adverse possession a. They are entitled to all that is on deed 13. Deeds a. General Warranty i. Grantor protects grantee against ANY problem with title b. Special warranty i. Protection against any problem caused by Grantor c. Quit Form i. No protection 14. Concurrent Ownership a. Fee Simple Absolute i. Full ownership b. Tenancy in Common i. Equal Undivided Interest ii. Right to enter and avoid exclusion iii. Right to use 1. Must account to other tenants for any profits iv. Must not waste 1. Any activity that devalues property v. Sale: buyer becomes tenant in common vi. Death: Interest passed to heirs c. Joint Tenancy with right to survivorship i. Equal Undivided Interest ii. Right to enter and avoid exclusion iii. Right to use iv. Must not waste v. Sale: Joint Tenancy destroyed tenancy in common vi. Death; interest goes to remain joint tenants 1. 4 Unities for Joint Tenancy a. Time: Must have received interest at same time b. Title: Must have received interest on same document c. Interest: must have equal interest d. Possession: Same rights i. If 1 is destroyed tenancy in common d. Tenancy by Entirety i. Only Between husband and wife ii. Can only be severed by final decree of divorce iii. Right to survivorship 1. Property belongs to both a. Creditors cannot attach 15. Trust a. Splits Title into two i. Beneficiary: equity title ii. Trustee: legal title

iii. Duties 1. Loyalty a. Act in interest of beneficiary 2. Avoid self dealing 3. Reasonable and prudent investing 4. Protect and preserve property 5. No commingling of trust property 6. Must account to beneficiary 16. Land Lord Tenant Relationship a. Types of Tenancy i. Estate of Years/ Fixed Terms 1. Tenancy for definite length 2. Notice not necessary to terminate ii. Periodic Tenancy 1. Successive periods of time 2. Automatically renews 3. Notice needed to terminate iii. Tenancy at Will 1. You can live here as long as you want 2. Terminable at pleasure of either party 3. No fixed termination a. No notice needed iv. Tenancy at Sufferance 1. Arises from tenant who HAD right to property a. Now does not 2. Continued possession after rightfully obtained state is terminated 3. Landlord suffers continued occupation of tenant 4. Undefined length 5. Notice unneeded v. Statutory Tenancy 1. Tenancies created by statutory protections 2. Restrictions on landlords 3. Provides protection usually to tenant alters the catagories b. Leases i. Property interest of giving of possession ii. Two parts 1. Conveyance a. Transferring possession to tenant for period of time b. Not very many rights 2. Contract a. Exchange of possession for payment c. Transfers by tenants i. Assignment 1. Transfers ALL rights a. Assignee privity of estate/ contract ii. Sublease

1. Transfers SOME rights a. Time b. Portion of property iii. Splits 1. Majority a. If all assigning tenants retains is right to reenter i. Upon default = assignment 2. Minority a. Assignment = transfers of all rights b. Sublease = retainment of right to reenter iv. Split in Lessors Interest in Preventing Transfer: Consent Clauses 1. Majority rule: landlord is able to arbitrarily refuse to consent a. Some reasons, protect property, conveyance idea. 2. Minority rule: landlord cannot withhold consent unless it is commercially reasonable. a. Factors to look at: financial responsibility, alteration property, illegal activity, nature of occupancy. d. Land lord Transfers i. 2 ways 1. Sale 2. Refinancing ii. Issues 1. Priority of interest a. Who has highest interest in property b. Usually First in First right [FIFR] i. E.g. 1. Landlord 2. Tenant 3. Bank/ refinancer c. Banks may not want refinance because prior lease that must be honored i. Cannot kick out tenants from before ii. SOLUTION 1. Subordination a. Tenant waives right to [FIFR] b. Will subordinate interest to bank 2. Continued Rent payments a. Wants to ensure that tenants will continue to make payments b. Buyers are attracted to cash flows i. SOLUTION 1. Attornment a. Agree to make payments to subsequent owner 3. Continued Enjoyment of Lease a. Tenant does not want to be kicked out i. SOLUTION 1. Non-disturbance a. If not in default

