Real and Personal Property Ownership

• Real property is ownership of land, while personal property includes everything else.

How Property is Acquired

• Property can be acquired through exchange, gifts, or possession.
• Possession includes abandoned, lost or mislaid property, intention matters when differentiating between them.
• Adverse possession is when a trespasser can obtain title to land by meeting specific legal requirements.

Types of Ownership (Title)

• Fee Simple: Absolute ownership of property.
• Life Estate: Ownership of land for the duration of someone's life.
• Leaseholds: The right to possess land, but not to own it, similar to renting.
• Concurrent Estates: Ownership interests held by two or more people.
  • Joint Tenancy: Owners have equal shares of the property.
  • Tenancy in Common: Owners can have different shares of the property.
• Easements: Limited rights to use real property for a specific purpose.
  • Express: Reserved in a deed.
  • Implied: Necessary for access, such as a passage to a road for landlocked land.
  • Prescriptive: Acquired through adverse possession of an easement, like using land for passage over an extended time.

Contract Classification

• Bilateral contracts exchange a promise for a promise, while unilateral contracts exchange a promise for a performance.
• Express contracts are explicitly written, while implied contracts are based on common sense or circumstances.
• Executed contracts are fully performed by all parties, while executory contracts have at least one party yet to complete their obligations.

Elements of a Valid Contract

• Offer: A specific promise or demand
  • An offer terminates when it passes time, or by counteroffer, rejection, death, destruction, or revocation by the offeror.
• Acceptance: Agreement to the terms of the offer.
  • Bilateral contracts are accepted by promise, and unilateral contracts by action.
  • Mirror Image Rule: Acceptance must precisely match the offer's terms.
• Consideration: The receipt of a legal benefit or suffering of a legal detriment by each party.
  • Peppercorn Theory: Courts do not assess the adequacy of consideration in arms-length transactions with parties of capacity.
• Capacity: A person's legal ability to enter into a contract.
  • Lack of capacity can be due to being a minor, incompetence, or intoxication.
  • Agreements made without capacity are voidable.
  • Minors can be bound to contracts for necessities.
• Legality: A contract's purpose must be legal.
• Statute of Frauds: Requires certain contracts to be in writing:
  • Real estate contracts
  • Sale of goods over $500
  • Guaranty agreements (to pay another's debt)
  • Contracts not completed within one year
  • Marital contracts
  • Exceptions include partially performed contracts and contracts for customized goods.
• Improvements to Real Property
• Installment Contracts

Tort Law

• Torts include intentional torts, wantonness/recklessness, and simple negligence.
• It's important to know the differences between these types of torts.

Intentional Torts

• Torts where the person knows that bad events will occur.
  • Assault: Placing someone in fear of immediate harm.
  • Battery: Touching someone without consent.
  • Conversion: Wrongfully exercising control over another's property.
  • Invasion of Privacy: Wrongful use of someone's name, identity, or intrusion into their private life.
  • Trespass: Entering another's land without permission.
  • False Imprisonment: Unjustified confinement of a non-consenting person.
  • Malicious Prosecution: Damages resulting from an unsuccessful criminal proceeding commenced without probable cause.
  • Outrage: Infliction of emotional distress.
  • Defamation: Publishing false statements that cause harm.
  • Fraud: Intentionally misrepresenting a material fact, which is relied upon by someone to their detriment.

Wantonness

• More than negligence, but less than intentional conduct.
• Acting with an awareness that the act poses a risk to the safety of others, but proceeding with reckless indifference.

Negligence

• Carelessly acting, or failing to act, with reasonable care.
  • Duty: A duty of care owed to others.
  • Breach: Failure to meet the duty of care.
  • Causation:
    • Proximate Cause: Responsibility for foreseeable injuries that are the natural consequence of an irresponsible action.
    • Cause-in-Fact: The defendant's actions actually caused the plaintiff's injuries/damages.
  • Damages
• Both proximate cause and cause-in-fact are required to establish causation.
  • Cause-in-fact is when the defendant purposely caused damages knowing the outcome, while proximate cause is where damages were caused, but not fully on purpose.

