Law and Justice CJUS/POLS 110 Chapter 12: Property Law.

Law and JusticeLaw and Justice

CJUS/POLS 110CJUS/POLS 110

Chapter 12: Property LawChapter 12: Property Law

1.1. Property lawProperty law- signifies dominion (authority)- signifies dominion (authority)- right to use / control / disposition- right to use / control / disposition- lawfully exercise over things / objects / - lawfully exercise over things / objects / landland- “- “aggregate of rightsaggregate of rights””- anything may be owned- anything may be owned

a. a. Most basic principleMost basic principle - guaranteed under Constitution- guaranteed under Constitution - - “No person shall . . . deprived of life,“No person shall . . . deprived of life, liberty, or property, without due liberty, or property, without due

processprocess of law.”of law.”

- derived: English law of feudalism- derived: English law of feudalism- two dominant methods to classify- two dominant methods to classify

(1) (1) First =First = real property / personal real property / personal propertyproperty

(a) Realty = refers to land(a) Realty = refers to land- not only face of earth- not only face of earth- immovable property- immovable property- permanent nature over / under- permanent nature over / under- structures / minerals- structures / minerals- sell only land / water rights- sell only land / water rights- mineral rights = previous owner - mineral rights = previous owner

(b) Personalty = refers to all else(b) Personalty = refers to all else- car / stocks / school books /- car / stocks / school books / money / clothes / etc.money / clothes / etc.

(2) (2) Second = tangible / intangible Second = tangible / intangible propertyproperty

(a) Tangible(a) Tangible- physical existence / can touch- physical existence / can touch- car = tangible personal property- car = tangible personal property- home = tangible real property- home = tangible real property

(b) Intangible(b) Intangible

- property recognized by law- property recognized by law- no physical existence- no physical existence- warranty rights = buy new car- warranty rights = buy new car- shares in a corporation- shares in a corporation- easement = telephone company- easement = telephone company- patent / copyright / trademark- patent / copyright / trademark

b. b. Further divisionFurther division- freehold / non-freehold / concurrent - freehold / non-freehold / concurrent

estateestate

(1) (1) Freehold estateFreehold estate- ownership = indefinite period of time - ownership = indefinite period of time

- 3 types of freehold estates:- 3 types of freehold estates:

(a) Fee simple estate (absolute)(a) Fee simple estate (absolute)- land that is inheritable- land that is inheritable- owner / heirs want to keep it- owner / heirs want to keep it

(b) Estate in fee tail(b) Estate in fee tail- keep large estates within - keep large estates within

familyfamily- cannot sell to others- cannot sell to others- handed down for - handed down for

generationsgenerations- rare = equality of dominion- rare = equality of dominion- Rockefeller / Hershey / etc.- Rockefeller / Hershey / etc.

(c) Life estate(c) Life estate- retains possession while - retains possession while

livingliving- may sell = allowed to live on- may sell = allowed to live on- decide to leave / die- decide to leave / die

(2) (2) Non-freehold estatesNon-freehold estates- interests of limited duration- interests of limited duration- leasehold estates- leasehold estates- 3 types:- 3 types:

(a) Estate for years (tenancy for (a) Estate for years (tenancy for years)years)

- years / fraction of a year- years / fraction of a year

- lease for 1 year – ends on date- lease for 1 year – ends on date- can be renewed- can be renewed

(b) Periodic estate (tenancy at (b) Periodic estate (tenancy at sufferance)sufferance)- similar to estate for years- similar to estate for years- can continue beyond year lease- can continue beyond year lease- all parties agree- all parties agree- stay year to year = termination- stay year to year = termination- no new lease written- no new lease written

(c) Estate at will (tenancy at will)(c) Estate at will (tenancy at will)- no specified time of termination- no specified time of termination

- until lessee = notice of moving- until lessee = notice of moving- until lessor = notice to move out- until lessor = notice to move out

(3) (3) Concurrent estatesConcurrent estates (tenancies in (tenancies in common)common)- owned / possessed by two or - owned / possessed by two or

moremore- simultaneously- simultaneously

(a) Community property(a) Community property- common law system- common law system- wife / husband- wife / husband- together with friends- together with friends

(b) Condominium(b) Condominium- own your unit- own your unit- sell / give away / lease- sell / give away / lease- do not own building- do not own building

2.2. Limitations on ownership interestsLimitations on ownership interests- restrictions placed on land ownership- restrictions placed on land ownership- 5 types of restrictions- 5 types of restrictions

a. a. EasementEasement - right to use the property- right to use the property - portion / all- portion / all

- created in several ways- created in several ways

(1) (1) Custom easementCustom easement- allows use of river through - allows use of river through

propertyproperty- access to river / certain paths- access to river / certain paths

(2) (2) Agreement easementAgreement easement- agree to let pass through- agree to let pass through- water line / cable / etc.- water line / cable / etc.

