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127 Cards in this Set
- Front
- Back
Real Property
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the land and everything permanently attached to it
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Personal Property
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Both tangible and intangible
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Why is distinction important?
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-Taxed differently
-Transferred differently (Real Estate Property requires formal deeds) |
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Conversion of real to personal property
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Real property can be turned into personal property by permanently detatching it from the land
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Fixtures
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A thing affixed to realty (RP) by toots, embedded in it, or permanently attached by means of cement, plater, bolts, nails or screws
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Role of Intent
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1. The property attached cannot be removed without causing substantial damage to the remaining realty
2. The property attached is so adapted to the rest of the realty as to become a part of it |
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Case 49.1
APL Limited v. Washington State, Dept. of Revenue (2012) |
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Trade fixtures
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Personal property that is installed for a commercial purpose by a tenant. They remain the property of the tenant and can be removed when the tenant leaves, repairing any damage cause by removal
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Personal Property Acquisition methods
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1. Possession
2. Production 3. Gift 4. Will/Inheritance 5. Accession 6. Confusion |
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Posession
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A person becomes the owner of personal property merely by having it. For example, wild animals and lost or abandoned items
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Production
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Gaining property through the fruits of labor. For example, writers, inventors, manufacturers, etc
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Gift (&3)
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a voluntary transfer of property ownership for which no consideration is given. The presence of consideration distinguishes a contract from a gift.
1. Donative intent on the part of the donor 2. Delivery 3. Acceptance by the donee |
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Donative Intent
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Based on circumstances, or relationship between parties
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Delivery
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Actual or "constructive" (Symbolic)
-Donor must give up complete control or dominion. Delivery by a third party is okay |
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Case 49.2
In Re Estate of Piper (1984) |
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Acceptance (2)
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Intervivos: While the donor is living
Causa Mortis: While the donor is living but made with expectation of imminent death. Gift is revocable if the donor lives |
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Accession
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Some value is added to another's personal property by use of either labor or materials
-With owners consent -Without owner's consent |
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Confusion
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Commingling so that a person's personal property cannot be distinguished from another's.
-Fungible goods consists of identical particles such as grain or oil |
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Mislaid Property
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Property that has been placed somewhere by the owner and then inadvertently forgotten. A person who finds this property does not obtain title to the goods. The finder is caretaker for the true owner
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Lost Property
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involuntarily left property. Property finder acquires title against the whole world, except for the true owner.
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Conversion of lost property
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The finder may be liable for the item. In a lot of cases they must make a reasonable effort to locate the true owner or be guilty of the tort of Conversion
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Estray Statutes
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If the finder advertises (or the county clerk advertises) the lost property and the true owned does not present themselves after a reasonable amount of time then the finder is granted legal title to the item
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Abandoned property
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Property that has been discarded by the true owner with no intention of recovering, Finder acquires title against all the world, including the original owner.
