Estate and Common Ownership Flashcards
Fee simple determinable
“as long as”, “during”, “while”
Defeasiable fee because you can lose it
Present possessory interest with a possibility of reverter in the grantor
Fee simple subject to condition subsequent
“Provided that”, “on condition”, “but if”
Defeasiable fee because you can lose it
Present possessory interest with right of entry or power of termination in the grantor
Grantor can first decide to take it back or terminate if the condition is breached
Fee simple subject to executory limitation
“until (or unless), then to…” “but if…, then to”
Defeasiable fee because you can lose it
Ownership goes to the stated third party if the condition is breached (Executory interest)
Life estate
Future interest is remainder or reversion (if grantor takes it back)
Remainder can be:
Absolutely vested (O to A for life, then to B)
Vested subject to open (O to A for life, then to children of B; how many children at that time?)
Vested subject to divestment (O to A for life, then to B, but if B marries a lawyer, reverts to O; B may lose it altoghther)
O to A for life, then to B, but if B predeceases A, then to C
- Life estate in A
- B has a vested remainder subject to divestment
- C has an executory interest
- Reversions & remainders only follow life estates
- C’s interest does not immediately follow the life estate
O to A for life, then to B if B outlives A, and if B doesn’t outlive A then to C
- B & C have a contingent remainder (both follow life estate)
Saving deeds from RAP
i) Cy-pres (court approximates grantor’s intent)
ii) wait-and-see
iii) Rule of convenience (close the open class if LLiB dies; lives in being determined at time of conveyance)
Test for Restraint on Alienation
really means “restrain against transferability”
i) underlying interest (prefers limited in time, such as life estate; coop, HoA)
ii) extent of restriction (partial restraints more reasonable, such as ROFR, option)
iii) legitimate interest (charitable interests, keeping the community)
3 types of Common Ownership
i) Tenancy in Common
ii) Joint Tenancy
iii) Tenancy by Entirety
Partition
Voluntary Partition
Partition by the court; either in-kind or by sale (more common)
Tenancy in Common
Concurrent interest identical in time (e.g. owning apple stock)
Maintenance duty is shared, but improvement is not
Can collect rent if you were ousted
Outster
i) Explicit: A tells B to get out, change locks, etc
ii) Constructive: B thinks it’s effectively an outster, property is too small or emotional distress from divorce, etc
Tenancy by Entirety
Default for married couple in some states
Neither party can transfer without consent (even creditors can’t touch - Sawada)
Partition only by divorce
Joint Tenancy
Right of survivorship (remaining tenants get pro rata share)
4 unities to create: time, title, interest, possession
If conveyed, then goes to tenancy in common (e.g. conveyance to 3rd party breaks title) and destroys right of survivorship
If leased, maj. says it’s fine; min. says it breaks possession unity
Marriage Property Regimes
Separate: some maintenance requirement / keep you earned
Community: accounting; joint ownership of property acquired after marriage except for gift or inheritance
Most states will enforce equitable distribution regardless (except CA: 50/50)
Distribution after Divorce
Maj: Accounting; equitable distribution based on length of marriage, economic power, life style, contributions, etc
CA: 50/50
Most states will give restitution damage (clearn break preferred over alimony)
3 ways to treat Unmarried Couple
i) Treat them like they were legally married (social = legal), Watts
ii) Treat them like unmarried (IL): changes legal implications for 3rd party
iii) Treat them as married if they explicitly state so (NJ): less justification to intervene, only if they wanted it (not by implication like Watts)
Eviction
Landlord tenant relationship is protected; landlord must give notice of breach and rely on the court to evict (summary proceedings)
Landlord can’t use self help to evict a tenant
Test for Tenancy
i) Payment of rent (or de facto rent)
ii) Privacy (right to possess specific areas?)
iii) Intermittent occupancy (or like a regular tenant would)
iv) Interdependence of housing and employment (or comingled?)
Could be interpreted as licensee, but courts can still order protection (Vasquez)
2 ways to Transfer a Lease
i) Assignment (can sue original or new tenant; privity through lease or estate). Damage or injunction
ii) Sublease (transferred some, but not all): can sue the original tenant, but not new tenant (injunction possible)
Blocking tenant from transferring
i) Lease is silent: transfer immediately (favors against alienation of property)
ii) Explicit “no transfer”: no transfer (reasonable restraint on alienation because leasehold is limited in time); but duty to mitigate still applies if the property becomes vacant
iii) Subject to LL consent: maj: will assert reasonableness standards (prove refusal was unreasonable/clause needs to be implied into the lease). Intent of parties matter
2 LL’s Obligations to Tenants
Implied Warranty of Habitability: withhold rent -> sues for eviction -> use IWH as defense in summary proceeding (retaliatory eviction not allowed in most states; turns to month by month)
Covenant of Quiet Enjoyment: applies if it arises from other tenants or by LL’s fault; partial or whole
