PROMISE A written or oral declaration given in exchange for something of value that binds the maker to do, or forbear from, a certain specific act and gives to the person to who m the declaration is made the right to expect and enforce performance or forbear ance. An undertaking that something will or will not occur. It is a manifestation of intent to act, or refrain from acting, in a certain manner. In the law of COMMERCIAL PAPER, an undertak- ing to pay. It must be more than an acknowledg- ment of an obligation. The person who makes the declaration is the promisor. The person to whom the declaration is made is called the promisee. In contracts, a promise is essential to a binding legal agreement and is given in exchange for consideration, which is the inducement to enter into a promise. A promise is illusory when the promisor does not bind herself to do anything and, therefore, furnishes no consideration for a valid contract. A promise implied in fact is a tacit promise that can be inferred from expressions or acts of the promisor. A promise implied by law can arise when no express declaration is made, but the party, in EQUITY and justice, is under a legal duty as if he had in fact actually made a promise. PROMISSORY ESTOPPEL In the law of contracts, the doctrine that provides that if a party changes his or her position substantially either by acting or forbearing from acting in reliance upon a gratuitous promise, then that party can enforce the promise although the essential elements of a contract are not present. Certain elements must be established to invoke promissory estoppel. A promisor—one who makes a promise—makes an unambiguous promise that he should reasonably have expected to induce action or forbearance of a definite and substantial character on the part of the promisee—one to whom a promise has been made. The promisee justifiably relies on the promise. A substantial detriment—that is, an economic loss—ensues to the promisee from action or forbearance. Injustice can be avoided only by enforcing the promise. A sample petition for a writ of prohibition. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Petition for a Writ of Prohibition STATE OF MINNESOTA IN COURT OF APPEALS CASE TITLE: NOITIBIHORP FO TIRW ROF NOITITEP Petitioner, TRIAL COURT CASE NUMBER: vs. APPELLATE COURT CASE NUMBER: Respondent. TO: The Court of Appeals of the State of Minnesota: The petitioner (name) requests a writ of prohibition restraining the ______________________ County District Court from enforcing its order of (date). 1. Statement of facts necessary to an understanding of the issues presented. 2. Statement of the issues. 3. Argument and statement of the reasons extraordinary relief necessary. WHEREFORE, the petitioner requests an order granting the petition for a writ of prohibition and the issuance of the writ. DATED: NAME, ADDRESS, ZIP CODE, TELEPHONE NUMBER, AND ATTORNEY REGISTRATION LICENSE NUMBER OF ATTORNEY(S) FOR PETITIONER ___________________________________ SIGNATURE Appendix (The content requirements of the petition for extraordinary relief are found in RCAP 120. A memorandum of law and pertinent lower court documents should be attached to the petition. The submission of the petition and time to respond are detailed in RCAP 120.02 and the requirements for filing, form and the number of copies are contained in RCAP 120.04.) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 158 PROMISE A majority of courts apply the doctrine to any situation in which all of these elem ents are present. A minority, however, still restrict its applicability to one or more specific situations from which the doctrine emanated, such as when a donor promises to transfer real property as a gift, and the donee spends money on the property in reliance on the promise. With respect to the measure of recovery, it would be unfair to award the PLAINTIFF the benefit of the bargain, as in the case of an express contract, since there is no bargain. In a majority of cases, however, injustice is avoided by awarding the plaintiff an amount consistent with the value of the promise. Other cases avoid injustice by awarding the plaintiff only an amount necessary to compensate him or her for the economic detriment actually suffered. PROMISSORY NOTE A written, signed, unconditional promise to pay a certain amount of money on demand at a specified time. A written promise to pay money that is often used as a means to borrow funds or take out a loan. The individual who promises to pay is the maker, and the person to whom payment is promised is called the payee or holder. If signed by the maker, a promissory note is a negotiable instrument. It contains an unconditional prom- ise to pay a certain sum to the order of a specifically named person or to bearer —that is, to any individual presenting the note. A promissory note can be either payable on demand or at a specific time. Certain types of promissory notes, such as corporate bonds or retail installment loans, can be sold at a discount—an amount below their face value. The notes can be subsequently redeemed on the date of maturity for the entire face amount or prior to the due date for an amount less than the face value. The purchaser of a discounted promissory note often receives interest in addition to the appreciated difference in the price when the note is held to maturity. PROMOTER A person who devises a plan for a business venture; one