n. in a criminal trial, information which has been obtained by illegal means or has been traced through evidence acquired by illegal search and/or seizure. This evidence is called “fruit of the poisonous tree” and is not admissible in court.
v. to gain or obtain possession, including the receipt of a legacy from an estate, getting title to real property or stealing an object.
Taking against the will
A procedure under state law that gives a surviving spouse the right to demand a certain share (usually one-third to one-half) of the deceased spouse’s property. The surviving spouse can take that share instead of accepting whatever he or she inherited through the deceased spouse’s will. If the surviving spouse decides to take the statutory share, it’s called “taking against the will.” Dower and curtesy is another name for the same legal process.
To interfere improperly or in violation of the law such as to tamper with a document.
Tangible personal property
Personal property that can be felt or touched. Examples include furniture, cars, jewelry and artwork. However, cash and checking accounts are not tangible personal property. The law is unsettled as to whether computer data is tangible personal property.
n. a governmental assessment (charge) upon property value, transactions (transfers and sales), licenses granting a right and/or income. These include federal and state income taxes, county and city taxes on real property, state and/or local sales tax based on a percentage of each retail transaction, duties on imports from foreign countries, business licenses, federal tax (and some states’ taxes) on the estates of persons who have died, taxes on large gifts and a state “use” tax in lieu of sales tax imposed on certain goods bought outside of the state.
n. a motion to contest a claim for court costs submitted by a prevailing party in a lawsuit. It is called a “Motion to Tax Costs” and asks the judge to deny or reduce claimed costs.
n. a federal agency with courts in major cities which hear taxpayers’ appeals from decisions of the Internal Revenue Service. Tax court hears the appeal de novo (as a trial rather than an appeal) and does not require payment of the amount claimed by the IRS before hearing the case. Tax court decisions may be appealed to the Federal District Court of Appeals.
n. intentional and fraudulent attempt to escape payment of taxes in whole or in part. If proved to be intentional and not just an error or difference of opinion, tax evasion can be a chargeable federal crime. Evasion is distinguished from attempts to use interpretation of tax laws and/or imaginative accounting to reduce the amount of payable tax.
n. the form to be filed with a taxing authority by a taxpayer which details his/her/their income, expenses, exemptions, deductions and calculation of taxes which are chargeable to the taxpayer.
n. an auction sale of a taxpayer’s property conducted by the federal government to collect unpaid taxes.
n. a court order prohibiting an action by a party to a lawsuit until there has been a trial or other court action. A temporary injunction differs from a “temporary restraining order” which is a short-term, stop-gap injunction issued pending a hearing, at which time a temporary injunction may be ordered to be in force until trial. The purpose of a temporary injunction is to maintain the status quo and prevent irreparable damage or change before the legal questions are determined. After the trial the court may issue a “permanent injunction” (making the temporary injunction a lasting rule) or “dissolve” (cancel) the temporary injunction.
n. in a criminal prosecution, a defense by the accused that he/she was briefly insane at the time the crime was committed and therefore was incapable of knowing the nature of his/her alleged criminal act. Temporary insanity is claimed as a defense whether or not the accused is mentally stable at the time of trial. One difficulty with a temporary insanity defense is the problem of proof, since any examination by psychiatrists had to be after the fact, so the only evidence must be the conduct of the accused immediately before or after the crime. It is similar to the defenses of “diminished capacity” to understand one’s own actions, the so-called “Twinkie defense,” the “abuse excuse,” “heat of passion” and other claims of mental disturbance which raise the issue of criminal intent based on modern psychiatry and/or sociology. However, mental derangement at the time of an abrupt crime, such as a sudden attack or crime of passion, can be a valid defense or at least show lack of premeditation to reduce the degree of the crime.
Temporary restraining order (TRO)
An order that tells one person to stop harassing or harming another, issued after the aggrieved party appears before a judge. Once the TRO is issued, the court holds a second hearing where the other side can tell his story and the court can decide whether to make the TRO permanent by issuing an injunction. Although a TRO will often not stop an enraged spouse from acting violently, the police are more willing to intervene if the abused spouse has a TRO.
n. the right to occupy real property permanently, for a time which may terminate upon a certain event, for a specific term, for a series of periods until cancelled (such as month-to-month), or at will (which may be terminated at any time). Some tenancy is for occupancy only as in a landlord-tenant situation, or a tenancy may also be based on ownership of title to the property.
