Property Flashcards
What are the duties of a life tenant?
A life tenant has a duty to repair and maintain property up to the extent of income or profits derived from the land or its rental value.
What are the types of defeasible fees?
(1) Fee simple determinable, (2) Fee simple subject to condition subsequent, (3) Fee simple subject to an executory interest.
What is a fee simple determinable?
A conveyance where the property will automatically transfer to the grantor upon a certain condition.
What type of future interest does a grantor have in a fee simple determinable?
A possibility of reverter.
What is some language for a fee simple determinable?
“To A so long as the property is used for Y.”
What is the manner of transfer upon occurence in a fee simple determinable?
Automatic transfer to grantor and their heirs alone.
Does the rule against perpetuities apply to the fee simple determinable?
No. An automatic reversion to grantor or heirs precludes ambiguity or uncertainty.
What is a fee simple subject to condition subsequent?
A conveyance where the grantor retains a “right of entry” to terminate the estate.
What is the future interest of a fee subject to condition subsequent?
A right of reentry held by the grantor.
What is a fee simple subject to an executory interest?
A property automatically transfers to a third party upon the happening of a given event.
What is the future interest in a fee simple subject to an executory interest?
A shifting executory interest is held by a third-party (not the grantor).
What are the characteristics of a fee simple determinable?
(1) Automatic forfeiture, (2) potentially infinite duration, (3) fully transferable?
What does it mean for an estate to be fully transferable?
(1) Alienable, (2) devisable, and (3) descendible.
How is a fee simple determinable created?
With clear language such as “for so long as,” “while,” “during,” “until,” or similar language. Words of hope or aspiration are insufficient.
What are the characteristics of Fee Simple Subject to Condition Subsequent?
(1) Forfeiture is not automatic, only the right of reentry (2) Potentially infinite in duration, (3) Transferable.
How is a fee simple subject to condition subsequent created?
With clear durational language with a right of reentry for the grantor. Words of hope, desire, or aspiration are insufficient.
What are the characteristics of a fee simple subject to an executory interest?
(1) Automatic forfeiture, (2) potentially infinite, (3) transferable.
How is a fee simple subject to an executory interest created?
Clear durational language is required. For example: “To A, but if A does x, then to B.” Words of desire, hope, or aspiration are insufficient.
What is a life estate?
An interest in land that lasts only for the life of the interest holder.
What is the name of a holder of a life estate?
A life tenant.
What is the defeasibility of life estates?
An instrument may create a defeasible or indefeasible estate.
What are the rights of a life tenant?
All standard property rights, but must maintain property, make reasonable repairs, and no commit waste.
What are the future interests of a life estate?
(1) Reversion or (2) Remainder.
What is a Reversion?
(1) A future interest (2) in the grantor (3) when a life estate does not provide for a disposition of the property to a third party.
What is a Remainder?
(1) A future interest (2) following a life estate (3) that identifies a third-person.
What is a “estate pur autre vie”?
A life estate that attaches possession to the lifespan of a person is different from the life estate holder. “To A so long as B lives”
What is the doctrine of waste?
A life tenant cannot commit acts that constitute an unreasonable use of land and/or injure the interests of a future interest-holder.
What are the types of waste?
(1) Affirmative (voluntary) waste, (2) Permissive waste, (3) Ameliorative waste.
What is affirmative waste?
Life tenants cannot consume or exploit natural resources on the land.
What are the exceptions to exploiting land resources?
(1) where necessary for repairs or maintenance of land, (2) when grant expressly gives the right to exploit, or (3) if the land was used for exploitation of resources prior to the grant.
What is the “Open Mines” doctrine?
If exploitation occurred before the life estate, life tenant may only extract from already-open mines.
What is “permissive waste”?
Waste is created due to the negligence of a tenant.
What obligations are attached to life estates?
(1) Pay property taxes, (2) interest on encumbrances, (3) avoid waste, (4) or other duties.
What is ameliorative waste?
Any acts by the life tenant that economically benefit the tenant. Prohibited under common law, but is now usually permitted in most modern jurisdictions.
What are the characteristics of remainders?
(1) Created by express conveyance, and (2) transferable.
What are the categories of Remainders?
(1) Vested Remainders and (2) Contingent Remainders
What are the types of vested remainders?
(1) Indefeasibly vested remainder, (2) vested remainder subject to total divestment or executory limitation, (3) vested remainder subject to open (class gift)
How does a contingent remainder arise?
