Law and Justice
CJUS/POLS 110
Chapter 12: Property Law
1.
Property law
- signifies dominion (authority)
- right to use / control / disposition
- lawfully exercise over things / objects / land
- “aggregate of rights”
- anything may be owned
a. Most basic principle
- guaranteed under Constitution
- “No person shall . . . deprived of life,
liberty, or property, without due process
of law.”
- derived: English law of feudalism
- two dominant methods to classify
(1) First = real property / personal property
(a) Realty = refers to land
- not only face of earth
- immovable property
- permanent nature over / under
- structures / minerals
- sell only land / water rights
- mineral rights = previous owner
(b) Personalty = refers to all else
- car / stocks / school books /
money / clothes / etc.
(2) Second = tangible / intangible property
(a) Tangible
- physical existence / can touch
- car = tangible personal property
- home = tangible real property
(b) Intangible
-
property recognized by law
no physical existence
warranty rights = buy new car
shares in a corporation
easement = telephone company
patent / copyright / trademark
b. Further division
- freehold / non-freehold / concurrent estate
(1) Freehold estate
- ownership = indefinite period of time
- 3 types of freehold estates:
(a) Fee simple estate (absolute)
- land that is inheritable
- owner / heirs want to keep it
(b) Estate in fee tail
- keep large estates within family
- cannot sell to others
- handed down for generations
- rare = equality of dominion
- Rockefeller / Hershey / etc.
(c) Life estate
- retains possession while living
- may sell = allowed to live on
- decide to leave / die
(2) Non-freehold estates
- interests of limited duration
- leasehold estates
- 3 types:
(a) Estate for years (tenancy for years)
- years / fraction of a year
- lease for 1 year – ends on date
- can be renewed
(b) Periodic estate (tenancy at
sufferance)
- similar to estate for years
- can continue beyond year lease
- all parties agree
- stay year to year = termination
- no new lease written
(c) Estate at will (tenancy at will)
- no specified time of termination
- until lessee = notice of moving
- until lessor = notice to move out
(3) Concurrent estates (tenancies in
common)
- owned / possessed by two or more
- simultaneously
(a) Community property
- common law system
- wife / husband
- together with friends
(b) Condominium
- own your unit
- sell / give away / lease
- do not own building
2.
Limitations on ownership interests
- restrictions placed on land ownership
- 5 types of restrictions
a. Easement
- right to use the property
- portion / all
- created in several ways
(1) Custom easement
- allows use of river through property
- access to river / certain paths
(2) Agreement easement
- agree to let pass through
- water line / cable / etc.
(3) Statute easement
- federal / state = pass law
- allow power cables over land
- gas pipeline run under land
(4) Court order easement
- lawsuit filed
- use for specific purpose
- court = legal order allowing
b. Recognition of limits on owner’s authority
- cannot control airspace above property
- Supreme Court rule = owner cannot
- block flow of air / light / water
c. Separating property into surface / subsurface
- owner who has both rights
- can limit sale
- resell with only surface rights
- retain subsurface
d. Eminent domain
- power of government
- over private owners of land
- taking of private property = public use
(1) Take land = public park
- best interest of public
(2) “Taking”
- corporation: take land / build factory
- best interest of public
(3) “Just compensation”
- taking must provide
e. Restriction by local government
- zoning ordinances
- city / county
(1) Farmland
- ‘incorporated’ into city
(a) Zoned residential
- not used for farming / ranching
(b) Zoned commercial
- only for businesses / companies
3.
Buying / selling a home
- subdivision
- common water / sewer / electrical
a. New home subdivisions
- sold after construction
- sold before = specific models
(1) Pre-owned subdivisions
- sales agent
- on-site
(2) Custom home
- purchase lot
- hire architect to design
- contractor to build
(3) Other purchases:
- cooperative apartments
- condominiums
- manufactured homes
(4) Homeowner’s association
- monthly fees
- rules / policies
b. Real estate agencies
- brokers
- sales agents
(1) Brokers
- state license
- hire sales agents
- act as managers
- rarely meet buyers / sellers
(2) Real estate agents
- licensed by state
- perform day to day services
- no salary = paid commissions
(3) Hiring real estate brokerage
- negotiation with sales agent
- “listing agent”
(4) Listing agreement = contract
- negotiate conditions
(a) No commission
- seller finds buyer
(b) Short listing period
- 30 days / 2 months / etc.