who takes the preliminary steps necessary for the formation of a corporation. Promoters are the people, who, for them- selves or on behalf of others, organize a corporation. They issue a prospectus, obtain stock subscriptions, and secure a charter. Promoters stand in a fiduciary relationship to the proposed company and must act in GOOD FAITH in all their dealings for the proposed corporation. PROMULGATE To officially announce, to publish, to make known to the public; to formally announce a statute or a decision by a court. PROOF The establishment of a fact by the use of evidence. Anything that can make a person believe that a fact or proposition is true or false. It is distinguishable from evidence in that proof is a broad term comprehending everything that may be adduced at a trial, whereas evidence is a narrow term describing cert ain types of proof that can be admitted at trial. The phrase burden of proof includes two distinct concepts: the BURDEN OF PERSUASION and the BURDEN OF GOING FORWARD. The burden of persuasion is the duty of a party to convince the trier of fact of all the elements of a CAUSE OF ACTION . The burden of going forward refers to the need of a party to refute evidence intro- duced at trial that damages or discredits his or her position in the action. The burden of persuasion remains with the PLAINTIFF or PROSE- CUTOR throughout the action, whereas the burden of going forward can shift between the parties during the trial. In a CIVIL ACTION, the requisite degree of proof is a preponderance of the evidence. The plaintiff must show that, more probably than not, the DEFENDANT violated his or her rights. In a CRIMINAL ACTION, the prosecutor has the burden of establishing guilt BEYOND A REASONABLE DOUBT. In some LEGAL PROCEEDINGS, an interm ediate standard of proof is used. Known as “clear and convincing” proof, the party with the burden of persuasion mu st convince the trier of fact that it highly probably or reasonably certain that all of the elements have been established. CLEAR AND CONVINCING PROOF is often required in adminis- trative proceedings. CROSS REFERENCE Preponderance of Evidenc e. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROOF 159 PROPER Fit; correct; reasonably sufficient. That which is well adapted or appropriate. Proper care is the degree of care a reason- able, prudent person would use under similar circumstances. A proper party is an individual who has an interest in the litigation. He or she can be joined—that is, brought into the action—but his or her nonjoinder will not result in a dismissal. A substantial judicial decree can still be rendered in the absence of a proper party. A proper party is distinguishable from a necessary party in that the latter must be joined in order to give complete relief to the litigants. CROSS REFERENCE Joinder. PROPERTY LAW There are two types of property: real property and personal property. Most of the legal concepts and rules associated with both types of property are derived from English common law. Modern law has incorporated many of these concepts and rules into statutes, which define the types and rights of ownership in real and personal property. PERSONAL PROPERTY, also referred to as mov- able property, is anything other than la nd that can be the subject of ownership, including stocks, money, notes, PATENTS, and copyrights, as well as intangible property. Real property is land and ordinarily anything erected on, growing on, or affixed to it, including buildings and crops. The term is also used to declare any rights that issue from the ownership of land. The terms real estate and real property generally refer to land. The term land, in its general usage, includes not only the face of the earth but everything of a permanent nature over or under it, including minerals, oil, and gases. In modern usage, the word premises has come to mean the land itself or the land with all structures attached. Residential bui ldings and yards are commonly referred to as premises. The difference between real property and personal property is ordinarily easily recogniz- able. The character of the property, however, can be altered. Property that is initially person al in nature becomes part of realty by being annexed to it, such as when rails are made into a fence on land. In certain cases, however, the intention or agreement of the parties determines whether property that is annexed retains its character as personal property. A LANDLORD AND TENANT The items in this home that can be taken up and moved are personal property; the house, its fixtures, and the land on which it is situated are real property. JOHN HENLEY/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 160 PROPER might agree that the new lighting fixture the tenant attaches to the ceiling of her dwelling remains the tenant’s property after the expira- tion of the lease. Property may be further classified as either private or public. Pri vate property is that which belongs to one or more persons. Public property is owned by a country, state, or political subdivision, such as a MUNICIPAL CORPORATION or a school district. Personal Property Personal property can be divided into two major categories: tangible and intangible. Tan- gible property includes such items as animals, merchandise, and jewelry. Intangible property includes such entities as stock, bonds, patents, and copyrights. Possession Possession is a property interest