Tenancy at sufferance
n. a “hold-over” tenancy after a lease has expired but before the landlord has demanded that the tenant quit (vacate) the premises. During a tenancy at sufferance the tenant is bound by the terms of the lease (including payment of rent) which existed before it expired. The only difference between a “tenancy at sufferance” and a “tenancy at will” is that the latter was created by agreement.
Tenancy at will
n. occupation of real property owned by another until such time as the landlord gives notice of termination of the tenancy (usually 30 days by state law or agreement), which may be given at any time. A tenancy at will is created by agreement between the tenant and the landlord, but it cannot be transferred by the tenant to someone else since the landlord controls the right to occupy.
Tenancy by the entirety
A special kind of property ownership that’s only for married couples. Both spouses have the right to enjoy the entire property, and when one spouse dies, the surviving spouse gets title to the property (called a right of survivorship). It is similar to joint tenancy, but it is available in only about half the states.
Tenancy in common
A way two or more people can own property together. Each can leave his or her interest upon death to beneficiaries of his choosing instead of to the other owners, as is required with joint tenancy. In some states, two people are presumed to own property as tenants in common unless they’ve agreed otherwise in writing.
Anyone, including a corporation, who rents real property, with or without a house or structure, from the owner (called the landlord). The tenant may also be called the “lessee.”
1) v. to present to another person an unconditional offer to enter into a contract. 2) v. to present payment to another. 3) n. delivery, except that the recipient has the choice not to accept the tender. However, the act of tender completes the responsibility of the person making the tender.
A public offer to purchase stock at a specified price per share, usually done to gain a controlling interest in a corporation.
n. 1) a term found in older deeds or in boiler-plate deed language which means any structure on real property. 2) old run-down urban apartment buildings with several floors reached by stairways.
n. a bank account deposited in the name of the depositor “in trust for” someone else, which is a tentative trust until the death of the depositor since the money can be withdrawn at any time.
n. 1) in real property, the right to possess the property. 2) in employment contracts, particularly of public employees like school teachers or professors, a guaranteed right to a job (barring substantial inability to perform or some wrongful act) once a probationary period has passed.
n. 1) in contracts or leases, a period of time, such as five years, in which a contract or lease is in force. 2) in contracts, a specified condition or proviso. 3) a period for which a court sits or a legislature is in session. 4) a word or phrase for something, as “tenancy” is one term for “occupancy.”
n. dying with a will (a testament). It is compared to “intestacy,” which is dying without a will.
adj. pertaining to a will.
n. having the mental competency to execute a will at the time the will was signed and witnessed. To have testamentary capacity, the author of the will must understand the nature of making a will, have a general idea of what he/she possesses, and know who are members of the immediate family or other “natural objects of his/her bounty.” Inherent in that capacity is the ability to resist the pressures or domination of any person who may try to use undue influence on the distribution of the testator’s (will writer’s) estate.
Leaving property in a will.
A trust created by a will, effective only upon the death of the willmaker.
The circumstance of dying after making a valid will. A person who dies with a will is said to have died “testate.”
Someone who makes a will.
n. female form of testator, although distinguishing between genders is falling out of fashion.
To provide oral evidence under oath at a trial or at a deposition.
n. oral evidence given under oath by a witness in answer to questions posed by attorneys at trial or at a deposition (questioning under oath outside of court).
n. the generic term for all crimes in which a person intentionally and fraudulently takes personal property of another without permission or consent and with the intent to convert it to the taker’s use (including potential sale). In many states, if the value of the property taken is low (for example, less than $500) the crime is “petty theft,” but it is “grand theft” for larger amounts, designated misdemeanor or felony, respectively. Theft is synonymous with “larceny.” Although robbery (taking by force), burglary (taken by entering unlawfully) and embezzlement (stealing from an employer) are all commonly thought of as theft, they are distinguished by the means and methods used and are separately designated as those types of crimes in criminal charges and statutory punishments.
