ESTATES Flashcards
1
Q
ESTATE
A
AN ESTATE IS AN INTEREST IN LAND THAT GIVES THE OWNER A RIGHT TO
1. POSSESS THE LAND, EITHER
a. IMMEDIATELY
b. IN THE FUTURE, OR
c. Potentially in the future
EVERY owner with a Possessory interest in land has an estate.
2
Q
Who has a possessory interest?
A
- ordinary “homeowners”
- people who occupy apartments under two- year leases
- “renters” who orally lease apartments from week to week.
All these people have estates in land. Though they all have DIFFERENT estates.
3
Q
Possession
A
Possessory rights in land are usually understood to include rights to GENERAL control, use and occupancy of the land, and the right to exclude others
4
Q
Easement
A
Also known as an incorporeal interest.
Incorporeal Interest means no possession. An easement or right of way across another’s land is a typical incorporeal interest in land.
5
Q
Name the 6 different estates
A
- FEE SIMPLE ABSOLUTE
a. fee simple determinable
b. fee simple fee simple condition subsequent
c. fee simple executory limitations - FEE TAIL
- LIFE ESTATE
- TERM OF YEARS
- PERIODIC TENANCY
- TENANCY AT WILL
6
Q
TENANT
A
Any owner with a present right to possess land.
7
Q
TENEMENTS
A
ANY land holding in which a person has PRESENT possession can be properly referred to as a TENEMENT
8
Q
FEE SIMPLE ABSOLUTE
A
The greatest duration
9
Q
ESCHEAT
A
WHEN THE LANDOWNER DIES AND THE PROPERTY GOES TO THE STATE IT WOULD BE CALLED ESCHEAT
10
Q
DEVISE
A
A PERSON WHO RECEIVES OWNERSHIP OF LAND UNDER THE TERMS OF A WILL.
11
Q
HEIR
A
ONE WHO IS DESIGNATED BY LAW TO RECEIVE OWNERSHIP OF A PARCEL OF LAND, NOT A PERSON WHO GETS LAND UNDER A WILL.
12
Q
CONVEYANCE
A
The normal way to get a fee simple absolute or any other estate in land is to obtain a CONVEYANCE from the person who has it– namely the current owner.
13
Q
What is the normal mode of conveyance
A
The normal mode of conveyance today is to DELIVER a DEED by the grantor to the grantee
14
Q
Life Estate pur autre
A
when the owner of a life estate conveys the life estate to somebody else. Conveyances of life estates do not change the person whose life serves as the measuring life.
15
Q
REVERSION
A
A future interest retained by the GRANTOR to follow a particular estate when the particular estate expires
16
Q
TERM OF YEARS
A
A term of years is an estate that is limited to end on or before a DEFINITE time
17
Q
REMAINDER
A
A future interest to someone OTHER THAN the grantor.
18
Q
determinable term of years
A
one that would come to a premature end if the rent was not timely paid.
19
Q
PARTICULAR ESTATES
A
Estates carved out of the fee simple absolute are sometimes called particular estates because they are particles of the whole fee simple.
20
Q
Ejectment
A
A tenant can recover possession from the Landlord in an action in ejectment
21
Q
Sublease
A
when a term of years is carved out by another term of years
22
Q
Demise
A
The landlord put the possession down to the tenant
23
Q
Assignment
A
A transfer by a lessee of LESS than his/her ENTIRE estate (in terms of duration
24
Q
Statute of Fraud
A
Under the Statute of Frauds any lease for a duration of more than 1 year had to be memorialized in writing, signed by the “party to be charged” or it would be unenforceable.
25
Creating Periodic Tendency
There are two ways to create a periodic tenancy.
1. The parties may INTEND to create it, or
2. It may arise BY IMPLICATION.
26
Tenancy at will
tenancy continues for only as long as both parties "will" it to continue.
There must be some minimum advance notice.