under which an individual to the exclusion of all others is able to exercise power over something. It is a basic PROPERTY RIGHT that entitles the possessor to continue peaceful possession against everyone else except someone with a superior right. It also gives the possessor the right to recover personal property (often called CHATTEL) that has been wrongfully taken and the right to recover damages against wrongdoers. To have possession, an individual must have a degree of actual control over the object, coupled with intent to possess the object and exclude others from possessing it. The law recognizes two types of possession: actual and constructive. Actual possession exists when an individual knowingly has direct physical control over an object at a given time. For example, an individual wearing a particular piece of jewelry has actual possession of it. Constructive posses- sion is the power and intent of an individual to control a particular item, even though it is not physically in that person’s control. For example, an individual who has the key to a bank safe- deposit box, which contains a piece of jewelry that she owns, is said to be in constructive possession of the jewelry. Lost, Mislaid, and Abandoned P ropert y Per- sonal property is considered to be lost if the owner has involuntarily parted with it and does not know its location. Mislaid property is that which an owner intentionally places somewhere with the idea that he will eventually be able to find it again, but then he forgets where it has been placed. Abandoned property is property to which the owner has intentionally relinquished all rights. Lost or misl aid property continues to be owned by the person who lost or mislaid it. When a person finds lost goods, the finder is entitled to possession against everyone with the exception of the true owner. The finder of lost articles on land belonging to someone else is entitled to possession against everyone but the true owner. However, if the finder of the misplaced goods is guilty of TRESPASS, she has no right to possess the goods. The owner of the place where an article is mislaid has a right to the article against everyone else but the true owner. Abandoned property can be possessed and owned by the first person who exercises control over it with the intent to claim it as his own. In any event, between the finder of a lost, mislaid, or abandoned article and the owner of the place where it is found, the law applies whatever rule will most likely result in the return of the article to its rightful owner. Ordinarily when articles are found by an employee during and within the scope of her employment, they are awarded to the employer rather than to the employee who found them. Treasure trove is any gold or silver in coin, plate, or bullion that is hidden by an unknown owner in the earth or other private place for an extended period. The property is not considered treasure trove unless the identity of the owner cannot be determined. Under early COMMON LAW , the finder of a treasure trove took title to it against everyone but the true owner. The U.S. law governing treasure trove has been merged, for the most part, into the law governing lost property. In the absence of a contrary statutory provision, the title to treasure trove belongs to the finder against all others with the exception of the true owner. If there is a controversy as to ownership between the true owner and the state, the owner is entitled to the treasure trove. Confusion and Accession Confusion and ACCESSION govern the acquisition of, or loss of title to, personal property by virtue of its being blended with, altered by, improved by, or commingled with the property of others. In confusion, the personal property of several different owners is commingled so that it cannot be separated and returned to its rightful GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROPERTY LAW 161 owner, but the property retains its original characteristics. Any fungible (interchangeable) goods, such as grain or produce, can be the subject of confusion. In accession, the personal property of one owner is physically integrated with the property of another so that it becomes a constituent part of it, losing any separate iden tity. Accession can make the personal property of one owner become substantially more valuable chattel as a result of the work of another person. This change occurs when the personal property becomes an entirely new chattel, such as when grapes are made into wine or timber is made into furniture. Subject to the doctrine of accession, per- sonal property can become real property through its transformation into a fixture. A fixture is a movable item that was originally personal property but has become attached to, and associated with, the land and therefore is considered a part of the real property. For example, a chandelier mounted on the ceiling of a house becomes a fixture. Bailments A BAILMENT is the rightful temporar y possession of goods by an individual other than the true owner. The individual who entrusts his property into the hands of another is called the BAILOR. The person who holds the property is called the BAILEE. Ordinarily, a bailment is made for a designated purpose upon which the parties have agreed. For example, when a person pawns a diamond ring, she is the bailor and the pawnshop operator is the bailee. The pawnshop owner holds the ring for an agreed