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109 Cards in this Set
- Front
- Back
What is property |
A bundle of rights in something |
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Different type of things |
Pen/Chattel (legal term)- Personal Property or personalty-Tangible Items. Land- Real Property or Realty Work of authorship- Intellectual Property |
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Real Property (Land) is movable or immovable |
immovable |
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Personal Property (Chattel) movable or immovable |
movable |
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Right of Alienation |
a) disposal b) transfer |
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Piersonv. Post |
Possession yielded ownership. Whoever possess the animal has property rights. Mere pursuit, no matter how long, is not enough. |
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Captured property |
No original owner |
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Possession |
1) a physical act of control over the object; 2) the intent to control the object, or the intent to exclude possession of the object by others. |
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Popovv. Hayashi MLB Case |
Rule: Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. |
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When do you use Captured Property Rule? |
Use rules of Capture when minerals (coal, gas) are involved. |
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Elements of found property
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1) A found item may have a prior true owner, whose rights must be considered and protected 2) The item may have been found on privately owned land, the landowner must be considered as a prior possessor.
3) The status or conduct of the finder may affect whether the court will reward the finder with superior legal right to the found item. |
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Ganterv. Kapiloff (Stamps) |
Rule:The finder of lost property, while not acquiring an absolute ownership in it,does hold the property against everyone except the rightful owner. |
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Benjamin v. Linder Aviation, Inc. (Found money in airplane wing) |
Rule:The finder of mislaid property acquires no rights to the property. The right of possession of mislaid property belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner. |
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Categories of Found Property (Common Law) 4 Categories |
Mislaid Property Lost Property Abandoned Treasure Trove |
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Mislaid Property |
Property assumed to have been intentionally placed by the chattel's true owner in a specific location. The owner forgets where the item was placed after a while.The superior rights goes to the owner of the premises against everyone, except the true owner. |
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Lost Property |
Owner loses possession inadvertently or unconsciously. Finder has rights over property against everyone except the true owner. Courts usually find for the owner of the land in mislaid property and for the finder in lost property. |
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Abandoned |
Property is abandoned when the owner no longer wants to possess it. Finder is who the property belongs to against everyone, even the former owner. The finder gets ownership. |
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Treasure Trove |
Consists of coin or currency concealed by the owner. Older currency and coins where the original owner is likely dead or undiscoverable. Courts have largely abandoned this for other categories. |
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Two types of transfer |
Inter vivos Mortis causa |
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Inter vivos |
1) Gift 2) Sale 3) Involuntary |
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Mortis causa |
Gift causa mortis Intestate- Heirs Testamentary - If there is a will, saying where the property goes |
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Elements of a valid gift |
1) Donor must have the requisite donative intent to make the gift 2) Must physically manifest this donative intent by the act of delivery of the gift; and 3) Acceptance by the donee. |
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Donative Intent is an intent by the donor to make a |
1) Present (not in the future or at donor's death); and 2) Irrevocable (can't take it back) transfer of the gifted property. Can't have a present intent for a future interest. Ie. 20 years from now, you can own this property. |
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Deliveryelement for Common Law |
Manual delivery of the gifted property |
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Delivery element for Modern Law |
Modern law has two types of delivery, 1) Constructive and 2) Symbolic |
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Constructive Delivery |
Donorprovides the donee with the sole means of access to the gifted item |
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Symbolic Delivery |
Whenthe donee receives a document or other item that is symbolic of the gifteditem. Owns item although person has not accepted the gift. |
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Howdo courts decide whether it is a Constructive or Symbolic deliver? |
Whetherthe donor has relinquished dominion and control over the gifted property |
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Whyis delivery required? |
1) To avoid mistakes by donors and fraudulent claims by donee. 2) Make donor realize what they are doing by giving up the |
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Gruenv. Gruen (Picture Case) |
Rule:There must be intent on the part of the donor to make a present transfer eitheractual or constructive; and acceptance by the donee. Second, the receiver ofthe gift has the burden of proving each element by clear and convincingevidence. Rule for intent: whether the maker intendedthe gift to have no effect until after the maker's death, or whether heintended it to transfer some present interest. Delivery rule: Delivery byphysical delivery, constructive, or symbolic. |
