P Cond. Flashcards
Expirable estates
life estate
fee tail
To A for life
- Can be subject to a
condition subsequent
- Can be subject to
Executory limitation (if
the future interest is
retained by the 3rd party)
- Alienable, Not inheritable,
Not devisable
- Except for the life estate
pur autre vie(for the
life of another)
Life estate
To A and the heirs
of his body?
- limited by grantee’s
lineal blood
descendants by
specific words of
limitation (“heirs of
the body”)
- eliminated in most
states
fee tail
To A and her heirs
- Absolute ownership
- Alienable, Inheritable, Devisable
- Restraints on alienation are not enforceable in the
common law
fee simple absolute
defeasible estate- future interest to GRANTOR
fee simple determinable
fee simple subject to condition subsequent
To A and her heirs as long as no alcohol is sold on the land?
- Limited by Durational language
- during, until, while, so long as,
etc.
- Grantor has the Possibility of
Revertor (Self Executing)
- The condition is self-executing:
The fee comes to an end
automatically as soon as that
event happens
fee simple determinable
To A and her heirs on the
condition that she does
not sell beer on the land
- Limited by Conditional
Language
- But if, provided that,
on the condition that,
etc.
- Grantor has the right of
Entry
fee simple subject to condition subsequent
defeasible estate- future interest to THIRD PARTY
fee simple subject to executory limitation
Condition subsequent
- Restrictions AFTER
possession of property
- e.g. “To Kate and her heirs
for so long as the land is
used for farming, then to
Lesly and her heirs”
- Kate has a _______
because its a defeasible
estate + her interest is
followed by a 3rd party
transferee
- Lesly has a _____
FS subject to
executory limitation
shifting
executory interest
- To B as long as B doesn’t
sell alcohol on blackacre,
then to C and his heirs
- B has an FSA subject to
executory limitation; C
has a shifting executory
interest
Future interest retained by the grantor
1) reversion (fee tail and life estate)
2) possibility of reverter (FSD)(automatic)
3) right of re-entry (FSCS)(must be reclaimed/ power of termination)
future interest in third party transferees
1) remainders
2) executory interest (shifting/springing)
Remainders
1) contingent remainder (RAP)
2) vested remainder
- (1) is unborn or unascertainable, OR
- (2) a condition precedent
- e.g. O to A for life, then if B survives A,
to B and his heirs - B has a _____ in fee
simple(survival condition) - Subject to RAP
contingent remainder
alternative contingent remainders
- Holder has a contingent
remainder,
- Holder has a contingent
- Holder’s remainder is
followed immediately by Y’s
future interest
- Holder’s remainder is
(1) Born, and
- (2) Ascertainable,
- (3) NO conditions
(other than expiration
of the preceding
estate must be met
before x’s interest
becomes present
possessory)
indefesible vested remainder
- Condition precedent
- Possibility of not acquiring
possession of land
BEFORE possession - e.g. “To A for life, then to
B and his heirs; but if A
sells alcohol back to
grantor” - B has a ____in FSA
subject to ____
vested remainder- subject to total divestment
Used for class gifts, UNTIL
class closes
- e.g. O conveys Blackacre “to A
for life, then to A’s children who
reach 21.”
A has 3 kids: B is
25, C is 18, D is 15.
- Ben has a _____.