n. a person who is not a party to a contract or a transaction, but has an involvement (such as one who is a buyer from one of the parties, was present when the agreement was signed or made an offer that was rejected). The third party normally has no legal rights in the matter, unless the contract was made for the third party’s benefit.
n. a person who is not a party to a contract but has legal rights to enforce the contract or share in proceeds because the contract was made for the third party’s benefit. Example: Grandma enters into a contract with Oldfield to purchase a Jaguar automobile to be given to grandchild as a graduation present. If Oldfield takes a down payment and then refuses to go through with the sale, grandchild may sue Oldfield for specific performance of the contract as a third-party beneficiary.
n. a notice by a landlord to a tenant on a month-to-month tenancy or a holdover tenant to leave the premises within 30 days. Such notice does not have to state any reason and is not based on failure to pay rent. The landlord’s service of the notice and the tenant’s failure to vacate at the end of 30 days provide the basis for a lawsuit for unlawful detainer (eviction) and a court judgment ordering the tenant to leave. While this is a common notice period, it does not apply in all states or all circumstances, such as local rent control ordinances.
n. land between the high and low tides, which is uncovered each day by tidal action. This land belongs to the owner of the land which fronts on the sea at that point.
Time is of the essence
n. a phrase often used in contracts which in effect says: the specified time and dates in this agreement are vital and thus mandatory, and “we mean it.” Therefore any delay-reasonable or not, slight or not-will be grounds for cancelling the agreement.
adj. within the time required by statute, court rules or contract.
Evidence of ownership of real estate.
n. a history of the chain of title.
A company that issues title insurance.
Insurance issued by a title company that protects a property owner against loss if it is later discovered that title is imperfect.
n. the written analysis of the status of title to real property, including a property description, names of titleholders and how title is held (joint tenancy, etc.), tax rate, encumbrances (mortgages, liens, deeds of trusts, recorded judgments), and real property taxes due. A title report made when the report is ordered is called a “preliminary report,” or a “prelim,” and at time of recording an up-to-date report is issued which is the final title report. The history of the title is called an “abstract.” A title report is prepared by a title company, an abstractor, an attorney or an escrow company, depending on local practice. Normally a title report’s accuracy is insured by title insurance which will require the insurance company to either correct any error or pay damages resulting from a “cloud on title,” encumbrance or title flaw in the title which was not reported.
n. the examination of county records for the property’s title history by a title company, an abstractor, attorney or escrow officer to determine the “chain of title” and the current status of title, including owner, legal description, easements, property taxes due, encumbrances (mortgages or deeds of trust), long-term leases, judgments or other liens. When a title search is completed, a “preliminary report” on title will be issued by the searcher. On the recording date of any new transfer or encumbrance (such as a new secured loan), an updated “final title report” will be issued which will make it possible to obtain title insurance guaranteeing against any problems with the title. Sometimes the title search will turn up some “cloud on the title” which reveals something is wrong, such as a break in the chain of title, inaccurate property description in a previous deed or some old secured loan which has not been released. Such clouds can be a reason to cancel a contract for purchase of the real property.
prep. that is to say.
v. 1) to delay, suspend or hold off the effect of a statute. 2) a charge to pass over land, use a toll road or turnpike, cross a bridge or take passage on a ferry.
n. a rare agreement among several persons who agree that each will invest in an annuity and the last to die will receive the remaining assets and profits.
Tools of trade
n. in bankruptcy law, the equipment a person requires in order to pursue his occupation, which is exempt from claims of creditors. They are also generally exempt from attachment by judgment creditors since it is important for a person to earn an income to support the family and pay creditors.
An injury to one person for which the person who caused the injury is legally responsible. A tort can be intentional — for example, an angry punch in the nose — but is far more likely to result from carelessness (called “negligence”), such as riding your bicycle on the sidewalk and colliding with a pedestrian. While the injury that forms the basis of a tort is usually physical, this is not a requirement — libel, slander and the “intentional infliction of mental distress” are on a good-sized list of torts not based on a physical injury.
Tort claims act
n. a federal or state act which, under certain conditions, waives governmental immunity and allows lawsuits by people who claim they have been harmed by torts (wrongful acts), including negligence, by government agencies or their employees. These acts also establish the procedure by which such claims are made. Before the enactment of tort claims acts, government bodies could not be sued without the specific permission of the government.
n. a person who commits a tort (civil wrong), either intentionally or through negligence.
adj. referring to an act which is a tort (civil wrong).