(3) (3) Statute easementStatute easement- federal / state = pass law- federal / state = pass law

- allow power cables over land- allow power cables over land- gas pipeline run under land- gas pipeline run under land

(4) (4) Court order easementCourt order easement- lawsuit filed- lawsuit filed- use for specific purpose- use for specific purpose- court = legal order allowing- court = legal order allowing

b. b. Recognition of limits on owner’s Recognition of limits on owner’s authorityauthority

- cannot control airspace above - cannot control airspace above propertyproperty

- Supreme Court rule = owner cannot- Supreme Court rule = owner cannot- block flow of air / light / water - block flow of air / light / water

c. c. Separating property into surface / Separating property into surface / subsurfacesubsurface

- owner who has both rights- owner who has both rights- can limit sale- can limit sale- resell with only surface rights- resell with only surface rights- retain subsurface- retain subsurface

d. d. Eminent domainEminent domain- power of government- power of government- over private owners of land- over private owners of land- taking of private property = public - taking of private property = public

useuse

(1) (1) Take land = public parkTake land = public park

- best interest of public- best interest of public

(2) “(2) “TakingTaking””- corporation: take land / build - corporation: take land / build

factoryfactory- best interest of public- best interest of public

(3) “(3) “Just compensationJust compensation””- taking must provide- taking must provide

e. e. Restriction by local governmentRestriction by local government- zoning ordinances- zoning ordinances- city / county - city / county

(1) (1) FarmlandFarmland- ‘incorporated’ into city- ‘incorporated’ into city

(a) Zoned residential(a) Zoned residential- not used for farming / - not used for farming /

ranchingranching

(b) Zoned commercial(b) Zoned commercial- only for businesses / - only for businesses /

companiescompanies

3.3. Buying / selling a homeBuying / selling a home- subdivision- subdivision- common water / sewer / electrical- common water / sewer / electrical

a. a. New home subdivisionsNew home subdivisions- sold after construction- sold after construction- sold before = specific models- sold before = specific models

(1) (1) Pre-owned subdivisionsPre-owned subdivisions- sales agent- sales agent- on-site- on-site

(2) (2) Custom homeCustom home- purchase lot- purchase lot- hire architect to design- hire architect to design- contractor to build- contractor to build

(3) (3) Other purchasesOther purchases::- cooperative apartments- cooperative apartments- condominiums- condominiums- manufactured homes- manufactured homes

(4) (4) Homeowner’s associationHomeowner’s association- monthly fees- monthly fees- rules / policies- rules / policies

b. b. Real estate agenciesReal estate agencies- brokers- brokers- sales agents- sales agents

(1) (1) BrokersBrokers- state license- state license- hire sales agents- hire sales agents- act as managers- act as managers- rarely meet buyers / sellers- rarely meet buyers / sellers

(2) (2) Real estate agentsReal estate agents- licensed by state- licensed by state- perform day to day services- perform day to day services- no salary = paid commissions- no salary = paid commissions

(3) (3) Hiring real estate brokerageHiring real estate brokerage

- negotiation with sales agent- negotiation with sales agent- “- “listing agentlisting agent””

(4) (4) Listing agreement = contractListing agreement = contract- negotiate conditions- negotiate conditions

(a) No commission(a) No commission- seller finds buyer- seller finds buyer

(b) Short listing period(b) Short listing period- 30 days / 2 months / etc.- 30 days / 2 months / etc.- extended: pushing - extended: pushing

satisfactorilysatisfactorily

(c) Reduced commission(c) Reduced commission- 7% to 5 or 4- 7% to 5 or 4

(5) (5) Agent sells $200,000 homeAgent sells $200,000 home- $14,000 = 50/50 with broker- $14,000 = 50/50 with broker- other agent = 50/50 listing / - other agent = 50/50 listing /

sellerseller

(a) Not tell highest bid(a) Not tell highest bid- make offer- make offer- accept / refuse- accept / refuse