-Trespassers have no title -Treasure Trove: Title against all world except true owner |
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Bailment
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Formed by the delivery of personal property, without transfer of title, by one person (bailor) to another (bailee), usually under an agreement for a particular purpose. Differs from sale or gift because property is transferred without passage of title
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Elements of a Bailment (3)
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1. Personal property
2. Delivery of possession 3. Agreement to return or dispose of property |
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Involuntary bailments
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Bailee is responsible to safeguard property for true owner
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Bailment Agreement
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-Bailments less than a year do not require a writing under the Statute of Frauds
-Agreement can be express or implied -Agreement provides for return of property to bailor, a third party or disposal by bailee |
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Ordinary Bailments (3)
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1. For the sole benefit of the bailor
2. For the sole benefit of the bailee 3. For the mutual benefit of the bailee and the bailor |
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Bailment for the sole benefit of the bailor
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Bailee owes bailor a low duty of care, liable only for gross negligence
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Bailment for the sole benefit of the bailee
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Bailee owes bailor a high duty of care and is liable for even slight negligence
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Mutual-Benefit bailment
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Each party owes the other a reasonable duty of care
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Rights of the bailee (4)
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1. Right of possession
2, Right to use bailed property 3. Right to compensation: gratuitous bailment, bailee's lein 4. Right to limit liability |
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Duties of the bailee
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1. Duty of care
2. Duty to return bailed property: Bailee may be liable for breach of contract, conversion and/or negligence |
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Case 49.3 LaPlace v. Briere (2009)
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Duties of the Bailor
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1. Duty to reveal defects
2. Warranty liability for defective goods |
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Common Carriers
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Publicly licensed to provide transportation services to the general public
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Common Carriers Strict Liability exceptions
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1. An act of God
2. An act of a public enemy 3. An order of a public authority 4. An act of the shipper 5. The inherent nature of the goods |
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Warehouse Companies
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1. Can issue documents of title (warehouse receipts)
2. Owe duty of reasonable care 3. Can't exculpate, can limit |
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Innkeepers
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1. Owe duty of strict liability, modified by state statutes; if innkeeper provides safe and notifies guests
2. If parking area provided and innkeeper accepts bailment, then may be liable |
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Real property includes (3)
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1. Land and Structures; land includes the soil, and all natural and artificial structures on it (unless agreed otherwise)
2. Airspace and Subsurface Rights; subsurface rights can be titled and sold separately 3. Plant Life and Vegetation; crops can be sold separately |
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Possessory Interests
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Interests (fee simple, life or leasehold estate) give the owner a right to possess the land
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Nonpossessory Interests
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Interests (easement, profit or license) do not give the land owner a right to possess the land
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Ownership in fee simple
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Absolute gives the owner the greatest aggregation of rights, powers and privileges possible under American law
-The owner has indefinite right to exclusive possession and use of property -Nuisance: interference with another's right to use and enjoy his property |
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Case 50.1 Biglane v. Under the Hill Corp. (2007)
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Life Estates
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An estate that lasts for the life of the individual
-During life tenant's ownership, she can possess, use, and take the fruits of the estate, but not take from the property itself |
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Concurrent ownership
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1. Tenancy in Common; each owns an undivided interest in the property. At death, interest passes to tenant's heirs
2. Joint Tenancy; each owns undivided interest. At death, interest passes to surviving joint tenants 3. Tenancy by the entirety; uncommon ownership to husband and wife 4. Community property; property acquired during marriage. Each spouse owns an undivided half-interest |
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Leasehold Estates
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-Created when owner or lessor conveys right to possess or use the property to a lessee (tenant) for certain period of time
-Fixed term tenancy: express contact for specified period of time -Periodic Tenancy: no definite duration, but rent paid at certain intervals -Tenancy at will: termination of lease without notice -Tenancy at Sufferance: tenant wrongfully possesses property |
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Non-possessory Interests
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Easement: right of a person to make limited use of another person's real property without taking anything from the property
Profit: right to go onto another's land and take away some part of the land itself or some product of the land Easement or profit Appurtenant: owner of property (dominant) has right to go onto adjacent property (servient). Easement goes with the land at sale or transfer. Easement or profit in gross: right to go onto non-adjacent property by business or utility company. Easement foes with land at sale or transfer Termination of an Easement or Profit License: revocable right of a person to come onto other person's land. Grants no interest in the land |
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Non-possessory Interests; Creation of an Easement or Profit (4)
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1. Must be in writing created by deed, contract or will
2. Can be created by implication 3. Can be created by necessity 4. Can be created by prescription |
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Listing Agreements
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Between seller (or buyer) and a Real Estate Agent
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Real Estate Sales Contracts
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Must be in writing and signed, to be enforceable under the Statue of Frauds
-Contingencies -Closing Date and Escrow -Implied Warranty of Habitability -Seller's Duty to Disclose Hidden Defects |
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Steps in the Sale of Real Estate
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1. Buyer's Purchase Offer
2. Seller's Response 3. Purchase and Sale Agreement 4. Title Examination and Insurance 5. Financing 6. Inspection 7. Escrow 8. Closing |
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Deed (&5)
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Written instrument setting forth the interests in real property being transferred. Necessary components:
1. Names of Grantor and Grantee 2. Words evidencing intent to convey 3. Legally sufficient description of the land (includes metes and bounds) 4. Grantor's signature 5. Delivery of the deed |
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Types of Deeds (5)
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1. Warranty deeds
2. Special warranty deed 3. Quitclaim deed 4. Grant deed 5. Sheriff's deed |
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Recording Statutes
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Recording a deed (or any interest in real property) puts the public on notice of the new owner's interest in the land and prevents the previous owner from fraudulently conveying the same interests to another buyer.
