Property Flashcards
Rule Against Perpetuities
An interest is void unless it must vest, if at all, not more than 21 years after some life in being at the creation of the interest
Ask- will the future interest vest or fail within 21 years after everyone then alive dies?
If there is any chance that it could happen later – > void
Kill everyone and wait 21 years
L/T An assignment is
A transfer of an entire leasehold balance
L/T A sublease is
A transfer of less than the entire leasehold balance
Easement appurtenant
(requires two parcels of land)
- Dominant parcel is benefitted by the easement
- Servient parcel is the one burdened by the easement
Merger
Unity of ownership (terminates an easement)
Equitable conversion
After execution of a real estate contract, buyer is equitable owner of the land and seller is equitable owner of the cash
Bona fide purchaser requirements
- pays value
- good faith
- without notice
Record interests to prevent BFPs
Recording statutes – two main types
- notice: Last BFP always wins
2. Race-notice: first BFP to record wins (look for the word “first’ in the statute)
Foreclosure has ______ effect on senior interests
NO
Easement
An interest in land
Nonpossessory interest in the use of another’s land
Grant of an easement for more than 1 year must comply with the SoF
License
NOT an interest in land
Revocable personal privilege to enter another’s land without liability for trespass
A license results when the grant of an easement violates the SoF
Personal to the licensee and not alienable
Creation of Easements by Prescriptions
Analogous to adverse possession (but AP requires exclusive possession, here shared use is allowed) Use must be -open and notorious -adverse -continuous and uninterrupted -lasting for the statutory period
Foreclosure effect on junior interests
Terminates all junior interests that have been joined in the foreclosure action
Joint tenancy definition
Two or more own with the right of survivorship
Tenancy by the entirety definition
A protected marital interest between spouses with the right of survivorship
“Can’t touch this”
Tenancy in common definition
Two or more own without the right of survivorship
Three forms of concurrent ownership
- joint tenancy
- tenancy by the entirety
- tenancy in common
Joint tenancy characteristics
Right of survivorship (deceased JTs share automatically goes to surviving JT)
Alienable inter vivos
NOT devisable
NOT descendible
How to create a joint tenancy
Four unities T-TIP T: at the same time T: by the same title (same deed, will, or other document of title) I: identical, equal interests AND P: with right to possess the whole
Ways to sever joint tenancy
- Sale: JT sells/transfers interest during lifetime, even without others knowledge/consent
(disrupts the four unities, so the buyer is a TIC, remaining JTs are still JTs) - Partition
-voluntary or judicial (in kind (physical division) or forced sale (division of proceeds)) - Mortgage (in a minority of states)
-majority: lien theory - no severance
-minority: title theory - severance
Can creditors of only one spouse come after a TbE for satisfaction of the debt?
No
Are unilateral transfers or encumbrances of a TbE valid?
No
These are a nullity, unenforceable
Severance of a TbE
- divorce (becomes a TIC)
- death
- execution of lien
Tenancy in common characteristics
Co-tenant owns individual share and right to possess whole
Devisable, Descendible, Alienable (NO survivorship rights)
Rights and duties of co-tenants
- possession (no ouster)
- rents and profits
- -none from co-tenant in exclusive possession (unless there has been an ouster)
- -fair share if leased to third party
- no adverse possession unless ouster (hostility element is missing)
- carrying costs (each pays fair share)
- repairs (contribution for reasonable, necessary repairs with notice)
- unilateral improvements (no contribution, but credit at partition (or debit if there is a diminution in value))
- must not commit waste
Three types of waste
- voluntary (willful destruction)
- permissive (neglect)
- ameliorative (unilateral change increasing value)
a joint tenant or tenant in common has a right to bring an action for partition T/F
TRUE
Judicial partition- what kind is preferred?
