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Property > Present Possessory Estates > Flashcards

Present Possessory Estates Flashcards

0
Q

Defeasible Estates - List

A

Determinable
FSSubject to a Condition Subsequent
FSSubject to an Executory Interest

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1
Q

Fee Simple Absolute

A

possess all possible rights in land including

“To A and his heirs” or “To A”

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2
Q

Fee Simple Determinable

A

terminates automatically on the happening of a named future event.
Estate is created with a limitation BUILT IN.
Durational language used.
to A so long as the premises are used for educational purposes.

Determinable Estate is followed by a Possibility of Reverter.

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3
Q

Fee Simple Subject to a Condition Subsequent

A

estate MAY be retaken by grantor on the happening of a future event.
Uses Conditional Language - but if, provided that, conditioned on
Does not automatically terminate the estate.
Created in TWO clauses with a condition stated in the second clause.

To A and his heirs, but if the premises are not used for educational purposes, then O has the right to reenter the premises and terminate A’s estate.

This is default if ambiguous language

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4
Q

Fee Simple subject to an Executory Interest

A

estate AUTOMATICALLY divested in favor of a 3rd party on the happening of an event.

Either durational or conditional language may be used.
Subject to RAP

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5
Q

Fee Tail

A

Created estate that descended to lineal descendants only
To A and the heirs of his body

most states today creates a Fee Simple Absolute

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6
Q

Present Possessory Estates - List

A

Fee Simple - Absolute; Defeasible; Tail
Life Estate
Term Estate

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7
Q

Defeasible Estates - List

A

Fee Simple Determinable
Fee Simple Subject to a Condition Subsequent
Fee Simple Subject to an Executory Interest

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8
Q

Defeasible Estates Where Grantor Retains Interest

A

Fee Simple Determinable

Fee Simple Subject to a Condition Subsequent

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9
Q

Determinable Fee where future interest is held by a 3rd party

A

Fee Simple subject to an executory interest

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10
Q

Fee Simple Determinable Creation

A

durational language describing how long estate will last

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11
Q

Fee Simple Subject to a Condition Subsequent Creation

A

using conditional language.

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12
Q

Fee Simple Subject to an Executory Interest - Creation

A

Can use conditional or durational language. On the happening of an event the prior estate will terminate and the property will pass to a 3rd party

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13
Q

Life Estate Measured by the life someone other than the grantee is called

A

Life Estate Per Autre Vie

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14
Q

Future Interests in the Grantor - List

A

Possibility of Reverter
Right of Entry/Power of Termination
Reversion

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15
Q

Future interests of a 3rd party

A

Executory Interest

Remainder

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16
Q

How is the Possibility of Reverter Created

A

grantor creates a fee simple determinable.

automatic when durational language is used.

reverts automatically to grantor on the happening of event

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17
Q

Transferability of a Possibility of Reverter

Common Law and Modern Trend

A

Common Law - not freely transferrable only by will or intestacy

Modern trend - freely transferrable

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18
Q

Creation of a Right of Reentry

aka Power of Termination

A

CAN be created in the grantor with a FSSCS.

Not automatic, unlike FSD

Must be spelled out in the conveyance.
Failure to spell it out will result in the creation of a FSA.
Conditional language will be viewed as a contractual promise and heirs can sue on the contract.

needs to be an affirmative action taken to retake the property. Termination of the estate is not automatic.

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19
Q

Transferability of Right of Reentry

A

Common Law - only by will or intestacy

Modern Law - Freely transferrable in the majority of jurisdictions

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20
Q

Creation of a Reversion

A

Reversion created in grantor when he fails to give away entire estate.
A to B for Life, creates a life estate in B.
A retains a reversion.

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21
Q

Executory Interst

A

Future interest created in favor if a 3rd party
cuts short the prior estate before it terminates naturally

Every future interest in a 3rd following a fee is an EI
If following less than a fee, it must cut short prior estate

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22
Q

Remainder - Defined

A

Future Interest that follows naturally from termination of prior estate

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23
Q

Types of Remainders

A

Contingent

Vested

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24
Q

Special Types of Vested Remainders

A

Vested remainder subject to a condition subsequent
A to B for Life, remainder to C so long as liquor is never served on the premises.

Vested Remainder Subject to Open (class gift)
A to B for Life, then to the Children of C
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25
Q

When the Class is Open based on

type of Conveyance

A

Class opens in an inter-vivos conveyance immediately the moment the conveyance is made.

Testamentary Conveyance - upon the death of the testator

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26
Q

Which Vested Interest is Subject to the Rule Against Perpetuities

A

Vested Remainder subject to Open.

Violates the Rule if Any member of a class could potentially claim in a way that violates the Rule against Perpetuities

27
Q

Rule of Convenience

A

closes as soon as at least one member of class is entitled to immediate possession.

Any class member alive and needs to fulfill the condition precedent to take, will be given an opportunity to do so.

28
Q

Doctrine of Worthier Title

A

It is worthier to take by descent than devise.
A to B for life, remainder to A’s heirs.
remainder to A’s heirs is ignored
A’s heirs take by will or intestacy
same result.

29
Q

Waste

A

holder of less than a fee must avoid affecting a future interest

30
Q

Voluntary Waste

A

life tenant cannot intentionally or negligently damage the property

31
Q

Permissive Waste

A

life tenant must take reasonable steps to prevent damage to property.

