1. Types of Property Real Property Real Property Land Land Structures on the land Structures on the land Personal Property Personal Property Anything else Anything else

2. Interests (estates) in property Fee simple absolute Fee simple absolute Leasehold Leasehold

3. Ways of Holding Title Single ownership Single ownership Joint tenancy Joint tenancy Tenancy by the entirety Tenancy by the entirety Tenancy in common Tenancy in common

4. Rights of an owner Quiet enjoyment Quiet enjoyment Mineral rights Mineral rights Water rights Water rights

5. Consensual limitations on ownership Easements Easements Licenses Licenses Covenants and servitudes Covenants and servitudes

6. Governmental limitations on ownership Zoning Zoning Building codes Building codes Environmental restrictions Environmental restrictions California Coastal Commission California Coastal Commission Architectural/archeological review Architectural/archeological review

7. Eminent Domain (condemnation) Constitution: private property may not be taken for public use without just compensation Constitution: private property may not be taken for public use without just compensation What is a “public use”? What is a “public use”? What is a “taking” What is a “taking”

8. Real Estate Transactions The purchase agreement The purchase agreement Property documents Property documents Deed Deed Grant deed Grant deed Quitclaim deed Quitclaim deed Promissory note Promissory note Mortgage/deed of trust (=security for the note) Mortgage/deed of trust (=security for the note)

9. Adverse possession Possession must be Possession must be Actual Actual Hostile to the owner Hostile to the owner Open and notorious Open and notorious Exclusive Exclusive Continuous (for a specified period) Continuous (for a specified period)

10. Ways to pass property at death Through the probate system Through the probate system By will By will By intestate succession By intestate succession By testamentary trust By testamentary trust Outside the probate system Outside the probate system By living (inter vivos) trust By living (inter vivos) trust By other nonprobate transfers By other nonprobate transfers

11. Wills terminology Testator: the person who makes a will Testator: the person who makes a will Intestate: a person who has no will Intestate: a person who has no will Bequeath: give personal property by will Bequeath: give personal property by will Devise: give real property by will Devise: give real property by will Legatee: someone who receives property by will (informally called an heir) Legatee: someone who receives property by will (informally called an heir) Heir (at law): someone who receives property by intestate succession Heir (at law): someone who receives property by intestate succession

12. Execution of wills Must be done by a competent testator Must be done by a competent testator Must be in writing Must be in writing Must be signed by the testator Must be signed by the testator Must be signed by two witnesses (who see the testator sign or acknowledge the will) Must be signed by two witnesses (who see the testator sign or acknowledge the will) [codicils—amendments to a will—must also follow these rules]

13. Limitations on will-making Spousal protection Spousal protection Statutory (elective) share Statutory (elective) share Community property Community property Protection of children Protection of children None—can be disinherited None—can be disinherited

14. The Probate Process Managed by an executor, under supervision of a probate court Managed by an executor, under supervision of a probate court Purposes Purposes To “prove” a will To “prove” a will Then—to pay debts to creditors Then—to pay debts to creditors Then—to distribute assets Then—to distribute assets Costs: probate takes time and money Costs: probate takes time and money

15. Intestate succession Applies to all assets that are not distributed by a will (or a will substitute) Applies to all assets that are not distributed by a will (or a will substitute) Managed by an administrator, under court supervision Managed by an administrator, under court supervision Distributes assets to heirs at law, in the way specified by state statutes Distributes assets to heirs at law, in the way specified by state statutes Usually, assets are distributed to the spouse, and sometimes also to children and parents Usually, assets are distributed to the spouse, and sometimes also to children and parents If heirs are too remote, the estate escheats to the state If heirs are too remote, the estate escheats to the state

16. Trust terminology Settlor (grantor/trustor) Settlor (grantor/trustor) The person who transfers assets to the trustee in trust The person who transfers assets to the trustee in trust Trustee Trustee The person who receives the assets and becomes the legal owner The person who receives the assets and becomes the legal owner owes a fiduciary duty to the beneficiaries owes a fiduciary duty to the beneficiaries Corpus Corpus The trust property The trust property Beneficiary (cestui que trust) Beneficiary (cestui que trust) The equitable or beneficial owner; the person who receives the benefits of the trust (usually income, but sometimes also part of the principal) The equitable or beneficial owner; the person who receives the benefits of the trust (usually income, but sometimes also part of the principal)