period as security on the loan to the bailor. The bailor is entitled to recover possession of the ring by paying back the loan within the time period. If the bailor fails to pay back the loan in time, the bailee gains ownership of the ring and may sell it. A bailment differs from a sale, which is an intentional transfer of ownership of persona l property in exchange for something of value, because a bailment involves only a transfer of possession or custody, not ownership. Bona Fide Purchasers The basic common-law principle is that an individual cannot pass better title than she has and a buyer can acquire no better title than that of the seller. Because a thief does not have a title in stolen goods, a person who purchases from the thief does not acquire title. A bona fide purchaser is an individual who has bought property for value with no notice of any defects in the seller’s title. If a seller indicates to a buyer that she has ownersh ip or the authority to sell a particular item, the seller is estopped (prevented) from denying such representations if the buyer resells the property to a bona fide purchaser for value without notice of the true owner’s rights. At common law, such an ESTOPPEL did not apply when an owner brought an item for services or repairs to a dealer and the dealer wrongfully sold the chattel. The bona fide purchaser, however, was subsequently protected under such circum- stances by the UNIFORM COMMERCIAL CODE, which was adopted in all states. A buyer who induces a sale through fraudulent representations acquires a voidable title from the seller. A voidable title may be vacated at the seller’s option, upon discovery of the buyer’s FRAUD. The seller has the authority to transfer good title to a bona fide purchaser for value without notice of the outstanding equity. The voidable title rule is only applicable in situations where the owner is induced to part with title, not merely with possession, as a result of fraud or deception. Real Property In the United States, every state has exclusive jurisdiction over the land within its borders. Each state has the power to determine the form and effect of a transfer of real property within its borders. Modern statutes have eliminated much traditional concern over the proper conveyancing of real property. In modern real estate law, real property can be conveyed by a deed, with the intention of the person convey- ing the property, the grantor, that the deed take effect as a conveyance. The deed must be recorded to give notice as to who legally holds title to the property. Estates in Real Property In real property, an estate is the degree, nature, and extent of an individual’s ownership in real estate. Several types of estates govern interests in real property. These interests include freehold estates, nonfreehold estates, CONCURRENT ESTATES, specialty estates, future interests, and incorpo- real interests. Freehold Estate A freehold estate is an estate in real property that is of uncertain duration. An GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 162 PROPERTY LAW individual who is in possession of a freehold estate has seisin, which means the right to immediate possession of the land. The two basic types of freehold estates in the United States are the FEE SIMPLE absolute and the LIFE ESTATE. The fee simple absolute is inheritable; the life estate is not. A fee simple absolute is the most extensive interest in real property that an individual can possess because it is limited completely to the individual and his heirs, assigns forever, and is not subject to any limitations or conditions. The person who holds real property in fee simple absolute can do whatever he wants with it, such as grow crops, remove trees, build on it, sell it, or dispose of it by will. The law views this type of estate as perpetual. Upon the death of the owner, if no provision has been made for its distribution, the owner’s heirs will automati- cally inherit the land. A life estate is an interest in property that does not amount to ownership because it is limited by a term of life, either of the individual in whom the right is vested or some other person, or it lasts until the occurrence or nonoccurrence of an uncertain event. A life estate pur autre vie is an estate that the grantee holds for the life span of another person. For example, the grantor conveys the property “to grantee for the life of A.” A life estate is usually created by deed but can be created by a lease. No special language is required provided the grantor’s intent to create such an estate is clear. The grantee of a life estate is called the life tenant. A life tenant can use the land, take any crops from it, and dispose of his interest to another person. The life tenant cannot do anything that would injure the property or cause waste. Waste is the harmful or destructive use of real property by an individual who is in righ tful possession of the property. The life tenant has the right to exclusive possession subject to the rights of the grantor to enter the property to determine whether waste has been committed, collect any rent that is due, or make any necessary repairs. A life estate is ALIENABLE; therefore, the life tenant can convey her estate. The grantee of a life tenant would thereby be given an estate pur autre vie because the death of the life tenant would extinguish the grantee’s interest in the land. The life tenant is unable, however, to