27
What is the tenancy at will duration under common law.
All of them
indefinite
it's essentially up to the parties
until either landlord or tenant calls it quits
upon the death of either party
28
Periodic tendency
A periodic tendency generally continues from period to period. The period is usually a week, month, or year.
Can continue for an INDEFINITE duration, and both are READILY TERMINABLE by either landlord or tenant
29
Advance notice for periodic tenany
The tenancy termination notice
tenancy week to week - 1 week notice
tenancy month to month - 1 month notice
tenancy year to year - 6 months notice.
30
Terminating Periodic Tenancies
1. There must be one period's notice, AND
2. Termination can be only as of the end of a period.
31
Leasehold
An estate in land that gives the tenant the exclusive right of possession for the duration of the lease.
32
Tenant at Sufferance
A tenant who holds over beyond the end of the term
33
Rule Against Perpetuities
Only applies to Contingent remainders and Executory interest.
In order to be valid
Must vest if at all in 21 years of lives in being.
34
O to A for life, then to B if B has passed the bar
Contingent remainder
35
To A from B for life then to B's children
Vested remainder subject to full divestment
36
To A from B for life then to C
Indefeasible vested remainder
37
From O to A for life, then to B unless B gets convicted of a crime.
Vested Remainder subject to full divestment
38
Executory interest
Any future interest not in grantor and not following a life estate.
Future interest.
RAP applies
39
Right of Re-entry
Future Interest
Created by owner granting Fee Simple subject to condition subsequent. Must be expressly reserved by grantor, or right is invalid.
No RAP vested
40
Possibility of Reverter
Future Interest
Created by owner granting an Fee Simple Determinable. Need not be express reservation.
No Rule Against Perpetuities
41
Reversion
Future Interest
Created by owner's grant of life estate or other lesser estate in land
No rule against perpetuities: Owner's rights are always vested.
No 3rd party
42
Defeasible
the estate is set up to expire or be divested if some specific even occurs
43
What are the three Defeasible Fee Simple Estates
Fee simple determinable
Fee simple condition subsequent
Fee simple Executory Limitation.
44
Fee Simple Determinable
Terminates automatically and goes to the grantor
Future interest is possibility of reverter.
45
Fee Simple Condition Subsequent
Terminates grantor's elections. Land goes to grantor.
Future interest is right of re-entry, right of entry, or power of termination.
46
Fee Simple Executory limitation
Terminated automatically. Land goes to a third party. Future interest is executory interest
47
4 Unities
1. Possession
2. Interest
3. Time
4. Title.
48
Joint Tenancy
4 elements
4 unities
1. Possession.
2. Interest
3.Time
4.Title
plus
express right to survivorship.
Upon the death of one, share goes to the survivor.
49
To A and B as TIC
Tenancy in Common
50
Tenancy by the entirety
Joint tenancy, but for spouses only
To A and B a married couple, as a tenancy by the entirety.
No severance
51
Conveyance
52
Adverse Possession
Someone who goes on land that is not theirs and makes use of it.
Possession that is:
1. Open and notorious
2. Actual and Exclusive
3. Continuous & Uninterrupted
4. Hostile
5. For a statutory period of time.
53
Hostile
Adverse Possession
On the land without the consent of the true owner.
54
Open and Notorious
Adverse Possession
The owner of the land can see that you are on the property and using the property.
55
Actual And Exclusive
Actual: Making use of the land that any true owner would make of the land.
Exclusive: You are the only one utilizing the land.
If the true owner is using the land while you are using the land it would not be considered exclusive.
56
Continuous and uninterrupted
constantly being used for the purpose and in the manner reasonably and normally intended.
57
Statutory Period of time
The time will be said in the fact pattern. If not the Common Law is 10 years.
58
Tacking
59
Privity of ownership
60
Defenses to Adverse Possession
Incapacity
Incarcerated
Infancy
61
Mortgage
Must be in writing. Not possessory unless foreclosure.