Partition in kind
Forced sale allowed if fair physical division not possible
Temporary restraints on right to partition are tolerable, as long as they are
reasonable in nature and duration
four leasehold/nonfreehold estates
- tenancy for years
- periodic tenancy
- tenancy at will
- tenancy at sufferance
Tenancy for years characteristics
- known, fixed period of time
- termination automatic on end date
- no notice needed to terminate
- writing typically needed if greater than one year (SoF)
Periodic tenancy characteristics
-continues for successive intervals until properly terminated
Creation of a periodic tenancy
- express (“L to T from month to month”)
- by implication
- no mention of duration, but rent at set intervals
- oral term of years violating SoF
- holdover tenant after lease ends
What happens when an attempted oral tenancy for years is more than one year, and thus violates SoF?
An implied periodic tenancy is created (period = rent interval)
Termination of a periodic tenancy
Notice, usually written
Common law: at least equal to length of period (except for year-to-year: 6 months at common law or 1 month under the restatement) ONE MONTH IS THE PREFERRED APPROACH
-unless otherwise specified in lease
Tenancy at will characteristics
- no fixed duration
- terminable at will of either party at any time (“to T for as long as L or T desires”)
- most states require notice and a reasonable time to quit
Tenancy at sufferance characteristics
- T wrongfully holds over past lease expiration’
- L proceeds to recover rent
- terminates when L moves to evict or holds T to new tenancy
Tenant’s duty to repair if lease silent includes:
- maintain premises
- make routine repairs
- not ordinary wear and tear repairs
- don’t commit waste
Tenant’s duty to repair when express covenant in lease
- maintain in good/repair condition
- T may terminate lease if premises destroyed w/o T’s fault
Options if tenant breaches, but is still in possession of the premises
- evict or continue relationship and sue for rent
- L must not engage in self-help
Options if tenant breaches, but is out of possession
SIR
Surrender: end lease
Ignore: do nothing and hold T liable for rent
Re-let: new lease and hold T liable for deficiency
(under the majority rule, L must at least try R (mitigation))
Landlord’s duties
- duty to place T in actual, physical possession
- implied covenant of quiet enjoyment
Implied covenant of quiet enjoyment definition
T has right to quiet use and enjoyment without interference from L
Applies in both residential and commercial leases
Ways to breach implied covenant of quiet enjoyment
Wrongful eviction (exclusion from whole or part of premises without cause) Constructive eviction (L’s breach renders premises unsuitable for occupancy)
Do both wrongful eviction and partial eviction relieve tenant of duty to pay rent?
yes
Elements of constructive eviction
SING
Substantial Interference (chronic/permanent problem due to L’s actions or failures)
Notice (T must notify L)
Goodbye (T must vacate)
Landlord’s duties related to other tenants
- abate nuisances on site
- control common areas
Implied warranty of habitability characteristics
Residential ONLY
Premises must be fit for basic human habitation
Standard: case law and housing code
Nonwaivable
Tenant’s options for breach of implied warranty of habitability
MR3 Move out/terminate lease (NOT required) Repair and deduct Reduce/withhold rent Remain and seek damages
Retaliatory eviction
L can’t terminate lease/penalize T in retaliation for T’s exercise of legal rights
Civil rights act bars
Racial or ethnic discrimination in the sale or rental of all property
Fair housing act
Bars housing discrimination on the basis of race, color, religion, sex, disability, familial status, national origin
Must allow for reasonable accommodations for tenants with disabilities (tenant provides at won expense)
FHA exemptions
- owner-occupied buildings with 4 or fewer units
- single family homes if owner has no more than 3
Prohibited actions under FHA
- refusing to negotiate, rent, or sell housing or give mortgage
- providing different terms for sale/rental
- falsely representing dwelling unavailable
Assignment of a lease definition
Transfer of entire or remaining term of lease
Sublease definition
Transfer or part of the remaining term of lease
Assignment of lease – who has privity with who after an assignment?