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ConditionalGifts |
Whenthe donor transfers property to a donee, but with an express or impliedcondition attached that must be satisfied before the donee will own theproperty transferred. |
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IndirectDelivery through Agents |
1) When gifted property is transferred to an agent of the donee, this will satisfy the delivery requirement. 2) When gifted property is transferred to an agent of the donor, this will NOT satisfy the delivery requirement. |
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IndirectDelivery through Safe-DepositBoxes |
Ifthere are two keys, the donor may change their mind and take the contents outbefore the donee gets a chance to use their key, thus exercising control of theproperty. If the donee gets to the box first and exercises control of theproperty, they are the owners of the property. |
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GiftCausa Mortis |
A gift that is made in contemplation of impending death. Gift Causa Mortis is revocable. Must die for this to actually happen. Have to die as anticipated. Can't go through surgery, and then get hit by a bus. Gift is revocable. |
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Bailor |
Rightfulowner of the property |
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Bailee |
Holdsfor a certain purpose with the understanding that when that purpose isaccomplished, the property is to be returned to the bailor. |
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Bailment |
Therightful possession of personal property by one who is not the true owner. Createdfor a specific purpose. Once purpose is accomplished, bailment ends. |
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Createa bailment |
Mustbe a delivery of physical control of the chattel to the bailee and an intent onthe part of the bailee to exercise it. |
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GratuitousBailee |
Afinder who must exercise care while possessing lost or mislaid chattels thatlater may be claimed by the true owner. |
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Peetv. Roth Hotel Co. (Lost ring) |
Rule:Thebailee has the burden of proving the loss was not a result of their negligence. |
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Bailmentvs. Leases |
A) Bailment setting- bailor parts with none of his property rightsin the chattel i) a bailee does not hold legal title to the bailed property B) Lease arrangment- Lesee obtains an ownership or propertyinterest in the leased chattel. |
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Typeof negligence for traditional Bailee-Bailor relationships under common law |
A) Benefit the Bailor- Gross negligence (low standard of care, onlyliable if displayed gross negligence) ie, leaving car in the garage of afriend.
B) Mutual Benefit- ordinary care (negligence) C) Benefit Bailee- slight negligence. Ie, borrowing the lawnmower,bailor isn't getting anything out of it. (High standard of care, slight negligence) D) If lost or stolen, we put it under a negligence standard. |
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Typeof care for traditional Bailee-Bailor relationships under modern law |
A) Ordinary standard of care and negligence is across the board. |
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Negligencevs. Strict Liability |
1) When bailed chattels are stolen by third parties, lost, damagedor destroyed, the bailee is liable only if she has been negligent. 2) Under strict liability standard, whether or not the bailee actedreasonably under the circumstances is deemed irrelevant. Ie, if you give yourcar to a valet and they give the car to the wrong person, they will be strictlyliability. |
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InvoluntaryBailees |
Characterize a bailment-like situation. |
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Allenv. Hyatt Regency-Nashville Hotel (Stolen Car from parking garage) |
Rule:A bailment for hire was created in this case and when there was non-deliverythe Appellee (Plaintiff) was entitled to the presumption of negligence providedby statute. |
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ExculpatoryAgreement- A limitation of responsibility of a bailee. |
1) Courts often invalidate such waivers where bailors were unaware of their contents. 2) A strong tendency to hold contracts of this type against public policy when entered into by bailees in the course of dealing with the general public. |
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Titleto Property |
Whena person is the legal owner of property |
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Chainof Title |
Propertytransferred via a series of legal owners |
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Colorof title |
Possessionis based on a written document or instrument that appears to grant a validtitle, but does not. Something is not write with the written instrument. |
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Bonafide Purchaser |
Buyerpurchased the property in good faith and without notice of a competing claim ofsuperior ownership to the property. |
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PropertyRule |
Entitlethe claimant to an injunction. Rights associated with the property may only be transferred voluntarily. |
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LiabilityRule |
Entitlethe claimant to damages. Owner may be forced involuntarily to transfer rightsassociated with the property. Owner must receive compensation for transfer ofproperty rights. |
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Deed |
Writteninstrument of transfer of an ownership interest. For every transfer, there is aseparate deed prepared. |
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AdversePossession |
Legalized thievery. A trespasser may obtaintitle to land owned by another in the unlawful possession goes on continuouslyfor the period of time by the jurisdiction's statute of limitation. Thetrespasser becomes the recognized owner. |
