Property Flashcards
Fee simple absolute
Language to create: “To A and his heirs” or “To A”
Duration: Absolute ownership of potentially infinite duration
Transferability: Devisable, descendible, alienable
Future interest: None
Defeasible fees
- Fee simple determinable
- Fee simple subject to condition subsequent
- Fee simple subject to executory limitation
Fee simple subject to executory limitation
“To A, but if X event occurs, then to B”
Duration: Potentially infinite, so long as stated contingency doesn’t occur
Transferability: Alienable, devisable, descendible, subject to condition
Future interest: Executory interest held by third party
Fee simple determinable
How created: “To A so long as…” “To A during…” “To A until…”
- Look for clear durational language
- if the condition is violated, forfeiture of the estate is automatic
Duration: Potentially infinite, so long as even doesn’t occur
Transferability: Alienable, devisable, descendible, subject to condition
Future interest: Possibility of reverter held by the grantor
Fee simple subject to condition subsequent
“To A, but if X even happens, grantor reserves the right to re-enter and retake” –> Grantor must carve out right of reentry
Duration: Potentially infinite, so long as the condition is not breached and thereafter, until the holder of the right of reentry exercises timely the power of termination
Transferability: Alienable, devisable, descendible subject to condition
Future interest: RIght of entry/power of termination (held by grantor)
Life estate
“To a for life” or “To A for the life of B”
Duration: Measured by life of transferee or by some other life (pur autre vie)
Transferability: Alienable, devisable, and descendible if pur autre vie and measuring life is still alive
Future interest: Reversion, if held by grantor; remainder, if held by third party
Distinguishing characteristics:
- The life tenant’s entitlements are rooted in the important doctrine of waste
- Two general rules:
1. The life tenant is entitled to all ordinary uses and profits from the land
2. the life tenant must not commit waste
Three types of waste:
- Voluntary (affirmative) - Actual, overt conduct that causes a drop in value
- Permissive (neglect) - Occurs when land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land.
- The life tenant must maintain the premises in reasonably good repair
- The life tenant must pay all ordinary taxes on the land, to the extent of any income or profits that the life tenant is reaping from the land, or to the extent of the premises’s fair rental value - Ameliorative waste: The life tenant must not engage in acts that will enhance the property’s value, unless all future interest holders are known and consent
Future interests capable of creation in the grantor
- The possibility of reverter - accompanies only the fee simple determinable
- The right of re-entry (power of termination) - accompanies fee simple subject to condition subsequent
- Reversion - Arises in a grantor who transfers less than everything she has, other than a fee simple determinable or a fee simple subject to the condition subsequent
Future interests in transferees:
- A contingent remainder
- A vested remainder - three types:
a. Indefeasibly vested remainder
b. Vested remainder subject to complete defeasance
c. Vested remainder subject to open - Executory interest
a. Shifting executory interest
b. Springing executory interest
Contingent remainder
A remainder is contingent if:
- It is created in an unascertained or unknown person
- It is subject to an unmet condition precedent (the condition should appear before the language creating the remainder or is woven into the grant to the remainderman)
- Both
Vested remainders
A remainder is vested when it is created in a known taker who is not subject to a condition precedent
Three types of vested remainders:
- Indefeasibly vested remainder: The holder of this remainder is certain to acquire an estate in the future, with no strings or conditions attached
- Veseted remainder subject to complete defeasance: The remainderman exists, his taking is not subject to any condition precedent, but his possession could be cut short because of a condition subsequent
- Vested remainder subject to open: the remainder is vested in a group of takers, at least one of whom is qualified to take possession. But each class member’s share could get smaller because additional takers, not yet ascertained, can still join the class
RAP
Certain types of future interests are void if there is any possibility, however remote, that the given interest could vest more than 21 years after the death of a measuring life
4 steps:
- Determine which future interests have been created
- RAP only applies to: CONTINGENT REMAINDERS, EXECUTORY INTERESTS, CERTAIN VESTED REMAINDERS SUBJECT TO OPEN - Determine what has to happen for the future interest holder to take