Variations
1. Deed of trust
2. Installment land contract
3. Equitable mortgage.
61
Periodic Tenancy
May be by express agreement or can happen by default at end of lease (if both parties wish). Month to month, ongoing for indefinite period.
61
62
Landlord/ Tenants
To be successful on a landlord-tenant question, be aware of each party’s rights and duties. Thus, know the landlord’s right to receive rent for the term, when notice is required to terminate a lease (often 30 days before termination, but longer if a term for years), the landlord’s and tenant’s covenants, including the landlord’s duty to deliver possession (including timely possession), the landlord’s covenant of quiet enjoyment and non-disturbance (which goes to the use and enjoyment of the premises), and the landlord’s implied warranty of habitability (which generally extends to residential but not commercial property and which, if breached, allows the tenant to move out and terminate, or to make repairs and offset the cost against their rent or seek damages against the landlord), and the tenant’s covenant to pay rent, covenant to repair damage they cause, and covenant not to commit waste. With some of the non-rent covenants, you may need to determine if the covenant runs with the land.
With the exception of the covenant to pay rent, covenants in a lease are independent of each other, so that if a covenant is breached, the breaching party may owe damages, but the non-breaching party is not excused from performance.
A covenant not to assign or sublease will be enforced, although consent should not be unreasonably withheld. An assignment assigns the entire leasehold estate, while a sublease only assigns a part of the leasehold estate. An assignee and a sublessee are in privity of estate with the landlord.
Both the assignee and assignor remain liable on the covenant to pay rent.
63
Tenancy for years
Fixed term lease. Contract for specific fixed period of time.
64
Periodic Tenancy
No fixed ending date.
65
Holdover Tenancy (sufferance)
66
At will Tenancy
Landlord agrees to temporary tenancy revocable at any time. Very rare modernly.
67
Notice
1. Must be in writing.
68
Holdover Tenancy (Sufferance)
Someone who wrongfully stays passed the term of their lease or after breach. No right to possess land or use land.
The landlord can not just through you out the landlord has to rightfully evict you.
69
Encroachment
A structure built by a neighboring property owner that overlaps the property boundary.
The encroachment need not be a permanent structure to render title unmarketable.
70
Doctrine of Merger
if the purchaser has some objection to the title on the basis of the implied covenant of marketable title, the purchaser must raise the title defect prior to accepting delivery of the deed.
71
Equitable Conversion
This doctrine holds that equitable title passes to the purchaser as soon as the parties enter into an enforceable contract to sell real estate, even though it is clear that the legal title will remain with the seller until the closing and the delivery of a deed to the purchaser.
72
6 covenants
Seisen
Right to Convey
Against Encumbrances
Quiet Enjoyment
Warranty
FurtherAssurances
73
Real Property
property where the owner could obtain specific relief- the right to get the thing back from a wrongful possessor, This action is called an action in rem or real action
The owner is entitled to restitution of the thing from the wrongdoer
74
Personal Property
The owner could only get an action for damages. An action in personam, personal action.
75
Three Part test to determine whether a chattel has become a fixture
1. Physical Attachment: to what extent is the time annexed to or attached to the property.
2. Adaption: to what degree is the item specially adapted to the property.
3. Intent: What is the intent of the annexing party or the parties.
76
Fixtures
Of a property is labeled fixtures this means they are real property for the purpose of a contract of sale and the buyer is entitled not only to the and and the building, but also to fixtures.
77
Emblements
Emblements are annual crops that require labor and cultivation for their production.
Emblements are treated as personal property
78
Tangible personal property
Chattels or goods.
79
Tangible real property
consists principally of estates in land.
80
Ratification
Elements
1. An agent had engaged in an unauthorized act.
2. On behalf of a principal
3. The principal later affirmed the prior unauthorized act (this is the act of ratification)
4. Ratification by the principal made the principal liable as though the unauthorized act had been authorized at the time it occurred.
