Property Flashcards
Adverse Possession
The elements of adverse possession requires possession which is:
1. Open and notorious (it would put a reasonable person on notice that it was occurring);
2. Actual and exclusive (the possessor uses the property);
3. Hostile or adverse (possessor lack owner’s permission or consent);
4. Continuous (possessor constantly using property for the purpose and in the manner reasonably and normally intended); and,
5. For the statutory period.
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(1) open and notorious (if it would put a reasonable person on notice that it was occurring);
(2) actual and exclusive (if only the possessor uses the property);
(3) hostile or adverse (lack of the owner’s permission or consent);
(4) continuous (constantly being used for the purpose and in the manner reasonably and normally intended)
(5) for the statutory period.
There can never be adverse possession against a government
But government can adversely possess private property
Adverse possession does not give marketable title
- So they cannot sell the property.
- Unless the adverse possessor gets a judicial decree of title in a quiet title action,
Fee simple
“O to A” or “O to A and his heirs” creates fee simple
Life estate
Life estate is followed either by a reversion or remainder
Life tenant pays taxes and mortgages to the extent of income from property or reasonable rental value
Life estate per autre vie
This life estate only last as long as the life of other
Remainder
Follows a life estate, not a fee estate
Vested Remainder
imposes no conditions
E.g., “To John and his heirs”
Contingent Remainder
Subject to conditions
Where the remainderman must first fulfill a condition
E.g., “To John, if he attains the age of 21.”
Fee Simple Determinable (FSD)
To A “so long as” property is used as a …” and followed by a possibility of reverter in the grantor
E.g., “to A so long as the property is used as a park,”
Fee Simple Subject to Condition Subsequent (FSSCS)
- To A;
- “but if the property ceases to be used as a …” and followed by a right of entry – must be exercised or else subject to laches defenses.
E.g., “to A, but if the property is no longer used as a park, then to O,”
FSD or FSSCS followed by estate in third party is an Executory Interest
If a defeasible fee such as a FSD or FSSCS is not followed by an estate in the grantor, but instead is followed by an estate to a third party, the interest in the third party is an executory interest.
Doctrine of Merger
Under the doctrine of merger, if the same person acquires both the present and all future estates (such as a life estate and a remainder), they merge into the fee title. But if the duration of the estates differs, there is no merger
Class Gifts
The Rule of Convenience provides that, absent a contrary intention in the instrument to include all members of a class whenever born, the class closes when some member of the class can call for distribution of her share.
Class gifts are gifts to a defined group.
E.g., to T’s grandchildren. Two grandchildren alive, one predeceased. One born after T’s death.
The last one born is not in the class – it closed.
Rule Against Perpetuities
Future interest must vest, if at all, within the lives in being plus 21 years.
The validity of the interests under the Rule against Perpetuities is determined at the time the interests are created, taking into account the facts then existing.
Applies Only to Contingent remainders, executory interests, class gifts, options and rights of first refusal, and powers of appointment
In determining the life in being, they should be connected to the beneficiaries. Thus, consider who biologically produces the beneficiaries, and their relationship to the testator/grantor.
- If such persons could be born AFTER the death of the testator or date of the deed, the Rule is violated.
- Defeasible fee to a third party other than grantor
Valid Interest
Rule Against Perpetuities
Since an interest, to be valid, must vest in the time period, vesting occurs either:
- when it becomes a present possessory estate (i.e., the life estate takes effect, or the fee goes to the transferee), or
- when it becomes an indefeasibly vested remainder or a vested remainder subject to total divestment.
Concurrent Estates
- Joint Tenancy
- Tenancy in Common
Unless otherwise started, title in co-tenants/co-owners is presumed tenancy in common
Joint Tenancy
Joint tenancy requires 4 unities and right to survivorship. The four unities requires joint tenants to take their interest at the same time, by the same title with identical equal interest and identical right to possess the whole.
Elements:
1. 4 unities
2. right to survivorship
4 unitities - JT must take their interests,
* At the same time
* By the same title
* Identical equal interest, and
* Identical right to possess the whole;
Even if the granting instrument grants property to A, B and C as joint tenants, discuss why each of the four unities is met, and whether there is survivorship, before concluding that there is a joint tenancy.
Approach JT
analysis
Even if the instrument grants the property to A, B and C as joint tenants, discuss:
1. why each of the four unities is met, and
2. whether there is survivorship,
before concluding that there is a joint tenancy.
Tenancy in Common
2 or more owners with no right of survivorship
Severance of Joint Tenancy
- by transfer/conveyance of their interest to a third person results in Tenancy in Common
- By Mortgage
(a) Majority - Lien Theory States - liens and mortgages do not sever a joint tenancy on creation of the lien or mortgage –> On death of mortgagor joint tenant, lender loses interests
(b) Minority - Title Theory States - a mortgage will sever a joint tenancy on execution but the lender/mortgagee only holds the mortgage on the ½ tenancy in common interest owned by the mortgagor co-tenant, and if the mortgagor co-tenant dies, the mortgage survives on that one-half tenancy in common interest.
Rights and Liabilities of Co-Tenants
6 Rights
- Both have a right to possess all of the property, but a co-tenant not in possession cannot bring a possessory action (or claim rent from a possessing co-tenant) unless there has been OUSTER (wrongful exclusion of co-tenant from possession —usually by the possessing cotenant claiming a right of exclusive possession.)
- Co-tenant in possession has the right to retain profits gained by use of the property, and there is no need to share those profits with other co-tenants or reimburse them for rent, absent a written agreement to the contrary or if the profits are from uses that deplete the property’s value.
- Co-tenant out of possession has the right to pro rata share in rents from 3rd parties and in profits from uses that deplete the property’s value.
- Co-tenant in sole possession who pays for necessary repairs has right to reimbursement (some states require giving of notice before repairs made)
- No reimbursement for improvements
- Co-tenant in sole possession who pays taxes and mortgages is only entitled to reimbursement in teh amount that exceeds the rental value of the property.
Co-tenant’s Right to Possess the Property and Rent Payment and Issue of Ouster
Both have a right to possess all of the property, but a co-tenant not in possession cannot bring a possessory action (or claim rent from a possessing co-tenant) unless there has been OUSTER (wrongful exclusion of co-tenant from possession —usually by the possessing cotenant claiming a right of exclusive possession.)
Co-tenant In Possession Right to Retain Profits
Co-tenant in possession has the right to retain profits gained by use of the property, and there is no need to share those profits with other co-tenants or reimburse them for rent, absent a written agreement to the contrary or if the profits are from uses that deplete the property’s value.
Co-tenant out of possesion right to rent from 3rd party
Co-tenant out of possession has the right to pro rata share in rents from 3rd parties and in profits from uses that deplete the property’s value.
Co-tenant Right to Contribution/Reimbursement for Necessary Repairs but not Improvement
A co-tenant who pays more than the pro rata share for necessary repairs is entitled to contribution from the other co-tenants in an action for accounting or partition. In addition, a majority of courts permit an independent action for contribution if the repairs are necessary and the repairing co-tenant first gives notice to the other co-tenants.
Co-tenant in sole possession who pays for necessary repairs has right to reimbursement (some states require giving of notice before repairs made)
No reimbursement for improvements