(b) Listing agent = support seller(b) Listing agent = support seller

(4) (4) Offer to purchaseOffer to purchase- purchase agreement / deposit - purchase agreement / deposit

receiptreceipt- negotiations- negotiations- offer made- offer made

(a) Down payment(a) Down payment- 10 to 20% / fixed rate- 10 to 20% / fixed rate- finance institution- finance institution

(b) No money down(b) No money down- interest only- interest only- adjustable rate mortgage - adjustable rate mortgage

(ARM) (ARM)

(c) Look for lender(c) Look for lender- take over = assume - take over = assume

mortgagemortgage- buy out- buy out

(d) Bank application(d) Bank application- credit history- credit history- going interest rate- going interest rate

(e) Principle / interest(e) Principle / interest- $1,300.00 per month - $1,300.00 per month

paymentpayment- $1,230.00 = interest- $1,230.00 = interest- $70.00 = principle- $70.00 = principle

c. c. Disclosure lawsDisclosure laws- not required to disclose defects- not required to disclose defects- “- “patentpatent” (visible) / “” (visible) / “latentlatent” ”

(hidden) (hidden)

(1) (1) If askedIf asked::- seller cannot lie- seller cannot lie

(2) (2) Common lawCommon law- “- “let the buyer bewarelet the buyer beware””

4.4. The mortgageThe mortgage- 90% of all homes- 90% of all homes

- lender not trust borrower- lender not trust borrower- sole source of repayment- sole source of repayment

a. a. Mortgage involvesMortgage involves- transfer of interest in land- transfer of interest in land- security for loan / other obligation- security for loan / other obligation- home = collateral- home = collateral- “deed of trust” = some states- “deed of trust” = some states- mortgagor = borrower (debtor)- mortgagor = borrower (debtor)- mortgagee = lender (creditor)- mortgagee = lender (creditor)

(1) (1) Purchase home = mortgagePurchase home = mortgage

- home is security- home is security- mortgagee = financial institution- mortgagee = financial institution- bank / credit union / savings & - bank / credit union / savings &

loan /loan / mortgage companymortgage company- provider of loan- provider of loan

(2) (2) Paid in installmentsPaid in installments- interest payments- interest payments- principle amount- principle amount

(3) (3) Failure to make paymentsFailure to make payments- foreclosure- foreclosure

(a) Depends on:(a) Depends on:- state law- state law- terms of mortgage- terms of mortgage

(b) “(b) “Judicial foreclosureJudicial foreclosure””

(4) (4) Default by ownerDefault by owner- mortgages = many formal - mortgages = many formal

promisespromises- pay property taxes / keep - pay property taxes / keep

insuranceinsurance- maintain property- maintain property- other requirements- other requirements- comply with all practicable laws- comply with all practicable laws

(a) Breech(a) Breech- fail to make payments- fail to make payments- fail to comply- fail to comply- remedy = foreclosure- remedy = foreclosure

(b) Foreclosure at private sale(b) Foreclosure at private sale- preferred- preferred- non-judicial foreclosure- non-judicial foreclosure- no court proceedings- no court proceedings

(i) “Power-of-sale-clause”(i) “Power-of-sale-clause”- mortgage provision- mortgage provision

(ii) Authorizes private sale(ii) Authorizes private sale- without court - without court

supervisionsupervision

(iii) Advertised in local paper(iii) Advertised in local paper- date / time / location- date / time / location- notice = county - notice = county

courthousecourthouse

(c) Before sale(c) Before sale- owner may “- owner may “reinstatereinstate””- pay delinquent payments- pay delinquent payments- late payment charges- late payment charges- cost / fees- cost / fees

(d) Acceleration clause(d) Acceleration clause- loan due date accelerated- loan due date accelerated- borrower agreed with terms- borrower agreed with terms of promissory noteof promissory note- default = entire unpaid - default = entire unpaid

balancebalance- immediately due / payable- immediately due / payable

(i) States regulate (i) States regulate accelerationacceleration

- allow late payments- allow late payments- avoid foreclosure- avoid foreclosure

(ii) “(ii) “Right of reinstatementRight of reinstatement””