The causing of harm by disrupting something that belongs to someone else — for example, interfering with a contractual relationship so that one party fails to deliver goods on time.
Another term for a payable-on-death bank account.
A personal injury caused by exposure to a toxic substance, such as asbestos or hazardous waste. Victims can sue for medical expenses, lost wages and pain and suffering.
1) n. a business or occupation for profit, particularly in retail or wholesale sales or requiring special mechanical skill. 2) v. to exchange one thing for another, which includes money for goods, goods for goods and favors for goods or money.
The distinctive packaging or design of a product that promotes the product and distinguishes it from other products in the marketplace — for example, the shape of Frangelico liqueur bottles. Trade dress can be protected under trademark law if a showing can be made that the average consumer would likely be confused as to product origin if another product were allowed to appear in similar dress.
n. a piece of equipment on or attached to the real estate which is used in a trade or business. Trade fixtures differ from other fixtures in that they may be removed from the real estate (even if attached) at the end of the tenancy of the business, while ordinary fixtures attached to the real estate become part of the real estate. The business tenant must compensate the owner for any damages due to removal of trade fixtures or repair such damage.
The official name of a business, the one it uses on its letterhead and bank account when not dealing with consumers.
In most states, a formula, pattern, physical device, idea, process, compilation of information or other information that 1) provides a business with a competitive advantage, and 2) is treated in a way that can reasonably be expected to prevent the public or competitors from learning about it, absent improper acquisition or theft.
A word, phrase, logo, symbol, color, sound or smell used by a business to identify a product and distinguish it from those of its competitors. If the business uses the name or logo to identify a service, such as photo copying, it is called a service mark. In practice, the legal protections for trademarks and service marks are identical.
Trademark ownership arise from “first use” of a mark. First use can be established by actual use or by application with the Patent and Trademark Office (PTO) for registration on an intent to use basis. If the same mark has been in use by different businesses in different parts of the country without causing customer confusion, the mark may be owned by both businesses in their respective regions. If the mark owners then come into conflict in another part of the country, ownership for the purpose of that region will be determined according to who was the first user and which business could most likely consider the region as a natural zone of expansion.
Federal registration of a mark with the Patent and Trademark Office (PTO) requires that the mark be used in commerce and the filing of a registration application. Once a mark is registered, the owner should always place the trademark registration symbol (®) or “Reg.Pat. Off.” next to the mark. Without this designation, it may be hard to collect damages from one who infringes the mark.
An investigation to discover potential conflicts between a proposed trademark or service mark and any marks already in use in the marketplace. Preferably done before a proposed mark is used, a trademark search reduces the possibility of inadvertently infringing a mark belonging to another. Businesses can conduct trademark searches themselves, either manually in a Patent and Trademark Depository library, through a computer in one of the online trademark databases (for a fee) or by hiring a search firm to do the search for them.
in the income tax law, a person who deals in property as a business, making several purchases and sales within a year as distinguished from a few sales of assets held for investment. Thus a trader will lose the right to defer capital gains by “exchanging” for another property. The exact details require consultation with a C.P.A. or attorney.
n. the written record of all proceedings, including testimony, in a trial, hearing or deposition (out-of-court testimony under oath). Jurisdictions vary as to whether the attorneys’ final arguments are recorded, with the Federal Court Reporter Act, but not all states, requiring inclusion. A copy of the transcript may be ordered from the court reporter and a fee paid for the transcription and first copy; if the opposing party also wants a copy, the cost will not include the transcription fee. In most appeals a copy of the transcript is required so that the court of appeals can review the entire proceedings in the trial court. Copies of depositions may be ordered for a fee from the court reporter who took down the testimony. Transcripts are not printed from the record unless transcription is requested.
n. 1) the movement of property from one person or entity to another. 2) passage of title to property from the owner to another person. 3) a piece of paper given to allow a person or shipment to continue travel.
n. a person or company retained by a corporation to process transfers and registration of shares of stock (stock certificates). One difficulty is that the stock certificates do not always include the name and address of the current transfer agent, but the information can be obtained from the corporation or a stockbroker.
