Present Estates and Future Interests Flashcards
Co-tenants - ouster by one co-tenant
If one co-tenant wrongfully ousts another co-tenant from possession of the whole or any part of the premises, the ousted co-tenant is entitled to receive her share of the fair rental value of the property for the time she was wrongfully deprived of possession.
Joint tenancy
At common law, a conveyance to two or more persons satisfying the four unities: (i) time (interests must vest at the same time); (ii) title (interest must be acquired by the same instrument); (iii) interest (interests must be of the same type and duration; and (iv) possession (interests must give identical rights to enjoyment) created a joint tenancy. Joint tenants have the right of survivorship; i.e., when one joint tenant dies, the property is freed form her interest. Under modern law, a conveyance to two or more persons presumptively creates a tenancy in common; a joint tenancy results only when a right of survivorship is clearly expressed.
Joint tenancy owned by 3 or more tenants
When property is held in joint tenancy by three or more joint tenants, a conveyance by one fo them destroys the joint tenancy only as to the conveyor’s interest. The other joint tenants continue to hold in joint tenancy as between themselves, while the grantee holds her interest as a tenant in common with them, because she does not share the unities of time and title with the joint tenants (i.e., her interest vested at a different time and was acquired by a different instrument).
Joint tenancy and mortgage theory
In states that follow the lien theory, one joint tenant’s execution of a mortgage on her interest does not by itself cause a severance; however, the mortgagee risks losing its interest if the mortgagor dies prior to foreclosure. The minority of states following title theory regard a mortgage as an actual transfer of title to the property. Thus, a mortgage by one joint tenant transfers the legal title fo the joint tenant to the mortgagee/lender. This action destroys the unity of title and severs the joint tenancy.
Joint tenancy and lien theory of mortgages
In a lien theory state (majority), a mortgage is considered a lien on title - one joint tenant’s execution of a mortgage on his interest does not, by itself, sever a joint tenancy until default and foreclosure proceedings have been completed.
Severance of a joint tenancy
In most states, a severance results when one joint tenant executes a valid contract to convey her interest to another. A contract to convey is enforceable in equity, and so if the seller dies before the closing, the purchaser is entitled to a deed and becomes a tenant in common with the original joint tenant.
Fee simple subject to a condition subsequent
A fee simple subject to a condition subsequent is created when the grantor retains the power to terminate the grantee’s estate upon the happening of the specified event. With an FFSCS, the grantee’s estate continues until the grantor exercises his right of entry/power of termination by suing or making reentry. The following words are usually held to create conditions subsequent: “upon condition that,” “provided that,” “but if,” and “if it happens that.”
Fee simple determinable
A fee simple determinable automatically terminates on the happening of a stated event and reverts to the grantor. Durational, adverbial language (“for so long as,” “while,” “during,” “until”) usually creates an FSD.
Future interests - descendible or devisable?
Future interests pass at death by will or inheritance unless subject to an express or implied contingency of survival.
Life tenant - can they mortgage the property?
A life tenant is entitled to all the ordinary uses and profits of the land, which includes encumbering his own interest, but he cannot lawfully do any act that would injure the interests of the remaindermen.
Fee simple determinable subject to an executory interest
A fee simple determinable subject to an executory interest is an estate that, on the happening of a stated event, is automatically divested in favor of a third person, who holds the executory interest.