- Look for the people alive at the date of the conveyance, whose lives and/or deaths are relevant to what has to happen for the future interest holder to take –> that person is a measuring life
- Determine whether we’ll know for sure within 21 years of the death of a measuring life if the future interest holder can take - if so, the conveyance is good
Brightline rule: Executory interset with no limit on the time within which it must vest violates RAP
Executory interests
An executory interest is a future interest created in a transferee (a third party), which is not a remainder because it takes effect by either cutting short some interest in another person (shifting) or in the grantor or his heirs (springing)
Shifting executory interest: Always follows a defeasible fee and cuts short someone other than the grantor
Springing executory interest: A springing executory interest cuts short the interest of O, the grantor
RAP reform
Wait and see or second look doctrine: Majority reform effort; the validity of any suspect future interest is determined on the basis of the facts as they now exist, at the conclusion of the measuring life
Uniform Statutory Rule against Perpetuities - Codifies the common law RAP and, in addition, provides for an alternative 90 year vesting period
Cy Pres Doctrine - As Near As Possible - If a given disposition violates the rule, a court may reform it in a way that most clearly matches the grantor’s intent, while still complying with the RAP. Both reform measures apply Cy Pres.
Adverse possession
Possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title
Elements:
- Continuous
- Open and Notorious
- Actual and exclusive
- Hostile
Tacking: One adverse possessor may tack on to his time with the land his predecessor’s time, so long as there was privity between the possessors
- Privity is satisfied by any non-hostile nexus, such as a contract, deed, or will
- Privity is absent when the possessor acquires possession by ousting his predecessor in possession
The statute of limitations will not run against a true owner who is afflicted by a disability at the inception of the adverse possession.
Concurrent estates
Includes:
- The joint tenancy
- The tenancy by the entirety
- The tenancy in common
Joint tenancy
Distinguishing characteristics:
- The right of survivorship - When one joint tenant dies, her share goes automatically to the joint tenant
- Alienability - A joint tenant is tranferable during the holder’s lfietime
- Not devisable or descendible - A joint tenant’s interest is neither devisable nor descendible
How to create a joint tenancy:
- The four unities - TTIP - Joint tennats must take their interests:
T - At the same time
T - By the same title (e.g. in the same deed or legal document)
I - With identical equal interests
P - Rights to possess the whole
To create a joint tenancy, the grantor must clearly express the right of survivorship
Severance of a joint tenancy:
- Severance and sale - a joint tenant may sell or transfer her interest during her lifetime
- One joint tenant’s sale severs the joint tenancy as to the seller’s interest because it disrupts the 4 unities –> so, a sale creates a tenancy in common
- Severance and partition - There are three types of partition:
1. By voluntary agreement - an allowable and peaceful way to end the relationship
2. Partition in kind: A judicial action for a physical division of the property, if in the best interests of all parties –> when blackacre is a sprawling acreage
3. Forced sale: A judicial action when, in the best interest of all parties, the land is sold and the sale proceeds are divided up proportionately –> works best when it’s a home or single building
Tenancy by the entirety
It can only be created between married partners, who take as fictitious “one person” with the right of survivorship
How created: In states that recognize the tenancy by entirety, it arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise
This is a very protected form of co-ownership
- Creditors of only one spouse cannot touch this tenancy for the satisfaction of the debt
- One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a third party
Tenancy in common
Two features:
- Each co-tenant owns in individual part, and each has a right to possess the whole
- Each interest is devisable, descendible, and alienable because there are no survivorship rights
Rights and duties of co-tenants
- Possession: If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed ouster - an actionable wrong
- Rent from co-tenant in exclusive possession: Absent ouster, a co-tenant in exclusive possession is not liable to the other co-tenants for rent
- Rent from third parties: A co-tentant who leases all or part of the premises to a third party must account to his co-tenants, providing them their fair share of the rental income
