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Legal Survey Vocab 4
Legal Survey vocab for paralegal test 4: property, estate, family, bus. org.
| Question | Answer |
|---|---|
| Property | A tangible object or a right or ownership interest |
| Real Property/ Real Estate | Land and items growing on or permanently attached to that land |
| Personal Property/Chattel | All property that is not real property |
| Tangible | Property that can be touched & moved |
| Intangible | Property that cannot be touched |
| Intellectual property | Intangible assets that are the product of someone’s intellectual creation |
| Trademarks | Terms,names,logos that identify particular products or services |
| Service marks | Symbols used in connection with service-oriented businesses |
| Copyrights | Give authors, etc. right to control their creations |
| Patent | Gives owner the right to exclude others from making, using, or selling invention |
| Estate (property law) | An interest in or a title to real property |
| Freehold estate | Right of title to real property that extends for life or some other indeterminate period of time. 3 types: fee simple absolute, condition fee, life estate |
| Leasehold estate | Gives a person “ownership rights” for a limited period of time, but the title to the property remains in the hands of the owner. 4 types: tenancy for a term, periodic tenancy, tenancy at will, tenancy at sufferance |
| Fee Simple Absolute estate | Ownership free from any condition or restriction |
| Conditional fee estate | Current owner retains ownership only as long as certain conditions are met, if conditions are not met, ownership reverts to the previous owner (the grantor) through reversion; or is given to a third-party = remainder |
| Life estate | Gives life tenant ownership that lasts only as long as that person, or some other named individual, lives. After that, it reverts to original owner. |
| Per Autre Vie | Deed to a person as long as a third person is alive |
| Joint tenancy | Ownership by 2 or more persons who have equal rights in the use of that property. When a joint tenant dies, that person’s share passes to the other joint tenant(s) |
| Tenancy in Common | Ownership by 2 or more people. Ownership shares do not have to be equal, but each has an undivided interest in the property. When a tenant in common dies, that person’s share passes either by will or by intestate statute |
| Tenancy by the entirety | A special type of joint tenancy applicable only to married couples. Neither the wife or husband can transfer the property without the others consent |
| Joint tenancy with a right of survivorship | Joint tenancy |
| Restrictive covenant | A provision in a deed that prohibits specified uses of the property |
| Easement | A right to use property owned by another for a limited purpose |
| Easement in gross | Not located next to your property |
| Easement appurtenant | Next to your land |
| Lease | An agreement in which the property owner gives someone else the right to use that property for a designated period of time |
| Lessor | Landlord |
| Lessee | Tenant |
| Leasehold | A parcel of real estate held under a lease |
| Tenancy for a term | Aka Estate for years, lease establishes a set period of time |
| Periodic tenancy | Rental periods are established at set intervals (week to week, year to year,etc) |
| Tenancy at will | Lease that has no specific time period |
| Tenancy at sufferance | A situation in which ther person in possession of the land has no legal right to be there |
| Forcible entry and detainer, or unlawful detainer | Eviction procedures (in some states) |
| Summary eviction | NC now has this form - supposed to by quicker, cheaper |
| Partial eviction | Example: road built through the land |
| Constructive eviction | Effectively evicted because property is unfit to live in |
| Retaliatory eviction | Illegal; e.g. landlord evicts you for your complaint to the health dept. about poor conditions |
| 6 means of transferring real property | 1. sale, 2. death, 3. gift, 4. seizure by creditor, 5. eminent domain, 6. adverse possession |
| Listing agreement | A document that spells out the nature of the services a real estate agent will perform with respect to selling real property and how the agent will be compensated for those services |
| Earnest money | The money the buyer turns over to the real estate agent to be applied to the purchase price of property |
| Title search | An examination of documents recording title to the property to ensure the owner has a clear title |
| Clear title | Aka marketable title, an ownership right that is free from encumbrances or other defects |
| Abstract | A condensed history of the title, which includes the chain of ownership and a record of all liens, taxes, or other encumbrances that may impair the title. |
| Title insurance | Insurance against any loss due to a defective title |
| Mechanic’s lien | Claim by a contractor or repair person who had done work on the house for which he has not been fully paid |