Assignee T in privity of estate w/ L
-liable on covenants that run with land
Original T in privity of contract (NOT estate) w? L
-liable for original lease obligations
Can you have privity of estate if you have no possession? (assignments)
No
(assignments) definition of covenants that run with the land for privity of estate
A covenant runs with the land if the original parties to the lease so intend and if the covenant “touches and concerns” the land (that is, benefits the landlord and burdens the tenant (or vice versa) with respect to their interests in the property)
If lease between L and T1 is reassigned to T2 and then T2 assigns to T3, and the property is damaged by T3, who can L sue?
T1 (privity of contract) and T3 (privity of estate)
Sublease arises when
T1 transfers LESS than her entire interest to T2
Sublease characteristics
T2 has NO privity of estate or contract with L (T1 and T2 are responsible to each other)
Relationship between L and T1 remains intact
Caveat Lessee definition and exceptions
L has no duty to make premises safe, so no tort liability
Exceptions:
CLAPS
Common areas
Latent defects (L must warn of hidden defects, no duty to repair)
Assumption of repairs (L liable if negligent)
Public use rule (short lease, significant defect)
Short-term lease of furnished dwelling
Easement definition
Grant of a nonpossessory property interest entitling the holder to use/enjoyment of another’s land
Affirmative easement definition
Right to go on to and do something on another’s land
Negative easement definition
Right to prevent landowner from doing something
LASS (light, air, support, stream water from an artificial flow)
Minority of states also allow for a scenic view
Negative easements can only be created
Expressly, by writing signed by the grantor
Easement appurtenant
Benefits holder in use/enjoyment of own land
Two parcels:
-dominant tenement: derives benefit
-servient tenement: bears burden
Easement in gross
Only one parcel is needed
An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land
There is a servient tenement burdened, but no dominant tenement deriving benefit
Ex: right to place a billboard on another’s land, right to swim in another’s pond
Appurtenant easement transfers ___ with transfer of the dominant tenement, whether or not it is mentioned in the conveyance
Automatically
An easement in gross is not transferable unless it is for
Commercial purposes
Basic methods for creating an affirmative easement
PING
Prescription
Implication (pre-existing use/quasi-easement)
Necessity
Grant (signed writing (unless outside SoF))
Requirements for easement implied from pre-existing use
- previous uses on the servient tenement was apparent and continuous
- parties expected that the use would survive division bc reasonably necessary to dominant tenement’s use and enjoyment
Requirements for creation of easement by prescription
COAH Continuous Open and Notorious Actual Hostile
Scope of an easement is set by
The terms of the grant or the conditions that created it
8 ways to terminate an easement
END CRAMP
Estoppel (servient owner materially changes positions in reliance)
Necessity (when need ends unless in writing)
Destruction (of servient land)
Condemnation (of servient land)
Release (by holder to servient owner)
Abandonment (physical action) (NOT mere nonuse)
Merger (easement and servient land held by same person)
Prescription (by servient owner)
License definition
Mere privilege to enter another’s and for narrow/delineated purpose
Which is considered an interest in land: a license or an easement?
Easement
Creation of a license
No writing required (not subject to SoF)
Freely revocable at will of licensor
A failed attempt to create an easement results in a
License
When does estoppel bar revocation of a license?
Only when the licensee has invested substantial money or labor in reasonable reliance on the license’s continuation (becomes an easement by estoppel)
Profit definition
Entitles holder to enter servient land and take some resource
All easement rules apply to profits
Can also be extinguished by surcharge (misuse that overly and wrongfully burdens the servient estate)
Negative/restrictive covenant definition
Refrain from doing something (“I promise not to build for commercial purposes)
Affirmative covenant definition
do something related to land (“I promise to maintain our shared fence”)
Covenant v. equitable servitude – how to tell?