- exists = even though- exists = even though

- borrower agreed- borrower agreed

- acceleration clause- acceleration clause

b. b. Defaulting owner = not reinstateDefaulting owner = not reinstate

- sale = about 4 months- sale = about 4 months

- after default formally noted- after default formally noted

- trustee accepts highest cash bid- trustee accepts highest cash bid

- conveys title to buyer- conveys title to buyer

(1) (1) Creditor entitled to deficiency Creditor entitled to deficiency judgmentjudgment

- court judgment against debtor- court judgment against debtor- difference between unpaid - difference between unpaid

mortgagemortgage- fair marker value- fair marker value

(a) Represents(a) Represents- money lost by creditor- money lost by creditor

(b) Only through court order (b) Only through court order - “- “judicial foreclosurejudicial foreclosure””- prefer = non-judicial - prefer = non-judicial

foreclosureforeclosure- quicker / cheaper - quicker / cheaper - no attorney is required- no attorney is required

(2) (2) Following judicial foreclosureFollowing judicial foreclosure- one year to reclaim property- one year to reclaim property- one-year “- one-year “right of redemptionright of redemption””- fully reimbursing winning - fully reimbursing winning

bidder bidder

(a) Judicial foreclosure sale(a) Judicial foreclosure sale- paid: $70,000- paid: $70,000- fix up: $20,000- fix up: $20,000

(b) Right of redemption(b) Right of redemption- pay = $90,000- pay = $90,000- bid + all costs- bid + all costs

(c) Only advantage(c) Only advantage- deficiency judgment = court- deficiency judgment = court- lien on property = fail to pay- lien on property = fail to pay- uncollectible = no money- uncollectible = no money

5.5. Acquiring title to propertyAcquiring title to property- various ways to receive title (ownership)- various ways to receive title (ownership)

a. a. More common waysMore common ways - legally purchase- legally purchase - property division = divorce- property division = divorce - damages in litigation- damages in litigation

- foreclosure sale- foreclosure sale- inherit property- inherit property- given as gift- given as gift

(1) “Adverse possession”(1) “Adverse possession”- “- “The creation of ownership of realThe creation of ownership of real property through its possession property through its possession

for for a prescribed number of years a prescribed number of years

withoutwithout the consent of its owner.”the consent of its owner.”

(a) Adverse possessor(a) Adverse possessor- physically occupies- physically occupies

- pays taxes on- pays taxes on- someone else’s property- someone else’s property- set number of years- set number of years- some color / claim of - some color / claim of

ownershipownership

(b) Interlopers (vagrant)(b) Interlopers (vagrant)- awarded ownership rights- awarded ownership rights- judicial proceedings- judicial proceedings- never paid a cent- never paid a cent

(2) (2) For protectionFor protection- extended coverage insurance- extended coverage insurance

- American Land Title Association- American Land Title Association- insurance policy- insurance policy

(a) On-site physical inspection(a) On-site physical inspection- addition to customary - addition to customary

searchsearch

(b) On-site inspection(b) On-site inspection- reveal- reveal- adversely possessing- adversely possessing- encroaching on boundaries- encroaching on boundaries

(c) Buy property(c) Buy property

- unaware fence 2-feet inside- unaware fence 2-feet inside- on your property- on your property

(d) Neighbor maintains several (d) Neighbor maintains several yearsyears

- claim title to property- claim title to property- through adverse possession- through adverse possession

b. b. Most common wayMost common way - transferring property interests- transferring property interests- deed = real property- deed = real property- bill of sale / certificate of title / - bill of sale / certificate of title /

receipts =receipts = personal propertypersonal property

(1) (1) DeedDeed- - “Any document used to “Any document used to

transfer anytransfer any ownership in real property.”ownership in real property.”

