Property

Question 1

Tenants in common

Answer 1

two or more owners w/o the right of survivorship
Co-tenant own individual part+ right to possess whole
Devisable, descendible, alienable

Question 2

joint tenants

Answer 2

two or more owners w/ right of survivorship
Right of survivorship
Non-probate asset: unless only remaining tenant: then it is All yours to do as you will

Four unities essential to a joint tenancy (PITT)
If 4 unities don’t exist, a joint tenancy is not created, instead a tenancy in common is created
If 4 unities exist at the time the joint tenacy is created but are later severed, the joint tenancy turns into a tenancy in common when the unities cease to exist (destruction of any unity by a tenant destroys joint tenancy for that tenant)

Have to be explicitly stated now: “ to A and B as joint tenants and not as tenants in common ( with the right of survivorship and not as tenants in common)”

Question 3

Four unities essential to a joint tenancy (PITT)

Answer 3

Time:each joint tenant must be acquired or vest at the same time

Title: all joint tenants must acquire title by the same instrument or by a joint adverse possession. Joint tenancy can never arise by intestate succession or other act of law

Interest: all must have equal undivided shares and identical interest measured by duration ( same quantum)

Possession: each must have a right to possession of the whole ( one joint tenant can voluntarily give exclusive possession to the other joint tenant.

Question 4

severance of Joint Tenancy

Answer 4

Sale: JT selss/transfers during lifetime
Partition
Voluntary: amicable end
Judicial:in kind ( physical division); forced sale (division of proceeds)
Mortgage
majority of states(lien theory): no severance
Minority of states ( titletheory): severance

Question 5

tenancy by the entirety

Answer 5

can be created only in husband and wife, like joint tenancy in that the four unities plus a fifth ( unity of marriage) are required, and the surviving tenant has the right of survivorship

Neither husband nor wife can….
Defeat the right of survivorship of the other by a conveyance of a moiety to a third party
Acting alone have right to judicial partition of prop

Very protected form of co-ownership “ can’t touch this”
Creditors of only one spouse can’t touch tenancy for satisfaction of debt

Severance
Divorce terminates and tenancy in common forms
Death
Mutual agreement
Execution by a joint creditor of both spouses

Question 6

rights and duties of co-tenants

Answer 6

Possession
No ouster ( wrongful exclusion from part/whole)

Rents and profits
None from co-tenant in exclusive possession (unless ouster)
Fair share if leased to 3rd party ( taxes, mortgages, etc)

Repairs
Contributions for reasonable necessary repairs w/ notice

Unilateral improvements
No contribution (credit at partition)

not commit waste

Question 7

Types of waste

Answer 7

3 general categories of waste, impact of waste is economic waste

Affirmative waste(voluntary) : arising from voluntary acts, liability results from injurious acts (acts that substantially reduce the value of land)- some exceptions is mineral extraction

Permissive waste (neglect): arising from failure to act, negligence ( not paying taxes so land falls to forfeiture)

Ameliorative waste (unilateral change increasing value)- resulting from changes to the property, specifically changes that increase its value, by doing acts remainder or revision value cannot diminish

Question 8

judicial partition

Answer 8

partition in kind preferred
forced sale allowed if fair/equitable physical division not possible

Question 9

tenancy for years

Answer 9

Known fixed period of time
Termination automatic (on end date)
No notice needed to terminate
Writing typically needed if >1 year

Question 10

periodic tenancy

Answer 10

Continues for successive intervals until properly terminated
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

To terminate need notice
CL: at least equal to length of period
Month to month- 1 month
Week to week 1 week
Year to year: 1 month under restatement

Question 11

tenancy at will

Answer 11

No fixed duration
Terminable at will of either party ( to T for as long as L or T desires

Question 12

tenancy at sufference

Answer 12

T wrongfully holds over past lease expiration
L proceeds to recover rent
Terminates when L moves to evict or holds T to new tenancy

Question 13

T’s duty to repair

Answer 13

if lease silent
Maintain premises
Make routine repairs
Not ordinary wear & tear repairs
Don’t commit waste

w/ express covenant
Maintain in good repair/condition
T may terminate if premises destroyed w/o T’s fault

Question 14

Implied covent of quiet enjoyment (SING)

Answer 14

Breach by wrongful eviction: exclusion from whole or part of premises

Breach by constructive eviction: L renders premises unsuitable for occupancy
SI- substantial interference ( chronic/permanent problem)
N- notice ( T must notify L)
G- Goodbye/get out ( T must vacate)

