Pg 10 Flashcards
What is ameliorative waste?
Improving land without any express authorization. If you change the land for the betterment of the estate, that is technically waste, but since it improves instead of injures the land it is OK. This considers the usages and customs of each community
What are the two different types of remaindermen?
Vested and contingent
What is the difference between a vested and a contingent remainderman?
A vested remainderman can sue a life tenant for committing waste or get an injunction to stop it from continuing, whereas a contingent remainderman cannot sue for damages, but he can get an injunction
What are the remedies for waste?
The remaindermen can get: – compensatory damages – forfeiture/treble damages – measure of damages – injunctions
Can a holder of a contingent remainder or a possibility of reverter, or a power of termination get a legal remedy for waste?
No, because it is not certain that their interest will ever become present
When can you get forfeiture or treble damages for waste?
For voluntary, wanton, or malicious waste
What is the measure of damages for waste?
Diminution in the market value of the property or the cost of restoring it to its former condition, whichever is less
When can you get an injunction for waste?
If the tenant committed waste in the past and continues to or threatens to do it in the future
What is the rule regarding crops that were planted by a tenant now that the tenancy has terminated?
They are considered to be a fixture, so the remaindermen has a right to harvest and remove any crops the tenant planted once the tenancy has terminated
If a life tenant buys insurance without the duty to do that, who can recover under that insurance policy?
Only the life tenant, not the remaindermen
If land is insured against damage or destruction by an insurance policy that insures the interests of both the life tenant and the remaindermen, and there is a loss, what happens to the proceeds?
The life tenant has a privilege to use the proceeds to restore the land and structures to their former condition, and for the duration of his estate if it was not all used for restoration
How is the apportionment of rent dealt with when you have a life tenant and a remaindermen?
A life tenant can lease property for any use that isn’t waste if there’s no provision against it, and is exclusively entitled to the rent.
What are different validity issues that deal with restrictions on non-reversionary future interests?
- destructibility – doctrine of worthier title – rule in Shelley‘s case – restraints on alienation – restraints on marriage – rule against perpetuities
What is involved in the doctrine of worthier title?
This stops the creation of a contingent remainder in favour of heirs of a grantor. The idea is that to take by descent is worthier than to devise in a will because you could devise to a third-party.
What is an example of the doctrine of worthier title?
O conveys land to A for life, with a remainder to A’s heirs.
Under this doctrine O instead retains an indefeasibly vested reversion in fee simple
What has happened to the doctrine of worthier title?
It has mostly been abolished, but it still survives in a few states, and many states have litigation that does something similar.
If the doctrine of worthier title is still in effect, what is the only way to avoid it?
By limiting the remainder to people besides the grantor’s heirs or next of kin. Say kids, or nieces/nephews by a clear statement that the class is not meant to be the same as heirs. Or add a clause “it is my intention that persons now unascertained, who should prove to be my heirs, shall take a contingent remainder as purchasers.“
How does the doctrine of worthier title apply to this? “A to B for life, remainder to A’s heirs.“
There are two ways to look at it:
– contingent remainder to A’s heirs to take by devise through the conveyance
– but if you ignore it and read it as “A to B for life“ when B dies the property reverts back to A and it passes to A’s heirs.
Either way it goes to A’s heirs, but this is better because it is by descent. In situations with both options, the contingent remainder is ignored and it’s read just as “A to B for life“ with the reversion in A’s heirs to take the property by descent.
When is the only time that the doctrine of worthier title applies?
Only when the instrument expressly gives a remainder to the transferor’s heirs/next of kin. It doesn’t apply when a future interest is given to a named person that ends up being the sole heir, or to the transferor’s kids, or a statue defines the word heirs to mean kids, or if the interest given to the heirs as determined at a date other than the grantor’s death
If O conveys property to A for life, with a remainder to his heirs at law, and then conveys or devises an interest to someone besides those heirs, what would happen if the doctrine of worthier title applies?
The later grantee takes the property at A’s death and his heirs take nothing
The doctrine of worthier title is widely criticized, but what does it do that is good?
It makes property more freely alienable
What is the rule in Shelley‘s case?
Mostly abolished. When a deed or a will tries to give a remainder to the heirs or the heirs of the body of someone who had a prior freehold estate by the same instrument, that person also takes a remainder. This prohibits creating a contingent remainder in favour of the heirs.
Essentially when an estate is given to a grantee and a remainder to his heirs, a merger happens and the two estates merge creating a fee simple in the grantee
When does the rule in Shelley‘s case only apply?
If the prior freehold and remainder were the same quality and the prior freehold was a life estate
When is the situation that the rule in Shelley‘s case would not apply?
When a reminder is expressly given to the kids or the heirs but that means kids
If a will says that the rule in Shelley‘s case does not apply, will that be effective?
No, because this is a rule of law they cannot be overridden by a will provision
How would the rule in Shelley‘s case deal with this? “To A for life, remainder to A’s heirs.”
A would get a vested remainder in fee simple and a possessory life estate which would merge into his remainder
What are restraints on alienation?
These apply to legal interests, not equitable ones and include things like:
– Quia Emptores: public policy that favours alienability in fee simple and invalidates restrictions on alienation of possessory estates in fee simple absolute by express provisions in a deed or will
What are three things that are invalid under restraints on alienation?
– Disabling restraints
– forfeiture restraints
– promissory restraints
What is a disabling restraint?
Provisions that have no limits on the duration or scope that prohibit a transfer. These are invalid restraints on alienation
What are forfeiture restraints?
Provisions that defeat or terminate a present fee simple absolute on transfer. These are considered to be invalid restraints on alienation
What are promissory restraints?
Covenants by a grantee of a possessory fee simple absolute not to alienate, and these are considered to be invalid restraints on alienation
What are indirect restraints on alienation?
These are valid, but courts are hostile toward them. They include things like “due on sale“ clauses in mortgages where the holder has the right to accelerate and foreclose if the land is transferred without his consent
What are preemptive rights of first refusal?
A person can have a preemptive right of first refusal to buy land at the same asking price or for the same price as the highest bona fide purchaser’s offer or market value. These are usually valid restraints on alienation, but if they have an unlimited duration with a fixed price then they are not valid
