Ownership Flashcards
Generally
Property may be transferred by sale, by git, by devise, and by intestate succession.
Intestate Succession - if person dies without a will, surivor is his heir.
Grantor - seller or donor
Grantee - buyer or recipient
Pres. Estates - Fee Simple Absolute
Fee Simple Absolute - absolute ownership of potentially infinite duration, property is freely alienable and does not terminate unless owner dies; if grant ambiguous then assumed fee simple
Ex: A conveys Blackacre “to B and his heirs.” C conveys Whiteacre to “B.” Both conveyances give B a fee simple absolute estate in the property.
Ohio - no specific terms of inheritance are required to create FSA; unless otherwise stated, every conveyeance creates a FSA
Pres. Estate - Defeasible Fees
Defeasible Fees - ownership potentialy infinitie but may be terminated by occurrence of an event
a. Fee Simple Determinable - fee simple state limited by specific durational language that terminates automatically upon occurance and returns to grantor.
NOTE: limits duration, not merely the purpose. Language used includes so long as, while, during, until.
Possibility of Reverter - future interest of grantor is called this upon
Ex: A conveys Blackacre “to B and his heirs, until B gets married.” The estate reverts back to A if B gets married. Therefore, B has a fee simple determinable in Blackacre, with a possibility of reverter in A.
b. Fee Simple Subject to Condition Subsequent - fee simple limited in duration by specific conditional language and terminates only if grantor affirmatively demonstrates intent to terminate
NOTE: language useed includes provided that, but if, on the condition that;
Right of Reentry - future interest of grantor is called this
c. Fee Simple Subject to Executory Interest - fee simple that limited by either conditional or durational language and title will pass to third party.
Executory Interest - future interest of third party is called this
Pres. Estate - Fee Tail
Fee Tail - limits estate to the grantee’s lineal blood descendants by specific words of limitation
Language - heirs of the body
OHIO - FEE TAIL BECOMES A FEE SIMPLE ABSOLUTE TO THE FIRST DONEE IN TAIL
Pres. Estate - Life Estate
Life Estate - possessory estate limited in duration by a measuring life. Upon death of measuring life, title reverts to grantor or specificed remainderman
Reversion - future interest to grantor known as this
Remainder - future interest of third party known as this
Ex 1: A conveys Blackacre “to B for the life of B.” B has a life estate in Blackacre, which terminates upon B’s death. A has a reversion; upon B’s death, ownership of Blackacre reverts to A.
Ex 2: A conveys Blackacre “to B for B’s life, and then to C.” B has a life estate in Blackacre, which terminates upon B’s death. C has a remainder; upon B’s death, ownership of Blackacre vests in C.
Note: unless otherwise noted, measuring life is the grantee
Note 1 - spouse is endowed witha life estate interest in a portion of deceased’s estate
Dower - portionpassing to surviving wife
Curtsey - potion passing to suriving husband
OHIO: Dower - estate for life for surviving spouse in 1/3 of real property present in the state at decedent’s death
- adultyery is a bar to dower; if spouse commits waste then dower forfeited; if spouse gives up real property by collusion or fraud or default, the surviving spoue may recover dower
Pres. Estate - Waste
Under Ohio real property law, the rights of a holder of an estate may be limited by the doctrine of waste.
- Affirmative Waste - waste caused by voluntary conduct which causes a decrease in value; future interest holder may bring action for damages
- Permissive Waste - waste caused by reasonable neglect toward the property that causes a decrease in value
- Ameliorative Waste - life tenant or other person in possession changes the use of the property and actually increases the value of the property; forbidden unless all future interest holders were known and consented
Conc. Estate - Generally
Concurrent Estate - (co-tenancy) ownership of real property by two or more persons simultaneously.
Gen. Rule - co-tenants each have righ to use and possess the whole property
Categories - Tenancy in Common, Joint Tenancy, Tenancy by the Entirety
Conc. Estate - Ten. in Common
Tenancy in Common - equal right to posess or use the property and no right of survivorship exists regardless of size of interest.
Note: default concurrent interest, catch-all; can be unequal shares; has unity of possession (each have equal right to possess the whole of the property)
Conc. Estate - Joint Ten.
Joint Tenancy - two or more individuals own the porperty with the right of survivorship
Right of Survivorship - upon death of joint tenant, the interest terminates and automatically goes to surviving joint tenant
NOTE: grantor must make clear expression of intent and there must be survivorship language (e.g., joint tenants with a right of surivorship)
Requires Four Unities - PITT
- Possession - each tenant must have equal right to possess whole of property (common and entierty also require this)
- Interest - each tenant must have equal share of same type of interest
- Time - must recieve interest at same time
- Title - must recive interest in the same instrument
Severence - if any unity destroyed then turns into ten. in common
- Inter Vivos Transfer - transfer during life will destroy right of survivorship
- Mortgage - majoriy follow lien theory that interest to creditor does not destroy joint tenancy; minority follow title theory and severs title
- Leases - split that it severs joint tenancy and some temporary suspend tenancy
- At Death - no effect, automatically transfers to remaining joint tenant
OHIO - no common law joint tenancy
- when no survivorship rights are explicitly set out in conveyance, court will contrue as a tenancy in common
- if parties clearly create express survivorship rights, then they form joint tenancy with rights of survivor ship
Conc. Estate - Joint Ten. Examples
Example 1: X and Y hold Greenacre as joint tenants. X’s action results in a severance of the joint tenancy. After the severance, X and Y hold Greenacre as tenants in common.