| Encumbrance | Lien or other type of security interest that signifies that some other party has a legitimate claim to the property as a means of satisfying debts or the current owner |
| Real estate closing | Meeting at which the buyer and the seller and/or their rep. sign and deliver a variety of legal documents |
| Deed | The legal document that formally conveys title to the property to the new owner |
| Warranty deed | A deed in which the seller promises clear title to the property. |
| Special Warranty deed | Grantor didn’t do anything to cloud title, but can’t be sure of previous owners |
| Quitclaim deed | A deed in which the grantor gives up any claims to the property without making any assertions about there being a clear title |
| Closing statement | An itemized allocation of all the costs and moneys exchanged among the various parties, including financial institutions and real estate brokers, when a property is sold |
| Land contract | An installment contract for the sale of land. Buyer takes physical possession and begins making monthly payments to the seller, which will be applied to the agreed-on sale price. If buyer defaults, the seller gets to keep title to the property & payments. |
| Decedent | A person who died |
| Devise | A gift of real estate that is given to someone through a will |
| Foreclosure | The process by which a creditor who holds a mortgage or some other form of a lien on real property can force the sale of that property in order to satisfy the debt to the mortgage or lien holder |
| Power of sale clause | A clause authorizing a private foreclosure sale that does not require court action |
| Eminent domain | The power of government to take private property for public purposes |
| Just compensation | The amount of money the gov’t must pay the owner of property it seizes through eminent domain |
| Adverse possession | A transfer of real property rights that occurs after someone other than the owner has had actual, open, and exclusive use of the property for a statutorily determined number of years |
| Bailment | A temporary transfer of personal property to someone other than the owner for a specified purpose (take clothes to the dry cleaner) |
| Bailor | The owner of the personal property that is being temporarily transferred as part of a bailment |
| Bailee | The party taking temporary control of the personal property during a bailment |
| Accession | One way of acquiring ownership of personal property- something added to an existing item you own |
| Commingling | Fungible - goods that are not unique (barrel of wheat) |
| Confusion | Goods get not only commingled, but mixed into something new |
| Mislaid | You put it down & forgot it - other than original owner, the best right of possession is the owner of the place you left it |
| Lost | Item separated from you without you knowing it - other than original owner, the best right of possession is the finder |
| Abandoned | Willingly relinquish your ownership - finder becomes new rightful owner |
| Estray statute | If LOST property goes unclaimed for a year, then the finder becomes the rightful owner |
| Escheat statute | Applies to banks, insurance companies, corporations, etc. - property not claimed goes to the state |
| Treasure trove | Special case - property was not lost, mislaid, abandoned; nonetheless, the rightful owner no longer known - property rights go to the finder (even if on someone else’s land) |
| Estate (estate planning) | The total property of whatever kind, both real and personal, that a erson owns at the time of his or her death |
| Will | The document used to express a person’s wishes as to how his or her property should be distributed upon death; not a contract - no consideration; not a gift - no delivery by the giver |
| Testate | When a person dies with a valid will |
| Intestate | When a person dies without a valid will |
| Testator/testatrix | The person making a will to direct how his or her assets will be distributed at death |
| Formal will | A will that has been prepared on a word processor or typewriter and has been properly signed by the testator & witnesses |
| Holographic will | Informal will; one that was handwritten by the testator, without the witnesses signatures necessary for a formal will. About ½ the states recognize such wills as valid |
| Nuncupative will | An oral will. The few states that recognize these as valid only do so when the testator was in fear of imminent death and usually require at least two witnesses |
| Bequest/legacy | A gift of personal property in a will |
| Beneficiary | The person named in a will, insurance policy, or trust who receives a benefit |
| Executor/executrix | A person appointed by the testator to carry out the directions and requests in his or her will |
| Guardian | One who is given the responsibility of managing the affairs or property of a person who is incapable of administering his or her own affairs |
| Simultaneous death clause | Clause stating that if a person named as beneficiary in the will dies shortly after decedent, it's assumed for purposes of the will that the person failed to survive the decedent; often inserted for tax purposes so estate taxes aren’t paid twice |
