Types of PropertyTypes of Property

Real PropertyReal Property LandLand Structures on the landStructures on the land

Personal PropertyPersonal Property Anything elseAnything else

Interests (estates) in Interests (estates) in propertyproperty

Fee simple absoluteFee simple absolute LeaseholdLeasehold

Ways of Holding TitleWays of Holding Title

Single ownershipSingle ownership Joint tenancyJoint tenancy Tenancy by the entiretyTenancy by the entirety Tenancy in commonTenancy in common

Rights of an ownerRights of an owner

Quiet enjoymentQuiet enjoyment Mineral rightsMineral rights Water rightsWater rights

Consensual limitations on Consensual limitations on ownershipownership

EasementsEasements LicensesLicenses Covenants and servitudesCovenants and servitudes

Governmental limitations on Governmental limitations on ownershipownership

ZoningZoning Building codesBuilding codes Environmental restrictionsEnvironmental restrictions

California Coastal CommissionCalifornia Coastal Commission Architectural/archeological reviewArchitectural/archeological review

Eminent Domain Eminent Domain (condemnation)(condemnation)

Constitution: private property may Constitution: private property may not be taken for public use without not be taken for public use without just compensationjust compensation What is a “public use”?What is a “public use”? What is a “taking”What is a “taking”

Real Estate TransactionsReal Estate Transactions

The purchase agreementThe purchase agreement Property documentsProperty documents

DeedDeed Grant deedGrant deed Quitclaim deedQuitclaim deed

Promissory notePromissory note Mortgage/deed of trust (=security for Mortgage/deed of trust (=security for

the note)the note)

Adverse possessionAdverse possession

Possession must bePossession must be ActualActual Hostile to the ownerHostile to the owner Open and notoriousOpen and notorious ExclusiveExclusive Continuous (for a specified period)Continuous (for a specified period)

Ways to pass property at Ways to pass property at deathdeath

Through the probate systemThrough the probate system By willBy will By intestate successionBy intestate succession By testamentary trustBy testamentary trust

Outside the probate systemOutside the probate system By living (inter vivos) trustBy living (inter vivos) trust By other nonprobate transfersBy other nonprobate transfers

Wills terminologyWills terminology

Testator: the person who makes a willTestator: the person who makes a will Intestate: a person who has no willIntestate: a person who has no will Bequeath: give personal property by willBequeath: give personal property by will Devise: give real property by willDevise: give real property by will Legatee: someone who receives property Legatee: someone who receives property

by will (informally called an by will (informally called an heirheir)) Heir (at law): someone who receives Heir (at law): someone who receives

property by intestate successionproperty by intestate succession

Execution of willsExecution of wills

Must be done by a competent testatorMust be done by a competent testator Must be in writingMust be in writing Must be signed by the testatorMust be signed by the testator Must be signed by two witnesses (who Must be signed by two witnesses (who

see the testator sign or acknowledge see the testator sign or acknowledge the will)the will)

[codicils—amendments to a will—must [codicils—amendments to a will—must also follow these rules]also follow these rules]

Limitations on will-makingLimitations on will-making

Spousal protection Spousal protection Statutory (elective) shareStatutory (elective) share Community propertyCommunity property

Protection of childrenProtection of children None—can be disinheritedNone—can be disinherited

The Probate ProcessThe Probate Process

Managed by an executor, under Managed by an executor, under supervision of a probate courtsupervision of a probate court

PurposesPurposes To “prove” a willTo “prove” a will Then—to pay debts to creditorsThen—to pay debts to creditors Then—to distribute assetsThen—to distribute assets

Costs: probate takes time and moneyCosts: probate takes time and money

Intestate successionIntestate succession

Applies to all assets that are not Applies to all assets that are not distributed by a will (or a will substitute)distributed by a will (or a will substitute)

Managed by an administrator, under court Managed by an administrator, under court supervisionsupervision

Distributes assets to Distributes assets to heirs at lawheirs at law, in the , in the way specified by state statutesway specified by state statutes Usually, assets are distributed to the spouse, Usually, assets are distributed to the spouse,

and sometimes also to children and parentsand sometimes also to children and parents If heirs are too remote, the estate If heirs are too remote, the estate escheatsescheats to to

the statethe state

Trust terminologyTrust terminology

Settlor (grantor/trustor)Settlor (grantor/trustor) The person who transfers assets to the trustee in trustThe person who transfers assets to the trustee in trust

Trustee Trustee The person who receives the assets and becomes the The person who receives the assets and becomes the

legal ownerlegal owner owes a fiduciary duty to the beneficiariesowes a fiduciary duty to the beneficiaries

CorpusCorpus The trust propertyThe trust property

Beneficiary (cestui que trust)Beneficiary (cestui que trust) The equitable or beneficial owner; the person who The equitable or beneficial owner; the person who

receives the benefits of the trust (usually income, but receives the benefits of the trust (usually income, but sometimes also part of the principal)sometimes also part of the principal)