convey an estate that is greater than her own. Nonfreehold Estates Nonfreehold estates are property interests of limited duration. They include tenancy for years, a tenancy at will, and a tenancy at sufferance. This type of estate arises in a landlord and tenant relationship. In such a relationship, a landlord leases land or premises to a tenant for a specific period, subject to various conditio ns, ordinarily in exchange for the payment of rent. Nonfreehold estates are not inheritable under the common law but are frequently assignable. A tenancy for years must be of a definite duration; that is, it must have a definite beginning and a definite ending. The most common example of a tenancy for years is the arrangement existing between a landlord and a tenant, where property is leased or rented for a specific amount of time. A tenancy from year to year, also called tenancy from period to period, is of indefinite duration. The lease period is for a definite term that is renewe d automatically if neither party signifies an intention to terminate the tenancy. This is a commo n arrangement for leasing business office space or for renting a house or apartment. A tenancy at will is a rental relationship between two parties that is of indefinite duration because either party may end the relationship at any time. It can be created either by agreement or by failure to effectively create a tenancy for years. A tenancy at will is not assignable and is categorized as the lowest type of chattel interest in land. A tenancy at sufferance is an estate that ordinarily arises when a tenant for years or a tenant from period to period retains possession of the premises without the landlord’s consent. This type of interest is regarded as wrongful possession. In this type of estate, the tenant is essentially a trespasser except that her original entry onto the property was not wrongful. If the landlord consents, a tenant at sufferance may be transformed into a tenant from period to period, once the landlord accepts rent. Concurrent Estates A concurrent estate exists when property is owned or possessed by two or more individuals simult aneously. The three basic types are JOINT TENANCY, TENANCY BY THE ENTIRETY , and TENANCY IN COMMON. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROPERTY LAW 163 Joint tenancy is a type of concurrent relationship whereby property is acquired by two or more persons at the same time and by the same instrument. A common example is the purchase of property, such as a house, by two individuals. The deed conveys title to “A and B in fee absolute as joint tenants.” The main feature of a joint tenancy is the RIGHT OF SURVIVORSHIP . If any one of the joint tenants dies, the remainder goes to the survivors, and the entire estate goes to the last surviv or. Tenancy by the entirety is a form of joint tenancy arising between a HUSBAND AND WIFE, whereby each spouse owns the undivided whole of the property, with the right of survivorship. It is distinguishable from a joint tenancy in that neither party can voluntarily dispose of his interest in the property. Tenancy in common is a form of concurrent ownership in which two or more individuals possess property simultaneously. The indivi- duals do not own an undivided interest in the property, but rather each individual has a definable share of the property. One of the tenants may have a larger share of property than the others. There is no right of survivorship, and each tenant has the right to dispos e of his share by deed or will. Specialty Estates Specialty estates are property interests in CONDOMINIUMS AND COOPERATIVES. Condominium ownership, which was intro- duced in the United State s in 1961 and grew in popularity, allows separate ownership of indi- vidual apartments or units in a multiunit building. The purchaser becomes the owner of a particular unit and of a proportionate share in the common elements and facilities. In cooperative ownership, the title to a multiunit building usually is vested in a corporation. The pur chaser of an apartment in the building buys stock in the corporation, receiving a stock certificate and a lease to the apartment. As a stockholder, each cooperative member has an ownership interest in the corporation, which owns all the units and common areas. Each tenant pays to the corporation a fixed rent, which is applied to a single building mortgage and a real estate tax bill for the entire building, as well as to insurance premiums and maintenance costs. Future Interests Future interests in real prop- erty are property rights that are not yet in existence. The privilege of possession will come into being at a designated future time. There are five basic kinds of future interests: the reversion, POSSIBILITY OF REVERTER, RIGHT OF REENTRY for condition broken (also known as POWER OF TERMINATION ), executory interest, and remainder. A remainder is a good example of a FUTURE INTEREST . Remainders are subdivided into two principal categories: contingent remainders and vested remainders. A contingent remainder is based on something happening in the future. For example, Tom owns BLACKACRE in fee simple. While Bob and Jane are alive, Tom conveys Blackacre to Bob for life, with a remainder to the heirs of Jane. The heirs of Jane are not yet known, so they have a contingent remainder. A vested remainder is a future interest to an ascertained person, with the certainty or possibility