PROPERTY LAW OUTLINE

1. INTRODUCTION WHAT DOES IT MEAN TO OWN SOMETHING?

Right to possess
Right to use w/o possessing
Right to dispose of
Right to title (i.e. evidence of ownership)
TWO KINDS OF PROPERTY: REAL AND PERSONAL
Real LAND or real estate which includes FIXTURES
Personal EVERYTHING ELSE
What are fixtures?
Property physically attached to real estate. (e.g. furnace, chandelier, trees)
HOW DO YOU KNOW IF SOMETHING IS A FIXTURE?
Fixtures are considered to be apart of personal property
Formula or 3 part test to describe if something is a fixture to the land
3 PART TEST:
Is it affixed to the land or improvements?
Does it aid in the use of the property or injure the property if removed?
What is the intent of the person who affixed the thing to the land?
2. PERSONAL PROPERTY can be TANGIBLE or INTANGIBLE.
Example:
Tangible a penny, a TV or a 50,000 lb truck
Intangible a share of corporate stock, copyright, or a chose in action

3. HOW CAN PERSONAL PROPERTY BE TRANSFERRED?

Six ways:
Sale
Death
Gift
Loss, Misplacement or Abandonment
Accession
Confusion
SALE: enter into a contract or give to another for consideration

DEATH - transfer personal property through a Will or without a Will

If a person dies with a Will then he/she dies TESTATE. The personal property of the
deceased goes to those persons named in the Will.
If a person does without a Will, then he/she dies INTESTATE. The personal property of
the deceased goes to those persons DESCRIBED UNDER State law.

GIFT personal property can be transferred by gift. The DONOR gives the gift to the
DONEE.

LOST personal property that an owner has ACCIDENTALLY parted with

possession of. OWNER DOES NOT KNOW HE/SHE LOST IT! If found, it is
finders keepers except as to the true owner.

MISLAID personal property placed INTENTIONALLY somewhere by the owner

who forgets where he/she put it. May be kept by the OWNER of the place where the
property was mislaid except as to the real owner.

ABANDONED the owner of the personal property intentionally GIVES UP

possession. Whoever takes possession gets to keep it even as to the original owner.

ACCESSION is the right to own things that become part of other things already
owned. (Lumber to furniture example)

CONFUSION means your stuff and my stuff are all mixed together and it is the SAME
KIND OF STUFF. Also known as FUNGIBLE GOODS. (Corn or soybeans in a grain
elevator) Each person owns a proportionate share of the whole as TENANTS IN
COMMON.

4. BAILMENT - a person who is not the owner of personal property has the rightful
possession of another persons personal property.
BAILOR actual owner of the personal property
BAILEE person who has lawful possession of another persons property.

3 KINDS OF BAILMENTS:
Bailments for the sole benefit of the BAILEE:
(e.g. I borrow your car to go pick up a package at the post office)
Bailee must use GREAT CARE!

Bailments for the sole benefit of the BAILOR:

(e.g. I take care of your dog while you are on vacation and dont charge you money)
Bailee must use SLIGHT CARE and is only liable for gross negligence
Mutual benefit bailments:
(e.g. I pay you to fix my TV while you hold it for repair)
Bailee must use ORDINARY CARE (reasonable person standard)

BUT, negligence can be limited or disclaimed in a CONTRACT . . . .

CARR v. HOOSIER PHOTO court must determine whether a disclaimer of liability

may protect a Bailee.
John R. Carr, Jr. appeals from the trial court's judgment awarding him $1013.60
in damages for the loss of four rolls of exposed film. Carr asserts as a matter of
law he is entitled to damages of $6040.00. Hoosier Photo Supplies, Inc. (Hoosier
Photo) and Eastman Kodak Company (Kodak) cross-appeal from the same
judgment, claiming Carr's recovery should be limited to $13.60 (the cost of four
rolls of unexposed film).
We affirm.
During the spring or summer of 1970, in preparation for a trip to Europe which he
planned to take with his family, Carr purchased ten rolls of 36 exposure Kodak
Ektachrome-X 135 film from a retailer who is not a party to this action. Each roll
of film had the following notice printed on the package:
"READ THIS NOTICE
"This film will be replaced if defective in manufacture, labeling, or packaging, or if
damaged or lost by us or any subsidiary company even though by negligence or
other fault. Except for such replacement, the sale, processing, or other handling
of this film for any purpose is without other warranty or liability."
Carr did not read this notice but, because of his experience as an amateur
photographer and as an attorney, he knew that Kodak film is sold in packages
containing a printed limitation of liability. Carr and his family travelled to Europe
and spent approximately one month touring France and Spain. During the trip,
Carr used nine rolls of the purchased film. Upon returning from the trip, Carr took
the nine rolls of exposed film to Hoosier Photo for developing. Carr received