(2) (2) Many types of deedsMany types of deeds- grant / warranty deeds- grant / warranty deeds- trustee’s deed- trustee’s deed- deed of reconveyance- deed of reconveyance- deed of trust- deed of trust- quitclaim deed- quitclaim deed

(a) Grant deed(a) Grant deed

- document conveys ownership- document conveys ownership- real property- real property- impliedly warrants that grantor- impliedly warrants that grantor- not previously conveyed - not previously conveyed - to another- to another- free of undisclosed - free of undisclosed

encumbranceencumbrance (hindrance / obstruction / (hindrance / obstruction /

burden)burden)

(b) Warranty deed(b) Warranty deed- several warranties- several warranties- implied by law- implied by law- protect buyer- protect buyer

(i) Grantor insures(i) Grantor insures- no encumbrances- no encumbrances

(ii) Will compensate(ii) Will compensate- any and all costs- any and all costs

(c) Special warranty deed(c) Special warranty deed- grantor guarantees - grantor guarantees - did not encumber title- did not encumber title- no guarantee- no guarantee- before ownership- before ownership- not defend prior claims- not defend prior claims

(d) Trustee’s deed(d) Trustee’s deed- from a trustee (bank, etc.)- from a trustee (bank, etc.)- to successful bidder- to successful bidder- non-judicial foreclosure - non-judicial foreclosure

salesale

(e) Deed of reconveyance(e) Deed of reconveyance- used by trustee- used by trustee- return title to real property- return title to real property- to borrower- to borrower- pays off secured loan- pays off secured loan

(f) Deed of trust(f) Deed of trust

- used by borrower- used by borrower- transfer legal title = real property- transfer legal title = real property- disinterested stakeholder: trustee- disinterested stakeholder: trustee- hold as security / collateral- hold as security / collateral

(g) Quitclaim deed(g) Quitclaim deed- deed to real property- deed to real property- grantor conveys interest - grantor conveys interest - which may be none- which may be none- makes no warranties- makes no warranties- cannot be held liable- cannot be held liable- title transfer proves to be faulty - title transfer proves to be faulty

(3) (3) Marketable titleMarketable title- free from encumbrances- free from encumbrances- want to receive- want to receive

6.6. LiensLiens- - “A formal, legal claim to a possessory or“A formal, legal claim to a possessory or ownership interest in the real property ofownership interest in the real property of another.”another.”

a. a. Can result from a variety of transactionsCan result from a variety of transactions - mortgage- mortgage - contractor’s lien- contractor’s lien

- mechanic’s lien- mechanic’s lien- judgment lien- judgment lien- tax lien- tax lien

(1) (1) MortgageMortgage- lien against real property- lien against real property- security / collateral- security / collateral- 2- 2ndnd / 3 / 3rdrd mortgage mortgage

(2) (2) Contractor’s lienContractor’s lien- work done / not paid for- work done / not paid for- places lien on home- places lien on home

(3) (3) Mechanic’s lienMechanic’s lien- business hired by general - business hired by general

contractorcontractor- not paid by general contactor- not paid by general contactor- lien against home- lien against home

(a) Plumber / electrician / roofer / (a) Plumber / electrician / roofer / etc.etc. - did work- did work

(b) Paid general contractor(b) Paid general contractor- did not pay subcontractors- did not pay subcontractors- homeowner still held liable- homeowner still held liable- sue general contractor- sue general contractor

(4) (4) Judgment lienJudgment lien- been sued / they won- been sued / they won- court: placed lien on home- court: placed lien on home- make arrangements to pay- make arrangements to pay

(5) (5) Tax lienTax lien- failed to pay federal / state taxes- failed to pay federal / state taxes- file lien against home- file lien against home- make arrangements to pay- make arrangements to pay

(a) Lien filed on home(a) Lien filed on home- cannot sell / borrow money - cannot sell / borrow money

onon

7.7. WillsWills- person making = testamentary capacity- person making = testamentary capacity- “- “sound mindsound mind””- time will is executed- time will is executed

a. a. Will is voidWill is void = testator acting = testator acting involuntarilyinvoluntarily

- under duress- under duress - threats made- threats made - fraud- fraud - undue influence- undue influence

(1) (1) Updated periodicallyUpdated periodically

- circumstances change- circumstances change- new beneficiaries added- new beneficiaries added- newly accumulated property- newly accumulated property