- Subject to RAP
- All or nothing rule- if RAP
voids one class gift, all are
void, even the ____
- can be saved with rule of
convenience- class closes
when one interest vests
VR subject to open
Rule Against Perpetuities
no interest is good unless it must vest if at all not later than 21 years after some life in being at the creation of the interest
All present possessory interests
- Future interests created in the grantor:
- Possibility of reverter
- Right of entry
- Reversions
- Vested remainders (except for class gifts)
- Charities
- ___ doesnt apply from a gift from one charity to another charity
- Options
- ___ doesnt apply to an option held by a current tenant to purchase a fee interest in the leasehold property
Not affected by rule against perpetuities
RAP special cases
1) doctrine of worthier title
- prevents against remainders in a grantors heirs. creates a presumption of a reversion to the grantor
2) rule in shelley’s case
- prevents against remainders in a grantees heirs
-uses doctrine of merger to create a fee simple
1) contingent remainders
2) executory interests
3) class gifts (even if they are vested)
4) A right of first refusal is subject to ___ unless the right is granted in a lease to a current leasehold tenant
affected interest (RAP)
RAP reformations
1) wait and see approach
- wait and see if an interest subject to RAP vests within perpetuities period
2) cy pres
Fertile octogenarian: Anyone is deemed capable of having children
- Unborn spouse: If an interest following a widow’s
life estate cannot vest until the widow dies, it violates the Rule. - Class transfers: survival beyond age 21 condition: If a transfer to a class is conditioned on
the class members surviving to an age beyond 21
and the class is open, the transfer to the class
violates the Rule. - Defeasible fee followed by an executory interest:
An executory interest that follows a defeasible fee
violates theRule, unless there is a time limit on the
vesting of the executory interest that satisfies the Rule. - If the limit on the defeasible fee is durational
(e.g., so long as, while), the striking of the
executory interest leaves the grantor with the
possibility of reverter. If the limit on the defeasible
fee is a condition subsequent (e.g., but if, upon
the condition that), the striking of the executory
interest leaves the holder of the defeasible fee with
a fee simple absolute interest in the property. - Conditional passage of interest: If there is a
condition imposed on the passing of a future
interest subject to the Rule that is not confined to a
specified time limit that meets the Rule’s testing
period, such as probating the will, or termination of
a current military conflict, the future interest runs
afoul of the Rule
RAP common rule violations
concurrent estates
1) tenancy in common
2) joint tenancy
3) tenancy by the entirety
Default presumption
- concurrent owners have
separate, but undivided
interests in the property - NO Right of survivorship
- Has Unity of Possession -
right to possess ALL the
property
tenancy in common
Has a Right of survivorship -
- the surviving joint tenants
automatically take the
deceased tenant’s interest
- requires clear expression of
intent PLUS survivorship
language
joint tenancy
how to create a joint tenancy: 4 unities
possession- tenants have equal right to possess the whole of the property
Interest- equal interest
time- interests received at same time
title-interest received using same instrument
how to sever a JT
if one unity is lost, JT is severed + turns into a tenancy in common
common severances of JT
1) sale
2) mortgages
maj: lien theory; not severed - just lien on prop
minority: title theory; JT is severed bc bank takes title
3) leases
** JX split on whether JT is severed by a lease
**if a JT gives a lease upon their death, the lease ends and the interest is transferred to the other JT
JT between married people
4 unities + unity of person (marriage)
has a right of survivorship
cannot alienate or encumber shares w/o consent of other spouse
tenancy by the entirety
cotenant in possession denies another cotenant access to the property
ouster
ouster remedies
damages: for value of the use while ousted
injunction
concurrent owners each have a right to use or possess the ____property
whole property; unless agreement says otherwise
physical division of property; courts prefer this
partition in kind
only done if a partition in kind is
not practical and not fair
partition by sale
There is no right to ____ from cotenants for necessary repairs or improvements
right to reimbursement
operating expenses divided based on ownership
reimbursment possible
landlord + tenant
1) tenancy for years
2) periodic tenancy
3) tenancy at will
4) tenancy at sufferance
Repetitive and ongoing for a set period time(month
to month, year to year)
- renews automatically at the end of each period
until notice of termination given
- Creation: By agreement, implication (no mention
of duration), or operation of law (holdover tenant)
- Termination: notice required
- party gives notice before the start of what will
be the last term, but for a yr-to-yr, notice must
be given at least 6 months in advance
- notice effect on the last day of the period
- e.g. Tara is a month to month lease and gives
notice to termination Feb 15. Her termination is effective on March 31, the end
of the next month.
periodic tenancy
Fixed amount of time (Larry leases BA
to Tara for 2 years)
- Creation: Agreement by the landlord
with the intent to create a ___
- if longer than 1 yr, agrmt must be signed and in writing (SOF)
- Termination: Occurs automatically at
the end of the term.
- Notice not required unless lease demands it
tenancy for years
- Can be terminated by either L or T at
any time for any reason without notice - Termination: If the agrmt gives only the L the right to terminate at will, the T also gets the same right by implication
- BUT if the agrmt only giveT the right to terminate at their will then the
L is NOT given the same right - we trynna protect theT
tenancy at will
Created when T HOLDS OVER
after the lease has ended.