- extended: pushing satisfactorily
(c) Reduced commission
- 7% to 5 or 4
(5) Agent sells $200,000 home
- $14,000 = 50/50 with broker
- other agent = 50/50 listing / seller
(a) Not tell highest bid
- make offer
- accept / refuse
(b) Listing agent = support seller
(4) Offer to purchase
- purchase agreement / deposit receipt
- negotiations
- offer made
(a) Down payment
- 10 to 20% / fixed rate
- finance institution
(b) No money down
- interest only
- adjustable rate mortgage (ARM)
(c) Look for lender
- take over = assume mortgage
- buy out
(d) Bank application
- credit history
- going interest rate
(e) Principle / interest
- $1,300.00 per month payment
- $1,230.00 = interest
- $70.00 = principle
c. Disclosure laws
- not required to disclose defects
- “patent” (visible) / “latent” (hidden)
(1) If asked:
- seller cannot lie
(2) Common law
- “let the buyer beware”
4.
The mortgage
- 90% of all homes
- lender not trust borrower
- sole source of repayment
a. Mortgage involves
- transfer of interest in land
- security for loan / other obligation
- home = collateral
- “deed of trust” = some states
- mortgagor = borrower (debtor)
- mortgagee = lender (creditor)
(1) Purchase home = mortgage
- home is security
- mortgagee = financial institution
- bank / credit union / savings & loan /
mortgage company
- provider of loan
(2) Paid in installments
- interest payments
- principle amount
(3) Failure to make payments
- foreclosure
(a) Depends on:
- state law
- terms of mortgage
(b) “Judicial foreclosure”
(4) Default by owner
- mortgages = many formal promises
- pay property taxes / keep insurance
- maintain property
- other requirements
- comply with all practicable laws
(a) Breech
- fail to make payments
- fail to comply
- remedy = foreclosure
(b) Foreclosure at private sale
- preferred
- non-judicial foreclosure
- no court proceedings
(i) “Power-of-sale-clause”
- mortgage provision
(ii) Authorizes private sale
- without court supervision
(iii) Advertised in local paper
- date / time / location
- notice = county courthouse
(c) Before sale
- owner may “reinstate”
- pay delinquent payments
- late payment charges
- cost / fees
(d) Acceleration clause
- loan due date accelerated
- borrower agreed with terms
of promissory note
- default = entire unpaid balance
- immediately due / payable
(i) States regulate acceleration
- allow late payments
- avoid foreclosure
(ii) “Right of reinstatement”
- exists = even though
- borrower agreed
- acceleration clause
b. Defaulting owner = not reinstate
- sale = about 4 months
- after default formally noted
- trustee accepts highest cash bid
- conveys title to buyer
(1) Creditor entitled to deficiency judgment
- court judgment against debtor
- difference between unpaid mortgage
- fair marker value
(a) Represents
- money lost by creditor
(b) Only through court order
- “judicial foreclosure”
- prefer = non-judicial foreclosure
- quicker / cheaper
- no attorney is required
(2) Following judicial foreclosure
- one year to reclaim property
- one-year “right of redemption”
- fully reimbursing winning bidder
(a) Judicial foreclosure sale
- paid: $70,000
- fix up: $20,000
(b) Right of redemption
- pay = $90,000
- bid + all costs
(c) Only advantage
- deficiency judgment = court
- lien on property = fail to pay
- uncollectible = no money
5.
Acquiring title to property
- various ways to receive title (ownership)
a. More common ways
- legally purchase
- property division = divorce
- damages in litigation
- foreclosure sale
- inherit property
- given as gift
(1) “Adverse possession”
- “The creation of ownership of real
property through its possession for
a prescribed number of years without
the consent of its owner.”
(a) Adverse possessor
- physically occupies
-
pays taxes on
someone else’s property
set number of years
some color / claim of ownership
(b) Interlopers (vagrant)
- awarded ownership rights
- judicial proceedings
- never paid a cent
(2) For protection
- extended coverage insurance
- American Land Title Association
- insurance policy
(a) On-site physical inspection
- addition to customary search
(b) On-site inspection
- reveal
- adversely possessing
- encroaching on boundaries
(c) Buy property
- unaware fence 2-feet inside
- on your property
(d) Neighbor maintains several years
- claim title to property
- through adverse possession
b. Most common way
- transferring property interests
- deed = real property
- bill of sale / certificate of title / receipts =
personal property
(1) Deed
- “Any document used to transfer any
ownership in real property.”