Marketable: grantor is obligated to transfer title that iss free from encumbrances and defects Title Search Methods of Insuring Good title: most common is insurance |
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Adverse Possession
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Occurs when one person possesses the property of another for a certain statutory period of time, that person automatically acquires title to the land, just as if there had been a conveyance by deed.
Must be: -Actual and exclusive -Open, visible and notorious -Continuous and peaceable -Hostile and Adverse |
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Case 50.2 Scarborough v. Rollins
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Eminent Domain
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The fifth amendment gives the government the right to take (condemn) provate land for public use with just compensation to the owner
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Case 50.3 Kelo v. City of New London, Connecticut (2005)
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Restrictive Covenants
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A private restriction on the use of land and is generally binding on the purchaser of the land because it "runs with the land" and stated in the deed
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Inverse Condemnation
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Government takes land without paying compensation
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Purpose and Scope of Zoning Laws (2)
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1. Permissible uses of land: Residential, commercial, and industrial
2. Other zoning restrictions |
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Exceptions to Zoning Laws
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Variances: Allows exception to the zoning rules
Special Use Permits Special Incentives: Encourages development, usually by tax incentives and abatements |
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Lease agreement
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Gives the tenant temporary right to exclusively possess the proprty
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Parties Rights and Duties
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Possession
Eviction Use and Maintenance Implied Warranty Rent |
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Posession
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tenant has covenant of "quiet enjoyment"
-landlord has duty to deliver actual (or right to) physical possession |
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Eviction
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Landlord interferes with tenant;s right to possession
Constructive Eviction: Landlord fails to perform duties under the lease, making use of premises impossible |
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Use and maintainance of the premises
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-Tenant is responsible for damages to property and cannot be a nuisance and interfere with others quiet use of property
-Landlord is responsible to maintain common areas such as stairs, pools and elevators |
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Implied Warranty of Habitability
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Premises are safe and habitable for humans to live in. Landlord is responsible to keep leased premises in good repair
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Rent
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Can be withheld but it must be put into excrow pending repairs
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Transferring Rights to leased property
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Assignment: lessee can transfer lease to assignee, if allowable under lease. Assignor is still liable for rent
Sublease: tenant transfers all or part of premises for less than duration of lease |
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Termination of the Lease
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Usually a lease terminates when its term ends, and landlord retakes possession.
Release and Merger-Tenant becomes owner, needs writing Surrender by agreement-parties agree to terminate early, need writing Abandonment-Tenant abandons; automatic termination, no writing required. Landlord is required to mitigate her damages and rent the property |
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Insurance
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A contractual arrangement for transferring and allocating risk
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Risk
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Prediction concerning potential loss based on known and unknown factors
Risk Management: involves transfer of certain risks from the individual to the insurance company by a contractual agreement |
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Insurance Terminology
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Policy: Insurance contract
Premium: The consideration to be paid to the insurer Underwriter: Usually and insurance company Broke v. Agent |
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Classification of insurance
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Insurance is classified according to the nature of the risk involved.