- Temporary tenancy that exists before the L either evicts theT or re-rents
the property to T
- Creation: Created by the ACTIONS
of the T alone
- Termination: Three ways
- T leaves
- L evictsT
- L re-rents to theT
tenancy at sufferance
tenant duties
pay rent
avoid waste
have to pay rent unless:
1) premises are destroyed (so long as T not responsible)
2) L completely or partially evicts T
3) L materially breaches the lease
landlord duties
1) duty to mitigate damages
2) duty to deliver possession
3) implied warranty of habitability (residental)
4) implied covenant of quiet enjoyment
5) duty to repair
6) duty to control common areas and nuisance
duty to mitigate damages
Majority: L must
take reasonable
efforts to re-rent
the property if T
leaves or is
evicted
Duty to deliver possession
Majority: L must
deliver actual
physical
possession not
just legal
(IMPLIED WARRANTY OF HABITABILITY; RESIDENTAL) - L has a duty to maintain property that
is suitablef or residential use
- Cannot be waived
- failure to comply with housing codes
is a breach if premises are not
habitable, the T may:
- (1) refuse to pay rent
- T must give L notice of issue
and time to correct the issue - (2) fix the defect and offset costs against the rent, or
- (3) defend against eviction
- “Stay and Suffer” - T cannot move out the premises
implied covenant of quiet enjoyment;
IN every lease - commercial and residential
- But in a commercial lease, L has no duty to repair
- The T is constructivley evicted and can withhold rent when the L takes actions that make the premises WHOLLY or SUBSTANTIALLY
unsuitable for their intended
purposes:
- (1) Premises were unusable for their intended purposes
- (2) T notifies the L of the
problem - (3) L does not correct issue
- (4) T vacates the premises after a reasonable amount of time
duty to repair
for residential leases only
tort liabilities; tenant
duty of care to
invitees/licensees/forseeable
trespassers and may be
liable for dangerous
conditions
tort liabilities; landlord
CL - liable for injuries
in common areas,
non-common areas
under the L’s control, or
hidden defectso r faulty
repairs by L
assignment is
a complete transfer of T’s remaining term
Under an Assignment, there is ______
- landlord can collect under either,
but there must be direct privity
- Landlord can collect rent from:
- Tenant (bcsof ___) and
- Subtenant (bcsof ___)
Privity of contract and Privity of estate
sublease is a
transfer for less than the entire duration of the lease
under an assignment L can collect rent from the ____ only bc he is in direct privity of P/K and P/E
tenant
the subsequent T only has rent obligations to the original T
permission to sublet/ assign
if lease is silent ____
if the lease requires L permission to transfer but no standard mentioned then:
majority: _____
if lease silent; T can assign or sublet freely
majority: a L may deny
permission to a transfer only
for a commercially
reasonable reason
land sale K’s (big topics!)
1) statute of frauds
2) marketable title
3) implied warranty of fitness or suitability
4) duty of seller to disclose defects
land sale K’s are subject to SOF must be:
1) in writing
2) signed by party to be charged
3) include ESSENTIAL terms
a. parties
b. description of the property
c. price and payment info
land sale K exceptions to SOF
part performance
detrimental reliance
part performance (SOF exception)
by either seller or buyer is
treated as evidence that theK existed. Look for
2/3:
- Payment
- possession
- improvments to land
detrimental reliance (exception to SOF)
estoppel applies where
party has reasonably relied on the K and would
suffer hardship if K not enforced
Every Land sale K includes an _____= title that is free from an
unreasonable risk of litigation
- not required until closing
- seller can use sale proceeds to pay off an existing mortgage
- buyer can waive this provision
- examples of defects in title:
- Title acquired by AP that has not been quieted
- private encumberances
- violation of a zoning ordinance
- Title can be rendered unmarketable by a future
interest if the holder of that interest does not agree
to the transfer. - if the seller cannot deliver marketable title, buyer’s
can rescind theK - Time of the essence: not enforced unless part of K. A
party breaches but failing to preform on closing date.
STRICT.
Implied covenant of marketable title
implied warranty of fitness or suitability
duty of seller to disclose defects;
the seller of a residence has a duty to disclose all material physical defects that
are known to the seller and cannot be reasonably discovered by the buyer.
- A defect is material if it:
(a) substantially affects the value of the residence
(b) impacts the health or safety of a resident or
(c) affects the desirability of the residence to the buyer.
- general disclaimers are not enough
seller’s remedies on buyers breach
- (1) damages
- K price minus market price
- (2) rescission
- seller can sell to someone
else - (3) specific performance
buyers remedies on sellers breach
- (1) damages
- K price minus market value
on date of breach - (2) rescission
- returns payments to the buyer
and cancels theK - (3) Specific performance
who bears risk of loss if there is property? majority
Buyer holds equitable title
during execution of K and the closing and delivery of the deed, so the buyer bears risk of damage during that time
- seller has legal title and right to possess the property during that time
Uniform vendor and purchaser risk act
Under this act, the risk of loss
remains with the seller until the
buyer takes possession of or
receives legal title to the property.