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Elementsof (adverse possession) trespasser's unlawful possession |
1) actual 2) open and notorious 3) exclusive4) hostile, and 5) continuous. |
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Continuous |
Apattern of occupation like that of the true owner. For most properties, usuallyit is someone living in the occupation. |
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Actual |
Actlike the true owner by physical entry onto the land. Goes beyond use and enters possession. Did you build a structure? Did you put up a fence? Did you changethe land? Did you mow the grass? Putting things on the land |
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Openand notorious |
Possessionsufficient puts true owner on notice. Other people start thinking the adverse possessor is the owner of the property. |
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Exclusive |
Possessionexclusive of owners and other strangers. Courts will usually look at what atrue owner would do on the property. A stranger building a fire and gettingkicked off, would show the adverse possessor has exclusive use of the land. |
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Hostile |
Possessionwithout permission of the true owner |
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Doctrineof Repose |
Aftera certain amount of time, people will leave property line alone because someonemade a mistake a while ago and nobody has ever complained. |
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Chaplinv. Sanders (Driveway strip) |
New rule forhostility/claim of right- requires claimant treat the land as his own asagainst the world. The nature of possession will be determined on the basis ofhis manner he treats the property. Non-permissive of the owner. Open and Notoriouselement- satisfied if the title holder has actual notice of the adverse usethroughout the statutory period. If owner has actual knowledge of the possession, requirement has been satisfied.Also, use and occupancy of this element need only be of the character that atrue owner would assert in view of its nature and location |
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bad faith or "Claim of Right" |
Theadverse possessor intentionally must actto possess the property even though she knows that she does own it. |
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Goodfaith or "did not know" |
Mistakenbelief that she is the owner. |
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FairdealingApostolic Church, Inc. v. Casinger (Church parking lot case) |
Exclusivepossession- claimant holds land for claimant and not for another. Satisfied ifothers do not jointly possess or use the land. Church members built a fence.Nobody else used the land. ContinuousPossession- Periods of adverse possession may tack onto predecessors to reach 10 year requirement. Churchreceived possession by the unincorporated church since 1936 and the new churchhad privity with old church. |
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Tackingconcept |
Privitymay be established or created by conveyance, agreement, or understanding whichin fact transfers possession. |
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InchoateInterest |
Thepossession has not materialized yet. The previous ownership transferred fromone dissessor to another disseissor |
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InverseTacking |
Allowsthe adverse possessor to continue to run the statute of limitation againstsuccessive record owners who are in privity with each other. |
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Actualand Continuous Possession |
Whatis actual depends upon how a reasonable owner normally uses land in thevicinity where the land is located. |
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Exclusivity |
Shareduse will not necessarily defeat her claim, but if the shared use is with theproperty true owner, the court will look to see if the shared use was no morethan would be normal under circumstances for one who was an owner. |
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Openand Notorious |
Ensuresa reasonable landowner will be put on notice that something is amiss concerningthe title to the land. A form of Due Process. |
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Colorof Title |
Acquiretitle by physically using or occupying less than the entire property. The AP gets the piece of property they haveAdversely Possessed. The scope is limited to what is possessed by looking atthe elements. |
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ConstructivePossession |
Whenthe AP has the Color of Title (a deed or title they didn't know was fake) andhave AP the land, the AP gets title to the whole. |
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Tolling |
Preventsthe clock from running against the record owner. Here are the reasons the clockmay stop running: Infancy, Military Service, incarceration, mentally ill. |
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Can you claim adverse possession against the government? Yes/No |
No |
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Adverse Possession of Chattels |
Get property back from the person that Adverse Possession. Time does not start once the property is adversely possessed because personal property is easy to hard. Not always Open and Notorious. The owner had to be looking for the chattel by taking reasonable steps, but cannot find the chattel. |
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DiscoveryRule (for Chattels) |
Whenyou figure out who has the chattel, that's when the clock starts against thechattel owner. O'Keefe Rule. |
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Nuisance |
Interferencegenerally thought of non-tresspassory. Doing something on a different piece ofland and is interfering with your enjoinment of your property. Unreasonable activity |
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Ifthe nuisance was there for, the new people moving to the nuisance are barredfrom bringing an action. True/False |
True |
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PrivateNuisance (limited owner of landowners) v.