Money damages: covenant
Injunction: equitable servitude
Covenants: one tract is ___ by the promise and the other is ____
Burdened, benefitted
Requirements for the burden of a covenant to run with the land
WITHN Writing Intent Touch and concern Horizontal and vertical privity Notice
Horizontal privity
Nexus between original promising parties (succession of estate)
(often not found)
Vertical privity
Nexus between successor and original covenanting party (non-hostile)
Requirements for the benefit of a covenant to run with the land
WITV Writing Intent Touch and Concern Vertical privity
Equitable servitude
Promise that equity will enforce against successors of burdened land (regardless whether it runs with the land at law)
Remedy: injunctive relief
Requirements for creation of an equitable servitude
WITNES Writing Intent Touch and concern Notice =Equitable Servitude Does NOT require privity
Implied equitable servitude
Exception to the general requirement that the original promise be in writing
AKA reciprocal negative servitude
Elements of common scheme doctrine for court to imply equitable servitude
- scheme of development (including D’s lot) when sales began
- D had notice of promise when they took
Forms of notice for equitable servitude
- actual (literal knowledge)
- inquiry (lay of the land)
- record (public docs)
Equitable defenses to enforcement of equitable servitude
- neighborhood conditions have changed
- unclean hands
- acquiesced
- estoppel
- laches
Elements of adverse possession
COAH Continuous Open and notorious Actual and exclusive Hostile (all for a statutorily prescribed time)
(adverse possession) Hostility is defeated by
Permission
One adverse possessor my tack onto their time with the land their predecessor’s time if there is _____ between the possessors
Privity
broad construction, any non-hostile nexus
Adverse possession: ___ defeats privity so that tacking is not allowed
Ouster
Adverse possession: SoL won’t run against a true owner afflicted by a disability ____ of the adverse possession
At the inception
Conveyancing: two-step process
- contract (conveys equitable title) (risk of loss)
2. closing (deed passes legal title) (right to possess)
Escrow period definition
The space between signing the land contract and the closing
Land sale contract characteristics
- contract must be in writing (SoF)
- signed by party against whom enforcement sought (D)
- must also identify parties, describe property, state consideration
SoF and land contracts: writing must
- identify parties
- describe the property AND
- include the price or means of determining price
Land contracts: If the land described is actually smaller than in the writing, the remedy is
Specific performance with pro rata reduction in price
SoF exception for land contracts: elements of part performance
Allows buyer to enforce oral contract by specific performance if:
-contract is certain and clear and
-acts prove existence of contract
Acts usually satisfied by 2/3 of the following:
-buyer took possession
-buyer paid purchase price or significant portion
-buyer made substantial improvements
Doctrine of equitable conversion
once the contract is signed, equity regards the buyer as the owner of the real property. The contract conveys equitable title to the buyer. By contrast, at the closing, the deed conveys legal title to the buyer. The right to possession rests with the party who holds legal title. Thus, seller is entitled to possession until closing
In a land sales contract, in the escrow period between contract and closing, the ____ bears risk of loss unless contract says otherwise
Buyer
if Blackacre is destroyed through no fault of either party
Two promises implied in every land sale contract
- marketable title: seller’s implied promise to provide title reasonably free from doubt/threat of litigation on closing
- seller will not make false statements of material fact
If even part of the title rests on adverse possession, it is
Unmarketable
Defects on record chain of title
- adverse possession: unless a suit has been brought to quiet title, title acquired by adverse possession does not appear in the record
- encumbrances: Generally, mortgages, liens, restrictive covenants, easements, options to purchase, and significant encroachments render title unmarketable UNLESS the buyer has waived them
- zoning violations: zoning restrictions do not affect marketability, but existing violations of a zoning ordinance render title unmarketable
- future interests held by unborn/unascertained parties: makes it impossible to convey marketable title
Implied promises in land sale contracts: seller liable for failure to disclose
Latent material defects
Sellers ____ include a general disclaimer of liability in land sale contracts
CANNOT
Will likely be upheld if the seller disclaims SPECIFIC defects, such as “seller is not liable for any defects in the roof”
There are no implied warranties of ___ or ____ in land sale contracts
Fitness or habitability
Buyer beware! Except for sale of new home by builder (warranty of fitness or quality)
To pass legal title from grantor to grantee the deed must be LEAD:
Lawfully Executed And Delivered
Executing a valid deed requires:
- writing signed by grantor
- unambiguous description of land
- identification of the parties by name or description
- words of intent to transfer, such as “grant”
- NO consideration needed
Is outside/parol evidence admissible to clear up ambiguity in land description of deed?
yes
Delivery requirement for deeds
LEGAL standard testing grantor’s present intent (did they have present intent to be bound?)