- Adverse possession: Unless he has ousted the other co-tenant, the cotenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the co-tenant
- Carrying costs: Each party must pay his fair share of taxes and mortgage interest payments
- Repairs: The repairing co-tenant enjoys a right to contribution during the co-tenancy for reasonable, necessary repairs, provided he gave notice to the other co-tenants of the need for repairs
- Improvements: During the life of the co-tenancy there is no right to contribution for improvements made by one co-tenant
- –> BUT at partition, the improver gets a credit equal to any value increase he caused; there would also be a debit/deduction in value that his unilateral improvement caused
- Waste: A cotenant must not commit waste. During the life of the co-tenancy, the co-tenant is permitted to bring an action for waste against another co-tenant. Three types of waste:
1. Voluntary (destruction)
2. Permissive (neglect)
3. Ameliorative (increase in value) - A joint tenant or tenant in common has a right to bring an action for partition - three types:
1. voluntary agreement
2. partition in kind
3. forced sale
Four leaseholds or non-freehold estates - landlord and tenant
Tenancy for years
Period tenancy
Tenancy at will
Tenancy at sufferage
Tenancy for years
Lease for a fixed, determined period of time
No notice is needed to terminate
A term of years greater than one year must be in writing to be enforced
Periodic tenancy
A lease which continues for successive intervals until L or T gives proper notice of termination
It is continuous until properly terminated
Creation - can be:
- Express - “To T for month to month…” - there is no end date
- By implication - one of three ways:
a. Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals
b. An oral term of years in violation of the SOF creates an implied periodic tenancy measured by the way rent is tendered
c. In a residential lease, if a landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises measured by the way rent is now tendered
Termination is usually in writing
- At common law, notice must be given at least equal to the length of a given interval
- Exception: Year to year periodic tenancy - 6 months required at common law, but 1 month is the preferred approach
- By private agreement, the parties may lengthen or shorter these common-law prescribed notice provisions
Tenancy at will
A tenancy of no fixed period or duration - “To T for as long as L or T desires”
Creation: Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy
Termination: In theory, a tenancy at will can be terminated by either party at either time. Today, a reasonable demand to quit the premises is typically required
The tenancy at sufferance
Creation: It is created when T has wrongfully held over, past the expiration of the lease. We give the wrongdoer a leasehold estate to permit L to recover rent.
Termination: The tenancy at sufferance is short-lived. It lasts only until L either evicts T or elects to hold T to a new tenancy
Tenant’s duties
T has two primary duties:
- Duty to repair
- Duty to pay rent
Duty to repair when lease is silent: T need only maintain the premises
- T is obligated to make routine repairs
- T is not obligated to make repairs occasioned by ordinary wear and tear
T must not commit waste - T’s duty to repair is linked to the doctrine of waste
- Three types of waste:
1. Voluntary
2. Permissive
3. Ameliorative
-Law of fixtures and the doctrine of waste - A fixture is a once moveable chattel that, by virtue of its annexation to the realty, objectively shows the intent to permanently improve the realty
- Fixtures pass with ownership of the land - So if what T installed amounts to a fixture, T must not remove it
- Something qualifies as a a fixture when:
1 There’s an express agreement on pont
2. If no express agreement. T may remove a chattel that she has installed so long as removal doesn’t cause substnatial harm to the premises
T’s duty to repair when T has expressly covenanted in lease to maintin property in good condition for duration of the lease
- At common law, T was responsible for any loss to the property, including loss attributable to force of nature
- Now, the majority view is that T may end teh lease when the premises are destroyed without T’s fault
T’s duty to pay rent:
- If T breaches the duty to pay rent and is in possession of the premises - the landlord’s options are:
1. Evict through the courts - She is entitled to rent unitl the tenant vacates; tenant becomes tenant at sufferance
2. continue the relationship and sue for the rent due - Landlord must not engage in self-help, including (1) Changing the locks, (2) Forcibly removing the tenant, (3) removing tenants possessions