Example 2: X, Y and Z hold Greeenacre as joint tenants. X’s action results in a severance of the joint tenancy. After the severance, X holds a one-third interest in Greenacre as a tenant in common with Y and Z, who each hold a 1/3 interest in Greenacre as joint tenants between themselves.
Example 3: Assume the same facts as those in Example 2. Y dies and leaves all of his property to C. C is not entitled to Y’s 1/3 interest in the Greenacre. Instead, Z, by virtue of his right of survivorship, owns a 2/3 interest in Greenacre as tenant in common with X who continues to hold her 1/3 interest in Greenacre.
Example 4: Assume the same facts as those in Example 2. Y, while alive, gives his property to C. This effects a severance of the joint tenancy that existed between Y and Z. As a consequence, X, C, and Z all hold a 1/3 interest in Greenacre as tenants in common.
Conc. Estate - Ten. by the Entirety
Tenancy by the Entirety - joint tenancy between married persons with a right of survivorship
Requires the previous 4 unities plus marriage unity (aka unity of person)
Encumber - tenants by the entirety cannot alientate or encumber their shares without the consent of their spouse
Language - as tenants by the entirety, with a right of survivorship
Ambiguous - if ambiguous, courts hold as joint tenant or tenant in common
OHIO - no CL tenancy by the entirty; survivorship tenancy
- each survivorship tenant holds an equal share of the title during their joint lives
- tenants share in payment ofproperty tax and profits
- upon death, title of decedent vests in surviving tenant
- creditor of one survivorship tenant may enforce a lien against on or both, and if does so validly then tenancy becomes in common
Conc. Estate - Rights + Oblig
a. Possession - unless agreed to the contrary, each cotenant has right to possess all of the property regardless of the type of co-tenancy
Ouster - if cotenant in possession denies another cotenant access, the ousted party may get an injunction or recover damages for value of of the use while cotenant unable to access property
b. Third-party Rents - cotenant must account to other cotenant for rent recieved, minus operating expenses, and divde based on ownership % interest.
c. Operating Expenses - necessary charges such as taxes and mortgage interest payments are divided based on ownership % interest and co-tenant has right to collect contribution for payments in excess of her share of the expenses
d. Repairs - no right to reimbursement for necessary repairs but may get credit in partition action
e. Improvements - no right to reimbursement for improvements but may get credit in partition action
Conc. Estate - Partition
Partition - unilateral remedy available to all holders of a tenancy in common or joint tenancy where court will divide property into distinct
Entirety - do not have this right
Note: courts will order partition by sale if physical partition is 1) not practicable or 2) not fair to all parties ; monies divdied by ownership % interest
Agreement - cotenant can agree not to partition and is enforceable if agreement isclear and time limitaiton is reasonable
Fut. Ints - Reversion
Reversion - future interest held by grantor who grants a life estate or estate for years but does not convey the remaining interest to a third party
Fut. Ints - Possibility of Reverter
Possibility of Reverter - automatically retained by grantor when a fee simple determinable is conveyed
Fut. Ints - Right of Reentry
Right of Reentry - future interest held by grantor after a fee simple on condition subsequent is granted
Fut. Ints - Remainder
Remainder - future interest created in a grantee that is capable of becoming possessory upon expiration of condition and may be either vested or contingent
Note - follows life estates; cannot follow a vested fee simple
RAP Application - applies only to contingent remainders
Vested Remainder - 1) interest is given to an ascertained grantee and 2) is not subject to a condition precedent; if either fail, then contingent
Class Interests - group of unspecified persons whose number, identity, and share of the interest is determiend in the future (e.g., at death of the donor); typically group of children
a. Vested Subject to Open - if vested remainder is a class gift, full class membership is unknown, and one person in the class is vested (if no one vested, then contingent). RAP applies.
Rule of Convenience?!
Closed Class - if all members of a classs are identified (e.g., 21 years after death of parent)
b. Vested Subject to Complete - occurence of a condition subsequent will completely divest the remainder interest.
Contingent Remainder - remainder contingent if grantee unascertainable or if subject to an express coniditon precedent
RAP applies to contingent remainders
Fut. Ints - Remainder Examples
Example: A conveys a gift “to my children.” Here, A conveys a class gift to an unspecified group because the recipients (i.e., those who will qualify as A’s children upon A’s death) are not known until A dies.