Including mortgage interest payments, taxes, or tenants share of special assessments

32
Q

Ameliorative Waste

A

life tenant increases value of property by permanently altering it.

33
Q

Ameliorative Waste at Common Law

A

Prohibited

Tenant liable for cost of returning property to original condition

34
Q

Ameliorative Waste - Modern Law

A

Tenant allowed to commit ameliorative waste if:

  1. Market Value of Property is Improved AND
  2. permission of the remaindermen OR
    2a. a change to the property or neighborhood justifying improvment

Majority Rule

35
Q

standing to Sue for Waste?

A

holder of remainder has standing to sue for waste.
Vested Remaindeman - sue for damages, injunctive relief, or both.

Contingent Remainderman - injunctive relief only

36
Q

Total Restraint on Alienation on a Fee and on Less than a Fee

A

Total restraint on alienation of a fee is invalid.

Restraints less than a fee is allowed if reasonable.

37
Q

Partial Restraint on a Fee - Types

A
  1. Purchase Option - A to B, but A reserves right to buy back property at any time during A’s life.
  2. Right of First Refusal - A to B, but if B attempts to sell during A’s life, B must first offer property to A FIRST at same price.

Both valid if reasonable.

38
Q

Rule Against Perpetuities - Defined

A

An interest must vest, or fail, no later than 21 years after a life in being at the creation of the interest.

39
Q

Rule Against Perpetuities Does NOT Apply

A

Present estates

40
Q

5 interests Subject to the Rule Against Perpetuities

A

Executory Interests
Contingent Remainders
Vested Remainder subject to open

Purchase Option
Right of First Refusal

41
Q

Steps for analyzing a RAP problem

A
  1. Identify type of interest making sure rule applies.
  2. can someone claim the interest 21 years after anyone currently alive is dead?
    2a. If yes - interest is invalid. Strike it and analyze what remains.

2b. If no - the interest is valid.

42
Q

Concurrent Estates - List

A

Tenancy in Common
Joint Tenancy
Tenancy by the Entirety

43
Q

Joint Tenancy

A

Tenants hold undivided interest in property with right of survivorship.

44
Q

Tenancy in Common

A

undivided interest in property with

no right of survivorship.

45
Q

Right of Survivorship at Common Law

A

Property transferred to more than one person was presumed to be a Joint Tenancy unless stated otherwise.

46
Q

Right of Survivorship under modern law

A

Transfers to multiple parties creates tenancy in common
unless specifically stated otherwise

Must specifically state RoS will apply

47
Q

How to state right of survivorship applies

A

Need to specifically state that right exists.
To A+B as JT’s
To A+B as JT’s and not TiC
To A+B with right of survovorship

48
Q

Joint Tenancy - 4 Unities

A

Time
Title
Interest
Possession

49
Q

Unity of Time

A

Each JT’s interest vested at the same time

50
Q

Unity of Title

A

Each JT’s interest created with same instrument

51
Q

Unity of Interest

A

Each JT has equal ownership interest in the property

52
Q

Unity of Possession

A

Each JT has equal right to possession of the whole

53
Q

Modern Rule regarding the Unities

A

Unity of Time and Title are not required.

Only Interest and Possession.

54
Q

Unity Required for Tenants in Common

A

Possession

55
Q

Main differences between JT and TiC

A

TIC - no right of survivorship and unity of interest is not required -
may hold differing ownership interests with a TiC

56
Q

Severing a JT

A

Inter vivos act of one of the JT’s:
partition action,
Contract of Sale (Majority - doctrine of equitable conversion)
Mortgaging the interest (Minority View - title theory)

57
Q

Mortgages - Lein Theory Jurisdiction - Majority View

A

A mortgage is a lien on property

will not sever a Joint Tenancy.

58
Q

Mortgages - Title Theory Jurisdiction

A

Mortgage viewed as title

will sever a joint tenancy into a Tenancy in Common

59
Q

Possessory Rights of Co-Tenants

A

Each is entitled to possession - may sue for damages from loss of possession or ejectment.

Wrongful dispossession of a co-tenant is called ouster

60
Q

Profits produced by co-tenants and 3rd parties

A

profits are property of the producing tenant
unless there has been an ouster of a co-tenant.

Rents are the property of all co-tenants to their proportionate share

61
Q

Expenses of Co-Tenants - Taxes/Mortgages

A

Each responsible for proportionate share of taxes and mortgages.

occupant has primary responsibility for payment and may seek contribution from other co-tenants

62
Q

Expenses - Co-Tenants - Repairs

A

No duty to repair imposed on JT’s.

one JT undertakes to repair - no obligation to contribute
EXCEPT property is rented - expenses may be offset from rents recieved.

63
Q

Expenses - Co-Tenants - Improvments

A

No duty to make Improvements
no duty to contribute to improvements made.

subsequent sale-
if value increased because of Improvements,
JT who improved prop. is entitled to the profits from improvement

64
Q

Necessary for a Vested Remainder (2)

A

Created in an ascertainable person

Not subject to condition precedent
follows naturally from prior estate.

65
Q

When does the class close?

A

If one member of class could claim in violation of RAP, entire gift is void. Rule of Convenience developed to avoid harsh result.

Class will close as soon as one member is eligible to take immediate possession.

Property (6 decks)

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