(1) There is a condition precedent to the future interest becoming possessory, (2) the future interest vests in an unascertained taker, or both (1) & (2).
What are the limitations to vested remainders?
(1) Must not be subject to any condition precedent, or (2) vest in an unknown or unascertained person.
What is the form of an indefeasibly vested remainder?
Becomes possessory immediately upon termination of the prior estate. “to A for life, then to B.”
What is the form of a vested remainder subject to total divestment?
Subject to some conditions subsequent such that the remainder could be divested after taking possession. “to A for life, remainder to B; but if B weds, to C”
What is the form of vested remainder subject to open (class gift)?
A remainder vested in a described class of takers, at least one of whom is capable of taking possession. “to A for life, remainder to children of B and their heirs.”
What types of classes for vested remainders subject to open?
(1) Open is where a class may grow for new members and (2) closed classes where it may not grow.
What is the rule of convenience?
If any member can call for distribution then the class will close.
What happens to a contingent remainder subject to condition precedent when the triggering event or condition?
The interest automatically becomes an indefeasibly vested remainder. “To A for life, then to B and his heirs when B gets married” If B is unmarried at the time of the conveyance, A has a life estate, B has a contingent remainder (b/c marriage is a condition precedent), and the grantor has a reversion in case B is not married when A dies; if B gets married he has an indefeasibly vested remainder.
What is the common law rule of destructibility?
At common law, a contingent remainder is destroyed if it remains contingent when the preceding estate ends. G grants “to A for life, then to B upon going to college” and A dies, but B has not gone to college thus B gets nothing.
What is the modern law rule of destructibility for contingent remainders?
(1) Upon the end of a preceding estate, (2) the contingent remainder is a reversion for the grantor [+heirs] (3) until the grantee subject to the condition satisfies the condition.
[E.g. G grants “to A for life, then to B upon going to college” and A dies, but B has not gone to college thus G has a reversion.]
What is Merger or Shelly’s Rule at common law?
If a grantor tries to convey a life estate to a grantee with a remainder in the grantee’s heirs the estates merge and the grantee has a fee simple absolute.
What is a Merger or Shelly’s Rule in modern law?
If a grantor tries to convey successive life estates to a grantee and life estates to their heirs then the original grantee has a life estate and the heirs have contingent remainders.
What is the doctrine of worthier title?
If a grantor gives a life estate to a non-heir with a future interest in the grantor’s heirs then the contingent remainder is actually a reversion.
E.g. “To A for life, then to my heirs”
What is an executory interest?
A future interest in a third party that takes effect by cutting short some interest.
What are the attributes of executory interests?
(1) Includes any future interest that is not a remainder, (2) does not grant standing to sue for waste, (3) devisable, descendible, and usually transferable, (4) uses terms such as “but if,” “then to,” and “for so long as.”
What are the types of executory interests?
(1) Shifting and (2) Springing
What is a shifting executory interest?
Always follows a defeasible fee and cuts short the interest of a grantee in favor of a different grantee. “to A so long as the property for X, but is used for Y, to B.” B has a shifting executory interest.
What is a springing executory interest?
A future interest held by a grantee that cuts short the interest of a grantor and their heirs. “To A if he does X.”
Basically a reversion for a third-party.
What is the Rule Against Perpetuities?
No property interest is valid unless it must vest, if at all, no later than 21 years (or by statute) after the death of a life in being at the time the interest was created.
What is the limitation on the rights of first refusal?
The RAP forbids the exercise of contingent interests beyond the statutory time for RAP.
What is the effect of RAP on class gifts?
A class must be closed with all conditions precedent satisfied for every member.
Rule of convenience may save a class that would otherwise violate RAP.
What is the effect of RAP on charities?
RAP does not apply to conveyances from one charity to another.
What is a tenancy in common?
An estate with multiple tenants in which each co-tenant owns a distinct, undivided interest and each has a right to possession of the whole estate.
What are the key characteristics of an interest in land from a tenancy in common?
(1) Shares can be uneven, (2) each tenant has the right to possess the whole, (3) shares are fully alienable, transferable, and descendable, (4) surviving tenants have no right of survivorship and is (5) the default form of shared property interest.
How can joint tenancy be created?
(1) A single title, (2) granting interests at the same time, with (3) equal and identical interests, and (4) equal possessory rights.
What are the transferability rights of a joint tenancy?
Alienable, but not devisable or descendible.
What is a severance of a joint tenancy?