of becoming a present interest subject only to the expiration of the preceding property interests. If Tom owns Blackacre in fee simple and conveys Blackacre to Bob for life and then to Jane in fee simple, Jane has a vested remainder in fee that becomes a present interest upon the death of Bob. She simply has to wait for Bob’s death before assuming a present interest in Blackacre. Incorporeal Interests Incorporeal interests in real property are those that cannot be possessed physically because they consist of rights of a particular user or authority to enforce various agreements as to use. They include easements, covenants, equitable servitudes, and licenses. Easements are rights to use the property of another for particular purposes. A common type of easement in current use is the affirma- tive grant to a telephone company to run its line across the property of a private landowner. Easements also are used for public objectives, such as to preserve open space and conserve land. For example, an easement might preclude someone from building on a parcel of land, which would leave such property open, thereby preserving a park for the public. Possession Possession is a property right or interest through which one can exercise dominion or control over something to the exclusio n of all others. The owner of real property has the right to exclusive possession of her land, which includes the airspace above and the space below the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 164 PROPERTY LAW surface within the exterior boundaries of the property. An owner of real property is not entitled to possess all space above her land outward to infinity but has the right to be free from those intrusions into the space that would interfere with the reasonable occupation and QUIET ENJOYMENT of the surface. A landowner, there- fore, owns as much of the space above the ground as he can possess or use in connection with the land. Possession of property adverse to the rights of the true owner results in acquisition of title by the possessor under the doctrine of ADVERSE POSSESSION . The doctrine is based upon statutes that limit the time for recovery of property, thereby operating as a bar to one’s right to recover property that has been held adversely by another for a specified length of time. For example, if A builds a fence two feet inside B’s property and B fails to take legal action to have the fence removed during the specified time period, A will acquire title to the property that the fence encroached. Eminent Domain and Zoning Governments have the right to acquire privately owned land through the exercise of the power of EMINENT DOMAIN. Eminent domain is the right or power of a unit of government or a designated private individual to take private property for public use following the payment of a fair amount of money to the owner of the property. The FIFTH AMENDMENT to the U.S. Constitution states, “nor shall private property be taken for public use, without just compensa- tion.” The theory behind eminent domain is that the local government can exercise such power to promote the GENERAL WELFARE in areas of public concern, such as health, safety, or morals. In Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), the U.S. SUPREME COURT issued a controversial opinion when it ruled that a city could condemn private property as part of a compre- hensive redevelopment plan. Even though property would effectively pass from one private party to another, the Court held that the condemnation was a taking for public use because the redevelopment plan was designed to lead to economic growth. As a result of the Kelo decision, the majority of states enacted legislation to address the type of takings allowed by the Court. A total of 21 states enacted statutes to prohibit thes e types of takings, while another 21 states passed laws that limit the ability of municipalities to take property for economic development. Government may also control how real property is used. Zoning is the regulation and restriction of real property by a local govern- ment. The most common form of land use regulation, zoning involves the division of territory based on the character of land and structures and their fitness for particular uses. Municipalities use zoning to control and direct the development of property within their borders, according to present and potential uses of the property. Consideration is given to the conservation of property value and the most appropriate use of the land. FURTHER READINGS Burke, Barlow, and Joseph Snoe. 2008. Property: Examples and Explanations. 3d ed. New York: Aspen. Callies, David L. 2008. Public Use and Public Purpose after Kelo v. City of New London. Newark, N.J.: LexisNexis. Hylton, J. Gordon, et al. 2003. Property Law and the Public Interest: Cases and Materials. 2d ed. Newark, N.J.: LexisNexis. Singer, Joseph William. 2002. Property Law: Rules, Policies, and Practices. 