- If T breaches the duty to pay rent but is out of possession - the landlord has three options:
1. Surrender - L could choose to treat T’s abandonment as implicit offer of surrender, which L accepts
2. Ignore - L could ignore the abandonment and hold T responsible for the unpaid rent, just as if T were still there. This is only available in a minority of states
3. Re-let the premises on the wrongdoer-tenant’s behalf and hold wrongdoer-tenant liable for any deficiency
Landlord duties:
Duty to deliver possession: The majority rule requires that L put T in actual physical possession of the premises. Thus, if at the start of T’s lease, a prior holdover T is still in possession, L has breached and T gets damages
Implied covenant of quiet enjoyment: Arises by implication in every residental and commercial lease; provides that T has a right to quiet use and enjoyment without interference from L
- A landlord might breach by wrongful eviction
- Might breach by constructive eviction –> three elements must be met -
Substantial interference - due to L’s actions or failures
Notice - T must notify L of problem and L must fail to correct it
Goodbye - T must vacate within a resaonble time after giving L notice
Acts of other tenants:
- General rule: landlords are not liable for acts of other tenants
- Two exceptions:
1. L must not allow a nucense on site
2. L must control common areas
Implied warranty of habitability: Applies only to residential leases and not to commercial leases; the implied warranty is non-waivable
- The standard: Provides that premises must be fit for basic human dweling
- Discerned by case law and statutes, usually building codes
- Triggering breach includes: (1) Absence of heat in winter; (2) Absence of running water; (3) Absence of working plumbing
- T’s entitlements when implied wrranty of habitability is breached -
1. Move - Move out and end the lease; BUT T doesn’t have to
2. Repair and deduct - Make the necessary repairs and deduct cost from future rent
3. Reduce - Reduce rent or withhold rent until court assesses fair rental value in view of the defects; usually, tenants who choose this must place withheld rent into escrow
4. Remain - Remain in premises and proceed against landlord for money damages
Retaliatory eviction: If T lawfully reports L for housing code violations, L is barred from penalizing T
Transfers of leaseholds
In the basence of some prohibition in the lease, a T may freely transfer his or her interest in whole (through assignment), or in part (through sublease)
In the lease, L can prohibit T from assigning or subletting without L’s prior written approval
BUT once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless L expressly reserves the right
The sublease: A sublease arises when T1 transfers less than all of the time she has left. The result is, the landlord and sublessee are in neither privity of estate nor privity of contract. Instead, T2 is repsonsible to T1 and vice versa. The relationship bw L and T1 remains fully intact
Landlord’s tort liability
Common law of caveat lessee: The norm - let the tenant beware
- in Tort, L was under no duty to make the premises safe
5 most important exceptions - CLAPS
C - common areas
L - Latent defects rule –> L must warn T of hidden defects of hwich L has knowledge or reason to know
A - Assumption of repairs - While under no duty to make repairs, once undertaken, L must complete them with reasonable care
P - Public use - L who leases public spaces and who should know, because fo the significant nature of the defect and the short length of the lease, that T will not repair, is liable for any defects on the premise
S - Short-term lease of furnished dwelling: L is responsible for any defective condition which proximately injures T bc T doesn’t have the time or ability to make the repairs herself
Easements
An easement is a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land
Affirmative or negative
- Affirmative: Most easements are affirmative. An affirmative easement is the right to go onto and do something on servient land
- Negative: The negative easement entitles its holder to prevent the servient landlowner from doing something that would otherwise be permissible - 4 categories:
L - Light
A- Air
S- Support
S - Stream water from an artificial flow
- minority states will also allow negative easement for scenic view
- a negative easement can only be created expressy in writing signed by grantor
Appurtenant or in gross
- Appurtenant: An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property. There must be two parcels of land with
1. A dominant tenement - which dervies the benefit, and
2. A servient tenement which bears the burden - In gross - The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. There is no benefited or dominant tenenment