Defenses to Negligence Claims

• Contributory Negligence (Alabama): If the plaintiff is even slightly negligent and it contributes to the injury, they cannot recover damages.
• Comparative Negligence (Most States): Fault is compared, and damages are awarded based on each party's proportion of fault.
• Assumption of Risk: The plaintiff knew of a risk of damage but acted anyway.
• Open and Obvious Condition: The risk was apparent.
• Failure to Mitigate Damages: Everyone has a duty to limit their damages if possible.

Intellectual Property

• "The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Types of Intellectual Property

• Trade Secrets:
  • Information not publicly known.
  • Has economic value because it is secret.
  • Reasonable efforts are made to keep it secret.
  • There is no time limit if reasonable efforts are maintained.
  • Examples include customer lists, formulas, recipes, and policies/procedures.
• Trademark:
  • Any combination of letters, numbers, words, colors, symbols, etc.
  • Distinct, associating the "mark" with a specific source.
  • Registration with the Patent & Trademark Office (PTO) is beneficial, but not always required.
  • No time limit so long as protected by the owner.
  • Infringement occurs if another's similar mark causes confusion among consumers.
• Copyright:
  • Limited exclusivity of use by the author.
  • Any original and creative work can be copyrighted.
  • Registration with the PTO is beneficial, but not always required.
  • Length/Limitations of Copyright:
    • Lifetime of author + 70 years
    • If owned by a corporation, the shorter of 120 years or date of publication + 95 years.
  • Fair Use Doctrine: A primary defense to copyright/trademark infringement.
    • Nature of Use (Parody, Satire, Commentary, Criticism, Educational, etc.)
    • Amount of work used (Smaller portions = less chance of infringement)
    • For Commercial Gain/Not-for-Profit
    • Does it cause confusion as to creator/author (Is unauthorized use intended to pass off copyrighted material as its own?)
• Patents: A specific legal monopoly in the intangible resource of copying and marketing a new invention.
  • Types of Patents: General, Design, Plant, Pharmaceutical
    • General patents are for anything useful.
    • Pharmaceutical patents are for health-related inventions.
  • Length of Patent Protection: (20 years for general, 14 years for design, 7 years for pharmaceuticals)
  • Requirements for Patent Protection:
    • Novel: The invention is new and different.
    • Non-Obvious: A person having ordinary skill would not be able to solve the problem using existing knowledge.
    • Useful: The invention must serve a purpose.

Business Organizations/Entities

• Considerations include creation, advantages, disadvantages, taxation, personal liability, and continuity.
• Sole Proprietorship:
  • Taxation: Positive
  • Liability: Negative
  • Control: Positive
  • Complexity of Formation: Positive
  • Continuity: Negative
• General Partnership:
  • Taxation: Positive
  • Liability: Negative
  • Control: Percentage based on assets.
  • Complexity of Formation: Positive
  • Continuity: Negative
• Limited Liability Company (LLC):
  • Taxation: Positive
  • Liability: Positive
  • Control: Determined by the operating agreement.
  • Complexity of Formation: Positive
  • Continuity: Positive
• Limited Partnership:
  • Taxation: Positive
  • Liability: Mixed (Positive/Negative depending on partnership type)
  • Control: High
  • Complexity of Formation: Negative
  • Continuity: Mixed (Positive/Negative)
• C-Corp:
  • Taxation: Negative
  • Liability: Positive
  • Control: Positive
  • Complexity of Formation: Negative
  • Continuity: Positive
• S-Corp:
  • Taxation: Positive
  • Liability: Positive
  • Control: Positive
  • Complexity of Formation: Negative
  • Continuity: Positive

Piercing the Corporate Veil

• A court disregards the legal separation between a corporation and its owners/shareholders, holding them personally liable for the corporation's debts or actions, typically when the owners have disregarded their duties or acted fraudulently.
  • Substantially capitalized
  • No co-mingling of funds
  • Brick and mortar
  • Hold regular s/h meetings