| Self-proving clause | A notarized affidavit, signed by the attesting witnesses, that may eliminate the need to call witnesses during the probate process to attest to the validity of the will. |
| Codicil | A supplement or addition to a will that modifies, explains, or adds to its provisions. (Alternatively, the testator can destroy the old will and draft a new one.) |
| Living will | AKA medical directive; a document expressing a person’s wishes regarding the withholding or withdrawal of life-support equipment and other heroic measures to sustain life if the individual has an incurable or irreversible condition that will cause death |
| Durable Power of Attorney | Someone appointed to do something on your behalf even after (or upon) you lose your mental capacity |
| Probate | The process of court supervision over the distribution of a deceased person’s property |
| Executor | Person appointed in the will to carry out the directions and requests of the will |
| Administrator/administratrix | Person appointed by the court to carry out the directions & requests of a will |
| Heir | Generic term for someone entitled to inherit property left by the decedent |
| Kindred | Persons related to the decedent by blood (consanguinity) |
| Affinity | Persons related to the decedent by marriage |
| Lineal heir | Grandparent, parent, child, grandchild, or great grandchild of the decedent |
| Descendants | Aka issue, those lineal heirs who descend from the decedent |
| Collateral heir | One who has the same ancestors but does not descend from the decedent (siblings) |
| Per stirpes | Aka right of representation; a method of dividing an intestate estate whereby a person takes in place of the dead ancestor. (if a parent is dead, the children inherit the dead parent’s share); alternative method is per capita |
| Escheat | A reversion of property to the state when there are no heirs |
| Testamentary capacity | The mental capacity (aka sound mind) whereby the testator understands the nature of his/her property and the identity of those most closely related to him/her |
| Trust | A legal relationship in which one party holds property for the benefit of another. Not a public document (as opposed to a will) |
| Donor | Aka grantor or settler; a person who creates a trust |
| Rule against perpetuities | Ownership must vest withing lives in being + 20 years + gestation period (9 months). If it doesn’t have end, trust is invalid from the beginning |
| Trustee | The person appointed to administer a trust |
| Inter vivos trust | One that is created before a person’s death |
| Living trust | A commonly used type of inter vivos trust specifically designed to avoid probate. |
| Causa mortis gift | Conditional gift subject to a condition that the giver die from condition he expected to die from (different from a gift in a will) |
| Revocable trust | The donor can change the beneficiaries and terms at any time and take back full ownership and control of the property |
| Irrevocable trust | The terms of the trust cannot be changed and the donor cannot regain ownership or control of the property |
| Testamentary trust | A trust created by a will. It does not become effective until after the testator’s death. |
| Corpus | The property of the trust |
| Express trust | Usually written trust (rarely oral) |
| Implied Trust | |
| Charitable Trust | |
| Spendthrift Trust | Beneficiary has no right to sell trust interests (prevents problems when beneficiary is irresponsible) |
| Totten Trust | Grantor puts money in separate account in their name for the benefit of a trustee. It can be revoked at any time. |
| Tontine Trust | Group of people all put money in - it stays until last of them die & that person’s child(ren) get all the money |
| Sole proprietorship | One owner, single taxation, unlimited liability |
| Partnership | Two+ owners, single taxation, unlimited liability |
| Corporation | One or more owners, double taxation, limited to capital contribution |
| Subchapter C corporation | |
| Subchapter S corporation | |
| Limited liability company | One or more owners, single taxation, limited to capital contribution |
| Limited partnership | A partnership of at least one general partner and one or more limited partners. The limited partners’ liability is limited to their investments so long as they do not participate in management decisions |
| Uniform Partnership Act (UPA) | Known as a gap filler, the UPA comes into play only if terms are left out of a partnership agreement |
| Partnership by estoppel | A partnership created by the words or actions of persons acting as though they were a partnership |
| Dividend | A distribution of the corporate profit as ordered by the directors |
| Articles of incorporation | Primary document needed to form a corporation |
| Registered agent | The person designated to receive service of legal documents for a corporation |
| Shareholders | Persons who hold shares of stock. They elect board of directors. |
| Board of Directors | Responsible for the management of the corporation |