b. Can have continued use of land 4. SNDA clause a. Written into lease i. Subordinations ii. Non iii. Disturbance iv. Atornment Duty to Deliver i. Landlord has some duty to deliver possession to tenant ii. Majority Rule 1. If lease is silent on issue a. Apply English rule i. Requires landlord to deliver actual possession of the premises at the beginning of the term ii. If lessee cannot take possession due to a holdover tenant 1. Landlord is in breach of agreement Premises Quality i. Common law 1. Buyer beware 2. Tenants responsibility to ensure property is suitable ii. Constructive Eviction 1. Common law a. Substantial impairment of lease b. Caused by the landlord i. If both are satisfied ii. Tenant can walk away from lease and not be liable for rent iii. Restatement 1. Landlord fails to perform in a reasonable time 2. Notice by tenant 3. Promise 4. That was a substantial inducement for tenant to enter into lease Independent v. Dependent covenants i. Covenants 1. Tenant will pay rent 2. Landlord will maintain property ii. NOT A RULE: will be specified in contract? Premises Restoration: at end of contract i. Lease is silent 1. Tenant: no obligations ii. Lease says MAINTAIN: 1. Tenant: no obligation iii. Lease says RETURN IN AS GOOD CONDITION 1. Tenant: Yes obligation to restore. Waste

e.

f.

g.

h.

i.

i. Tenant has duty to landlord not to commit waste ii. Unreasonable use of the property to cause a decrease in value of property 1. Must effect a vital and substantial part of property to change appearance or fundamental use a. Voluntary i. Direct and willful ii. Intentional injury to property b. Permissive c. A result of neglect iii. Does not include damage from ordinary use iv. TORT 1. Must be significant damage 2. Damage that changes the use of the property. j. Fixtures i. Personal Property that is affixed to the land ii. Becomes part of land property of the landlord iii. Exceptions 1. Trade fixtures a. Is a fixture b. Related to business of tenant c. Can be taken by tenant k. Rent Clauses i. All determined and negotiated between tenant and landlord ii. Fixed (gross): Usually Residential 1. Tenant: a. pays fixed amount b. Advantage: no risk/ simple 2. Landlord a. Pays TIM b. Receives i. Rent TIM = Profi c. Advantage i. Profit Potential if tenant can be controlled iii. Triple Net: Commercial 1. Tenant a. Pays Rent + TIM b. Advantage i. More control of costs 2. Landlord a. Pays nothing b. Receives rent c. Advantage i. Shifts risk of TIM fluctuations to tenant 3. Percentage Rent Clause: Shopping malls a. Tenant i. Pays percentage of income

ii. Advantage 1. Downside Protection 2. E.g. low sales b. Landlord i. Pays TIM ii. Receives Percentage of Tenant income TIM iii. Advantage 1. Upside Potential of higher tenant sales c. Shared Risk between tenant and landlord 4. Exceptions a. Escalator clause i. Predetermined increases ii. Automatic adjustments 1. Can be fixed 2. Or tied to economic indicator/ market interst rate b. Combined i. Combination of any of the aforementioned l. Conclusion of Tenancy i. Termination 1. Surrender a. Both parties agree to end lease early b. Landlord can release 2. Abandoned a. Terminate i. Landlord accepts tenants leaving after the fact b. Not terminate i. Landlord sues for rent and other damages ii. Landlord 1. Should in lue of notice by tenant to vacate property send notice and maintain conduct that does not signify agreement with abandonment ii. Termination of Destruction 1. Common law a. If lease is silent i. Destruction of property does not terminate lease ii. Tenant strategy: get insurance 2. Statutory modification a. Tenant can act as if lease has been terminated it i. Property is impaired ii. Residents iii. Best practice: include in lease agreement iii. Holdovers 1. Landlord can a. View as trespasser