(2) (2) Making additions to a willMaking additions to a will- called a “- called a “codicilcodicil””

b. b. Living willsLiving wills- misunderstanding- misunderstanding- does not transfer property after - does not transfer property after

deathdeath- “- “death with dignitydeath with dignity””- not suicide- not suicide

(1) (1) Instruct family / medical personnelInstruct family / medical personnel- medical procedures to follow- medical procedures to follow- particularly = abstain from- particularly = abstain from- under specified circumstances- under specified circumstances

(2) (2) All states passedAll states passed (Natural Death Act) (Natural Death Act)- Advanced Medical Directive (AMD)- Advanced Medical Directive (AMD)- instructions to others = medical - instructions to others = medical

carecare- wish to receive / not receive- wish to receive / not receive- terminally ill / incapacitated- terminally ill / incapacitated

(a) Terminally ill(a) Terminally ill

- medical profession- medical profession- die within certain time frame- die within certain time frame

(b) Incapacitated(b) Incapacitated- lack legal capacity- lack legal capacity- make important decisions- make important decisions

(c) Can result from:(c) Can result from:- serious illness- serious illness- accident = coma- accident = coma- old age = Alzheimer's - old age = Alzheimer's

diseasedisease- heart beating = brain dead- heart beating = brain dead

(d) Most common form of AMD(d) Most common form of AMD- living will- living will

(3) (3) Living will statutesLiving will statutes- after learning of terminal illness- after learning of terminal illness

(a) Witnessed by:(a) Witnessed by:- two or more = disinterested- two or more = disinterested- no selfish motive / interest- no selfish motive / interest

(b) Will preparation(b) Will preparation- specific form / format- specific form / format

c. c. Durable power of attorneyDurable power of attorney- for healthcare- for healthcare- more flexible than living will- more flexible than living will

(1) (1) Authorizes anotherAuthorizes another- make healthcare decisions- make healthcare decisions- person incapacitated - person incapacitated

(a) Attorney-in-fact(a) Attorney-in-fact- need not be an attorney- need not be an attorney- usually not- usually not- family member- family member

(b) Attorney = “(b) Attorney = “representativerepresentative””- selected to represent- selected to represent- incapacitated person- incapacitated person- healthcare purposes only- healthcare purposes only

(c) Durable power of attorney requires:(c) Durable power of attorney requires:- signature = one disinterested- signature = one disinterested- language approved by state- language approved by state

(d) Signature of the creator (disabled)(d) Signature of the creator (disabled)- attested to by witnesses- attested to by witnesses- certified by notary public- certified by notary public

(2) (2) Both living will / power of attorneyBoth living will / power of attorney- revoked at any time- revoked at any time- by creator / before incapacity- by creator / before incapacity

(3) (3) Durable power of attorney differsDurable power of attorney differs- from living will- from living will

(a) Created at any time(a) Created at any time- need not be terminally ill- need not be terminally ill

(b) Delegates very extensive / (b) Delegates very extensive / criticalcritical

- decision-making to another- decision-making to another

8.8. Probate and successionProbate and succession

a. a. ProbateProbate- court proceeding- court proceeding- wills proved to be valid / invalid- wills proved to be valid / invalid- estates administered / distributed- estates administered / distributed- serves several purposes- serves several purposes

(1) (1) Unsecured creditorsUnsecured creditors- submit claims for payment- submit claims for payment- secured creditor = bank- secured creditor = bank- unsecured = grocery / - unsecured = grocery /

gardener / etc.gardener / etc.

(2) (2) Fail to submit claimFail to submit claim- risk having debts canceled- risk having debts canceled- no claims against beneficiaries- no claims against beneficiaries

(3) (3) Death taxesDeath taxes- part of probate process- part of probate process

(4) (4) Valid willValid will- dying testate = testator- dying testate = testator- distribute to named - distribute to named

beneficiariesbeneficiaries

(a) Community property state (a) Community property state

(b) Spouse gets half(b) Spouse gets half

(5) (5) No valid willNo valid will- dying intestate- dying intestate- court determines distribution- court determines distribution

