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Property I
Southern Illinois University School of Law
Holte, Ryan T.

 
Holte_Property_Fall_2014
 
 
 
GIFTS
a.      Gifts Inter Vivos – gifts between the living
                                                              i.      DEFINITION: A gift takes effect immediately upon the delivery of the object of the gift and acceptance by the donee, and it is generally treated as irrevocable.
                                                           ii.      ELEMENTS – a gift inter vivos requires 3 basic elements:
1.     Donative Intent – the intent to make a present transfer of the property (intent to make an immediately effective gift)
2.     Delivery – movement of the object of the gift from one to another, this helps demonstrate donative intent
a.      General Rule – used in most situations:
                                                                                                                                      i.      Manual/Physical Delivery: the actual physical transference of the object of the gift to another
b.     Exceptions – when manual/physical delivery is impossible or impractical courts will often recognize these deliveries:
                                                                                                                                      i.      Constructive – The donor gives the donee something that provides the donee with access to or control over the gift. (keys, codes, etc.)
                                                                                                                                   ii.      Symbolic – The donor gives the donee a representation of the gift such as a picture, deed letter, or bill of sale.
3.     Acceptance – The donee must accept the object of the gift to complete the transaction. This is to prevent unwanted burdens from being placed onto someone.
b.     Conditional Gift – found in inter vivos gifts and testamentary gifts (gift causa mortis is a type of conditional gift)
                                                              i.      DEFINITION: A gift that takes effect immediately, but is subject to a condition that will, if it occurs, terminate the donee’s ownership.
1.     E
                                                           ii.      ELEMENTS – contingencies in conditional gifts
1.     Expression of Condition
a.      General rule: condition should be expressed and in writing to prove the agreements details
b.     Exception: in some cases implied consent is sufficient. Generally this is done based off of customs or traditions where both parties are under the same presumption of terms unstated
2.     Condition Met – if condition is met the gift is complete and irrevocable
3.     Condition Not Met – if condition is NOT met then then the donor may revoke the gift
4.     Time Between Gift and Condition – a gift is still irrevocable; as long as the donee is capable of fulfilling the condition. The donor cannot revoke the gift in this time period.
c.      Gift Causa Mortis – a gift in case of death or “deathbed gifts” (intermediate between inter vivos and testamentary)
                                                              i.      DEFINITION: A conditional gift that is made in the context of the donor’s expected imminent death
                                                           ii.      ELEMENTS –
1.     Condition subsequent – the gift is subject to the risk of being terminated if either of the following two conditions occurs:
a.      The donor might change his mind and revoke the gift before death
b.     The donor might not actually die as a result of the particular peril that placed the donor in contemplation of imminent death.
2.     Donor does in fact die as expected and never expressed an intention to revoke the gift, the gift becomes absolute.
3.     The requirements are the same as those for an inter vivos gift. (Donative Intent, Delivery, and Acceptance)
4.     Revocation – the donor (or his successor) must prove that the gift was conditional (that it was made in anticipation of impending death) and that the condtion did not occur. Also in many states, the gift is automatically revoked if the donor doesn’t die.
                                                         iii.      PURPOSE/REASONING – Causa mortis allows those who did not prepare adequately for death (no vaild will), to dispose of their property as they wish in anticipation of death.
d.     Testamentary Gifts –
                                                              i.      DEFINITION: a gift that the donor intends to take effect only at the time of the donor’s death
                                                           ii.      ELEMENTS –
1.     Requires compliance with Wills Statute (this requirement is a safe guard against fraud):
a.      Must be in writing
b.     Signed by the testator
c.      Attested by disinterested witnesses, and
d.     Acknowledged by notary
2.     Only effective upon death – The will does not come into effect until the death of the testator.
3.     While the testator is alive:
a.      May destroy, revoke, or replace the will
b.     May distribute his assets by making valid inter vivos gifts (if this is done, these would not pass onto the estate and thus the will (even though vaild) would not actually effect any transfer of those particular assets)
                                                         iii.      PURPOSE/REASONING – Once passed on this gives us a voice as to how our assets should be distributed. 
II.                  Possession, First-in-Time, and Acquiring Property Interests
a.      Discovery/Capture
b.     Finding
                                                              i.      DEFINITION:
                                                             ii.      FIRST-IN- TIME:
1.      Finder does not acquire an absolute property right, but has the right to keep the item against all but the rightful owner.
                                                           iii.      FACTORS:
1.     Nature of Property Found-
a.      Abandoned Property – the owner no longer wants to possess it.
                                                                                                                                      i.      Abandoned property belongs to the finder of the property against all others, including the former owner.
b.     Lost Property – the owner unintentionally and involuntarily parts with its possession and does not know where it is.
                                                                                                                                      i.      Lost property becomes the property of the finder once the statutory procedures are followed and the owner makes no claim within twelve months.
                                                                                                                                   ii.      Stolen property found by someone who did not participate in the theft is lost property.
c.      Mislaid Property – property is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is.
                                                                                                                                      i.      The finder of mislaid property acquires no rights to the property.
                                                                                                                     

iability for failure to redeliver
b.     Involuntary bailment: negligence standard of delivery. (must be reasonable in whom they deliver it to)
2.     If the bailee wrongfully fails to return the object of the bailment, or if the bailee wrongfully delivers the object to a third party, then the bailee is strictly liable for conversion of the object
III.               Estoppel and First Possession Principles
a.      Bona Fide Purchase
                                                              i.      True owner can be estopped from claiming against a bona fide purchaser when…
1.     Common Law- True owner has given possession and “indicia of title” to seller
2.     UCC “Voidable Title”- True owner gives the seller a voidable title (e.g. seller acquired title through fraud, dishonored check)
a.      Conduct
                                                                                                                                      i.      TO gives voidable title
1.     Title obtained through dishonored, fraud, cash sale, deceit about ID of purchaser
b.     Detrimental reliance
                                                                                                                                      i.      Bonafide purchaser;
                                                                                                                                   ii.      In good faith
3.     UCC “Entrustment”- True owner “entrusts” the item to a merchant who deals in goods of that kind
a.      Conduct
                                                                                                                                      i.      TO “entrusts” item to a merchant who deals in goods of that kind
b.     Detrimental reliance
                                                                                                                                      i.      Bonafide purchaser;
                                                                                                                                   ii.      In good faith;
                                                                                                                                 iii.      In ordinary course of business
                                                           ii.      Derivative Title Principle-
1.     Theft- TO > Thief = Third party acquires rights of a thief
2.     Finding- TO > Finder = Third party acquires rights of a finder
3.     Bailment- TO > Bailee = Third party acquires rights of bailee
                                                         iii.      Estoppel- is an exception to Derivative Title Prinicple
1.     DEFINTION: A party is prevented by his own acts from claiming a right to the detriment of another party who reasonably relied on such acts.
2.     ELEMENTS:
a.      True owner’s conduct or statements cause; (blameworthy)
b.     Detrimental reliance that is reasonable