Any joint tenant may unilaterally sever creating a tenancy in common with respect to the severed interest.
What is the effect of transfer upon joint tenancy?
If more than two the joint tenancy remains, but otherwise it creates a common tenancy.
What is the effect of mortgages upon joint tenancy?
(1) Lien theory: joint tenant can take a mortgage on their interest without severing the joint tenancy, (2) Title theory: joint tenancy is severed if any joint tenant takes a mortgage on their interest because title passes to the mortgage.
What is tenancy by the entirety?
A marital estate similar to joint tenancy but between a married couple.
How is a tenancy by the entirety created?
Created by a conveyance to a married couple with the same conditions as a joint tenancy. Presumed where a conveyance is made jointly to a married couple.
What are the characteristics of a tenancy by the entirety?
(1) Right of survivorship, (2) no right of partition or unilateral conveyance of interest, (3) creditors of one spouse cannot reach the interest of the other.
How can a tenancy by the entirety be severed?
(1) Death, (2) mutual agreement in writing, (3) divorce, (4) execution by a joint creditor.
What are eight rights & duties of co-tenants?
(1) Possession of whole, (2) Rent & profits from third parties, (3) no adverse possession against other tenants, (4) each tenant responsible for their share of carrying costs, (5) co-tenants may seek contribution for reasonable repairs if done with prior notice, (6) no right to contribution for improvements, but co-tenants may be entitled to credit for an increase in attributable value, (7) co-tenants can bring action for waste, (8) partition or sale may be petititoned.
What are the types of leasehold estates?
(1) Tenancy for years, (2) periodic tenancy, (3) tenancy at will, (4) tenancy at sufferance.
How is a periodic tenancy created?
(1) Express agreement, (2) by implication (usually holdover), (3) operation of law.
What are the situations for operative law in tenancy?
(1) Invalid lease, if the tenant takes possession despite invalid lease and landlord, accepts payment, (2) holdover tenant where landlord accepts rent from a holdover, a periodic tenancy arises for ht period the payment covers.
How is a periodic tenancy terminated?
(1) Sufficient notice of one full period, unless 1 year then 6 months, (2) Effective date must be at the end of the period.
What are a landlords options if a tenant stays over?
(1) sue to evict or (2) impose a new periodic tenancy.
What rent can be demanded for tenancy at sufferance?
A landlord may demand higher rent for both the holdover period and any new periodic tenancy with sufficient notice of the increase prior to the expiration of the lease.
What is the effect of a commercial tenant hold-over?
It creates a new periodic tenancy.
E.g. the new periodic tenancy can be year-to-year.
What are the tenant’s duty under common law?
(1) Duty to make ordinary repairs, (2) duty to avoid waste, (3) duty to pay rent, (4) duty to not use the property for illegal purposes, (5) duty to cover liabilities for injuries sustained by third parties invited by a tenant.
When may fixtures be removed?
(1) Life estate, (2) installed by tenant removed before end of lease and does not cause substantial harm to property.
When does a chattel become a fixture?
(1) Intent is usually determinative, and (2) integrated into a structure almost always becomes a fixture.
What are the landlord’s remedies for a tenant breach if the tenant retains possession? 🔀
(1) File for eviction, or (2) keep the lease and sue for rent due.
What are the landlord remedies for tenant abandons premises?
(1) Surrender by treating the tenant’s surrender and accepting it, releasing the tenant from the lease, (2) ignore (minority rule) hold tenant liable for unpaid rent, or (3) re-let (majority) lease premises to new tenants and hold breaching tenant liable for any losses.
What are the landlord’s duties & warranties?
(1) Duty to deliver possession, (2) implied covenant of quiet enjoyment, (3) implied warranty of habitability, (4) tort liability.
What are the distinctions between majority & minority jurisdictions for delivery?
Majority: actual possession; Minority: legal possession.
What is the implied covenant of quiet enjoyment?
An implied right to the property, without interference from the landlord.
What is actual eviction?
The landlord wrongfully evicts or excludes tenants from the property.
What is constructive eviction?
The landlord’s actions or inactions render the property uninhabitable.
When are the elements of constructive eviction?
(1) Substantial interference, (2) notice by tenant (3) reasonable opportunity to repair and fails to act meaningfully, and (4) tenant vacates.
What is the implied warranty of habitability?
(1) Only applicable for residential property, (2) absolute duty cannot be modified by lease terms, (3) legal code or case law specified the standard for a breach.