(6) (6) Three types of willsThree types of wills- follow Uniform Probate Code- follow Uniform Probate Code- Washington state = adopted - Washington state = adopted

partsparts- 18 or older- 18 or older- sound mind (testamentary - sound mind (testamentary

capacity)capacity)- must be in writing- must be in writing

- two competent disinterested - two competent disinterested witnesseswitnesses

(a) Formal will(a) Formal will

- prepared by lawyer- prepared by lawyer

- subscribed to by testator- subscribed to by testator

- understood / signed- understood / signed

(b) Holographic will(b) Holographic will

- informal will- informal will

- testator’s handwriting- testator’s handwriting

- signed by testator- signed by testator

(c) Nuncupative will(c) Nuncupative will

- testator makes oral will- testator makes oral will

b. b. SuccessionSuccession

- series of heirs / rightful successors- series of heirs / rightful successors

- ensure preservation of property- ensure preservation of property

(1) (1) Intestate successionIntestate succession

- natural / adopted children first- natural / adopted children first

- other blood relatives- other blood relatives

- spouse receives all / part- spouse receives all / part

(2) (2) Testate successionTestate succession- property divided- property divided- desires of decedent- desires of decedent

(3) (3) Living inheritanceLiving inheritance- gifts before you die- gifts before you die- up to $200,000- up to $200,000- not taxed- not taxed

(4) (4) Intellectual propertyIntellectual property- bound by copyright / patents- bound by copyright / patents- determined by court- determined by court

c. c. WillWill = testamentary trust = testamentary trust- also = inter vivos trust- also = inter vivos trust

(1) (1) TrustTrust- right / property held by one - right / property held by one

personperson- for the benefit of another- for the benefit of another

(a) Trustee(a) Trustee- person / institution- person / institution- vested with the property- vested with the property- used for benefit- used for benefit- of another- of another

(b) Trustor / settlor(b) Trustor / settlor

- person creating a trust- person creating a trust

- preparing their will- preparing their will

(c) Income beneficiary(c) Income beneficiary

- person receiving property- person receiving property

(2) (2) Inter vivos trustInter vivos trust

- “- “living willliving will””

- trust prepared while still alive- trust prepared while still alive

9.9. Renters / landlordsRenters / landlords- rent property of another- rent property of another- live in as your own- live in as your own- “- “rental agreementrental agreement” = lease” = lease

a. a. Established lawEstablished law (1) (1) Landlord must maintainLandlord must maintain

- habitable condition- habitable condition- reasonably livable - reasonably livable - unless tenant agrees - unless tenant agrees

otherwiseotherwise- agreement = not coerced- agreement = not coerced

(2) (2) Landlord fails to maintainLandlord fails to maintain- tenant may maintain- tenant may maintain- specified conditions- specified conditions- up to one month’s rent- up to one month’s rent- deduct from next rent due- deduct from next rent due

(a) Cannot evict tenant(a) Cannot evict tenant- retaliation for exercising right- retaliation for exercising right- landlord = liable up to $1000- landlord = liable up to $1000

(3) (3) Refund “security deposit” promptlyRefund “security deposit” promptly- within two weeks of vacancy- within two weeks of vacancy

(a) Deposits only retained(a) Deposits only retained

- repair damage- repair damage

- clean premises- clean premises

(b) Non-refundable security (b) Non-refundable security depositdeposit

- not legal- not legal

(c) Charges withheld from deposit(c) Charges withheld from deposit

- itemized / explained- itemized / explained

(4) (4) Established law for rentersEstablished law for renters

(a) Must pay rent(a) Must pay rent- within scheduled period of - within scheduled period of

timetime- due by: June 1- due by: June 1stst to the 4 to the 4thth

(b) Not paid on time(b) Not paid on time- late fee can be collected- late fee can be collected

(c) Maintain property(c) Maintain property- reasonable condition- reasonable condition

(d) Receive approval(d) Receive approval- before alteration / changes - before alteration / changes

b. b. Types of leasesTypes of leases- transfers possession of dwelling- transfers possession of dwelling- rental house / apartment- rental house / apartment- from owner (lessor)- from owner (lessor)- to renter (lessee)- to renter (lessee)- in exchange for rent- in exchange for rent

(1) (1) Tenancy for yearsTenancy for years- stated period of time (usually 1 - stated period of time (usually 1

year)year)- terms / rent fixed- terms / rent fixed- change operating rules (pool hrs, - change operating rules (pool hrs,

etc)etc)- not rent / conditions- not rent / conditions

(2) (2) Periodic tenancyPeriodic tenancy- month to month lease- month to month lease

c. c. Legal remedies for landlordsLegal remedies for landlords- fail to pay rent (default)- fail to pay rent (default)- leaves premises (abandons)- leaves premises (abandons)- sue for accrued rent / damages- sue for accrued rent / damages- keep security deposit- keep security deposit

