Estate and Common Ownership

Question 1

Fee simple determinable

Answer 1

“as long as”, “during”, “while”

Defeasiable fee because you can lose it

Present possessory interest with a possibility of reverter in the grantor

Question 2

Fee simple subject to condition subsequent

Answer 2

“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

Question 3

Fee simple subject to executory limitation

Answer 3

“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)

Question 4

Life estate

Answer 4

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)

Question 5

O to A for life, then to B, but if B predeceases A, then to C

Answer 5

• 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

Question 6

O to A for life, then to B if B outlives A, and if B doesn’t outlive A then to C

Answer 6

• B & C have a contingent remainder (both follow life estate)

Question 7

Saving deeds from RAP

Answer 7

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)

Question 8

Test for Restraint on Alienation

Answer 8

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)

Question 9

3 types of Common Ownership

Answer 9

i) Tenancy in Common
ii) Joint Tenancy
iii) Tenancy by Entirety

Question 10

Partition

Answer 10

Voluntary Partition

Partition by the court; either in-kind or by sale (more common)

Question 11

Tenancy in Common

Answer 11

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

Question 12

Outster

Answer 12

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

Question 13

Tenancy by Entirety

Answer 13

Default for married couple in some states

Neither party can transfer without consent (even creditors can’t touch - Sawada)

Partition only by divorce

Question 14

Joint Tenancy

Answer 14

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

Question 15

Marriage Property Regimes

Answer 15

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)

Question 16

Distribution after Divorce

Answer 16

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)

Question 17

3 ways to treat Unmarried Couple

Answer 17

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)

Question 18

Eviction

Answer 18

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

Question 19

Test for Tenancy

Answer 19

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)

Question 20

2 ways to Transfer a Lease

Answer 20

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)

Question 21

Blocking tenant from transferring

Answer 21

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

Question 22

2 LL’s Obligations to Tenants

Answer 22

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