Question 15

implied warranty of habitability

Answer 15

Residential only
Premises must be fit for basic human habitation
Standard:case law and housing code

T’s options if L breaches ( MR3)
M- move
R-repair and deduct
R- reduce or withhold rent
R-remain & seek damages

Retaliatory eviction
L can’t terminate/penalize T in retaliation for T’s exercise of legal rights

Question 16

implied warranty of habitability

Answer 16

Residential only
Premises must be fit for basic human habitation
Standard:case law and housing code

T’s options if L breaches ( MR3)
M- move
R-repair and deduct
R- reduce or withhold rent
R-remain & seek damages

Retaliatory eviction
L can’t terminate/penalize T in retaliation for T’s exercise of legal rights

Question 17

fair housing act protected classes

Answer 17

Race, color, religion, sex, familial status, national origin, disabled person

Dwellings need not be made available to ppl whose condition would create a direct threat to the health and safety of others or result in substantial damage to prop, but landlords must try to make reasonable accommodations

Landlord: the burden shifts to the housing provider/property manager to show a legally sufficient justification. means substantial, legitimate, nondiscriminatory purpose

Tenant: the tenant or applicant must establish liability by proving that the legitimate justification could be achieved by another practice that has a less discriminatory effect

Question 18

lease agreement types of privity

Answer 18

For a general rule:, a lease agreement gives rise to two distinct relationships b/n the LL and the original tenant privity of estate and privity of contract

Privity : denotes a voluntary transactional relationship b/n 2+ people or entities
Whether oral or in writing, the lease b/n the landlord and the original tenant amounts to a conveyance of a right of possession from former to the latter= creates privity of estates , tenant holds for the LL
(Imposes a duty on the parties to perform only the lease terms that are said to run with the land 2 duties/covenenants that runs with the land = promise to pay rent, promise to repair )

If lease contains promises by one party to the other = creates privity of contract

If neither privity of estate nor privity of contract exists b/n the LL and the other party, the LL may not hold the other party liable for the terms

Question 19

assignment

Answer 19

transfer of all property rights dor durational period

Assignee T in privity of estate w/ L
Liable on covenants that run with land (rent and repair)

Original T in privity of K (but not estate) w/ L
Liable for original lease obligations

Question 20

Sublease

Answer 20

transfer portion of property rights for durational period

T2 has no privity ( estate or K ) w/ L

T1 & T2 responsible to each other
Relationship b/n L and T1 remains intact

Question 21

caveat lessee (tenant beware)

Answer 21

L has no duty to make premises safe

EXCEPTIONS (CLAPS)
C-common areas ( hallways,elevators, etc)
L-latent defects (L must warn of hidden defects)
A- assumption of repairs- liable if repair negligently
P-public use rule- (short lease, significant defect, liable
4 any defects that cause injury
S-short-term lease of furnished dwelling , T doesn’t
have ability/time to repair

Question 22

easements

Answer 22

A grant of a nonpossessory prop interest that entitles its holder to some form of use or enjoyment of another’s land

Use for specified purpose

Presumed to be of perpetual duration unless grant specifically limits the interes

Question 23

types of easments

Answer 23

affirmative= the right to go onto/do something on servient land

negative= can only be created expressly, prevent servient landowner from doing something that would otherwise be permissible (LASS)
L-light
A-air
S-support
S-stream water from an artificial flow

Question 24

easement appurtenant

Answer 24

Benefits holder in use/enjoyment of own land

2 parcels
dominant= derives benefit
Servient: bears burden

Passes automatically with transfers if the dominant tenement , regardless of whether it is even mentioned in the conveyance
Burden of easement aoourtenant passes automatically w/ sevient estates

Question 25

easement in gross

Answer 25

Holder has personal/commercial advantage unrelated to use/enjoyment of land
Servient land burdened
No benefited/ dominant tenement

Examples
Right to place a billboard on another’s lot
Right to swim in anothers pond
Utility company’s right to lay power lines on another’s lot
Not transferable unless it is for the commercial purposes

Question 26

Creation of affirmative easement (PING)

Answer 26

P- prescription ( adverse possession
Continuous uninterrupted use
Open and notorious
Actual but not exclusive
Hostile

I- implication
Preexisting use/ quasi easement

N- necessity

G- grant
In writing signed by thee holder of the servient tenement ( unless outside SoF)