(1) (1) EvictionEviction- no longer evict on own- no longer evict on own- cannot remove tenant- cannot remove tenant

(2) (2) Summary judgmentSummary judgment- decision by court- decision by court

(a) Notice to precede the (a) Notice to precede the litigationlitigation

- gives tenant grace period- gives tenant grace period- cure the default- cure the default

(b) Court hearing(b) Court hearing- attorneys- attorneys

(c) Eviction order by court(c) Eviction order by court- served by sheriff / marshal- served by sheriff / marshal

d. d. Legal remedies for tenantsLegal remedies for tenants

(1) (1) Implied warranty of habitabilityImplied warranty of habitability

- landlord guarantees- landlord guarantees

- no concealed defects- no concealed defects

(2) (2) Covenant of quiet enjoymentCovenant of quiet enjoyment

- no noise- no noise

- no loud parties- no loud parties

- grounds to move out- grounds to move out

10.10. Legal right to commit suicideLegal right to commit suicide- issue is whether morally correct- issue is whether morally correct- Americans lack consensus - Americans lack consensus

a. a. Religious codes / legal rulesReligious codes / legal rules- label a wrongful act- label a wrongful act- no state explicitly condones suicide- no state explicitly condones suicide- Oregon = legalized “- Oregon = legalized “assisted assisted

suicidesuicide””- “- “death with dignitydeath with dignity””

(1) (1) EuthanasiaEuthanasia (mercy killing) (mercy killing)- affirmative act- affirmative act

- bringing about death of another- bringing about death of another- painless way- painless way

(2) (2) Administered by someone whoAdministered by someone who::- believes dying person wishes to - believes dying person wishes to

diedie- terminal / extremely painful - terminal / extremely painful

diseasedisease

(a) Jack Kevorkian(a) Jack Kevorkian- medical doctor (pathologist)- medical doctor (pathologist)- assisted 130 people- assisted 130 people- taped death of last patient- taped death of last patient- sent to CBS- sent to CBS

(b) Sincerely believed(b) Sincerely believed- people have right - people have right - death with dignity- death with dignity- say when they should die- say when they should die- how they should die- how they should die

(c) Charged with assisting a (c) Charged with assisting a suicidesuicide

- found guilty- found guilty- sentenced to prison- sentenced to prison

(3) (3) EuthanasiaEuthanasia- aggressive act = putting to - aggressive act = putting to

deathdeath

- with / without permission- with / without permission- act = form of criminal homicide- act = form of criminal homicide

(4) (4) Washington state law providesWashington state law provides::- - “A person is guilty of promoting “A person is guilty of promoting

aa suicide attempt when he suicide attempt when he

knowinglyknowingly causes or aids another person tocauses or aids another person to attempt suicide.”attempt suicide.”

(a) Such promotion = felony(a) Such promotion = felony- 5 years imprisonment- 5 years imprisonment- $10,000 fine- $10,000 fine

(b) 1997: four Washington physicians(b) 1997: four Washington physicians- three gravely ill patients- three gravely ill patients- sued attorney general- sued attorney general- legal barrier violated:- legal barrier violated:““A liberty interest by the 14A liberty interest by the 14thth

Amendment which extends to aAmendment which extends to apersonal choice by a mentallypersonal choice by a mentallycompetent, terminally ill adult tocompetent, terminally ill adult tocommit physician assisted suicide.”commit physician assisted suicide.”

(c) US Supreme Court(c) US Supreme Court- acknowledged 1979 Act- acknowledged 1979 Act

- Natural Death Act- Natural Death Act- - “Allowed the withholding or“Allowed the withholding or withdrawal of life sustainingwithdrawal of life sustaining treatment”treatment” at a patient’s at a patient’s directiondirection

(d) Provided that such act:(d) Provided that such act:““Shall not, for any purpose,Shall not, for any purpose,constitute a suicide.”constitute a suicide.”

(e) Over-ruled plaintiff’s motion(e) Over-ruled plaintiff’s motion- upheld Washington state’s - upheld Washington state’s

lawlaw