3d ed. New York: Aspen Law & Business. Sprankling, John G. 2000. Understanding Property Law. New York: Lexis. CROSS REFERENCES Abandonment; Commingling; Common Lands; Land-Use Control; Leasehold ; Recording of Land Titles; Registration of Land Titles; Sales Law; Scope of Employmen t; Title Insurance; Title Search. PROPERTY RIGHT A generic term that refers to any type of right to specific property whether it is personal or real property, tangible or intangible; e.g., a professional athlete has a valuable property right in his or her name, photograph, and image, and such right may be saleable by the athlete. PROPERTY SETTLEMENT A property settlement is an agreement entered into by a HUSBAND AND WIFE in conne ction with a DIVORCE that provides for the division of their assets between them. Property settlements can arise through agreement of the parties, subject to approval by the court, or by court order. Once approved, the settlement functions like a contract for GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROPERTY SETTLEMENT 165 enforcement or modification purposes. Some states use alternate terms to describe a property settlement, such as property agreement, settle- ment agreement, or separation agreement. Another type of agreement that may address property rights is the POSTMARITAL AGREEMENT, which spouses enter into during marriage and not in immediate anticipation of DIVORCE. A property settlement involves the property that the couple obtained either before marriage or during marr iage. The agreement also may include such issues as maintenance (otherwise known as ALIMONY) payments to one spouse or even CUSTODY of the children. A property settlement agreement is also known as a martial termination agreement in some states. Two types of property that must be distributed in the settlement are community or marital property and separate property. Community or marital property consists of property that is purchased by either or both of the spouses during the time they are married. Property bought during the time the couple is married is presumed to be marital property regardless of how it was actually purchased. The assumption can be overridden only by “clear and convincing” evidence of the in tent for the property to be the property of just one spouse. Separate property is property that is bought by either of the spouses before the marriage. Sepa- rate property can also be property received in exchange for other separate property, the interest on separate property, or anything that does not fall into the category of marital property. When determining how the property will be divided, several problems may arise, including the problems of commingling and transmuta- tion. Commingling occurs when separate and marital property are combined, or dealt with together, in a bank or financial account. When this happens, there is no distinction between separate and marital property. To prevent a finding that the commingled property is therefore marital property, the spouses need to keep separate accounts and records for each item of property. Transmutation involves sepa- rate property that the spouses have treated as marital property, making it impossible to tell what type of property the spouses had intended it to be. For example, transmutation occurs when the parties took title to property joint ly but in reality only one of the spouses paid for the property. The best way to prevent commingling or transmutation from becoming an issue or hurdle in getting the settlement approved is to keep clear and accurate records. A third problem that can arise relating to the property involved is the valuation date. The valuation date can some times determine w hich spouse receives property because a meaningful change in the value of some assets can affect their just distr ibution. Several dates can be applied, such as the date of trial, the date of separation, the divorce date, or the hearing date. Once the property is classified as marital or separate property and valued, the parties then must divide it between them. The Uniform Marriage and Divorce Act (UMDA), which has been adopted in eight states as of 2009, guides spouses and courts on what to consider when distributing property. The UMDA has two provisions that deal specifically with the disposition of the couple’s property. One explains that the property should be fairly divided between the parties without regard to “marital misconduct.” It lists factors to conside r when apportioning the property, such as the “duration of the marriage, prior marriage of either party, antenuptial agreement of the parties, the age, health, station, occupa- tion, amount and sources of income, vocational skills, employability, estate, liabilities, and need of each of the parties, custodial provisions, whether the APPORTIONMENT is in lieu of or in addition to maintenance, and the opportunity of each for future acquisition of capital assets and income.” Contribution of the spouses to the family is also a consideration. The specific facts of each case must be examined to reach a fair and just division of property. The other option given by the UMDA outlines a slightly different scheme of how property should be divided. First, each spouse’s separate property is given to the appropriate spouse, then the rest of the property (the COMMUNITY PROPERTY) is divided without consid- eration of “marital misconduct.” The factors to consider when making a division of the community property include the “contribution of each spouse to the acquisition of the marital property, including contribution of a spouse as homemaker; value of the property set aside to each spouse; duration of the marriage; and economic circumstances of each spouse when the division of property is to become effective.” This option retains the distinction between GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 166 PROPERTY SETTLEMENT property bought