Law 322 Chapter 8 and 9 Notes
Law 322 Chapter 8 and 9 Notes LAW 3220
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Date Created: 02/21/16
Law 322 Chapter 8 & 9 Notes 1. Definition of each a. Real property-‐ things that attach to land, not easily moveable b. Personal property-‐fairly easily moved 2. Three types of deeds-‐ a. Deed-‐written document of who is the owner of the property, common way to transfer ownership of property, legal piece of paper b. Quitclaim-‐As is, risky, most risky to take c. Warranty-‐safest type of deed, seller warrants to the buyer that they have good clear title and there are no leans or encumbrances on it, if that turns out not to be true you can sue the seller for breach of contract d. Special Warranty-‐in between in terms of riskiness, the seller warrants to the buyer that during the period of time the seller owned the property no leans or encumbrances were put on it 3. Title-‐you own the land, the mineral rights, and the air rights, they are separable a. Make sure you are getting all 3 rights b. If you are going to buy real property, the first thing you should do is do a title search c. Make sure the seller has paid off all mortgages, etc. d. Purchase title insurance i. Insurance is there to pay off claim e. Fesimple-‐you are the outright owner, you can keep anyone else from using the property 4. Three forms to hold property jointly-‐ a. `Tenancy in common i. Right of survivorship that exists is different between this and tenancy ii. No right of survivorship, goes to relatives b. Joint tenancy i. One of the owner dies, his or her interest goes to the other owner c. Tenancy by the entirety i. Only available to married couples ii. If one dies, goes to the other (right of survivorship) iii. Can’t terminate unless they both hate each other, they can get a divorce and it won’t go to them d. Life estate i. Someone has the right to use and enjoy property for their life, if they pass away it terminates back to the owner 5. Trusts-‐ Trustee and Beneficiary a. A trust separates the legal ownership of the property from the beneficial ownership, have to have a definite term b. Trustee becomes the legal owner of that property during that term of the trust c. Beneficiary-‐ people who get to use that property and receives the benefits i. Have equitable title 6. Business trusts a. Ones in which a business takes some of its assets and puts them in a trust b. Assets are secured from creditors and bankruptcy c. Beneficiaries interests are negotiable d. It is more liquid, you can sell it if you need to 7. Condominiums a. Historically a form of ownership for elderly people b. All you own is from the walls in 8. Cooperative a. Started in large cities in buildings where most of the owners were elderly and had a strong interest to keep young people out b. You own from the walls in c. Nothing gets done without the cooperative board approving it d. If you want to sell it, they have to approve who you sell it to e. Must more restricted than a condominium 9. Servitudes-‐limitations or requirements on the use of your property a. Easements i. Gives someone the right to legally come onto your property for a specific purpose ii. Typically the town has one within 10 feet of your property to put in landlines, sewage, etc. iii. If someone needs to cross your property to get to their property iv. Easement should be in the deed b. Covenants i. In the deed ii. Restriction about what can be done on the property iii. Very difficult to get out iv. All development owners and the board have to agree on getting rid of it 10.Adverse Possession –concept in state laws a. If someone uses your property or a piece of your property openly and notoriously (would be apparent to anyone who walks or drives by) for the period of time specified in that specific states adverse possession and you don’t object, they become the legal owner of that property i. If someone builds a swimming pool or tennis court in their back yard and it goes onto your backyard, you must say something when it is happening b. Largely where people own out of state vacant land i. Florida resident who owns a house in Colorado 11.Landlords are Tenants-‐rights and duties of each a. A lease is a contract and is enforceable b. A lease should have who the landlord and tenant are i. The address ii. What is the amount of rent and when is it due iii. Term of the lease iv. If it is not in the lease, you don’t have the right to do it v. Make sure who is responsible for paying utilities vi. Security deposits 1. What is the amount and the expectation of when you get it back c. Major rights and obligations i. Tenants 1. The right to use and possess the property a. Whether it is to live there or do business b. Implied warranty that is habitable 2. Duties a. Not to conduct illegal activities b. Not to create nuisances for other neighbors c. Return property to landlord in the same condition it was given to you in d. Businesses (commercial leases) will almost always have leases in written documents i. Who pays for utilities, property taxes, and insurance ii. Signage, what kind of signs can you put up iii. Prohibit conducting illegal activities and storing hazardous chemicals iv. Structural changes-‐keep in mind how long your lease it v. Early termination vi. Landlord can show up unannounced and walk through 12.Eminent Domain and Police Powers a. Eminent Domain -‐ ????? b. Police Powers -‐ regulate society i. A mere decline in value doesn’t mean you get compensated c. Lean – creditor that has legal claim in your property i. For real property, will record a mortgage lean on your deed 1. Bank can force a foreclosure ii. Mechanics lean – can be put on your house by anyone that does work on your real property 1. Will show up on deed 2. If you don’t want to pay them they can force a sale on your house 13.Torts against property a. Trespass i. One of the two principle torts on real property ii. When anyone is on your property without your permission iii. You as the owner of the property have no obligation to protect trespassers of your property in case of damage or injury 1. Exception – Attract Nuisance Doctrine 2. If you have what is deemed to be an attractive nuisance you have a right to protect children even if they are on your property without your permission (ex. Pool, slides) iv. You do have a duty to protect people that you invite over to your property b. Nuisance i. Two of the two principle torts on real property ii. Private Nuisance 1. Anyone inferring with your right to use and enjoy your property 2. Ex. If your neighbor dumps his trash in your back yard iii. Public Nuisance 1. Someone inferring with the publics rights to use public property 2. Ex. Neighbor leave four cars parked on the road blocking people from passing c. Trespass against personal property i. Happens when someone temporarily