i. Tenancy at sufferance until told to get out b. Can renew lease at old terms 2. Can be modified by language in the lease a. E.g. double rent provision = contract for view as trespasser and not as a renewal. 17. Future Interest a. Rule of Silence i. Common Law presumes that when a conveyance is silent 1. The granto must have intended for interest to stay with the Grantor b. Created by i. Deeds 1. Effective upon completion ii. Will 1. Effective upon death c. Possessory Estate Definition i. Currently existing right ii. To possess right now d. Types of Possessory estates i. Fee simple Absolute [FSA] 1. Owns all rights 2. No future interest 3. To A and his heirs ii. Defeasible Fees 1. All have corresponding future interests a. Fee Simple Determinable [FSD] i. FI held by grantor Analysis: Defeasiable ii. Right to possession terminates automatically upon 1. Possessory interest occurrence of condition a. Why not FSA iii. FI can only be: Possibility of Reverter 2. Who has FI 2. Fee simple Subject to a condition Subsequent [FSCS] a. Rule of Silence a. FI held by Grantor b. Explain how b. Right to possession is NOT automatic 3. Flavor of FI c. Conveyance expressly states grantor must do something 4. What is the FI more to take possession d. FI can only be: Right to entry/ power of termination 3. Fee Simple Subject to Executory Limitations [FSEL] a. FI held by anyone OTHER than grantor b. FI: Executory interest [EI] i. Springing: Cuts off interest to Grantor ii. Shifting: cuts off interest to anyone else iii. Special Cases 1. Gap Scenario 2. Future Interest only iii. Finite Estates 1. Life Estates [LE] a. Last for the life of the person originally granted

b. To a for life 2. Estate of Years [EY] a. Last for specified period of time b. To a for [time period] 3. Fee tail a. Last for as long as there are lineal descendants from grantee b. To name and the heirs of his/ her bodies c. Can specify male of female 4. Future Interest of Finite estates a. Reversion i. Grantor holds FI b. Remainder i. Someone other than grantor Analysis: Finite 1. Vested 1. Who has possession now 2. Future interest a. Remainderman is a. Vested i. Born i. Born ii. Accertainable ii. Accertainable iii. No clause preventing iii. No express condition receivable 1. Explain all precedent clause to them 3 receiving property b. Contingent i. Upon what? 2. Contingent c. Alt a. Must do something before i. Grantor has reversion in FSA possession can be taken d. Doctrine of Destruc applicable? b. Must vest at or prior to the end of the i. Premature? ii. Natural? preceding finite estate i. If not it is destroyed 3. Alternative contingents 4. Doctrine of destructibility: only for conveyance with ALT CR a. Finite estate ends prematurely i. If first CR is not vested ii. BOTH cr are destroyed b. Finite Estates Ends Naturally i. If First CR not vested ii. Alt Cr gets it ii. REFER TO BLUE BOOK 18. Government Power over Property: Eminent Domain a. Due Process/ Equal Protection Claim i. Different treatment 1. Due process and equal protection claim when government is infringing on rights th ii. 5 and 14th amendment iii. APPLY Rationale Basis test 1. if there is any conceivable set of facts which is rational basis for classification, it will be upheld b. Takings

i. Elements 1. Taking 2. Public use a. Elimination of blight to public interest b. Burden on government to show c. Can be stopping concentration of private ownership. i. As long as it is for a public purpose 3. Just compensation ii. 2 types 1. Eminent domain [condemnation] a. Obvious taking of property b. Issues: i. Is compensation just ii. Is use public? 2. Governmental Actions or Regulations iii. Property is being taken w/o just compensation in violation of 5th Amendment. (4 ways) 1. Physical Invasion a. 2. Physical presence a. Giving up right to exclude rd 3. 3 party invasion a. Govt authorizes 3rd party to permanently occupy private property 4. Taking of confidential information iv. Exactions 1. Condition imposed for something in exchange a. E.g. permit in exchange for public easement 2. Apply Nolan-Dolan a. Nolan i. Balancing test to see if exaction is Fit between 1. Addressing public interests 2. Will condition [exaction] benefit the specific public interest? ii. Both satisfied = NOT taking b. Dolan i. Rough proportionality 1. Is impact of condition on permitee roughly proportional to 2. Impact of permitees use on public. v. Govt. Regulations 1. Regulation of land use: Preventing a. Not asking for anything in return 2. APPLY PENN CENTRAL a. Factors of Test i. Public Purpose