1. Agent is not authorized.
2. Third party wants to hold principal liable for the agent's unauthorized act.
liability will be imposed on the principal even though the agent had no authority to do what they did.
Agent performed unauthorized act.
The principal is the one who does the ratifying
81
How Ratification occurs
1. what must the principal know at the time of ratification?
2. What constitutes affirmance of the unauthorized act?
82
Before Ratification occurs a principal must
1. Know of the unauthorized act;
and
2. know of all the the material facts relating to the unauthorized act; and
3. indicate affirmation of the act through manifestation of consent; and/ or
4. indicate affirmation of the act by accepting the benefits of the unauthorized act.
83
Adoption
Although there is no ratification, a person on whose account another acts or purports to act may become a party
84
Ratification and Adoption
For both Ratification and Adoption:
a. Consent may occur either by accepting the benefits of the transaction or by manifesting consent in some other way.
b. The principal must know the material facts at the time of consent.
c. What the principal knows at the time the act occur is immaterial.
Ratification only:
1. The principal must have the capacity to authorize the unauthorized act (and therefore must exist) at the time the act occurs.
2. The principal will be bound from the time of the unauthorized act.
For Adoption only:
a. The principal need not have the capacity to authorize the unauthorized act (and therefore need not exist) at the time the act occurs.
b. the principal will be bound from the time of consent to the unauthorized act.
85
Legal Title
86
Deed needs the following written elements:
1. identification of the grantor and grantee
2. a description of the land being conveyed
3. words indicating the grantor's present intent to transfer title (such as grantor "hereby conveys title" or others like
4. and the grantor's signature.
A writing is necessary in every American state under the Statute of Frauds
87
Grant
A grant may pass any interest in land, whether possessory or nonpossessory in nature
88
General warranty deed
A deed that contains a broad statement of such covenants, such as when the grantor covenants "against the lawful claims of all persons.
89
Special Warranty deed or limited warranty deed
A deed warranting "against the lawful claims of all persons claiming by, through, or under the grantor,"
90
quitclaim deed
a deed that contains no covenants of title at all.
Whereby the grantor will typically "transfer and quitclaim" he described land to the grantee, but without covenants or promises regarding the legal title.
91
Ambulatory disposition
Frequently the grantor wishes to make an ambulatory disposition of the property - a disposition that is final only at death and that is revocable so long as the grantor remains alive.
The correct instrument to accomplish an ambulatory disposition of property is a will.
92
Race Statutes
As between successive grantees to the same land, priority is determined solely by who records first. Whoever wins the race to record prevails over a person who has not recorded or who subsequently record. Notice is irrelevant.
Ex: On JAN 1, O conveys blackacre to B. B knows of the deed to A. B records. Then A records. B prevails over A because B recorded first. It is immaterial that B had actual notice of A's interest.
93
Notice Statute
A subsequqent bona fide purchaser prevails over a prior grantee who fails to record. The subsequent purchaser prevails over a prior grantee who fails to record. The subsequent purchaser wins under a notice statute if he has no actual or constructive notice of a prior claim at the time of the conveyance.
Ex: On Jan 1, O conveys Blackacre to A. A does not record. On Feb 1, O conveys Black acre to B, who give valuable consideration and has not notice of the deed from O to A. B prevails over A.
94
Race notice statute
In order for a subsequent purchaser to win, he must both be without notice and win the race to record.
A conveyance of an estate in land (other than a lease for less than a year) shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded.
Ex: On January 1, O conveys Blackacre to A. A does not record. On Feb 1, O conveys Blackacre to B, a bona fide purchaser. On Feb 3, A records. On Feb 15, B records. A prevails over B because B's conveyance was not first recorded.