Example: A conveys Blackacre “to B for life, and then to C and his heirs.” Here, the grantee, C, is ascertainable.
Example: A conveys “to B for life, and then to B’s children as they turn 18.” B has three children upon death, X (10 years old), Y (15 years old), and Z (20 years old). Z has a vested remainder subject to open because the property interest may be shared if Y and/or X become vested (i.e., reach age 18).
Example: A conveys “to B for life, and then to C’s children.” If the conveyance does not specify when the class closes, then the class closes when B dies, regardless of any of C’s children born after B’s death.
Example: A conveys “to B for life, remainder to C’s heirs.” If C is alive at the conveyance, C’s heirs are not yet ascertainable, and the remainder is contingent.
Example: A conveys “to B for life, and then to C; but if C has no children, then to D’s children.” C has a vested remainder interest, but if he is not survived by his children at the time of B’s death, then C’s interest will be divested.
Fut. Ints - Special Cases
Doctrine of Worthier Title - prevent remainders in the grantor’s heirs and instead creates a reversion to the grantor
Rule in Shelley’s Case - prevents remainders in a grantee’s heirs and instead merges to create a fee simple
Example: A conveys “to B for life, remainder to B’s heirs.” If the rule in Shelley’s Case applies, then after the merger, B will receive the property in fee simple absolute. If the rule in Shelley’s Case has been abolished, then B has a life estate and B’s heirs have a contingent remainder in the subject property.
OHIO - shelly rule abolished; may have contingent remainders in grantee’s heirs
Fut. Ints - Executory Interests
Executory Interest - future interest in 3rd party grantee that is cut short (divests) a prio vested interest.
Two Types:
- Springing Executory Interests - divests grantor
- Shifting Executory Interest - divests prior grantee
Example: A conveys “to B and his heirs, but if C returns from Paris, then to C.” This conveyance creates a fee simple subject to an executory limitation in B and a shifting executory interest in C.
Example: A conveys “to B for life, and one year after B’s death to C and his heirs.” This conveyance creates a life estate in B, a one-year reversion in A (in fee simple subject to an executory limitation), and a springing executory interest in C.
Fut. Ints - Rule Against Perpetuities
Applies to 1) contingent remainders, 2) executory interests, 3) vested remainders subject to open if not closed by rule of convenience.
Validating Life - allive when interests created
RAP Violation - protion violating RAP is struck out as if the interest was never created in the first place
EXAMPLES
Example 1: A conveys Blackacre “to B for life, and then to the first male descendant of B, then to C.” This provision violates the Rule because it may be many generations before there is a male descendant of B, if at all.
Example 2: A conveys Blackacre “to B for life, and then to B’s first son who reaches the age of 18, then to C.” This provision is valid because any son of B will attain age 18 within 21 years after B’s death.
Example 2: A devises Blackacre “to a charity for so long as the property is used as an animal shelter, and then to C.” Since there is not a measuring life, C’s interest must vest or fail within 21 years of the creation of C’s interest in order to satisfy the Rule. Since there is not a guarantee regarding the future use to which Blackacre is put, C’s interest violates the Rule.
Example 1: A devises Blackacre “to B for life, and then to B’s children who reach the age of 25.” B’s life is the measuring life.
Fut. Ints - Rule Against Perp. Special Cases
All or Nothing Rule - if class gift to any member is void then gift is void as to all members of the class.
Example: A devises Blackacre “to B for life, and then to B’s children who have graduated from college.” At the time of A’s death, B had two children: X, who had graduated from college, and Y, who had not. X has a vested remainder subject to open; Y, as well as any after-born children of B, has a contingent remainder. At the time of B’s death, Y has also graduated from college, and B has had a third child, Z, who is in elementary school. Because it may take Z more than 21 years to graduate college and thereby vest his interest, not only is Z’s interest void under the Rule, but X and Y’s interests are also void.
Rule of Convenience - class closes as soon as a member of the class is entitled to immediate possession
Example 1: A conveys Blackacre “to B for life, and then to C’s children.” At the time of the conveyance, C has one child, X. X has a vested remainder subject to open. Although C may have children more than 21 years after B’s death, the class will close upon B’s death since C has a child, X. Consequently, X and any other children born to C prior to B’s death will take Blackacre. The Rule will not apply to void their interests in Blackacre.
Exceptions to the Class Gift Rule - if tansfer of a specific dollar amount or transfer to a sublcass that vests at a specific time (e.g., “to the children of B and upon the death of each, to that child’s issue”)
Exceptions to RAP
- Gift from charity to charity
- option held by a current tenant to purchase a fee interest in the leashold property
OHIO - wait and see stance - will wait for 21 years to elapse to see if violated, if it does then will reform wo most closely follow creator’s intent