(2) Many types of deeds
- grant / warranty deeds
- trustee’s deed
- deed of reconveyance
- deed of trust
- quitclaim deed
(a) Grant deed
- document conveys ownership
- real property
- impliedly warrants that grantor
- not previously conveyed
- to another
- free of undisclosed encumbrance
(hindrance / obstruction / burden)
(b) Warranty deed
- several warranties
- implied by law
- protect buyer
(i) Grantor insures
- no encumbrances
(ii) Will compensate
- any and all costs
(c) Special warranty deed
- grantor guarantees
- did not encumber title
- no guarantee
- before ownership
- not defend prior claims
(d) Trustee’s deed
- from a trustee (bank, etc.)
- to successful bidder
- non-judicial foreclosure sale
(e) Deed of reconveyance
- used by trustee
- return title to real property
- to borrower
- pays off secured loan
(f) Deed of trust
-
used by borrower
transfer legal title = real property
disinterested stakeholder: trustee
hold as security / collateral
(g) Quitclaim deed
- deed to real property
- grantor conveys interest
- which may be none
- makes no warranties
- cannot be held liable
- title transfer proves to be faulty
(3) Marketable title
- free from encumbrances
- want to receive
6.
Liens
- “A formal, legal claim to a possessory or
ownership interest in the real property of
another.”
a. Can result from a variety of transactions
- mortgage
- contractor’s lien
- mechanic’s lien
- judgment lien
- tax lien
(1) Mortgage
- lien against real property
- security / collateral
- 2nd / 3rd mortgage
(2) Contractor’s lien
- work done / not paid for
- places lien on home
(3) Mechanic’s lien
- business hired by general contractor
- not paid by general contactor
- lien against home
(a) Plumber / electrician / roofer / etc.
- did work
(b) Paid general contractor
- did not pay subcontractors
- homeowner still held liable
- sue general contractor
(4) Judgment lien
- been sued / they won
- court: placed lien on home
- make arrangements to pay
(5) Tax lien
- failed to pay federal / state taxes
- file lien against home
- make arrangements to pay
(a) Lien filed on home
- cannot sell / borrow money on
7.
Wills
- person making = testamentary capacity
- “sound mind”
- time will is executed
a. Will is void = testator acting involuntarily
- under duress
- threats made
- fraud
- undue influence
(1) Updated periodically
- circumstances change
- new beneficiaries added
- newly accumulated property
(2) Making additions to a will
- called a “codicil”
b. Living wills
- misunderstanding
- does not transfer property after death
- “death with dignity”
- not suicide
(1) Instruct family / medical personnel
- medical procedures to follow
- particularly = abstain from
- under specified circumstances
(2) All states passed (Natural Death Act)
- Advanced Medical Directive (AMD)
- instructions to others = medical care
- wish to receive / not receive
- terminally ill / incapacitated
(a) Terminally ill
- medical profession
- die within certain time frame
(b) Incapacitated
- lack legal capacity
- make important decisions
(c) Can result from:
- serious illness
- accident = coma
- old age = Alzheimer's disease
- heart beating = brain dead
(d) Most common form of AMD
- living will
(3) Living will statutes
- after learning of terminal illness
(a) Witnessed by:
- two or more = disinterested
- no selfish motive / interest
(b) Will preparation
- specific form / format
c. Durable power of attorney
- for healthcare
- more flexible than living will
(1) Authorizes another
- make healthcare decisions
- person incapacitated
(a) Attorney-in-fact
- need not be an attorney
- usually not
- family member
(b) Attorney = “representative”
- selected to represent
- incapacitated person
- healthcare purposes only
(c) Durable power of attorney requires:
- signature = one disinterested
- language approved by state
(d) Signature of the creator (disabled)
- attested to by witnesses
- certified by notary public
(2) Both living will / power of attorney
- revoked at any time
- by creator / before incapacity
(3) Durable power of attorney differs
- from living will
(a) Created at any time
- need not be terminally ill
(b) Delegates very extensive / critical
- decision-making to another
8.
Probate and succession
a. Probate
- court proceeding
- wills proved to be valid / invalid
- estates administered / distributed
- serves several purposes
(1) Unsecured creditors
- submit claims for payment
- secured creditor = bank
- unsecured = grocery / gardener / etc.