before the marriage (separate property) and property bought during the marriage (community property). Many states have adopted some form of these tests for their courts to use when dividing property at divorce. Once an agreement is decided upon, the property settlement has the same enforceability as a contract. The settlement will usually be upheld by the courts unless it is found to be invalid. A court will rule that a property settlement is invalid if it is UNCONSCIONABLE, which means that the agreement is so unfair to one party that it must be modified. Whether an agreement is uncon- scionable is determined by the facts in each case. An unconscionability finding can be based on several factors relating to property settlement. Lack of disclosure by one of the parties can be one reason to find an agreement unfair. For example, if, when the parties met to discuss and divide their assets, one spouse did not reveal the existence of a particular asset, the other spouse, who later locates or hears of the asset after the property settlement has been approved, may seek to have the settlement overturned on the basis that he or she did not know of the asset at the time of the settlement. The court may modify the settlement to avoid further injustice to one party. Another factor that could lead a court to find a settlement unfair is whether each party had INDEPENDENT COUNSEL. Independent counsel is recommended when there is a large disparity between the parties’ wealth. Independent coun- sel means that both parties choose their own counsel; if just one party selects counsel, the court could consider counsel to be noninde- pendent. Lack of disclosure and lack of independent counsel are two of the most common reasons why a court will find a settlement unfair to one of the parties. The court may also find a property settle- ment unenforceable because of mistake, FRAUD, or UNDUE INFLUENCE. If the parties make a genuine mistake about the terms of the settlement, the court can reform or modify the settlement to correct that mistake. Fraud and undue influence are also reasons to alter or modify a property settlement. If one spouse fraudulently informs the other of property or assets during the process of negotiating the settlement, this action can be grounds for modifying the settlement. Undue influence means that one party used pressure or mis- representations to force the other to sign or agree to the terms in the property settlement. When a court finds either fraud or undue influence, it modifies the property settlement to correct the unfairness. Property settlements should be fair both in the process of reaching the settlement, avoidin g any unconscionability or fraud, and in the division of the property, making an equal separation of the total marital assets. If the settlement is fair between the parties, the court is likely to enforce it. FURTHER READINGS American Law Institute. 2003. Principles of the Law of Family Dissolution: Analysis and Recommendations. Philadel- phia: Executive Office, American Law Institute. Clark, Homer H., Jr., and Ann Laquer Estin. 2000. Cases and Problems on Domestic Relations. 6th ed. St. Paul, Minn.: West Group. Dougherty, Francis M. 1987. “Divorce: Excessiveness or Adequacy of Combined Property Division and Spousal Support Awards—Modern Cases.” American Law Reports 55. Elrod, Linda D. 2002. “A Reaction of the Year in Law.” Family Law Quarterly 35. Feder, Robert D., ed. 2001. Valuing Specific Assets in Divorce. New York: Aspen. Practising Law Institute (PLI). 1989. Marital Agreements by Glenda A. Fowler. Tax Law and Estate Planning Course Handbook series no. 184. PLI order no. D4-5206. Rice, Larry. 2005. The Complete Guide to Divorce Practice: Forms and Procedures for the Lawyer. Chicago: Ameri- can Bar Association. Smith, Gayle. 2004. Divorce and Money: Everything You Need to Know. New York: Perigee. Turner, Brett R. 2003. “The Effect of Interspousal Transfers Upon Classification of Separate Property: A 2003 Update. Divorce Litigation 15. Wilson, Robin Fretwell, ed. 2006. Reconceiving the Family: Critique on the American Law Institute’s Principles of the Law of Family Dissolution. New York: Cambridge University Press. CROSS REFERENCES Alimony; Commingling; Divorce; Husband and Wife; Postmartial Agreem ent. PROPONENT One who offers or proposes. A proponent is a person who comes forward with an a item or an idea, supports an issue, or advocates a cause. A proponent proposes a motion, proposition, or position, in contrast to an opponent, who opposes it. A proponent of a will is a party who asserts that the instrument is valid (e.g., that the decedent had the requisite testamentary capacity to create the will) and asks that it be put through the probate process. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROPONENT 167 . the number of copies are contained in RCAP 120.04.) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 1 58 PROMISE A majority of courts apply the doctrine to any situation in which all of these elem. REFERENCE Preponderance of Evidenc e. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROOF 159 PROPER Fit; correct; reasonably sufficient. That which is well adapted or appropriate. Proper care is the degree of. an estate in real property that is of uncertain duration. An GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 162 PROPERTY LAW individual who is in possession of a freehold estate has seisin, which