95
Bona Fide Purchaser
Only a bona fide purchaser is entitled to protection under notice and race-notice statutes. To attain this status, a person must: 1. be a purchaser (or mortgagee, or creditor if the statute allows,), 2. who takes without notice (including actual, record, or inquiry notice) of the prior instrument, and gives a valuable consideration.
96
Shelter Rule
A person who takes from a Bona fide purchaser will prevail over any interest which the BFP would have prevailed. This is true even where such person had actual knowledge of the prior unrecorded interest.
Ex: O conveys to A, who fails to record. O then conveys to B, a BFP, who records. B then conveys to C, who has actual knowledge of the O to A deed. Inasmuch as B prevails over A, B's assignee, C, prevails over A. This is true whether C is a donee or purchaser. C is sheltered by the BFP.
97
RECORD NOTICE
If an instrument is properly recorded any subsequent purchaser had record notice and is therefore not a BFP
97
INQUIRY NOTICE
A purchaser is by law to make reasonable inquiries.
97
ACTUAL NOTICE
If a subsequent grantee actually knows of the prior instrument, he has actual notice and is not a BFP. Proof of actual notice depends on extrinsic evidence.
98
Wild Deeds
A wild deed is a recorded deed to the property which is not recorded within the chain of title. Sometimes the term "wild deed" is used in a narrower sense.
99
Bailment
The term bailment is used to describe a relationship between the persons based on who is in possession of their goods, goods, and a person other than the owner who is in rightful possession of those goods.
100
Bailee
the person who is possession of the goods, but is not the owner.
101
Bailor
The person who is the owner, but not in possession.
102
How to create a bailment
A bailment was created when tangible personal property was delivered to a person other than the owner and accepted by that person, all without the owner's intent to pass title.
103
Consignment
Consignment is the delivery of possesion to a party who is authorized by the owner to sell the property on the owner's behalf. Ordinarily, a consignee receives a share of the proceeds.
104
UCC ARTICLES
UCC ARTICLE 2 (SALE OF GOODS, UCC
ARTICLE 2A LEASES OF GOODS
UCC 3 NEGOTIABLE INSTRUMENT.
UCC 7 COVERS DOCUMENT OF TITLE.
ARTICLE 9 CONCERNS THE RIGHTS OF
COMPETING CREDITORS TO THE COLLATERAL
105
PLEDGE
A bailment of property to secure an obligation
106
How to terminate the easement
1. Condition release
2
3
4. abandonment
5. Adverse use
6. destruction of serviut estate
7. estoppel
8. necessity
9. recording act.
10. condimnation
11. over use of the easement
107
PROFITS
Default to in gross and it goes to a particular person.
You can create a profit the same as a easement.
A profit permits holder to enter land and remove the soil or produce of the soil.
If you misuse and abuse the profit you loose it.
108
LICENSE
temporary permission of the owner to enter land. May be oral or written.
No legal interest in the land.
License can not be transferred.
109
FINDERS
Finder is a person who has taken possession of tangible property that he or she does not own.
110
How does property become abandoned
To abandon property, the owner must 1. have the intent to divest himself of ownership and 2. manifest that intent by physical action.
111
LOST PROPERTY
Goods are lost when the owner is not in possession and does not know where the goods ae.
112
Bailee owes what duty to the owner
1. duty to return the property
2. duty to care for the property.
113
Mislaid
Tangible personal property that was intentionally placed were it was found but appears to have been inadvertently left there.
114
Treasure Trove
When their is something found under the ground on property than it belongs to the English government.
Treasure trove is not one of the choices in the United States
115
Constructive Possession
When the owner of property intentionally leaves their personal property at a specific place with an intent to come back and get it.
116
EASEMENTS
Easements are interests in land giving the easement holder the right to enter and use land owned by another. Easement holders have a legally protected right to use another's property but not to possess it.
117
Profis a prendre
Profits a prendre are rights or interests in land, but instead of giving the holder the right to use the land, they allow the holder to take something off the land that at common law was thought of as part of the land.