(2) Fail to submit claim
- risk having debts canceled
- no claims against beneficiaries
(3) Death taxes
- part of probate process
(4) Valid will
- dying testate = testator
- distribute to named beneficiaries
(a) Community property state
(b) Spouse gets half
(5) No valid will
- dying intestate
- court determines distribution
(6) Three types of wills
- follow Uniform Probate Code
- Washington state = adopted parts
- 18 or older
- sound mind (testamentary capacity)
- must be in writing
- two competent disinterested witnesses
(a) Formal will
- prepared by lawyer
- subscribed to by testator
- understood / signed
(b) Holographic will
- informal will
- testator’s handwriting
- signed by testator
(c) Nuncupative will
- testator makes oral will
b. Succession
- series of heirs / rightful successors
- ensure preservation of property
(1) Intestate succession
- natural / adopted children first
- other blood relatives
- spouse receives all / part
(2) Testate succession
- property divided
- desires of decedent
(3) Living inheritance
- gifts before you die
- up to $200,000
- not taxed
(4) Intellectual property
- bound by copyright / patents
- determined by court
c. Will = testamentary trust
- also = inter vivos trust
(1) Trust
- right / property held by one person
- for the benefit of another
(a) Trustee
- person / institution
- vested with the property
- used for benefit
- of another
(b) Trustor / settlor
- person creating a trust
- preparing their will
(c) Income beneficiary
- person receiving property
(2) Inter vivos trust
- “living will”
- trust prepared while still alive
9.
Renters / landlords
- rent property of another
- live in as your own
- “rental agreement” = lease
a. Established law
(1) Landlord must maintain
- habitable condition
- reasonably livable
- unless tenant agrees otherwise
- agreement = not coerced
(2) Landlord fails to maintain
- tenant may maintain
- specified conditions
- up to one month’s rent
- deduct from next rent due
(a) Cannot evict tenant
- retaliation for exercising right
- landlord = liable up to $1000
(3) Refund “security deposit” promptly
- within two weeks of vacancy
(a) Deposits only retained
- repair damage
- clean premises
(b) Non-refundable security deposit
- not legal
(c) Charges withheld from deposit
- itemized / explained
(4) Established law for renters
(a) Must pay rent
- within scheduled period of time
- due by: June 1st to the 4th
(b) Not paid on time
- late fee can be collected
(c) Maintain property
- reasonable condition
(d) Receive approval
- before alteration / changes
b. Types of leases
- transfers possession of dwelling
- rental house / apartment
- from owner (lessor)
- to renter (lessee)
- in exchange for rent
(1) Tenancy for years
- stated period of time (usually 1 year)
- terms / rent fixed
- change operating rules (pool hrs, etc)
- not rent / conditions
(2) Periodic tenancy
- month to month lease
c. Legal remedies for landlords
- fail to pay rent (default)
- leaves premises (abandons)
- sue for accrued rent / damages
- keep security deposit
(1) Eviction
- no longer evict on own
- cannot remove tenant
(2) Summary judgment
- decision by court
(a) Notice to precede the litigation
- gives tenant grace period
- cure the default
(b) Court hearing
- attorneys
(c) Eviction order by court
- served by sheriff / marshal
d. Legal remedies for tenants
(1) Implied warranty of habitability
- landlord guarantees
- no concealed defects
(2) Covenant of quiet enjoyment
- no noise
- no loud parties
- grounds to move out
10.
Legal right to commit suicide
- issue is whether morally correct
- Americans lack consensus
a. Religious codes / legal rules
- label a wrongful act
- no state explicitly condones suicide
- Oregon = legalized “assisted suicide”
- “death with dignity”
(1) Euthanasia (mercy killing)
- affirmative act
- bringing about death of another
- painless way
(2) Administered by someone who:
- believes dying person wishes to die
- terminal / extremely painful disease
(a) Jack Kevorkian
- medical doctor (pathologist)
- assisted 130 people
- taped death of last patient
- sent to CBS
(b) Sincerely believed
- people have right
- death with dignity
- say when they should die
- how they should die
(c) Charged with assisting a suicide
- found guilty
- sentenced to prison
(3) Euthanasia
- aggressive act = putting to death
- with / without permission
- act = form of criminal homicide
(4) Washington state law provides:
- “A person is guilty of promoting a
suicide attempt when he knowingly
causes or aids another person to
attempt suicide.”
(a) Such promotion = felony
- 5 years imprisonment
- $10,000 fine
(b) 1997: four Washington physicians
- three gravely ill patients
- sued attorney general
- legal barrier violated:
“A liberty interest by the 14th
Amendment which extends to a
personal choice by a mentally
competent, terminally ill adult to
commit physician assisted suicide.”
(c) US Supreme Court
- acknowledged 1979 Act
- Natural Death Act
- “Allowed the withholding or
withdrawal of life sustaining
treatment” at a patient’s
direction
(d) Provided that such act:
“Shall not, for any purpose,
constitute a suicide.”
(e) Over-ruled plaintiff’s motion
- upheld Washington state’s law