(physical delivery is not required)
If a grantee expressly rejects the deed,
The deed is ineffective to pass title
If a deed, absolute on its face, is transferred to the grantee with an oral condition, what happens?
The oral condition drops out, delivery is completed
Transfer to a third party with conditions (escrow transaction)
Grantor may deliver an executed deed to a third party, known as an escrow agent, with instructions that the deed be delivered to the grantee once certain conditions are met. This typically is related to the purchase of property and the condition typically is the payment of the purchase price
3 types of deeds
- quitclaim
- general warranty
- special warranty
Quitclaim deed characteristics
- Grantor isn’t even promising that he has title to convey
- Worst deed
- It conveys only what the grantor has at the time of the conveyance.
- contains no covenants for titles
General warranty deed
- the best deed
- warrants against all defects in title, including those attributable to the grantor’s predecessors
General warranty deed contains 6 covenants
Present covenants (breached at delivery)
-seisin: grantor owns
-right to convey: grantor can transfer
-against encumbrances: no servitudes/liens
Future covenants (breached if grantee disturbed in possession)
-quiet enjoyment: no third party lawful claims
-warranty: grantor will defend
-further assurances: grantor will perfect
Special warranty deed
-contains the same covenants as the general warranty deed, but here the grantor makes those promises on behalf of himself only (NO representations on behalf of predecessors)
Statutory special warranty deed
Implies type of special warranty deed when it is not specified
Usually creates two limited assurances against acts of grantor (NOT predecessors)
1. that the grantor has not conveyed the same estate or any interest therein to anyone other than the grantee AND
2. that the estate is free from encumbrances made by the grantor
Race jurisdiction
Whoever records properly first wins
Notice jurisdiction
The last BFP to take wins
Race-notice jurisdiction
Last BFP to properly record wins
To be a BFP, a grantee must
- be a purchaser, not one who received the property by gift, will, or inheritance
- pay valuable consideration
- take without notice (actual, constructive, or inquiry) of the prior conveyance
Types of notice
AIR
Actual (B learns of A (literal knowledge))
Inquiry (B charged with what inspection would have revealed)
Record (B on notice of deeds properly recorded in chain of title)
[I and R are both forms of constructive notice]
“A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded” suggests
Race statute
“A conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded” suggests
Notice statute
“Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded” suggests
Race-notice statute
Chain of title definition
Sequence of recorded documents capable of giving record notice to later takers
Shelter rule
Anyone who takes from a BFP will prevail against any interest the BFP would’ve prevailed against
Wild deed
Recorded deed that isn’t connected to chain of title (incapable of giving constructive notice)
Recording a wild deed is the same as
Never recording at all
Estoppel by deed
- grantor purports to convey to grantee realty they don’t then own
- grantor later acquires title to the property
- title automatically vests in grantee
- grantor is estopped from denying validity of preacquisition conveyance
- but watch out for BFP: early recording is outside chain of title
Mortgagor definition
Debtor (person who owes money to lender)
Mortgagee definition
Creditor (lender)
Purchase-money mortgage definition
Lender’s security interest in real estate that their loan enables debtor to acquire
(mortgage for the purchase price to get property)
Mortgage creation
Union of two elements
debt (note) + lien in land to secure debt (mortgage)
legal mortgage/mortgage deed/deed of trust/sale leaseback/security interest in land
mortgage typically must be in writing to satisfy SoF
how does the creditor-mortgagee transfer its interest?