Question 27

Termination of easement (END CRAMP)

Answer 27

E- estoppel
Oral expression of n intent to abandon an easement won’t terminate an easement unless its also committed to writing or accompanied by action
Servient owner materially changes positions in reliance

N- necessity
When need ends unless easement was reduced to an express grant

D- destruction ( of servient land)

C-condemnation ( of servient land by gov eminent domain power wi)

R-release ( by holder to servient owner)

A- abandonment( physical action, an intent to never use easement again )

M- merger ( easements & servient land held by same person)

Prescription ( by servient owner)

Question 28

license

Answer 28

Mere privilege to enter another’s land for narrow/delineated purpose

Creation
No writing required
Freely revocable at will of licensor

Profit
Entitles holder to enter servient land & take some resource
Creation, termination,alienation(transfer) = same as easements
Can also be extinguished through surcharge
Surcharge = misuse that overly burdens the servient estate)

Question 29

Restrictive covenants

Answer 29

Covenant =promise to do or not do something
negative / restrictive= refrain from doing something ( i promise not to build for commercial purposes)
Affirmative = do something related to land ( I promise to maintain our shared fence)

Distinguish by remedy
Money damages: construe as covenant at law
Injunction: construe in equity as equitable servitude

Question 30

Requirements for Burden to Run (WITHN)

Answer 30

W- writing

I-intent
Intended that the covenant would run

T-touch & concern
Affecting parcel owner in her use of that parcel of land
Affirmative covenants touch & concern the nad if they require the holder of the servient estates to do something that increases her obligations in connection with the land

H-HOrizontal & vertical privity
Horizontal ( original parties to the arrangement, grantor- grantee relationship not just two people agreeing )
Requires they be in succession of estate
They shared some interest in the land independent of the covenant
Vertical ( b/n original party and a successor to their interest)
Some non-hostile nexus such as K, devise, or descent

N- Notice
Successor must have had notice of the promise when she took possession

Question 31

Requirements for benefit to run (WITV)

Answer 31

W- writing
I-intent
T- touch & concern
V- Vertical privity

Question 32

Equitable servitude

Answer 32

Promise equity will enforce against successors of burdened land (regardless of whether it runs with land at law)
Bar exam= indicate want injunctive relief= triggers this

Question 33

creation of Equitable servitude (WITNES)

Answer 33

W-writing
I- Intent
T- touch &concern
N- Notice
ES- Equitable servitude

Question 34

implied equitable servitude (reciprocal negative servitude)

Answer 34

Under common scheme doctrine, ct will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise

Common scheme doctrine
Scheme of development ( including D’s lot) when sales began
D had notice of promise when they took

Notice in 3 forms (AIR)
A- actual = literal knowledge
I- inquiry= lay of land, general observation
R- record= public docs

If scheme arises after some lots ate sold, no implied servitude
Must be from inception

Question 35

Equitable Defenses to enforcement ( ct will not enforce equitable servitude if)

Answer 35

Neighborhood conditions have change

Person seeking enforcement violating similar restriction on nown land ( unclean hands)

Benefited party acquiesced in violation of sevituded by a burden party

Benefitted party acted in way that reasonable person would have abandoned covenant (estoppel)

Benefitted party fails to bring suit w/i reasonable time (laches)

Question 36

Adverse possession

Answer 36

unconventional means to title of a real prop. Acquired by acting as an owner for a specified length of time under claim of right or color of title

Possession for statutorily prescribed time can ripen into title if elements met (OCEAN)
AP Elements (OCEAN/ All Horses Eat Old Corn)

Actual Possession- physically on the land in possession/control and using it in the nature of the land
Accrues that statute of limitation must file for ejection to get a person to leave the property as a trespasser before SOL is over and they claim AP

Hostile, Adverse and under claim of right- Hostile and under claim of title, on the land and using it w/o T.O’s permission as if it was their own

Exclusive Possession- Exercise dominion over prop, using land in a way that excludes other ( T.O, another AP, anyone on land W/O AP permission)

Open and Notorious- use land in a way to put reasonably attentive owners on notice (Constructive notice), an ordinary person would notice a person is present and using the land
Objective test used to decide constructive notice
Reflects the sleeping principle: purpose to penalize the negligent and dormant owner for sleeping upon his rights