| Fiduciary | A relationship in which a person in a position of trust is responsible for acting in the best interests of another party |
| Closely held corporations | Relatively small operations in which one person or the members of one family own all the stock |
| Foreign corporation | When a corporation incorporated in one state does business in another state |
| Domestic corporation | When a corporation does business in the same state it’s incorporated in |
| Alien corporation | A corporation formed in another country |
| Domestication | Foreign & alien corporations must file for this in order to do business in a state |
| Public corporation | Widely held - public shareholders |
| Private corporation | Small number of shareholders |
| Closely Held (or Close) corporation | Small number of shareholders (often family) |
| Piercing the corporate veil | When a court sets aside the liability protection normally given to corporate shareholders |
| Limited liability company (LLC) | A new form of business ownership that gives small businesses the advantage of liability limited to the amount of the owner’s investment along with single taxation |
| Limited liability partnership (LLP) | |
| Commercial paper | Refers to a variety of instruments (written documents) used for making payments |
| Secured transaction | Whenever a supplier or creditor asks for a guarantee of repayment in the form of collateral |
| Note | A promise to pay money involving two parties, maker & payee; maker signs the instrument promising to pay money to the payee |
| Co-makers | Of a note…both are liable |
| Guarantor | Person who signs on the back of a note. Secondarily liable if maker(s) default. |
| Draft | Three-party instrument in which the drawer orders the drawee (if bank it’s a check, if else it could be money order) to pay money to the payee; it is an order to pay |
| Check | A specialized form of a draft in which a bank depositor names a specific payee to whom funds are to be paid from the drawer’s account; it is an order to pay |
| Cashier’s check | Drawer & drawee are same bank |
| Teller’s check | Drawn by a bank on another bank |
| Certified check | Check accepted for payment by a bank (bank promises to cash it) |
| Bearer paper | Instrument will have written on its front a statement that it is payable to cash or payable to the bearer, or it will have a signature on the back, causing it to be indorsed in blank |
| Indorsement in blank, blank endorsement | When an indorser simply signs his or her name and does not specify to whom the instrument is payable - it becomes bearer paper |
| Special endorsement | When an indorser writes “pay to Person C” on the back. Person B is still responsible |
| Qualified endorsement | When an indorser writes “pay to Person C without recourse” on the back. Person B is not responsible if it bounces |
| Order paper | States on its face “pay to the order of” a specific payee and has not been indorsed in lank on its back |
| Negotiable instrument | Commercial paper that can be transferred by endorsement or delivery. Must meet the requirements of UCC s 3-104 to be negotiable. If it does not, a transferee cannot become a holder but only gets the rights along with the liabilities of a contract assignee |
| UCC requirements for negotiable instrument | 1. in writing, 2. signed by the maker or drawer, 3. an unconditional promise or order to pay, 4. state a specific sum of money, 5. payable on demand or at a definite time, and 6. payable to order or to bearer |
| Holder | If bearer paper - a person becomes holder by proper delivery; if order paper, by proper delivery AND it must have all necessary indorsements |
| Holder in due course | A holder who has not only the right to enforce the agreement but also to be exempt from some of the defenses that could have been asserted against the original payee. |
| Shelter principle | One can buy the rights of a negotiable instrument free of personal defenses |
| Personal defense to neg. instrument | Breach of warranty, unauthorized completion (filling out the check w/out approval) |
| Universal defense to neg. instrument | Even HDC not protected - bankruptcy, alteration, forgery |
| UCC requirements for holder in due course | 1. who gives value, 2. in good faith, and 3. without notice that the instrument is overdue or has been dishonored or has any claims against it or defenses to it |
| Attached security interest (attachment) | 1. creditor must either possess the collateral or have a signed security agreement, 2. the creditor must have given something of value, and 3. the debtor must have rights in the collateral |
| Perfected security interest (perfection) | 1. possessing the collateral, or 2. filing a financing statement, or 3. giving money to purchase consumer goods |
| Purchase money security interest PMSI | Special type of perfected security interest in which a seller gives credit to a debtor so that the debtor can purchase a particular item |