1. Purpose behind regulations ii. Nature of regulation 1. Physical? 2. Something less? 3. Destruction of property rights held by property owner a. Property rights cannot be split i. Viewed as complete use of property iii. Economic Impact 1. How much revenue is lost due to regulation 2. If money can still be made = maybe not taking 3. Total economic destruction = taking iv. Investment backed expectations 1. Belief in future profits 2. Ability to make money 19. Government Regulations of Land use a. Common law i. Trespass 1. Regulates physical invasion by others ii. Nuisance 1. Use of the land creates a nuisance that gives rise to a cause of action 2. Unreasonable, unusual, unnatural use of the property that substantially impairs the right of another to peacefully enjoy his property 3. Public v. Private a. Public i. Public safety/ rights ii. Usually brought by public official iii. Groups of people iv. PUBLIC NUISANCE TEST 1. Condition tends to create danger 2. Danger is continuous 3. Use of land is unreasonable or unlawful 4. Existence of nuisance is proximate cause of plaintiffs injury and damages b. Private i. Not very many people ii. PRIVATE NUISANCE TEST 1. Invasion of plaintiffs use and enjoyment of property 2. Defendant conduct was proximate cause of invasion 3. Invasion was Either

a. Intentional and unreasonable OR b. Unintentional and conduct was negligent or reckless 4. Substantial invasion 4. ANALYSIS a. Public v. private? b. Apply applicable test i. Unreasonable 1. Must be substantial 2. Fact intensive 3. To a reasonable person 20. Zoning a. Where certain land uses occur b. Put similar land uses together c. Standard State Zoning Enabling Act: SZEA i. Regulates zoning 1. State statues give power to municipalities to zone into districts a. Number b. Shape Best suited to carry c. Area purpose 2. Comprehensive plan a. Overall plan on what is being achived by zones d. Issues with zoning i. Extension of zoning 1. Flexability of zoning 2. Allows for changes given circumstances ii. Spot zoning 1. Change to zone for particular area different from surrounding zone 2. Challenges must prove improper motive a. Presumed valid iii. Upzoning 1. Increasing value 2. Residential commercial iv. Downzoning 1. Decreases value 2. Commercial residential v. Contract zoning 1. Make to deal to change zoning e. Disfavor objectives: Will nullify zoneing ordinance i. Void for Vagueness 1. Unconstitutionally vague: people of common intelligence need to guess what ordinance means 2. If it is too vague it will be thrown out 3. Commission can specify what is allowed and what is not ii. Asthetic zoning 1. Trying to maintain a look

iii. Exclusionary zoning 1. Zone excludes certain people or businesses a. Racial b. Economic 2. Cannot exclude by zoning f. Vest rights and Variance i. Nonconforming Use 1. Use that was previously allowed 2. Zoning ordinance changes a. Current use not allowed ii. Vest right: right to continue preexsisting use 1. Amortization period = grace period 2. To recoup financial loss 3. Tolerated period of land use 4. Stay until transfer of ownership. iii. Variance 1. Zoning exist but asking for exception 2. Permanent treatment in manner different from zoning requirement 3. Determined by physical characteristics of land spot zoning 4. Elements a. Not contrary to public interest b. Special conditions exist that enforment of the provision will result in uncesscessary hardship i. Unnecessary hard ship: 1. Traditional a. high standard that says hardship was unduly restricted use of land 2. modern a. interference with reasonable use b. No fair and substanin relationship exisits between general purpose of zoning ordinance and specific restriction c. Variance would not injur public or private rights of others c. Spirit of ordanacy shall be observed d. Substantial justice will be done 5. Types a. Use i. Permitting a use of a zoning ordiance does not allow ii. High standard of uncesscesary hardship b. Area i. Following use of land [use permitted] ii. Need relief from regulations applying to use iii. Lower standard of uncescessary hardship

21. Subdivisions a. Plan for increase to public use by development b. Subdivision and land development ordinace [ SALDO] i. Outlines what is necessary for approval ii. What changes will gain approval c. Sub. Div planning more technical and less discretionary than zoning d.