Continuous for the statutory period- continuous, not constant, can come and go in the ordinary course given the nature of the prop in question so long as it is for the duration of the statutory period

Question 37

Tacking

Answer 37

combine periods of time together to satisfy the time requirement for SoL if there is privity between APs

Privity looks at successive and mutual relationships (blood, lease, or service), is recognized by law
Ancestor-heir (blood, intestate)
Grantor-grantee (deed)
Devisor-devisee (will)
Testator-executor (will)
Assignor-assignee ( K/debt)
Donor-donee ( NC, deed of gift)
Leasor-leasee (§22-2)

Not Tacking if new AP forces out old AP or AP leaves w/ intent to relinquish claim (Abandonment)

Question 38

exception Preventing AP

Answer 38

Nothing T.O. does w/ title after the AP enters on land will have any effect on AP except…

Someone has a future interest in the prop, “To A for life, then to B”
Future interest operative at death
Only AP from A, not B b/c B is not the owner yet so no SoL for ejectment yet, have to wait u ntil A dies to try and adversely possess B’s land

*Someone has mortgagee on land- no SoL until Bank foreclose

Surface and Mineral estates severed: house/ land on top of the surface has one owner, mineral in grounds below the surface has another owner

Disabilities: owner under disabilities at the time AP begins
Infancy, insanity, imprisonment= 3 “i”s in disabilities
All disabilities at the time of AP trying to begin must be removed + w/e SoL says

Governmental entity is the owner
Immuned from AP unless used in a proprietary capacity

Question 39

conveyance

Answer 39

Two step process
Contract (conveys equitable title)
Closing (deed passes legal title)

SoF Applicable
K must be in writing
Signed by party against whom enforcement sought

Must also include
Identify parties
Describe prop
State consideration

Question 40

part performance - conveyance

Answer 40

Allows buyer to enforce oral K by specific performance if
K is certain and clear and
Acts prove existence of contract

Acts usually satisfied by ⅔ of following
Buyer took possession
Buyer paid purchase price or significant portion
Buyer made substantial improvements

Question 41

equitable conversion- conveyance

Answer 41

Legal title: deed (right to possess)
Equitable title: K (risk of loss)
Buyer bears risk unless K says otherwise

once K is signed and each party is entitled to specific performance , equity regards the Buyer as the owner of real prop and the seller’s rights to the proceeds of the sale is considered personal prop

If seller dies , takers of her real prop must transfer title at closing and the proceeds pass to the decendent’s takers of her personal property

Question 42

marketable title - conveyance

Answer 42

seller’s implied promise to provide title reasonably free from doubt/threat of litigation on closing
Common defects that render title unmarketable are
Defects in record chain of title- most often adverse possession
Encumbrances (mortgages, liens,easements, restrictive covenants)
Zoning violations: existing zoning violation makes unmarketable
Title must be marketable on the day of closing

Question 43

no false statements of material fact- conveyance

Answer 43

Seller liable for failure to disclose latent material defects

To be failure to disclose
Seller must know or have reason to know of defect
Seller must reliaze that the buyer is unlikely to discover the defects AND
Defect must be serious enough that the buyer would probably reconsider the purchase

Seller can disclaim specific types of defects to be held liable ( “ seller is not liable for any defects in the roof)

No implied Warranty of fitness or habitability
Buyer beware
EXCEPTION: sale of new home by builder

Question 44

deeds

Answer 44

To pass title , must be “LEAD”: lawfully executed and delivered

Lawful execution requires
Writing signed by grantor
Unambiguous description
Identification of parties
Words of intent

No consideration needed

Question 45

delivery requirement- conveyance

Answer 45

Legal standard testing grantor’s present intent (did they have present intent to be bound)

Delivery presumed if deed
Handed to grantee
Acknowledge by the grantor in front of a notaru or
Recorded

Rejection defeats delivery
Acceptance is presumed but if grante expressly rejects the deed, the deed is ineffective to pass title
Can be accomplished by delivery by third party if third party is an escrow agent

Question 46

general warranty deed

Answer 46

warrants title against all defects in title whether t hey arose before or after the grantor took title

Grantor promises to warrant and defend grantee’s title against the lawful claims and demands of all persons whomsoever

Look at which covenant breached and then majority minority rule to see if remote grantee can sue
Majority: cannot sue for a present covenant only a future covenant
Minority: can sue for a present of future covenant

Question 47

special warranty deed

Answer 47

contains warranties only against the grantor’s own acts but not the acts of the other