receipts from Hoosier Photo for the rolls of film. The receipts contained the
following language on the back:
"READ THIS NOTICE
"Although film price does not include processing by Kodak, the return of any film
or print to us for processing or any other purpose, will constitute an agreement by
you that if any such film or print is damaged or lost by us or any subsidiary
company, even though by negligence or other fault, it will be replaced with an
equivalent amount of Kodak film and processing and, except for such
replacement, the handling of such film or prints by us for any purpose is without
other warranty or liability."
Carr did not read this notice, nor was it called to his attention by Hoosier Photo,
but again, because of his experience as an amateur photographer and as an
attorney, Carr knew that Hoosier Photo, Kodak, and other processors of film gave
receipts to their customers containing printed limitation of liability clauses.
Hoosier Photo sent the film to Kodak for developing. Only five of the nine rolls of
film were returned to Carr. The other four rolls were lost by either Hoosier Photo
or Kodak.
On August 31, 1972, Carr filed suit against Hoosier Photo and Kodak seeking
[422 N.E.2d 1275]
damages of $10,000. The case was tried on an Agreed Statement. The trial court
entered judgment for Carr in the amount of $1013.60 plus interest and costs.
Carr appeals asserting the judgment of the court with respect to the amount of
damages awarded is contrary to law and against the weight of the evidence.
Hoosier Photo and Kodak cross-appeal asserting the trial court erred in entering
judgment in an amount greater than the value of the four rolls of film when the
notice on the film box and the receipt given to Carr by Hoosier Photo purported to
limit their liability to the cost of the rolls of film. Hoosier Photo and Kodak also
allege the trial court erred in entering judgment in an amount greater than the
cost of the film when there was no evidence Carr suffered damages caused by
Hoosier Photo or Kodak greater than that amount, and that Kodak and Hoosier
Photo did not accept bailment of the photographic images themselves and can
only be liable to the extent of the cost of the film.

5. THE LAW OF REAL PROPERTY also known as LAND

Under common law land was generally owned from zenith to nadir.

But today, since airplanes and oil wells were not even conceived of in medieval England,
ones ownership rights to land depends upon what is reasonably necessary for its use
above and below the ground.
Ownership in land may also vary . . . . it depends upon what kind of ESTATE IN LAND
that you have.
TWO KINDS OF ESTATES IN LAND: Freehold and Leasehold
FREEHOLD ESTATES interests in the land are determined by the document that
conveys the land. Determined what the document or deed says about your interest in the
land. Examples:
Know one for Test/Class
Most Common when you buy land:
Fee Simple Estate deed says Joe buys house, if Joe bought Fee it says he has 100%
ownership of the land. The deed says To Joe and his heirs forever , must say these
words for this type of Freehold Estates, most common type. Deed says to Joe and his
heirs forever total ownership. Most common.
Fee Simple Determinable- if you agree to a type of use for the property, cant break it
otherwise you lose the land.
Deed says to Joe so long as alcohol is not served on the property total ownership
unless condition is broken, then ownership REVERTS to the prior owner or designee
Life Estate- Deed says To Joe for life, then to Brenda when Joe dies, then Brenda
owns the land as the REMAINDER.

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Ownership in land may be CONCURRENT more than one person may own the same
land. Most common concurrent ownership is JOINT TENANCY. Has automatic transfer
of property to surviving joint tenant, called RIGHT OF SURVIVORSHIP.
Magic words required in deed: A and B in joint tenancy with right of survivorship and
not as tenants in common.
dies

A B
Otherwise . . . .
TENANCY IN COMMON results. Thats when 2 or more persons own property
together. But, when one dies, the heir(s) of the deceased now own(s) the land in common
with the surviving tenant:
A
dies

&

own as tenants in common

Heir(s)

6. HOW TO TRANSFER ONES INTERESTS IN LAND

TWO WAYS: by Deed or upon death, by Devise or Descent

By Deed a written document that must have 5 components:

1. The identities of the GRANTOR and the GRANTEE
2. Words of CONVEYANCE
3. Legal Description of the Land
4. Covenants of TITLE (promises made by grantor to grantee regarding title being given)
5. Signature of Grantor

(NOTE: in medieval England, a 6th requirement for deeding land to another was
LIVERY OF SEIZEN. It means, believe it or not, that the Grantor was required to hand
over a clod of dirt from the property over to the Grantee at the closing!)

Generally, there are TWO kinds of DEEDS: warranty deeds and quit claim deeds
WARRANTY DEED Grantor promises he-she has full ownership and power to
convey, no one else has an interest in the land, no one else has the right to kick the
grantee off the land. Best kind of deed for a Grantee.
QUITCLAIM DEED Grantor only conveys whatever interest he/she has in the land,
even if it is NONE. There is no guarantee that someone else may come along to claim
ownership.
After a Deed is signed and delivered, it must be RECORDED at the Recorder of Deeds
office. Why? To put others on NOTICE that the transaction took place.
******
Upon Death, by Devise or Descent if owner of land dies and leaves a Will, the land will
be transferred to the person(s) named in the Will. Called DEVISING property to the
heirs or others named in the Will.
If an owner of land dies without a Will, land is transferred under the States law of
DESCENT AND DISTRIBUTION. ( Usually, surviving spouse, parents, brothers,
sisters, etc.)
******
Another RARE means of transferring real property is ADVERSE POSSESSION.
Its done without agreement and without the consent of the owner!!!
If some person other than the owner claims ownership of the actual owners land for at
least 20 years, and does so . . . .
Actually
Visibly
Openly
Notoriously
Exclusively