Adverse Possession
1) continuous for statutory period
2) open and notorious
3) hostile
4) exclusive
continuous for statutory period
- Seasonal use ispermitted
- Tacking can be done from predecessor’s
time, but must be in privity - Privity is satisfied if the possessor takes
by non hostile means (e.g., by descent, devise, contract, deed). - NO gaps in between
- Statute of limitations will NOT run if true owner has a disability:
- infancy
- insanity
- imprisonment
- must exist when AP enters property
- a true owner can interrupt the AP by ejecting him
- this will stop the AP clock
open and notorious
cannot be hidden
puts a reasonable true owner on notice of the AP
hostile
Must possess land without owner’s permission
- if owner gives permission of land use, this is NOT hostile
- Majority: ignores the APs state of mind
- Minority: looks at the AP state of mind:
- good faith: The AP claim is hostile if she thinks land is unowned -possession based on a good faith mistake
- Bad faith - AP knows land is not hers but wants possession anyways - based on aggressive trespass
exclusive
AP cannot share possession with true owner but 2 or more ppl can adversely possess as tenants in common
for a deed to be valid it must be
1) delivered
2) accepted
delivery;
Grantor’s present intent to transfer title
- Presumed upon:
________
- be on lookout for incomplete or seemingly irrevocable delivery
- “unless I change my mind”
- physical delivery of deed
- recording
- unconditional delivery to agent
- grantee’s possession of
property/deed
acceptance
generally presumed provided the transfer is for value
contents of a deed
- (1) identifies BOTH parties
- grantee AND grantor
- (2) signed by grantor
- (3) include words of transfer
- (4) includes description of property
- does not have to be a legal description
- Deeds do NOT have to be recorded to be valid
void deed; Transfer of deed is invalid &cannot
be enforced by bona fide purchaser
if:
- grantor’s signature is forged
- deed is forged (ie, falsely made or materially altered with intent to defraud) or
- grantor is deceived about nature of executed document
voidable deed; transfer of deed is valid until set aside and may be enforced by bona fide purchaser if:
procured by fraudulent inducement or
party lacks capacity to execute deed (e.g. infancy, lack of capacity)
Types of deed
1) GWD
2) special warranty deed
3) quitclaim deed
General warranty deed
grantor warrants title against all defects
GWD; 6 implied covenants
present covenants
future covenants
- Present Covenants
- Covenant of Seisin: deed describes land in question
- Covenant of the right to convey: grantor has right to sell land
- Covenant against encumbrances: there are no undisclosed encumbrances on
property that would limit its value - Future covenants
- Covenant of quiet enjoyment: grantor promises that the grantee’s possession will not be disturbed by a 3rd party claim
- Covenant of warranty: grantor promises to defend against future claims title
- Covenant of further assurances: grantor promises to fix future title
problems
special warranty deed
grantor warrants against defects only caused by seller
includes the same 6 implied covenants but they only apply to the act or omission of the grantor
quitclaim deed
least protection
grantor makes no warranties as to health of title
recording statutes
race
race notice
notice
race
interest holder who records first will prevail
first record
notice
subsequent BFP w/o notice of earlier property interest will prevail
w/o notice
in good faith
race notice
subsequent BFP
1) without notice of earlier property interest
2) who records first will prevail
w/o notice
who shall record first
alt’s to mortgages
1) conditional sale and repurchase
2) absolute deed
3) installment land k
4) deed of trust
5) equitable mortgage
conditional sale and repurchase
owner sells property
to lender who leases
the property back to
the owner in
exchange for the
loan
absolute deed
borrower transfers
the deed to the
property instead of
conveying a security
interest in exchange
for the loan
installment land K
- seller finances the purchase; the seller
retains titles until buyer makes final payment - Traditional v. Modern rule:
- Traditional: if buyer breaches-
seller keeps payments AND property - Modern rule wantsto help buyers: so either,
- (1) Allows seller to retain ownership of the property but require some form of
restitution to the buyer - (2) Offer the buyer an equitable right
of redemption i.e., the buyer can keep
the property by paying the full balance of
the installment contract at any time prior
to the foreclosure sale - (3) Treat the installment land contract as
a mortgage, so the seller must foreclose
to gain title to the property and the buyer
has an equitable right of redemption and
other protections
deed of trust
a writing that grants
an interest in
property as security
for an obligation, but
the deed goes to a
3rd party as trustee