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Insurable Interest (&3)
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A person can insure anything in which he or she has an insurable interest
-life insurance -Key-person life insurance Property insurance |
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Life insurance
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A person must have a reasonable expectation of benefit from the continued life of another
-insurable interest must exist at the time the policy is obtained -Interest may be financial or relational |
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Key-Person Life Insurance
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obtained by an organization on the life a person important to the organization
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Property Insurance
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Insured derives a pecuniary benefit from preservation and continued existence of certain property. Owner must have insurance at the time of loss.
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Application for insurance
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An offer, which insurance company can either reject or accept. Misrepresentations can void a policy
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Effective Date
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Broker v. Agent: broker is agent of applicant. Can be liable if policy is not secured and applicant is injured
Binders and Conditions: binder means policy is pending, but applicant is insured if compensation is paid |
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Provisions and clauses (6)
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Provisions Mandated by Statute
Incontestability Clauses Coinsurance Clauses Appraisal and Arbitration Causes Multiple Insurance Coverage Antilapse Clauses |
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Provisions Mandated by Statute
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to be included in the insurance policy will be deemed to be in the insurance policy- whether they are in the policy or not
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Incontestability Clauses
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State Statutes sometimes provide that once a life or health insurance policy has been in force for a specified length of time, the insurer cannot contest statements made in the application
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Coinsurance Clauses
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If owner insures her property for at least 80% of its value, owner will be able to recover up to the face value of the policy
If owner insures for less than 80%, owner will be responsible for a proportionate share of the loss |
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Appraisal and Arbitration Clauses
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If insurer and insured cannot agree on value of property, an appraisal can be demanded. Contract may also provide for arbitration
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Multiple Insurance Coverage
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If insured, has multiple insurance policies and the amount of coverage exceeds the loss, insured can collect from each insurer only the company's proportionate share of the liability, relative to the total amount of insurance
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Antilapse Clauses
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Policy does not lapse automatically upon nonpayment of premium. Insured has a grace period thirty or thirty-one days within which to pay the overdue premium
-The insurer may pay the insured the case surrender value of the policy |
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Interpreting provisions of an Insurance Contract
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Courts interpret ambiguity against the insurance company. Uncertainty as to whether policy actually exists is resolved against the insurance company. Insurer must adequately notify insured of any change in policy under an existing policy.
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Case 51.1 Cary v. United of Omaha Life Insurance Co. (2005)
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Case 51.2 Woo v. Fireman's Fund Insurance Co.
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Cancellation
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Insured can cancel policy at any time, and the insurer can cancel according to terms of policy
-Insurer must give written notice of cancellation |
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Duties and Obligations of the Parties
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Duties of the Insured: Must act in good faith
Duties of the Insurer: Insurer has duty to investigate to determine the facts Bad Faith Actions: Tort action if insurer denies coverage, insured may seek damages beyond the policy, as well as punitive damages |
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Defenses Against Payment
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-Insurance policy procured through fraud, misrepresentation
-Insurance company lacked an insurable interest (void from beginning) -Improper actions, contrary to public policy, or illegal |
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Life Insurance (5)
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1. Whole Life
2. Limited-Payment Life 3. Term Insurance 4. Endowment Insurance 5. Universal Life |
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Life Insurance (Life and liabilities of parties)
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Liability
-Adjustment to misstatement of age -Assignment Creditors' Rights -Termination |
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Fire and Homeowner Insurance (rights and liabilities)
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-Liability
-Proof of Loss -Occupancy Clause |
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Case 51.3 Estate of Luster v. Allstate Insurance Co. (2010)
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Fire and Homeowner Insurance
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-Assignment: must have the consent of the insurer
Homeowner's Policies: -Assignment Property Coverage -Liability Coverage -Renter's Policies |
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Automobile Insurance
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-Liability Insurance
-Collision and Comprehensive Insurance -Other Automobile Insurance -->Uninsured motorists -->Accidental Death benefits -->Medical Payment Coverage --> Other-driver coverage --> No-fault Insurance |