| Buyer in the ordinary course of business | Rule protecting the ordinary buyer. (If you buy a tv from Sears & Sears defaults on a debt incurred in purchasing tv inventory. The creditor can’t seize your tv.) |
| Order of priorities among creditors & buyers | 1. buyers in the ordinary course of business, 2. perfected purchase money security interests, 3. perfected security interests, 4. lien creditors, 5. unperfected security interests, 6. general creditors |
| Floating lien | A security interest can be retained in collateral even when the collateral changes in character or location |
| Agent | Someone who has the power to act in the place of another |
| Principal | A person who permits or directs another person to act on the his/her behalf |
| Fiduciary duty | A legally imposed obligation to act in the best interest of the party to whom the duty is owed |
| Equal dignity rule | If the thing you want your agent to do must be in writing, then the agency relationship must be created in writing |
| Actual authority | Can be express or implied |
| Apparent authority | 3rd party believes that the person is an agent of someone |
| Alternate ways agency relationships can be created | 1. estoppel - if principal holds you out as an agent & a 3rd party relies on that, 2. by order of law “agent for service of process” - if agent dies - someone is appointed to take place, 3. by emergency |
| Agents duties to Principal | 1. performance, 2. notification, 3. loyalty, 4. obedience, 5. accounting |
| Principals duties to Agent | 1. compensation (usually), 2. reimbursement & indemnification, 3. cooperation, 4. safe working conditions |
| Fully disclosed agency | Identity of agent & principal known; if breach of contract, principal is liable, not agent |
| Partially disclosed agency | Identity of principal unknown; if breach of contract, both are liable |
| Undisclosed agency | Not aware you’re dealing with an agency relationship; if breach of contract, agent is liable, principal can be held liable if identity discovered |
| Respondeat superior | “let the master answer”, tort theory that an employer can be sued for the negligent acts of its employees |
| Title VII | Part of the Civil Rights Act of 1964 dealing with employment. Also established EEOC. |
| Protected categories under Title VII | Race, color, religion, sex, and national origin |
| 3 theories of discrimination | Overt, disparate treatment, disparate impact |
| Overt discrimination | Where the employer openly refuses to treat all applicants or employees equally |
| Bona fide occupational qualification | A defense to an overt discrimination claim, alleging that the qualification is necessary to the essence of the business operation |
| Disparate treatment | The legal theory applied when a rejected applicant claims the reason for rejection was based on a discriminatory intent but the employer alleges a nondiscriminatory reason |
| Disparate impact | The legal theory applied when the use of a neutral standard has a disproportionate impact on one protected group |
| Burden of production | The necessity to produce some evidence, but it need not be so strong as to convince the trier of fact of its truth. |
| Burden of proof | The necessity of proving the truth of the matter asserted |
| Quid pro quo sexual harassment | Involving an exchange of sexual favors for employment benefits |
| Intimidating, hostile, or offensive work environment | A reasonable person would find it to be hostile or abusive |
| Affirmative action | Allows an employer to use race or gender as a “plus factor” when choosing between two equally qualified applicants |
| ADEA | Age Discrimination in Employment Act (1967) - Protected class age 40+ |
| ADA | Americans with Disabilities Act (1990) |
| Disability | A physical or mental impairment that substantially limits a major life activity |
| Qualified individual with a disability | An impaired individual who can perform the essential job functions |
| Reasonable accommodation | Special provisions for a disable employee that do not create an undue hardship for the employer |
| Family law | The area of the law that covers marriage, divorce, and parent-child relationships |
| Solemnized marriage | A marriage in which the couple has obtained the proper marriage license from a local government official and has then taken marriage vows before either a recognized member of the clergy or a judge and a designated number of witnesses. |
| Common-law marriage | A marriage that has not been solemnized but in which the couple has mutually agreed to enter into a relationship in which they accept all the duties and responsibilities that correspond to those of marriage |
| Forced share | Each of the married partners is given a statutory right to inherit from the other, even if the other spouse seeks to prevent it |
| Prenuptial agreement (aka antenuptial agreement) | A document that prospective spouses sign prior to marriage regarding financial and other arrangements should the marriage end |
| Anti-heart-balm statute | A law that prohibits lawsuits for such things as breach of a promise to marriage, alienation of affection, and seduction of a person over the legal age of consent |