Defect is a mortgage on land executed by grantor’s predecessors, grantor not liable

Grantor limits his promise to defend grantee’s title against claims and demands of persons claiming an interest in the property ( by, through, or under the grantor)

Question 48

quitclaim deed

Answer 48

contains no warranties of any kind, conveys whatever title the grantor has, if grantee takes nothing by deed, the grantee cannot sue the grantor

Do not contain any covenants or promises regarding title, nor do they purport to transfer any particular interest in the land

Question 49

requirements for a valid deed

Answer 49

some consideration paid by the grantee in order to raise a presumption that the grantee is a bona fide purchaser entitled to the protection of the recording acts against prior unrecorded instruments

deed must contain a description of the parcel of land conveyed that locates the parcel by describing its boundaries

document under seal ( deed to land is effective when signed sealed and delivered

Question 50

present covenants

Answer 50

covenant of seisin
covenant of right to convey
covenant against encumbrance

Present covenants broken if ever at time the deed is delivered, present covenants do not run with the land ( SoL starts at time of delivery of deed)
Either the grantor has ( title to prop, right to convey, an encumbrance) or he doesnt

Question 51

covenant of seisin

Answer 51

grantor warrants that he owns the estate that he purports to convey (in fact owns the estate)

Question 52

covenant of right to convey

Answer 52

grantor warrants that he has the right to convey the property ( in fact the person who is authorized/ has right to sign over )

Question 53

covenant against encumberanace

Answer 53

the grantor warrants that there are no servitudes/liens encumbrances on the property at the time of the conveyance

Encumbrance: claim or liability attached to prop that may lessen its value; a prop right that is not an ownership interest
Easement
Mortgage
Judgment lien

GR: the existence of an encumbrance constitutes a breach of the covenant against encumbrances

Question 54

future covenants

Answer 54

covenant of general warranty
covenant of quiet enjoyment
covenant of further assurances

Future covenant not breached until the grantee or his successor is evicted from the property, buys up the paramount claim, or is otherwise damaged

Question 55

covenant of general warranty

Answer 55

the grantor warrants that he will defend against lawful claims and will compensate the grantee for any loss that the grantee may sustain by assertion of superior title

Question 56

coveant of quiet enjoyment

Answer 56

the grantor warrants that the grantee will not be disturbed in possession and enjoyment of the property by persons assertion of superior title

Question 57

covenant of further assurances

Answer 57

the grantor promises that he will execute any other documents required to perfect the title conveyed (if missed a page to sign will come back and sign it )

Question 58

race recording statues

Answer 58

B wins if records properly before A

“ A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded

Question 59

Notice recording statute

Answer 59

B wins if BFP when took (last BFP to take wins)

A conveyance of an interest in land shall not be valid a
gainst any subsequent purchaser for vale, without notice thereof, unless the conveyance is recorded

Question 60

Race-notice recording statute

Answer 60

B wins if BFP and records properly before A

A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded

Question 61

Bonafide Purchaser (BFP)

Answer 61

Purchaser (didn’t take by gift, will, inheritance)
Pay valuable consideration
Take w/o notice of prior conveyance

Question 62

types of notice

Answer 62

Actual
B learns of A (literal knowledg)

Inquiry
B charged with what inspection would’ve revealed

Record
B on notice of deeds properlu recorded in chain of title

Question 63

chain of title

Answer 63

Sequence of recorded documents capable of giving record notice to later takers

Question 64

shelter rule

Answer 64

Anyone who takes from a BFP will prevail against any interest the BFP would’ve prevailed against

Question 65

wild deed

Answer 65

Recorded deed that isn’t connected to chain of title (incapable of giving constructive notice)

Question 66

estoppel by eed

Answer 66

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 enying validity of preacquisition conveyance
Watch out for BFP. early recording is outside chain of title

Question 67

Mortgages (Purchase money mortgage cretion, transfer, liable)

Answer 67

Purchase money mortgage: lender’s security interest in real estate that their loan enables debtor to acquire

Mortgage creation
Debt (note)+ lien in land to secure debt (mortgage)
In writing (legal mortgage)

Transfer of interest
Oindorsing the note and delivering it to the transferee or
Executing a separate document of assignment
Recording statutes protect mortgagees
If recorde,mortgage sticks with the land

