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

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

3. 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.

4. Intellectual Property  Protected by laws governing: –Trademarks –Patents –Copyright –Trade Secrets  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.

5. 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.

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

9. Patent Infringement  Use of a patent owner’s patented design, product or process without the owner’s permission  User may be sued for damages in a an action based on the tort of patent infringement.

10. 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.

11. What is the Right?  It is really a bundle of rights, including the right to: –Reproduce the copyrighted work –Make derivative works –Distribute copyrighted works to the public –Publicly perform certain works –Publicly display certain works.

12. 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

13. Copyright Infringement  Occurs whenever the form or expression of idea is copied

14. Fair Use Exception  Permits a work to be copied or reproduced (in part) for purposes of education, news reporting, scholarship or research.

15. 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”

16. Trademarks  A distinctive mark or emblem affixed to a product that easily identifies, or distinguishes, the product or service in the marketplace. –Protected by federal laws, if registered with the U.S. Patent Trademark Office (www.uspto.gov) www.uspto.gov –Mark can be registered if:  In current use or applicant intends to put it into use within 6 months.

17. 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.

18. 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.

19. Nature of Real Property Real property is immovable and includes: Real property is immovable and includes: –Land –Buildings –Trees and vegetation –Airspace –Subsurface (mineral) rights –Fixtures

20. Fixtures A fixture is personal property that becomes permanently affixed to real property. A fixture is personal property that becomes permanently affixed to real property. –There must be intent that it become a fixture. –Intent is determined by:  The fact that the property cannot be removed without causing damage to the realty.  The fact that the personal property is so adapted to the realty that it has become part of the realty.

21. 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.

22. 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.

23. 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

24. Fee Simple Absolute Although not really absolute, the fee simple absolute gives the owner the greatest aggregation of rights, powers and privileges possible under American law and can assigned to heirs. Although not really absolute, the fee simple absolute gives the owner the greatest aggregation of rights, powers and privileges possible under American law and can assigned to heirs. A “conveyance” (transfer of real estate) “from A to B” creates a fee simple. A is the grantor and B is the grantee. A “conveyance” (transfer of real estate) “from A to B” creates a fee simple. A is the grantor and B is the grantee.

25. Life Estates A conditional right to possess real property. The right lasts for the life of some specified individual. (“A grants Blackacre to B for B’s life” grants B a life estate in Blackacre.) A conditional right to possess real property. The right lasts for the life of some specified individual. (“A grants Blackacre to B for B’s life” grants B a life estate in Blackacre.) –Grantor A retains a “future interest” in the property until it is returned. –During B’s life, B can possess, use, and take the fruits of the estate, but not take from the property itself.

26. 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

27. Concurrent Ownership This is ownership that is shared between two or more persons. There are four forms of this concurrent joint ownership of property. This is ownership that is shared between two or more persons. There are four forms of this concurrent joint ownership of property. Three of them are recognized under Washington law. Three of them are recognized under Washington law.

28. Tenancy in Common Under this form of ownership, two or more persons own undivided interests in the whole property. Under this form of ownership, two or more persons own undivided interests in the whole property. When one of the owners dies, his interest passes to his heirs. When one of the owners dies, his interest passes to his heirs. The owners can transfer their ownership interests (by gift, sale, etc.) to others. The owners can transfer their ownership interests (by gift, sale, etc.) to others.

29. Joint Tenancy Under this form of ownership, two or more persons own undivided interests in the whole property. Under this form of ownership, two or more persons own undivided interests in the whole property. When one of the owners dies, her interest passes to the surviving owners. When one of the owners dies, her interest passes to the surviving owners. –This form of ownership is often called a joint tenancy with right of survivorship. If an owner transfers her ownership interest to another, the joint tenancy ends and a tenancy in common is created. If an owner transfers her ownership interest to another, the joint tenancy ends and a tenancy in common is created.

30. Marital Property Tenancy by the Entirety (fairly limited and not a form of property in Washington) Tenancy by the Entirety (fairly limited and not a form of property in Washington) –This is ownership by a husband and wife. –Neither spouse may transfer the interest during his or her life. Community Property (Washington is one of 10 states to have community property) Community Property (Washington is one of 10 states to have community property) – Spouses have an undivided one-half interest in all property acquired by during their marriage.

31. Community Property Governed by RCW 26.16.030 Governed by RCW 26.16.030 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.

32. RCW 26.16.120 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.

33. 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.

34. 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.

35. 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

36. Creation Easements or profits can be created by: Easements or profits can be created by: –Deed –Will –Contract between Grantor and Grantee –Implication: circumstances surrounding creation of easement imply its creation –Necessity –Prescription: easement by adverse possession

37. Termination of Easement Termination of an easement or profit is only by Termination of an easement or profit is only by –Deed back to the owner of the land –Owner of easement or profit acquires the land burdened with the easement or profit –Abandonment by the owner of the easement or profit right

38. 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

39. 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

40. 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.

41. Types of Deeds Warranty Deed Warranty Deed Quitclaim Deed Quitclaim Deed

42. 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

43. 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

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

45. 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

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

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

48. 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)

49. 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

50. 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.

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

52. 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.

53. 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.

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

55. Duties of Tenants ► Pay rent ► Properly use premises

56. 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)

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

58. Gifts This is a voluntary transfer of ownership where no consideration is given. There must be –Donative intent –Delivery –Acceptance

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

60. Bailment A bailment is 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.

61. Elements of a Bailment Applies only to personal property Must be delivery –Bailee must be given exclusive control or possession May be actual or constructive –Bailee must knowingly accept and intend to exercise control over the property. Must be a bailment agreement. –May be express or implied

62. Ordinary Bailments Three types of ordinary bailments: –For the sole benefit of bailor A gratuitous bailment Bailee owes bailor a low duty of care and is liable only for gross negligence –For the sole benefit of bailee Bailee owes bailor a high duty of care and is liable for even slight negligence –Mutual benefit of both bailor and bailee Most common form of bailment Each party owes the other a reasonable duty of care

63. 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

64. 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

65. 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.

66. 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