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Business Liability Insurance
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1. General Liability
2. Product Liability 3. Professional Malpractice 4. Worker's Compensation |
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Will
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The final declaration of how a person desires to have his or her property disposed of after death
(A person with a will dies "testate") |
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Will Personell
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Executor: Personal Representative named in a will
Administrator: Personal representative appointed by the court when person dies without a will |
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Laws Governing Wills
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Probate Laws (vary widely among states)
To probate a will means to establish its validity and carry the administration of the estate through a process supervised by a probate court Uniform Probate Code |
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Gifts By Will
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Devise: gift of real estate
Bequest or Legacy: gift of personal property Types of gifts: specific, general. or residuary Abatement Lapsed Legacies |
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Requirements of a valid will
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Testamentary Capacity and Intent: requires a "sound-mind" and testamentary intent
Writing Requirements: can be handwritten, (holographic) will (but oral wills aren't usually valid) Witness Requirements Publication requirements not required under the UPC |
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Case 52.1 Shaw Family Archives, Ltd. v. CMG Worldwide, Inc. (2007)
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Revocation of Wills (&
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Executed will is revocable by the maker anytime before death
-Revocation by a Physical Act -Revocation by Subsequent Writing (Codicil) -Revocation by Operation of Law |
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Case 52.2 Peterson v. Harrell (2010)
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Rights Under a Will
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The law imposes certain limitations on the way a person can dispose of property in a will.
-Beneficiaries can renounce (disclaim) their shares -Spouses in some states can renounce what is given to them in the will and elect to take the forced share |
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Probate Procedures
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Informal: family settlement agreements, and small estates
Formal: larger estates, guardianship appointment, and trusts for minors or incompetent persons |
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Property Transfers outside the Probate Process
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-Living trusts
-Joint ownership of property -Gifts Intervivos -Life insurance policies -Individual Retirement Accounts |
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Intestacy Laws
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Statutes of descent and distribution which attempt to carry out the likely intent and wishes of the decedent who died without a will
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Surviving Spouse and Children
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Surviving spouse usually recieves 1/2 of the estate if there is one surviving child, 1/3 if there are two or more children. or entire estate if there are no children or grandchildren
Lineal descendants, and then collateral heirs |
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Stepchildren, adopted children, and illegitimate children
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Stepchildren-not considered children of deceased
Adopted children-considered children of deceased Illegitimate-must prove paternity |
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Distribution to grandchildren
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Per Stirpes: heirs take the share their deceased parent would have taken had that parent lived
Per Capita: each person takes an equal share of the estate |
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Trust
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ant arrangement whereby property is held by one party for the benefit of another
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Trusts: essential elements
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1. Designated beneficiary
2. Designated trustee 3. Funds sufficiently identified to enable title to pass to the trustee 4. Actual delivery to the trustee with the intention of passing title |
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Express Trusts
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1. Living Trusts: revocable living trusts, irrevocably living trusts
2. Testamentary Trusts 3. Charitable trusts 4. Spendthrift trusts 5. Totten Trusts |
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Implied Trusts
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Constructive Trusts: arises by operation of the law in the interest of equity and fairness
Resulting Trusts |
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The Trustee
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Person holding trust property
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Trustees's Duties
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Honesty, good faith, and prudence in administrating the trust and high degree of loyalty to beneficiaries
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Trustee's Powers
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State law governs in the absence of a specific language in will or instrument
Allocation between principal and income |
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Trust Termination
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occurs when expressly specified in trust; if trust does not provide specification of termination, trust doesn't end at death of beneficiary or trustee, when its purpose has been fulfilled, or when purpose becomes illegal or impossible
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Power of Attorney
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Durable Power of Attorney
Health Care Power of Attorney |
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Living Will
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Advanced health directive that allows a person to control what medical treatment they will receive after a serious accident or illness
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