Property Law  Intellectual Property  Real Property  Landlord Tenant Law  Personal Property Class 7

Kinds of Property  Real –Freehold or non-freehold  Personal –Tangible –Intangible  Intellectual Property

Intellectual Property  Property that results from the fruits of mental or artistic labor.  Rights and protections for owners of intellectual property are primarily based on federal patent, trademark and copyright laws and federal and state trade secret laws.

Intellectual Property  In general, patents protect inventions of tangible things; copyrights protect various forms of written and artistic expression; and trademarks protect a name or symbol that identifies the source of goods or services.

Patents  A patent is a grant from the federal government that gives an inventor exclusive rights to make, use and sell an invention for 20 years from filing the application.

What Can Be Patented  Mechanical invention  Chemical invention  Process  IF they are –Novel –Nonobvious and –Useful

What do you do if you get a great idea? ww.colitz.com/ind ex.ht ww.colitz.com/ind ex.ht ml

Copyrights  Copyright is a statutory property right which grants to creators certain exclusive rights in their creations for a limited duration – the life of the author plus 70 years, or 95 years from publication, if a corporation.  Once the copyright expires, anyone can use the work for free.

What is the Right?  The right to: –Reproduce the copyrighted work –Make derivative works –Distribute copyrighted works to the public –Publicly perform certain works –Publicly display certain works.

What is Protected?  Only the expression of an idea, not the idea itself, can be copyrighted.  Work must be original and fixed in a durable medium.  Any compilation of facts must be original.  Protection is automatic since 1978

Copyright Infringement  Occurs whenever the form or expression of idea is copied –Fair use exception  Permits a work to be copied or reproduced (in part) for purposes of criticism and comment, nonprofit educational uses, news reporting, scholarship and research, parod.

Magical Copyright  Who has a right to catalog Harry, his pals, spells, potions and magic? –J.K. Rowling vs. RDM and Steve Vander Ark

Fair Use  Courts use 4 factors in resolving fair use disputes –1. The purpose and character of the use (transformative factor) –2. Nature of the copyrighted work –3. Amount and substantiality of the portion taken –4. Effect of the use upon the potential market  Unwritten 5 th factor – Are you a good guy or a bad guy?

Copyrighting Software  1980 Congress passed the Computer Software Copyright Act.  A computer program is considered a “literary work” –A program is a “set of statements or instructions to be used directly or indirectly in a computer in order to bring about a particular result”

Trademarks  A distinctive mark or emblem affixed to a product that easily identifies, or distinguishes, the product or service in the marketplace.

Trade Secrets  This is a formula, device, recipe, method, or compilation of information that, when used in business, gives the owner an advantage over competitors who do not have the secret.

Real Property Real property is “land” and whatever is attached to it (below, on or above it). Real property is “land” and whatever is attached to it (below, on or above it). It is owned by the government (federal, state, local, tribal), by an entity or by an individual. It is owned by the government (federal, state, local, tribal), by an entity or by an individual.

Property Ownership Property ownership can be viewed as a “bundle of rights” that include: Property ownership can be viewed as a “bundle of rights” that include: –Right to possess. –Right to sell. –Right to give. –Right to lease. –Right to destroy.

Ownership Interests Ownership interests are classified as either Possessory or Non-Possessory: Ownership interests are classified as either Possessory or Non-Possessory:  A possessory interest such as a fee simple, life or leasehold estate, gives the owner a right to possess, or exclusively control, the land.  A non-possessory interest – such as an easement, profit or license – does not give the owner a right to possess the land.

Possessory Interests The basic ownership interests – or freehold estates – in real property are: The basic ownership interests – or freehold estates – in real property are: –Fee Simple Absolute –Fee Simple Defeasible (or Conditional) –Life Estate

Kinds of Ownership There are basically two ways property can be owned. There are basically two ways property can be owned. –Entirely –Concurrently  Tenancy in common  Joint tenancy  Tenancy by the entirety  Community property

Community Property Governed by RCW Governed by RCW Property acquired after marriage by either husband or wife or both, is community property. Property acquired after marriage by either husband or wife or both, is community property. Property acquired before marriage or that is received by gift or inheritance is the separate property of the spouse who acquires it. Property acquired before marriage or that is received by gift or inheritance is the separate property of the spouse who acquires it. –Separate property must remain separate to retain its character.

RCW Washington Law permits spouses to jointly agree as to the status of community property. An agreement may do one or more of the following: Washington Law permits spouses to jointly agree as to the status of community property. An agreement may do one or more of the following: –Recognize all property now owned or later acquired of the parties as community property; –Recognize all property owned by either or both spouses at the time of death as community property; –Create a right of survivorship of the property.

Community Property Either spouse, acting alone, may manage and control community property – except neither may Either spouse, acting alone, may manage and control community property – except neither may –Will more than one-half of the community property –Give community property away, without the consent of the other or –Sell or encumber community real property without the other spouse joining in the execution of the documents and the documents must be acknowledged by both spouses.

Future Interests There are two kinds of future interests There are two kinds of future interests –A reversionary interest in which the Grantor retains right to re-possess land when Grantee’s life estate expires. –A remainder interest in which the Grantor assigns/transfers/sells the future interest to a third party, who now has a remainder. When the Grantee dies, his or her interest passes to the third party.