deprives you of use on your personal property without your permission 1. Ex. If someone came and took my computer and said they need to use my computer for an hour without my permission d. Conversion i. If I deprive you of use of your personal property for a long period of time, and most of the time it comes back damaged ii. Ex. I need your computer for a week and I drop it down a flight of stairs in the process and then give it back to you iii. Most courts do not have a clear distinction between conversion and trespass against personal property, so on exam he will accept either e. Misappropriation i. If someone is using intellectual intangible property without permission ii. Could sue for injunction and damages iii. Used with trademarks, copyrights, etc. 14.Torts against property owners and Premises Liability a. Basically says if you own a business you have a duty/obligation to keep the premises safe for your customers b. If there is a safety hazard you need to warn your customers c. Need to make your premises secure for customers i. Lights in the parking lot, security guards in parking lots d. Businesses do not have to protect trespassers e. Premises Liability i. Businesses have to take steps to protect customers within economical reason, so don’t have to take measure that are worth a fortune ii. Liability insurance is common for businesses to have to protect against any damages Chapter 9 -‐ Intellectual Property 1. Trademarks – any kind of symbol, design, logo/phrase associated with a company and its products through marketing and has become distinctly connected to the company (Ex. Nike Swoosh) -‐ There is a federal act under which you can register and protect your trademark for 10 years -‐ At the end of those 10 years, you can probably get it extended for another 10 years -‐ Want to register your trademark under federal law to protect your product/reputation -‐ Also, want to register it in the event that you want to sue someone for using it because they have it under record protected -‐ If you register it then you can protect it in all other countries applicable o In the European Union, there is an advantage that applies to all of the encompasses countries in EU -‐ Can then give a copy of registration to the US customs so that they can protect it from unauthentic products coming in and out of the country -‐ What’s the easiest way to prove customer confusion of a product in the court of law? o Have someone go to the store where they sell the vacuum cleaner with a swoosh and survey customers on their way out o Is the mis-‐association ruining the reputation of quality of a companies product -‐ Counterfeiting o Anytime you take a copy of the genuine article o Very expensive to US businesses § Lose sales in their product § Lose the reputation of quality o Provides that a private party can have police/sheriff seize the counterfeited products and destroy them § Works well in a warehouse in US § But if it’s in Hong Kong, can take a US order to local courts but they probably will be very reluctant to help you because it creates jobs § Can go into the courts in other country and ask them to issue a search and seizure warrant if their law allows for it, but it may also be met with reluctance and resistance -‐ How protectable are the trademarks? a. Arbitrary & Fanciful i. Arbitrary 1. When no one would associate the logo with a product until marketing associates them 2. Ex. – A Nike swoosh on a vacuum ii. Fanciful b. Suggestive i. Second most protectable ii. When you hear a name and it suggests what products they sell 1. Ex. Chicken of the Sea, Dairy Queen iii. Don’t let everyone use your intellectual property, take reasonable steps to protect it c. Descriptive i. The distinction between suggestive and descriptive is not clear cut, so keep in mind some examples 1. Ex. Raisin Bran, Yellow Pages ii. As long as you can show the public that it is associated with the company, will be protected d. Generic i. Just means that they are common words ii. Ex. Thermos, Nylon, Xerox 1. Even if it isn’t a Thermos-‐brand product, people may still refer to canteens as thermos iii. The risk is that if the name becomes so generic that the public starts associating more things than just to your company then we can’t protect it 2. Trade Names a. A name of the business or company b. There is no federal/state law in the US under which you can register your business name to get it protected c. It is protected under common law (judge-‐made law), where the first user of that name can protect their name against others that want to use it i. Ex. Coca-‐Cola can protect its name under common law 3. Copyrights 4. Patents 5. Trade Secrets a. Anything that you have that is distinctive to your business that is a secret b. Register for those, it is a public file so competitors can come look at it c. The owner has to show that they are treating it as a trade secret i. If it is on a disk or written down somewhere you have to lock it up somewhere and treat it as a secret ii. If you have employees with access to that, they should have signed a disclosure agreement iii. If you leave this company for a period of time you can’t go work for your competitor d. Protective order i. Accusing party can only use trade secret for the defense and for the court and for nothing else so it remains a trade secret e. The government says if someone purposely misappropriates a trade secret, the government can sue them 6. Trade Dress a. Relates to the look, feel, shape, size, color, packaging of your product b. If your trade dress is unique, you can register it and protect it for 10 years i. Has to be inherently distinctive ii. Ex. Owen’s Corning Pink Fiberglass iii. Ex. Scott’s Miracle-‐Gro is packaged in Green and Yellow and is customer recognized, so it is protectable 7. Goodwill a. For test – value associated with having an ongoing profitable business 8. Service Mark a. Trade mark for a company engaged in a service business instead of a product b. Ex. Jiffy Lube 9. Certification Mark a. Certifies the region or country where the product was made b. Some people don’t want to buy products from a specific company for one reason or another c. 10.Other Intellectual Property – assumes you have an existing business that is up and running a. Workforce in place i. Trained workforce ii. If someone wants to start a business to start competing against you, you have an advantage/added value because you already have trained people helping you with the product or service b. Customer list i. Also a value to the business ii. This is an asset to the company of contacts for the people who help keep your company in business c. Favorable contract or lease i. If I have a supply contract where I get supplies for less than fair market price then that’s an advantage
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