GIFTS OUTLINE
I. Types- there are three basic types of gifts:
Inter vivos gift- “gift between the living”
Testamentary gift- gift that the donor intends to take effect only at the time of donor’s death. Usu. A will
Gift Causa Mortis-“gift in case of death” A gift made in the donor’s expectation of death.
II. Inter vivos Gift requires three basic elements:
1. Donative intent- an intent to make an immediately effective gift.
2. Delivery- A donor must divest himself of “dominion and control” of the property and invest the donee in “dominion and control” over the property.
General Rule-Actual/Manual delivery is required.
In Re Evans rule
Exceptions-Constructive or symbolic delivery may be permitted.
Constructive delivery- (appropriate when actual delivery isn’t possible or practical) When the donor gives the means to exercise dominion and control over the property.
Symbolic Delivery-(ineffective when manual delivery is possible) Delivery of an object that symbolizes and acts as a surrogate for the actual delivery of property. Usu. a note or picture.
Policy-Delivery serves as a vital evidentiary purpose of proving that a gift was actually intended by the donor and was more than just a donative impulse.
3. Acceptance-Donee invests himself in dominion and control over the property. (will be implied if the gift is unconditional and beneficial to the donee.)
III. Gift causa mortis-requires the same 3 elements of inter vivos gifts plus 2 others:
1. Gift must be made in anticipation of imminent death.
2. Donor must die of the contemplated peril.
(Gift can be revoked if the donor doesn’t die from the expected peril)
IV. Testamentary gift- There are stricter statute requirements on this type of gift. Usu. this gift is in the form of a will.
There are 4 elements in a valid testamentary gift:
1. Make a will
2. Execute (sign) the will in presence of disinterested witnesses AND
3. Have the will acknowledged by a notary republic.
4. The testator must than die for the will to take effect.
All notes taken from Property text book 197-212
ADVERSE POSSESSION OUTLINE
Definitions:
Adverse Possession- The doctrine by which title to real property is acquired as a result of such use or enjoyment over a specified period of time.
Black’s Law Definition-Adverse possession- The use or enjoyment of real property with a claim of right when that use or enjoyment is continuous, exclusive, hostile, open, and notorious.
Underlying Theories:
· The theory underlying adverse possession for a whole track of land being adversely is that owners should not “sleep on their rights”
· The theory underlying adverse possession for a part of a track of land is that someone who makes a misstatement or carelessly allows another to rely upon that misstatement should bear some legal responsibility.
How AP arises:
Adverse possession typically arises from 2 situations:
1. Claimant asserts title to an entire track of land from the true owner.
2. Owner of a neighboring parcel encroaches upon the land of another and uses it.
Basic Elements of AP: (P.O.A.C.H.E.R.)
Possession of the real property must be:
1. Open AND Notorious
2. Actual (constructive)
3. Continuous
4. Hostile
5. Exclusive
6. For the Required statute of limitations regarding
POSSESSION:
1. OPEN AND NOTORIOUS:
· Open and notorious requires the AP to have possession of such intensity that is should place the TO on notice that someone appears to be asserting a claim to their land.
· It is very important to understand that the requirement here is not that the TO actually knew o
ion hostile by taking action conspicuous enough to warn the TO of the nature of the AP’s claim and that the AP is now going way beyond his given permission.
§ Absence of proof that the possession is adverse the possession is assumed to be adverse (hostile). The burden of proof to show that AP’s possession was permissive is on the TO not the AP.
· Claim of Right:
· Objective Approach (majority)
§ Would a neutral uninformed 3rd party think that an AP by his acts of improvement of possession was in fact the TO.
· Subjective Approaches (focuses on the state of mind of the AP.) Subjective approaches have gone two ways:
1. Good Faith Approach –no squatters!!. AP’s must have honest mistaken belief that they own the land.
2. Intent Approach- aka the “aggressive trespasser”- The AP must know he is adversely possessing the land and intends to possess the land. Without this intent it does NOT matter how exclusive, nor open and notorious the possession was.
5. EXCLUSIVE:
· Possession is exclusive when there is the exercise of exclusive dominion over property, including the use and benefit of the property.
6. REQUIRED SOL TIME:
· Disability:
· If the TO is disabled (not legally capable of taking action to protect his land claim) than the SOL os tolled (stopped) until that disability is removed. After the disability is removed than the SOL period may begin.
· The most common forms of disability are:
1. Minors
2. Mentally incompetent persons
3. Prisoners (not all states recognize this one)
· Color of Title:
· If an AP has a color of title, than most states shorten the required SOL period.
· Doctrine of Agreed Boundaries:
· If adjacent land owners have an express agreement to a boundary fence that does not actually represent the true boundaty, than the erection of this incorrect boundary line is sufficient to begin the SOL period.