Non-Possessory Interests There are 4 non-possessory interests There are 4 non-possessory interests –Easement - the right of a person to make limited use of real property without taking anything from the property. –Profit - the right to enter land and take away some part of the land itself or some product of the land. –License – the right to temporarily enter land –Mortgage – a security interest in property

Other Limitations Restrictive covenant Restrictive covenant –A restriction on the use of land that is agreed to by the original owners and then becomes a restriction that attaches and follows the title

Transfer of Real Property Real property can be transferred by: Real property can be transferred by: –Sale or Deed –Death of owner –Gift –Seizure by a creditor –Eminent domain –Adverse possession

Deeds A deed is the instrument setting forth the interests in real property being transferred. A deed is the instrument setting forth the interests in real property being transferred. It proves ownership of the property. It proves ownership of the property. Two types: Two types: –Warranty Deed –Quitclaim Deed

Recording Statutes Recording a deed (or any interest in real property) puts the public on notice of the new owner’s interest in the land and prevents the previous owner from fraudulently conveying the same interest to another buyer. Recording a deed (or any interest in real property) puts the public on notice of the new owner’s interest in the land and prevents the previous owner from fraudulently conveying the same interest to another buyer. Washington has a race-notice statute Washington has a race-notice statute –First to file with the county auditor has priority in interest

Sale of Property The sale of real property is governed by a series of contracts The sale of real property is governed by a series of contracts –Listing agreement –Earnest money agreement –Contract for the sale of land  Usually a “mortgage” or installment contract

The Mortgage What is a mortgage? What is a mortgage? Who is the owner of the property? Who is the owner of the property?

Documents/Actions Title search – Abstract and Insurance Title search – Abstract and Insurance –Ensuring the title is “clear” or “marketable” –Finding all encumbrances – liens, easements Closing Closing –Deed  Warranty  Deed of trust  Quitclaim –Closing Statement Recording the deed Recording the deed

Death of Owner Transfer will be by Transfer will be by –Will –Transfer under joint tenancy –Intestate succession

Gifts Real property can be transferred as a gift Real property can be transferred as a gift –Still need deed –Recording of deed

Adverse Possession Ownership interest is established by the use of someone else’s property for a specified number of years. Must be Ownership interest is established by the use of someone else’s property for a specified number of years. Must be –Actual –Open –Adverse to the owner’s interest –Exclusive This can apply to “use” as well (prescriptive easement) This can apply to “use” as well (prescriptive easement)

Eminent Domain The power of the government to take private property for a public purpose – for just compensation. The power of the government to take private property for a public purpose – for just compensation. –Schools –Roads –Airport runways Partial “taking” (by regulation or otherwise) without just compensation is unconstitutional Partial “taking” (by regulation or otherwise) without just compensation is unconstitutional

Landlord & Tenant Law ► Anyone who rents housing to a member of the public is subject to various state and federal Landlord-Tenant laws. ► The owner of the property is the lessor or landlord and the person who rents the property is the lessee or tenant. ► The contract is called the lease.

Washington Law ► RCW title 59 governs landlord and tenant law in Washington  Residential  Commercial

Rental of Real Property ► Lease – a contract in which the owner of property (landlord or lessor) gives someone else (tenant or lessee) the right to use the property for a designated period of time.

Types of Tenancies ► Tenancy for years – establishes a set period during which the tenant will have control. Then the right to possession of the property reverts to the owner. ► Periodic tenancy – created for a set interval of time (week to week, month to month). If neither party terminates at the end of the period, the tenancy continues. ► Tenancy at will – rental to continue for as long as both lessor and tenant agree. ► Tenancy at sufferance – Tenant has no legal right to remain, but is not removed.

Duties of Landlords ► Turn over possession of the premises ► Quiet enjoyment ► Implied warranty of habitability ► Eviction/Unlawful detainer ► Constructive eviction ► Security deposit ► Discrimination laws

Duties of Tenants ► Pay rent ► Properly use premises

Personal Property Personal property is generally any property that is not real property. –Sometimes referred to as chattel. –Includes tangible property (any property that you can put your hands on and move) –Includes intangible property (property that has value but that only is moved or possessed constructively)

Acquiring Ownership Personal property can be acquired through: –Possession –Production –Gift –Will or Inheritance –Accession –Confusion or Commingling

Finders Keepers? Finders Keepers? Depends on whether the goods were –Mislaid – goods voluntary placed by the true owner, then inadvertently forgotten. Finder is a caretaker or bailee for the true owner –Lost – goods accidentally left by the owner. Finder becomes owner; has title against everyone but true owner –Abandoned – goods purposefully discarded by the true owner, with no intention of recovering the property. Finder has title against everyone – including the original owner.

Bailment Formed by the delivery of personal property – without transfer of title – by the owner of property (Bailor) to another (Bailee), usually under an agreement for a particular purpose. The property must be returned by the Bailee to the Bailor, or to a third party, as directed by the Bailor, in the same or better condition.

Ordinary Bailments Three types of ordinary bailments: –For the sole benefit of bailor –For the sole benefit of bailee –For the mutual benefit of both bailor and bailee

Rights & Duties of Bailee Right to possess property temporarily (title does not pass) Right to use bailed property Right of compensation – to be reimbursed for costs and services as provided by contract Right to Limit Liability Duty to return property in same condition to bailor –Otherwise Bailee may liable for conversion or negligence

Rights & Duties of Bailor Right to have property protected Right to have property back at end of bailment – with service or repair done properly Right to not be bound to any limitation on liability unless bailor knows of the limitation Duty to provide safe goods –If a mutual benefit bailment this means free from known or hidden defects –If it is for the sole benefit of bailee, there is a duty to notify of any known defect

Special Types of Bailment Publicly licensed common carriers – those which provide transportation services to general public are held to the highest standard. Common carriers are strictly liable for all damages caused to the property, unless caused by: –Act of God –Act of a public enemy –Order of the public authority. –Act of the shipper –Inherent nature of the goods.

Special Types of Bailment Warehouses: –Owe duty of reasonable care –Cannot exculpate themselves from liability, but can limit liability Innkeepers: –Strict liability imposed, unless modified by statutes Innkeeper can limit liability by providing safe