Concurrent, Family, and Entity property: Flashcards
What is concurrent ownership?
when more than one person has the right to control the same thing at the same time (ex- spouses owning an apartment complex)
What is tenancy in common?
A form of land ownership giving each tenant the right to possess the entire parcel.
What ways are tenancies in common created?
Tenancy in common is created by the severance of a joint tenancy, inter vivos conveyance (made during someone’s lifetime), devise(dying with a will), intestate succession (dying without a will), and divorce
How is a tenancy in common broken?
By partition
What is partition?
A court order to divide a property into separate portions according to each party’s relative interest in the property
What are the two types of partition and which one is more favored?
Partition in kind- splitting the property in half
Partition in sale- property is sold in the open market and distributes the money to owners
The presumption is partition in kind, but in more cases than not it gets rebutted and it becomes partition in sale
What is a joint tenancy?
A form of property ownership in which each owner holds an identical interest in the property and a right to ownership of the co-owner’s share in the event of such co-owner’s death
What are the requirements for a joint tenancy?
- Unity of time- the interest of each joint tenant must be created at the same moment in time
- Unity of Title- all joint tenants must acquire title by the same instrument or title
- Unity of interest- all joint tenants must possess equal fractional undivided interests in the property and their interest must last the same amount of time
- Unity of possession- all joint tenants must have the right to possess the entire parcel
Joint tenancy is completely broken by what?
The death of the second to last tenant
What are joint tenants responsible for?
Joint tenants are not responsible for splitting the cost of improvements unless it is agreed upon. They are responsible for maintenance/repairs
What is tenancy by the entirety?
A form of ownership for spouses in which each have an undivided interest in the entire property. The same elements as joint tenancy plus needing to be married
What is traditional ouster?
an affirmative physical or nonphysical act that is one cotenant seeking entry and another precluding it
What is constructive ouster?
an emotional marriage in the breakup of a marriage, you don’t need an actual physical barring.
What are the two different views on Marital Property during divorce?
Separate property- ownership is given to a person who acquires the property
Community property- marriage is an economic partnership so everything they acquire during marriage they own equally (Texas follows this)
What is a future interest?
the right to take possession in the future under specified circumstances
When do future interests exist and when do they become possessory?
Future interests exist at the moment of creation but do not become possessory unless or until the condition necessary occurs.
How are present and future interests created?
sale, lease, will, or trust
What are two problems with conveying future interests?
dead hand control
consolidated ownership excluding others
What are the types of future interests?
Fee Simple, Fee Tail, Life Estate, life estate per autre vie, and term of years
What are future interests in grantors?
Reversion, possibility of reverter, and possibility of reentry
What are future interests in grantees?
Remainders and executory interest
What is a fee tail?
property passed down to descendants until the bloodline ran out.
could be specific to where it only favored certain types of heirs
O conveys land to A and the heirs of his body
A fee tail
What is a fee simple absolute?
a fee simple without an associated future interest
O to A
Fee simple absolute
What are defeasible fee simples?
present interests that terminate at the happening of a specified event, other than the death of the current owner
What is a fee simple determinable?
when the future interest reverts automatically to the grantor on the happening of the stated event, this is the present interest. And the future interest is a possibility of reverter
The grantor does not need to specifically state the possibility of reverter
What is O’s future interest in a fee simple determinable?
future interest is a possibility of reverter
The grantor does not need to specifically state the possibility of reverter
O to A so long as used for residential purposes
fee simple determinable
What is a fee simple subject to a condition subsequent?
instead of an automatic transfer of the property to the grantor upon violation of a condition, the grantor may choose whether to retake the property or not.
What is O’s future interest in a fee simple subject to a condition subsequent?
called a right of entry
The grantor must specify this right of entry
The grantor must decide whether to re-enter in a timely manner
O to A so long as used for residential purposes; in the event it is not so used, O shall have the right of entry
fee simple subject to a condition subsequent
What is a fee simple subject to executory limitation?
When the future interest in a defeasible fee belongs to someone other than the grantor, the ownership automatically shifts to the third party when a condition is violated
What is the third party’s future interest in a fee simple subject to executory limitation?
The future interest is called an executory interest
Applies to both words of duration or words of condition
O to A so long as used for residential purposes, then to B
fee simple subject to executory limitation
What is a life estate?
A owns the property for their lifetime but has no say in what happens to their property after they die, it either goes back to the grantor or to a third party. If it goes back to the grantor, it is called a reversion, if it goes to a third party it is called a remainder
What is a grantor’s future interest in a life estate?
A reversion
What is a third party’s future interest in a life estate?
A remainder
What is a life estate per autre vie?
a life estate the duration of which is limited by the life of someone other than the occupier or possessor of the land.
O to A for life
Life estate
What is a vested remainder?
remainders to persons who are identifiable at the time of the initial conveyance and for whom no conditions must occur before future interest becomes possessory other than the death of life estate tenant
What is a vested remainder subject to open?
typically found in class gifts where children of B born after the conveyance from O to A may share in the property. Once A dies, this usually closes
O to A for life, then to the children of A” where A currently has at least one child alive
the children of A have a vested remainder subject to open because while one child is already identified, A could have more children in the future, thus “opening up” the class of beneficiaries to include those additional children
What are vested remainders subject to divestment?
remainders that might be lost due to an event that occurs after the original conveyance
“O conveys property to A for life, then to B, but if B does not graduate college by the time A dies, the property will go back to O.
Vested remainders subject to divestment
Vested remainders subject to partial divestment
This means that although the remainder is vested (meaning Person C is generally entitled to the property), there is a condition or event that could partially divest (or take away) some of Person C’s interest in the future.
“To A for life, then to B’s children, with the first child born to B receiving a 50% share, and any subsequent children sharing equally in the remaining 50%”
B’s first child has a vested remainder in 50% of the property, but that share could be reduced if B has more children
Vested remainder subject to partial divestment
What is a contingent remainder?
If the remainder will take effect only upon the happening of an event that is not certain to happen
What is the rule against the creation of new estates?
When a conveyance doesn’t fit neatly into existing categories of future interests, courts will try to interpret it in a way that aligns with one of those categories to give it legal effect.
What is the rule against perpetuities?
No interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the interest
The rule says that any future interest must be fully decided by 21 years after the death of someone who was alive when the interest was created
What does the rule against perpetuities apply to?
executory interests and contingent remainders
What are the steps to RAP
- State the title as if no RAP exists and identify any vulnerable future interests in grantees (namely contingent remainders or executory interests)
- What must happen to cause the vulnerable interest to vest or terminate?
- Circle all lives in being (People alive at the time of the conveyance)
- Will the interest definitely vest or terminate within the lifetimes of everyone circled + 21 years?
- If so, the interest is VALID, if not, it is VOID and you should strike it and revise the title
Do you have to know whether the interest will vest or fail?
No but you have to know one is possible
What are three red flag categories to look for in the RAP?
1) There is a stated time period of more than 21 years
2) There is a condition that is not personal to someone
3) An interest goes to a generation after the next