Public Nuisance (Large Propertyaffecting the community at large). |
Traditionallyyou can get monetary damages or an injunction for a private nuisance. |
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Water Types |
Riparian-waterway Surface-run-off Groundwater/Percolating |
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Riparian-Waterway |
Streams, rivers, or lakes that is on the land or borders theland. Typically above ground, but alsoapplies to under ground. The piece of land that water is touching. |
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Two legal standard for Riparian |
1) Riparian Rights. Reasonable useReplaces the Natural Flow doctrine. Use cannot unreasonably affect the downstream quality. There will be priority of use. Natural flow- Upstream owner could not alter the water in quantity or quality. 2) PriorAppropriation- Whoever makes the first beneficial may continue their right tocontinue doing so. The person does not have to own the land, but they cannottrespass. |
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Surface-run-off |
Itrains, there is a bunch of rain, has to go someplace. |
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ThreeDoctrines that may apply for Surface run-off |
1) Common Enemy- Surface water is the common enemy of everybody. You can do whatever you want with the water, as long as it is not malicious. You have to do whatever you have to do to survive. 2) Civil Law Rule- Use in commonwealth countries. You can't do anything to the water. If you alter the water in any way from the water's natural state and it harms your neighbor, then the neighbor can sue you. 3) Reasonable Use- Is what you did reasonable? Did you retain water? |
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Groundwater/Percolating |
Waterthat is moving through sub straight. Comes from a porous sub straight. Theremight be a rock that is porous and has water. Typically when talking aboutwells, they are talking about groundwater. |
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Rules for Groundwater/Percolating |
1) English Rule/Common Law Rule- You own whatever you can bring up. If you drop a well, whatever you can bring up, you own. Use is not restricted. You may bottle it and sell it elsewhere. Can't use it maliciously to ensure nobody else uses the well. If someone dries up the well, tough luck. As long as it wasn't done maliciously. 2) Reasonable Use/American Rule(Majority Rule)- What you can bring up and use is limited to what is reasonable use on the land where the water was drawn. Can't use the water off the land. Courts look at what you are doing with the water. 3) Correlative Rights- You cannot take more of your share. |
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Support |
If there is a slope, and the owner does something to alter the slope by excavating the land, they are taking awaysupport |
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Lateral Support |
Anowner owes an absolute duty not toremove lateral support for his contiguous (share a common border)neighbors land as that land exists in its natural condition. Which means, ifsomething happens and you removed support, you are strictly liable. Do not haveto provide support. If you take out "contiguous and "exists in itsnatural condition" then this would be a negligence standard. Will apply tosubsequent owners as well. |
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Subjacent(below) (support) |
Anowner has an absolute duty not to remove subjacent support for his contiguousneighbor's land. |
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Nonfugitive(hard) (Minerals) |
Coal,other types of rock. Stuff that has value and doesn't move unless there is anearthquake. |
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Fugitive (Minerals) |
Canmove. Ie. Oil, natural gasses. |
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Fugitive non-ownership |
surface owner does not own the oil or gas but they have the right to extract it, and they own it as soon as they capture it. Gives an incentive to not let something sit and use it. |
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Fugitive Ownership |
Ownership in place- you own the oil or other fugitives on your land, but if someone else brings it up first, they own it. You pay taxes on the fugitive. |
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Air |
Limitedto what you would reasonably use. Has to be close enough where it has an effecton you. |
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Adcoelum |
to the heavens |
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Adinfernum |
under |
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Intestacy |
Transferof property without a will. |
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Heirs |
Peoplewho take property |
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Testamentary (Intestacy) |
Thereis a will and describes how the property will transfer at death. |
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Peoplewho take property (under testamentary) |
devisees |
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Per stirpes |
Bythe Root. |
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perstirpes distribution |
Agroup represents a deceased ancestor. The group takes the proportional share towhich the deceased ancestor would have been entitled if still living. |
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PerCapita |
For each head. |
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percapita distribution |
an equal share of an estate is given to eachheir, all of whom stand in equal degree of relationship from a decedent. |
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Picture of consanguinity |
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WillsRequire |
awriting, a signing, and a witness. |
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Characteristics of a Will |
Wills are effective at death. Fully revocable before death. Testator's, physical destruction revokes the will. Do not know who the heirs are until the person dies. |