Some advantages of trustsSome advantages of trusts

Settlor can control assetsSettlor can control assets Settlor is no longer the legal owner of the assetsSettlor is no longer the legal owner of the assets Professional management of corpusProfessional management of corpus Trusts are not public documentsTrusts are not public documents Trusts can be established with few formalitiesTrusts can be established with few formalities Some trusts avoid probateSome trusts avoid probate Some trusts reduce income taxes (by shifting Some trusts reduce income taxes (by shifting

income)income) Some trusts reduce estate taxesSome trusts reduce estate taxes

Testamentary trustsTestamentary trusts

Created by willCreated by will Go into effect on death of settlorGo into effect on death of settlor Go through probateGo through probate Closely supervised by courtsClosely supervised by courts

Inter vivos trustsInter vivos trusts

Created by oral or written declarationCreated by oral or written declaration Go into effect immediatelyGo into effect immediately Avoid probateAvoid probate Settlor can be the trustee (and a Settlor can be the trustee (and a

beneficiary)beneficiary) Can be made revocableCan be made revocable Often used as a substitute for a willOften used as a substitute for a will

Other nonprobate transfersOther nonprobate transfers

Joint tenancyJoint tenancy Tenancy by the entiretyTenancy by the entirety Gifts made during lifeGifts made during life Payable-on-death provisionsPayable-on-death provisions Life insuranceLife insurance

Federal Estate TaxFederal Estate Tax

Currently an individual can pass $2 Currently an individual can pass $2 million to heirs without paying estate million to heirs without paying estate taxtax

A married couple can effectively pass A married couple can effectively pass $4 million at death without estate tax $4 million at death without estate tax if they use a bypass trustif they use a bypass trust

People can also make gifts of up to People can also make gifts of up to $12,000 a year without incurring $12,000 a year without incurring estate tax liabilityestate tax liability

Copyright--generalCopyright--general

Protects “original works of authorship”Protects “original works of authorship” They must be “fixed in a tangible They must be “fixed in a tangible

medium of expression”medium of expression” Copyright notice not essentialCopyright notice not essential Registration is advisable and is required Registration is advisable and is required

to file suit for infringementto file suit for infringement Copyright lasts from time of creation to Copyright lasts from time of creation to

70 years after death of author; no 70 years after death of author; no renewalrenewal

Copyright: fair useCopyright: fair use

A very flexible exception to copyrightA very flexible exception to copyright Examples: criticism, comment, news Examples: criticism, comment, news

reporting, teaching, scholarshipreporting, teaching, scholarship Factors:Factors:

Purpose and character of use (commercial?)Purpose and character of use (commercial?) Nature of copyrighted workNature of copyrighted work Amount used in relation to totality of the Amount used in relation to totality of the

workwork Effect of use on the marketEffect of use on the market

Copyright infringementCopyright infringement

Usually proven by “substantial Usually proven by “substantial similarity”similarity”

Need not be intentional (“My sweet Need not be intentional (“My sweet lord”)lord”)

Copyright owner can recover Copyright owner can recover damages damages

Injunction also usually availableInjunction also usually available

Patent LawPatent Law

To be patentable, an invention must beTo be patentable, an invention must be NovelNovel UsefulUseful Non-obviousNon-obvious

Registration is requiredRegistration is required Registration affords an exclusive right to Registration affords an exclusive right to

make, sell, or use the invention (no make, sell, or use the invention (no extensions are allowed)extensions are allowed)

After 20 years, the invention enters the After 20 years, the invention enters the public domainpublic domain

What is a trademark?What is a trademark?

A distinctive word, name, symbol, or A distinctive word, name, symbol, or device, or a combination thereofdevice, or a combination thereof

It must identify the origin of goodsIt must identify the origin of goods Degrees of distinctivenessDegrees of distinctiveness

Coined (xerox)Coined (xerox) Fanciful or arbitrary (Apple computers)Fanciful or arbitrary (Apple computers) Suggestive (Ivory soap)Suggestive (Ivory soap) Descriptive (Animal Crackers)Descriptive (Animal Crackers)

Need “secondary meaning” to be protectedNeed “secondary meaning” to be protected Generic (“apples”)Generic (“apples”)

not protectablenot protectable

Trademarks: registrationTrademarks: registration

Owner can apply to US Trademark OfficeOwner can apply to US Trademark Office Will be registered ifWill be registered if

Is in actual useIs in actual use Meets requirements for a trademarkMeets requirements for a trademark Does not closely resemble a prior markDoes not closely resemble a prior mark

Registration is not essential, butRegistration is not essential, but Provides prima facie evidence of validityProvides prima facie evidence of validity After 5 years of use, makes mark incontestableAfter 5 years of use, makes mark incontestable

Trademarks: infringementTrademarks: infringement

A trademark is infringed if use of a A trademark is infringed if use of a competing mark creates a “likelihood competing mark creates a “likelihood of confusion” among consumersof confusion” among consumers

Damages are availableDamages are available Injunctions are also availableInjunctions are also available