And Hostilely
- - - - then, the land can be owned outright,
The real owner can usually protect his/her rights to stop the clock on adverse possession
by simply telling the adverse possessor that he has permission to use the land, but not as
an adverse possessor!
7. THE SECOND KIND OF ESTATE IN LAND - LEASEHOLD
A non-ownership interest is conveyed. The owner of the land retains ownership but
allows another to possess the land for a limited period of time. This is also known as
LANDLORD-TENANT relationship. (e.g. student apartments, dormitories)
The owner of land is the LANDLORD or the LESSOR.
The person renting the land is the TENANT or the LESSEE.

The contract between them is called the LEASE interest conveyed is a LEASEHOLD
ESTATE. It is NOT an ownership interest.

4 KINDS OF LEASEHOLD ESTATES: Skip! Not on test!

Fixed Term Tenancies leases which have a definite time frame
Periodic Tenancies tenant has possession for successive period of time
Tenancies at will tenancy can be terminated at any time by either landlord or tenant
Tenancies at sufferance tenant stays AFTER fixed term of lease expires

3 MAJOR DUTIES OF A LANDLORD

Allow tenant to have possession and quiet enjoyment landlord cannot kick tenant out
during lease term so long as tenant complies with terms of the lease.
Repair residential property landlord must maintain a habitable leasehold. There is an
IMPLIED WARRANTY OF HABITABILITY.
If uninhabitable, then tenant has the right of CONSTRUCTIVE EVICTION. Tenant can
move out and is no longer liable to pay rent.
Repair business property usually imposed by the lease itself . . . .
AMERICAN NATIONAL BANK v. K-MART Court must determine whether a
business tenant may recover damages for loss in rental value caused by landlords failure
to repair.
Diminution of rental value remedy: puts the business tenant in the position it would
have been in, if it had received the benefit of the premises in good repair.

MAJOR DUTY OF A TENANT not to commit WASTE. Must take care of property
being rented. DONT TRASH THE PLACE!!

WHO IS RESPONSIBLE FOR INJURIES TO 3RD PARTIES?

It depends!
Common Law: Tenant liable under Doctrine of Caveat Emptor (let the buyer beware)

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Modern View: Landlord is liable if DANGEROUS conditions are present and under the
direct control of the landlord.

HOW IS A LANDLORD-TENANT RELATIONSHIP TERMINATED? 2 ways:

1. Lease term ends
The problem of the HOLDOVER TENANT - tenant does not move out at end of
Lease term. Landlord can:
Kick out the tenant or,
Treat tenant as a new tenant for a whole new lease term!

2. Default by either Landlord or Tenant

Landlord can seek DISTRESS FOR RENT if tenant fails to pay rent.

Landlord can EVICT the tenant in a COURT ACTION called a FORCIBLE ENTRY
AND DETAINER action.

Landlord can sue for DAMAGES but also has the duty to MITIGATE the damages.

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8. LAW OF INTELLECTUAL PROPERTY: PATENTS, COPYRIGHTS &

TRADEMARKS
Part of the U.S. Constitution. Have had a federal patent/copyright system since 1790.
PATENT a federal grant of power, it is personal property, can be bought, sold or leased
for a ROYALTY (license fee).
4 REQUIREMENTS FOR OBTAINING A PATENT:
Invention cannot be a well known item made out of a different material
Must be previously unknown
Must be useful
Must be fairly tangible (not a theory or new math formula)
COPYRIGHT - a federal grant of power to an author of a book, play, music, movies or
other art to exclusively disseminate for the life of the author plus 70 years.
If copyrighted material is used without permission, author may sue for COPYRIGHT
INFRINGEMENT and obtain DAMAGES . . . .

SONY CORP. v. UNIVERSAL court must determine whether contributory copyright

infringement occurred.

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CAMPBELL (2 LIVE CREW) v. ACUFF-ROSE MUSIC, INC. the USSC

considered whether a rap music group violated copyright law for using the original work
of another artist in its album.

TRADEMARKS are distinctive marks, words, symbols or pictures used to identify a

product or its maker.

Registered in the Federal patent office AND in EACH state that the product is sold.

If trademark is used by an unauthorized person, owner can sue for DAMAGES or an

INJUNCTION to stop its use.

VICTORS LITTLE SECRET v. VICTORIA SECRET CATALOGUE, INC. the

USSC considered whether there was an unlawfully use and infringement of Victorias
Secret trademark.

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COMPUTER LAW not really a separate field because it already incorporates contract,
tort and property law principles and remedies.
Focus only on PROPERTY RIGHTS associated with computers and their software.

Computer programs are protected by Copyright Law. Expressions of an idea are

copyrightable!!!

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END OF PROPERTY LAW OUTLINE

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