Transfer in contemplation of death
n. giving property under the belief of the giver that he/she is about to die or has a terminal illness. However, health recovery may result in cancellation of the gift. This is also called a “gift causa mortis.”
n. in both criminal and tort (civil wrong) law, when an intent to cause harm to one person results in harm to another person instead of the intended target, the law transfers the intent to the actual harm.
n. the crime of betraying one’s country.Treason requires overt acts and includes the giving of government security secrets to other countries, even if friendly, when the information could harm American security. Treason can include revealing to an antagonistic country secrets such as the design of a bomber being built by a private company for the Defense Department. Treason may include “espionage” (spying for a foreign power or doing damage to the operation of the government and its agencies, particularly those involved in security) but is separate and worse than “sedition,” which involves a conspiracy to upset the operation of the government.
n. a promissory note issued in multiples of $10,000 by the U.S. Treasury with a maturity date of not more than one year.
n. a long-term bond issued by the country Treasury.
n. a promissory note issued by the country Treasury, for a period of one to five years.
n. stock of a private corporation which was issued and then bought back by the corporation or otherwise reacquired by the corporation. Treasury stock held by a corporation earns dividends for the corporation, but the corporation may not cast votes in decision-making the way a regular shareholder would be entitled.
n. tripling damages allowed by state statute in certain types of cases, such as not making good on a bad check or intentionally refusing to pay rent. Federal antitrust violations also carry treble damage penalties.
n. entering another person’s property without permission of the owner or his/her agent and without lawful authority (like that given to a health inspector) and causing any damage, no matter how slight. Any interference with the owner’s (or a legal tenant’s) use of the property is a sufficient showing of damage and is a civil wrong (tort) sufficient to form the basis for a lawsuit against the trespasser by the owner or a tenant using the property. Trespass includes erecting a fence on another’s property or a roof which overhangs a neighbor’s property, swinging the boom of a crane with loads of building materials over another’s property, or dumping debris on another’s real estate. In addition to damages, a court may grant an injunction prohibiting any further continuing, repeated or permanent trespass. Trespass for an illegal purpose is a crime.
n. the examination of facts and law presided over by a judge (or other magistrate, such as a commissioner or judge pro tem) with authority to hear the matter (jurisdiction). A trial begins with the calling of the parties to come and be heard and selection of a jury if one has been requested. Each party is entitled to an opening statement by his/her attorney (or the party if he/she is representing himself/herself), limited to an outline of what each side intends to prove (the defense may withhold the opening statement until the defense is ready to present evidence), followed by the presentation of evidence first by the plaintiff (in a civil case) or prosecution (in a criminal case), followed by the defense evidence, and then by rebuttal evidence by the plaintiff or prosecution to respond to the defense. At the conclusion of all evidence each attorney (plaintiff or prosecution first) can make a final argument which can include opinion and comment on evidence and legal questions. If it is a jury trial, the judge will give the jury a series of instructions as to the law of the case, based on “jury instructions” submitted by the attorneys and approved, rejected, modified and/or added to by the judge. Then the jury retires to the jury room, chooses a foreperson and decides the factual questions. If there is no jury, the judge will determine legal issues and decide factual questions and render (give) a judgment. A jury will judge the factual issues and decide the verdict based on the law as given in the instructions by the judge. Final verdict or judgment usually concludes the trial, although in some criminal cases a further trial will be held to determine “special circumstances” (acts which will increase the punishment) or whether the death penalty should be imposed. Throughout a trial there may be various motions on legal issues, some of which may be argued in the judge’s chambers. In most criminal cases the exact punishment will be determined by the judge at a hearing held at a later time.
n. the court which holds the original trial, as distinguished from a court of appeals.
Trial de novo
n. a form of appeal in which the appeals court holds a trial as if no prior trial had been held. A trial de novo is common on appeals from small claims court judgments.
n. any court, judicial body or board which has quasi-judicial functions, such as a public utilities board which sets rates or a planning commission which can allow variances from zoning regulations.
Trier of fact
n. the judge or jury responsible for deciding factual issues in a trial. If there is no jury the judge is the trier of fact as well as the trier of the law. In administrative hearings, an administrative law judge, a board, commission or referee may be the trier of fact.