- indorsing the note and delivering it to the transferee OR
- executing a separate document of assignment
Transfers by mortgagor
- recording statutes protect mortgagees
- if recorded, mortgage sticks with the land
Recording statutes apply to ____ and ____
Mortgages, deeds
Personal liability for mortgages, if B assumes mortgage
Both O and B are personally liable
Personal liability for mortgages, if B takes subject to the mortgage
Only O is personally liable, but if recorded, Blackacre can be foreclosed
Each claimant is entitled to satisfaction ____ before a junior lienholder may take
in full
Effect of foreclosure on interests
- junior interests terminated (paid in descending order from sale proceeds)
- necessary parties: all junior lienholders + debtor
- senior interests unaffected (buyer takes subject to them)
Failure to include a necessary party in a foreclosure action results in
The preservation of that party’s claim (their mortgage will remain on the land)
Foreclosure ___ affect any interest senior to the mortgage being foreclosed
DOES NOT
Priority of creditors
- creditors must record
- first in time, first in right
- purchase-money mortgage: first priority in parcel financed
Floating lien
Interest in currently and future owned real estate
usu when loan is under collateralized on the front end
Subordination agreement
By private agreement, a senior creditor may agree to subordinate its priority to a junior creditor
Equitable redemption
- debtor can redeem land PRIOR to foreclosure sale by paying
- cut off by foreclosure sale
Acceleration clause in a mortgage permits
The mortgagee to declare the full balance due in the event of a default
No clogging equity of redemption
Debtor cannot waive right to redeem in mortgage itself
Variance
- permission to depart from zoning restriction
- show undue hardship + no diminution to neighboring property values
Nonconforming use
Previously allowed use cannot be eliminated all at once unless just compensation paid
Cumulative zoning
Land ranked and categorized to create hierarchy of uses (single-family home is highest use)
Under cumulative zoning, land that is zoned for a particular use may be used for
That use and any use higher in the hierarchy
Noncumulative zoning
Land may be used only for the purpose for which it is zoned
Special use permit
Must be obtained even though zoning proper for intended use (ex hospitals, drive-ins)
In a condominium, each owner owns
The interior of their unit and an undivided interest in the common elements
Homeowners’ Associations
- each condo owner is a member
- oversee common elements
- board enforces covenants, conditions, & restrictions
- special assessment = one-time fee if dues don’t cover an expense
Lateral support
right to have land supported in natural state
if landowner causes adjacent land to subside:
-land in natural state: strict liability
-land improved: liability if negligent
Riparian doctrine
- water belongs to those who own land bordering watercourse
- riparians share right of reasonable use
Prior appropriation doctrine
- water belongs to state
- right to divert/use can be acquired through actual use
Common enemy rule
Owner can take any protective measure to get rid of surface water/combat its flow
Types of present possessory estates
Fee simple absolute
Defeasible fee
-fee simple determinable
-fee simple subject to condition subsequent
-fee simple subject to executory interest
Life estate
Devisable definition
Capable of passing by will
Descendible definition
Capable of passing by intestacy
Alienable definition
Capable of transfer inter vivos
Fee simple absolute characteristics
“To A” or “to A and his heirs”
Potentially limitless duration
Devisable, descendible, alienable
A living person has ___ heirs
NO
Only prospective heirs apparent
Defeasible fee definition
Fee simples with a condition attached
defeasance = forfeiture
Fee simple determinable characteristics
- terminates automatically on happening of stated event
- created by clear durational language: “so long as” “while” “during” “until”
- devisable, descendible, alienable
- if the condition happens, forfeiture is automatic
Fee simple determinable is accompanied by only one future interest:
Possibility of reverter in grantor
FSDPOR
(Frank Sinatra Didn’t Prefer Orville Redenbacher)
Fee simple subject to condition subsequent
-use of conditional language + explicit right of grantor to re-enter
Ex “To Selena, but if Selena ever serves alcohol on site, Britney reserves the right to re-enter and retake.”
Britney has the right of entry synonymous with the power of termination
-NO automatic termination (grantor’s prerogative)
–because of this, courts go with this if it is a close call between this or FSD
Fee simple subject to executory interest
- To A, but if X event occurs, then to B
- third party, not grantor, takes if the condition is betrayed
- B has a shifting executory interest
- forfeiture automatic
Rules of construction for defeasible fees
- words of mere desire, hope, intention do not create defeasible fee
- absolute restraints on alienation are void (can be linked to reasonable time-limited purpose)
What happens if a defeasible fee attempts to absolutely restrain alienation?