| Annulment | A legal (or religious) judgment that a valid marriage never existed. Because a legal marriage never existed, normally there are no continuing matrimonial obligations, such as a duty to pay support or attorney’s fees. |
| Divorce (aka dissolution) | A legal judgment that dissolves a marriage. Does not erase the existence of the marital relationship. |
| Voidable marriage | A marriage that was valid when it was entered into and that remains valid until either party obtains a court order dissolving it |
| Void marriage | A marriage that is invalid from its inception and that does not require court action for the parties to be free of any marital obligations |
| Fraud | A false representation of facts or intentional perversion of the truth to induce someone to take some action or give up something of value |
| No-fault divorce | A form of divorce that allows a couple to end their marital relationship without having to assess blame for the breakup. |
| Temporary restraining order (TRO) | Sometimes also called a protection order,A court order of limited duration designed to maintain the status quo pending further court action at a later date |
| Protection order | A court order issued in domestic violence and abuse cases to keep one spouse away from the other, the children, or the home |
| Settlement agreement | A document that contains the arrangements agreed on by the parties to a dispute |
| Marital property | Property that is subject to court distribution upon termination of the marriage |
| Alimony (aka maintenance or support) | Financial support and other forms of assistance required to supply the “necessities” of life; in NC: alimony terminated by remarriage or cohabitation of the dependent spouse, or by the death of either spouse |
| Community property states | States that classify all property acquired by either the husband or the wife during the marriage, with the exception of gifts or inheritance, as marital property to be equally distributed between the spouses at the time of the divorce. |
| Doctrine of equitable distribution | A system for distributing property acquired during a marriage on the basis of such factors as the contributions of the souses, the length of the marriage, the age and health of the souses, and their ability to make a living |
| Physical custody | The child lives with and has day-to-day activities supervised by the designated parent or guardian |
| Legal custody | The designated parent or guardian has authority to make legal decisions for the child relating to such matters as health care and education |
| Sole custody | One parent has both physical and legal custody of the child |
| Joint legal custody | Both parents have an equal say in making major decisions |
| Split custody | Example: one parent has both physical and legal custody for the school year, then the other parent has it for the summer. |
| Split or divided custody | Can refer to rare situation when one parent has one+ child & the other parent has one+ child |
| Guardian ad litem | Court appointed person, usually an attorney or social worker, who speaks for the interests of the child |
| Visitation | Court determines the extent to which the noncustodial parent can visit the child |
| Child support | Money that the noncustodial parent contributes to assist the custodial parent in paying for a child’s food, shelter, clothing, medical care, and education |
| Garnishment | A process through which a court can require an employer to withhold money from an employee’s wages and turn this money over to the party to whom a debt is owed |
| Extradition | The transportation of an individual from one state to another so that person can be tried on criminal charges |
| Agency adoption | An adoption in which a licensed agency assumes responsibility for screening adoptive parents and matching them with available children |
| Independent adoption | An adoption that involves a private agreement between the birth parents and the adoptive parents |
| Surrogacy contract | A document in which a woman agrees to conceive and give birth to a child, deliver the child to its natural father, and terminate her parental rights so the father’s wife can become its adoptive mother |
| Child neglect | The negligent failure to provide a child with the necessaries of life |
| Child abuse | Intentional harm to a child’s physical or mental well-being |
| Clear and convincing | An evidentiary standard that requires more than a preponderance of the evidence but less than beyond a reasonable doubt |
| Emancipated minor | Someone who is still under the legal age of adulthood but who has nevertheless been released from parental authority and given the legal rights of an adult |
| NC divorce | A year separation or incurable insanity; for NC jurisdiction - at least one spouse must live in the state for 6 months |
| NC division of property | Equitable distribution or agreement of the parties (separation agreement) |
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Paralegal
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