17. Some advantages of trusts Settlor can control assets Settlor can control assets Settlor is no longer the legal owner of the assets Settlor is no longer the legal owner of the assets Professional management of corpus Professional management of corpus Trusts are not public documents Trusts are not public documents Trusts can be established with few formalities Trusts can be established with few formalities Some trusts avoid probate Some trusts avoid probate Some trusts reduce income taxes (by shifting income) Some trusts reduce income taxes (by shifting income) Some trusts reduce estate taxes Some trusts reduce estate taxes

18. Testamentary trusts Created by will Created by will Go into effect on death of settlor Go into effect on death of settlor Go through probate Go through probate Closely supervised by courts Closely supervised by courts

19. Inter vivos trusts Created by oral or written declaration Created by oral or written declaration Go into effect immediately Go into effect immediately Avoid probate Avoid probate Settlor can be the trustee (and a beneficiary) Settlor can be the trustee (and a beneficiary) Can be made revocable Can be made revocable Often used as a substitute for a will Often used as a substitute for a will

20. Other nonprobate transfers Joint tenancy Joint tenancy Tenancy by the entirety Tenancy by the entirety Gifts made during life Gifts made during life Payable-on-death provisions Payable-on-death provisions Life insurance Life insurance

21. Federal Estate Tax Currently an individual can pass $2 million to heirs without paying estate tax Currently an individual can pass $2 million to heirs without paying estate tax A married couple can effectively pass $4 million at death without estate tax if they use a bypass trust A married couple can effectively pass $4 million at death without estate tax if they use a bypass trust People can also make gifts of up to $12,000 a year without incurring estate tax liability People can also make gifts of up to $12,000 a year without incurring estate tax liability

22. Copyright--general Protects “original works of authorship” Protects “original works of authorship” They must be “fixed in a tangible medium of expression” They must be “fixed in a tangible medium of expression” Copyright notice not essential Copyright notice not essential Registration is advisable and is required to file suit for infringement Registration is advisable and is required to file suit for infringement Copyright lasts from time of creation to 70 years after death of author; no renewal Copyright lasts from time of creation to 70 years after death of author; no renewal

23. Copyright: fair use A very flexible exception to copyright A very flexible exception to copyright Examples: criticism, comment, news reporting, teaching, scholarship Examples: criticism, comment, news reporting, teaching, scholarship Factors: Factors: Purpose and character of use (commercial?) Purpose and character of use (commercial?) Nature of copyrighted work Nature of copyrighted work Amount used in relation to totality of the work Amount used in relation to totality of the work Effect of use on the market Effect of use on the market

24. Copyright infringement Usually proven by “substantial similarity” Usually proven by “substantial similarity” Need not be intentional (“My sweet lord”) Need not be intentional (“My sweet lord”) Copyright owner can recover damages Copyright owner can recover damages Injunction also usually available Injunction also usually available

25. Patent Law To be patentable, an invention must be To be patentable, an invention must be Novel Novel Useful Useful Non-obvious Non-obvious Registration is required Registration is required Registration affords an exclusive right to make, sell, or use the invention (no extensions are allowed) Registration affords an exclusive right to make, sell, or use the invention (no extensions are allowed) After 20 years, the invention enters the public domain After 20 years, the invention enters the public domain

26. What is a trademark? A distinctive word, name, symbol, or device, or a combination thereof A distinctive word, name, symbol, or device, or a combination thereof It must identify the origin of goods It must identify the origin of goods Degrees of distinctiveness Degrees 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 protected Need “secondary meaning” to be protected Generic (“apples”) Generic (“apples”) not protectable not protectable

27. Trademarks: registration Owner can apply to US Trademark Office Owner can apply to US Trademark Office Will be registered if Will be registered if Is in actual use Is in actual use Meets requirements for a trademark Meets requirements for a trademark Does not closely resemble a prior mark Does not closely resemble a prior mark Registration is not essential, but Registration is not essential, but Provides prima facie evidence of validity Provides prima facie evidence of validity After 5 years of use, makes mark incontestable After 5 years of use, makes mark incontestable

28. Trademarks: infringement A trademark is infringed if use of a competing mark creates a “likelihood of confusion” among consumers A trademark is infringed if use of a competing mark creates a “likelihood of confusion” among consumers Damages are available Damages are available Injunctions are also available Injunctions are also available