The restraint is void, drops off
Conditions and limitations on defeasible fees violating public policy are
Void
discrimination, penalize marriage or encourage divorce
Life Estate
- measured in lifetime terms (NOT in term of years)
- “To A for life” makes A a life tenant
Life estate pur autre vie
A life estate measured by a life other than the grantee’s
“to A for the life of B”
O has a reversion
Life tenant’s rights and duties
- all ordinary uses and profits from land
- don’t commit waste
- preserve land and structures in a reasonable state of repair
- pay ordinary taxes on the land (limited to the extent of income or fair rental value)
- pay interest on mortgage
- pay special assessments for improvements of short duration
- not responsible to insure for benefit of remaindermen
Open mines doctrine
If mining was done on site before life tenancy, life tenant can continue with those mines, but cannot open new ones
Future interests in grantor
- possibility of reverter (accompanies FSD)
- right of entry/power of termination (accompanies FSSCS)
- reversion (accompanies when grantor conveys estate of lesser duration (other than above) (ex: life estate, to O for 99 years))
Possibility of reverter accompanies
FSD
Right of entry/power of termination accompanies
FSSCS
Reversion accompanies
Estate of lesser duration that is not FSD or FSSCS
Future interests in third parties: remainders
-possession or natural expiration (NOT defeasance/forfeiture) of preceding estate (ex life estate)
Contingent remainder
-taker as yet unascertainable (unborn or unascertained persons) or subject to condition precedent
Rule in Shelley’s Case
At common law, if the same instrument created a life estate in A and gave the remainder only to A’s heirs, the remainder was not recognized, and A took the life estate and the remainder.
ABOLISHED IN MOST JURISDICTIONS, SO LIKELY A WRONG ANSER CHOICE
Indefeasibly vested remainder
Certain to acquire an estate in the future, no strings
vested remainder subject to complete defeasance/total divestment
subject to condition subsequent
How to determine whether condition subsequent or precedent for remainderman?
condition precedent: appears before language introducing you to remainderman
condition subsequent: appears after language that, alone and set off by commas, creates remainder
Vested remainder subject to open
Class of takers, at least one already qualified to take
Class closing: rule of convenience
When any member can demand possession
Womb rule
persons in gestation at the time the class closes are included in the class
executory interests
-cut short prior taker
Shifting executory interest
Always follows defeasible fee, cuts short someone other than grantor
Springing executory interest
cuts short the interest of O, the grantor
Rule against perpetuities
Certain future interests are void if there is ANY possibility they might vest more than 21 years after a person alive at the time of the grant has died
4-step technique for RAP problems
- Determine the future interest
- What has to happen for future interest holder to take?
- Find measuring life
- When will we know if future interest holder can take?
RAP potentially applies only to
Contingent remainders, executory interests, and certain vested remainders subject to open
An executory interest with no time limit violates
RAP
Ex “to A for so long as no liquor is consumed on the premises, then to B”
Does RAP apply to O, the grantor?
Nope
Reform of RAP
- wait and see: validity determined per facts as they come to be
- USRAP: provides alternative 90-year vesting period
- Cy pres: court can redraft “as near as possible” to grantor’s intent
Types of restraints on alienation
- disabling restraint: absolute ban on transfer (VOID)
- forfeiture: attempted transfer forfeits interest (valid if reasonable/time limited)
- promissory: attempted transfer breaches covenant (valid if reasonable/time limited)
- discriminatory: based on race, religion, ethnicity (VOID)
To be valid, a deed must
- be in writing
- sufficiently describe the land
- identify the grantor and grantee (if grantee is blank, some courts presume that the person taking delivery has authority to fill in the name)
- evidence an intention to convey the land
- be signed by the grantor