Triple net lease
n. a lease in which the lessee’s (tenant’s) rent includes a share of real property taxes, insurance and maintenance as well as the basic rent. A “triple-net-lease” is standard in leases of commercial property in shopping centers and malls.
n. the written decision of a Grand Jury (signed by the Grand Jury foreperson) that it has heard sufficient evidence from the prosecution to believe that an accused person probably committed a crime and should be indicted. Thus, the indictment is sent to the court.
n. an entity created to hold assets for the benefit of certain persons or entities, with a trustee managing the trust (and often holding title on behalf of the trust). Most trusts are founded by the persons (called trustors, settlors and/or donors) who execute a written declaration of trust which establishes the trust and spells out the terms and conditions upon which it will be conducted. The declaration also names the original trustee or trustees, successor trustees or means to choose future trustees. The assets of the trust are usually given to the trust by the creators, although assets may be added by others. During the life of the trust, profits and, sometimes, a portion of the principal (called “corpus”) may be distributed to the beneficiaries, and at some time in the future (such as the death of the last trustor or settlor) the remaining assets will be distributed to beneficiaries. A trust may take the place of a will and avoid probate (management of an estate with court supervision) by providing for distribution of all assets originally owned by the trustors or settlors upon their death. There are numerous types of trusts, including “revocable trusts” created to handle the trustors’ assets (with the trustor acting as initial trustee), often called a “living trust” or “inter vivos trust” which only becomes irrevocable on the death of the first trustor; “irrevocable trust,” which cannot be changed at any time; “charitable remainder unitrust,” which provides for eventual guaranteed distribution of the corpus (assets) to charity, thus gaining a substantial tax benefit. There are also court-decreed “constructive” and “resulting” trusts over property held by someone for its owner. A “testamentary trust” can be created by a will to manage assets given to beneficiaries.
Latin for “the body” of the trust. This term refers to all the property transferred to a trust. For example, if a trust is established (funded) with $250,000, that money is the corpus. Sometimes the trust corpus is known as the “res,” a Latin word meaning “thing.”
The most common method of financing real estate purchases in California (most other states use mortgages). The trust deed transfers the title to the property to a trustee — often a title company — who holds it as security for a loan. When the loan is paid off, the title is transferred to the borrower. The trustee will not become involved in the arrangement unless the borrower defaults on the loan. At that point, the trustee can sell the property and pay the lender from the proceeds.
n. the principal (called the corpus) of a trust, made up of its assets and, sometimes, accumulated profits.
Under a trust, the situation that occurs when the sole trustee and the sole beneficiary are the same person or institution. Then, there’s no longer the separation between the trustee’s legal ownership of trust property from the beneficiary’s interest. The trust “merges” and ceases to exist.
The person who manages assets owned by a trust under the terms of the trust document. A trustee’s purpose is to safeguard the trust and distribute trust income or principal as directed in the trust document. With a simple probate-avoidance living trust, the person who creates the trust is also the trustee.
Trustee in bankruptcy
n. a person appointed by a bankruptcy court to supervise the affairs of a person or business which is in bankruptcy, determine both assets and debts, marshal (gather) and manage the assets if necessary, and report to the court. Most trustees in bankruptcy are full-time professionals and are paid from the estates of the debtors.
The provisions in a trust document defining what the trustee may and may not do.
n. the creator of a trust (who normally places the original assets into the trust), called a “settlor” or “donor” in many states. Trustor is a title used primarily in western states.
Truth in Lending Act (TILA)
A federal law that requires credit and charge card companies to disclose interest rates and other information about an account. It also requires lenders to disclose the terms of a loan, including the total amount of the loan, the annual interest rate and the number, amount and due dates of all payments necessary to repay the loan. The TILA requires additional disclosures and places many restrictions on mortgages.
Turn states’ evidence
v. for a person accused of a crime to decide to give the prosecutor evidence about the crime, including facts about other participants in the crime (or other crimes) in return for lenient treatment, a plea bargain and/or a recommendation of a light sentence.
n. a claim by a criminal defendant that at the time of the crime he/she was of diminished mental capacity due to intake of too much sugar, as from eating “Twinkies,” sugar-rich snacks.