Full Set Flashcards
FEE SIMPLE DETERMINABLE (defeasible fee)
durational language
- “While,” “during,” “until.”
- Future interest is a possibility of reverter held by grantor & the interest vests automatically after duration ends.
FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT (defeasible fee)
conditional language
- “Provided,” “on the condition.”
- To retake possession a grantor must exercise his right. Thus, only entitled to possession when he reclaims it.
- Future interest is right of reentry held by grantor & does not vest automatically, must be exercised.
FEE SIMPLE SUBJECT TO EXECUTORY INTEREST (defeasible fee)
3rd party
The same as fee simple subject to condition subsequent, but 3rd party (not grantor) holds future interest.
TENANCY IN COMMON (LIFE ESTATE)
W/ no right of survivorship, each tenant can transfer property at death or in vivos.
TERMINATION (LIFE ESTATE)
When measured life ends. Cannot be devised or passed by intestate succession.
FUTURE INTEREST (LIFE ESTATE)
Either reversion (to grantor) or remainder (3rd party).
WASTE (LIFE ESTATE)
Comes into play when 2+ parties have interest in the same real property.
COA to party holding right to reversion or remainder against current user.
Affirmative (voluntarily decreasing value), purposive (negligently decreasing value), ameliorative (change increases value).
TENANCY IN COMMON (CONCURRENT ESTATES)
When measured life ends. Cannot be devised or passed by intestate succession.
JOINT TENANCY (CONCURRENT ESTATES)
Grantor must use clear, survivorship language – “as joint tenants with right of survivorship.”
Right of survivorship (automatically taking at joint tenant’s death).
Four Unities:
- equal right to Possess
- equal Interest
- interest granted at same Time
- interest granted in same Title.
Destructing any unity converts joint tenancy to a tenancy in common (e.g., inter vivos transfer, mortgage, lease).
Mortgages can sever joint tenancy in the minority of (title) jurisdictions, but not in the majority (lien).
TENANCY IN ENTIRETY (CONCURRENT ESTATES)
“As tenants by the entirety, with a right of survivorship.”
Cannot alienate w/o spouse’s permission.
RIGHTS & OBLIGATIONS (FOR ALL CO-TENANTS) (CONCURRENT ESTATES)
Possession & use – right to all, but can contract away, exclusion w/o contract can result in injunction or damages.
3rd party rents & operating expenses – rent revenue divided by ownership interest, can collect contribution for operating expenses. Not so for repair & improvement costs, but can get credit in a partition.
Partition – equitable remedy to joint tenants or tenants in common dividing the property into distinct portions. Can be done in sale if physical would not be practical or fair. Contract against if agreement is clear and time limit is reasonable.
EXECUTORY INTERESTS (FUTURE INTERESTS)
Subject to RAP.
REMAINDERS (FUTURE INTERESTS)
Follows a life estate (present possessory estate) & can be vested or contingent.
RAP only applies to contingent remainders, not vested remainders.
CLASS GIFTS – VESTED SUBJECT TO OPEN (FUTURE INTERESTS)
RAP applies to vested subject to open (vested remainder).
The Rule of Convenience closes a grant w/o an express closing date. Closes the class when any member becomes entitled to immediate possession, which prevents classifying an interest as vested subject to open & therefore avoids RAP.
SPECIAL CASES (FUTURE INTERESTS)
Doctrine of Worthier Title – creates presumption in a reversion to the grantor.
Rule in Shelley’s Case – uses doctrine of merger to create a fee simple for grantee.
VIOLATIONS STRICKEN (RAP, a future interest)
When were the interests created? At death? At the grant?
Are the interests contingent remainders or executive interests? If yes, RAP applies.
Who is the relevant life? Who is the validating life (alive at creation)?
CLASS GIFTS (RAP, a future interest)
Bad as to one, bad as to all.
RULE OF CONVENIENCE (RAP, a future interest)
Closes a grant w/o an express closing date. Closes the class when any member becomes entitled to immediate possession, which prevents classifying an interest as vested subject to open & therefore avoids RAP.
EXCEPTIONS (RAP, a future interest)
To class gift rule – transfer of specific amount of $ to each member & transfer to a subclass that vests at a specific time.
To RAP – one charity to another & to option held by a current tenant to purchase a fee interest in the leasehold.
Tenancy for Years (definition)
Measured by fixed & ascertainable amount of time.
Tenancy for Years (creation)
Agreement by L & T to demon-strate intent (1+yr in writing).
Tenancy for Years (termination)
Automatically at end of term, no notice required.
Periodic Tenancy (definition)
Repetitive & ongoing for a set period of time.
Tenancy at Will (definition)
May be terminated by either L or T at any time, for any reason.
Tenancy at Sufferance (definition)
Temporary tenancy before L evicts or T rerents. Terms of prior lease control.
Periodic Tenancy (creation)
Implied or express intent.
Tenancy at Will (creation)
Implied or express intent.
Tenancy at Sufferance (creation)
When a T holds over after lease has ended. T’s actions alone.
Periodic Tenancy (termination)
W/ proper notice @ start of last term, notice effective last day of the period.
Tenancy at Will (termination)
By either party w/o notice.
Tenancy at Sufferance (termination)
T voluntarily leaves OR L evicts T OR L rerents to T.
TENANT’S DUTIES
Pay rent & avoid waste!
Duty to pay rent can suspend (premises destroyed • eviction • L materially breaches).
Implied covenant of quiet enjoyment – breached when premises wholly or substantially unusable & tenant is constructively evicted (unusability • notifies L • L doesn’t correct • T vacates after reasonable time).
Implied warranty of habitability – suitability for residential use (health & safety), unwaivable, if breached tenant can refuse to pay rent, remedy defect & offset cost & defend against eviction.
Tenant must not affirmatively or permissively create waste, may improve, and is not responsible for repairs.
LANDLORD’S DUTIES
Mitigate damages (majority rule).
Can evict or continue relationships as periodic lease with holdover tenant (old price unless notified before expiration).
Deliver actual possession.
Control common areas & nuisance of other tenants.
T owes duty of care to invitees, licensees & foreseeable trespassers.
L is L (negligence for latent defects w/ no notice • faulty repairs • negligence that causes injuries in common areas).
ASSIGNMENTS & SUBLEASES; DISCRIMINATION
L is transferor, T is transferor & transferee, ST is transferee.
Assignment is complete transfer of T’s remaining term.
In assignment, L can get rent from T (privity of contract) or ST (privity of estate).
Sublease is transfer for less than entire duration of lease.
Majority – L can only deny permission for commercial leases.
L can transfer his interests at will, but new L cannot change terms with T w/o permission.
L can’t discriminate under Fair Housing Act (families w/ kids not always protected).
ADVERSE POSSESSION (ELEMENTS)
- Continuous (entry • end phase, SOL • middle, making use) tacking permitted, but SOL can’t run on the disabled.
- Open & Notorious, reasonableness standard.
- Hostile, adverse w/ majority not requiring hostile state of mind: good vs. bad faith.
- Exclusive, can’t share w/ true owner.
ADVERSE POSSESSION (SCOPE)
Can adversely possess through bad title using only portion of land in title and get all of it.
Includes surface rights.
Can also make easements this way.