Whos personally liable on debt
If O (mortgagor) sells Blackacre to B:
B assumes mortgage: Both O and B liable
B takes subject to mortgage: only O, but if recorded, Blackacre can be foreclosed

Question 68

Forclosure (effect on interests)

Answer 68

The land is sold, sale proceeds fo to satisfying the debt

Deed in lieu of foreclosure
Permits the mortgagee to take immediate possession w/o foreclosure sale
Since not an actual foreclosure it doesn’t operate to terminate any junior liens that may be present on the mortgaged real estate

Junior liens are paid off in order of their priority any remaining surplus goes to debtor

Effect of forclosure 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)

Priority of creditors
Creditor must record
First in time, first in right
Purchase money mortgage: first priority in parcel financed

Question 69

equitable redemption

Answer 69

Debtor can redeem land prior to foreclosure sale by paying
Cut off by foreclosure sale
No clogging equity of redemption
Debtor cannot waive right to redeem in mortgage itself

Question 70

zoning

Answer 70

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 cateforized to create hierarchy of uses (single family home to highest use)
single family home
2 family home
apartment buildinging
striip mall
factory

Special use permit
Must be obtained even though zoning proper for intended use( hospitals, drive in

Question 71

devisable

Answer 71

capable of passing by will

Question 72

descendible

Answer 72

capable of passing y intestacy (no will)

Question 73

alienable

Answer 73

capable of transfer inter vvivos (during lifetime)

Question 74

fee simple absolute

Answer 74

“To A “ or “to A and his heirs”
A living person has no heirs, only have heirs apparent ( they have no power)
Potentially limitless duration
Devisable,descendible, alienable

Question 75

fee simple determinable

Answer 75

Terminates automatically on happening of stated event created by clear durational language: “so long as”, “while”, “during””until”

devisable , descendible, alienable
Always subject to the condition
If prescribed condition happens automatically reverts to grantor

Reverter to grantor only future interest

Question 76

fee simple subject to condition subsequent

Answer 76

Use of conditional language+ explicit right to re-enter

No automatic termination (grantor exercises it prerogative/ option to choose to terminate)

Question 77

fee simple subject to condition subsequent

Answer 77

Use of conditional language+ explicit right to re-enter
No automatic termination (grantor exercises it prerogative/ option to choose to terminate)

Question 78

fee simple subject to executory interest

Answer 78

To A but if X event occurs, then to B
Third party, not grantor, takes if condition betrayed
Forfeiture automatic

Rules of construction
Words of mere desire, hope, intention don’t create defeasible fee
Absolute restraints on alienation are void

Question 79

life estate

Answer 79

Measured in lifetime terms (not in term sof years)
“To A for life” (A=life tenant)
duration= for the life of a person
Pur Autr vie- “ for the life of another”
Life tenant’s rights and duties

Life tenant may alter or demolish buildings if
Market value of future interests is not diminished and either
The remaindermen do not object or substantial and permanent change in the neighborhood conditions hasdeprived prop in its current form of reasonable productivity or usefulness

Question 80

life tenant’s rights and duties

Answer 80

All ordinary uses and profits from land
Don’t commit waste
Voluntary:actual overt conduct causing drop in value

GR: life tenant can’t consume or exploit natural resources on prop
some exceptions is open mine doctrine: if mining done on the land prior to the LE, the life tenant can continue mining but is limited to the mines already open

Permissive: failure to make reasonable measures to protect land (neglect)

ameliorative : change that benefits the property economicallyLife tenant may alter or demolish buildings if
Market value of future interests is not diminished and either
The remaindermen do not object or substantial and permanent change in the neighborhood conditions hasdeprived prop in its current form of reasonable productivity or usefulness

Question 81

future interest in grantor

Answer 81

Possibility of reverter
Accompanies fee simple determinable

Right of entry/power of termination
Accompanies fee simple subject to condition subsequent

Reversion
Accompanies when grantor conveys estate of lesser duration
life estate, term for yrs

Question 82

Future interest in 3rd parties : remainders ( tytpes

Answer 82

Possession on natural expiration of preceding estate ( life estate or term of years)
“To A for life, then to B” (A=life tenant; B=remainderman)

Contingent: taker as yet unascertainable or subject to the condition precedent
Condition precedent: appears before language introducing you to remaindermen

vested: ascertainable , strongest remainder, guaranteed to get previous estate after prior has terminated
Ready to become possessory whenever and however all preceding estates expire no condition precedent
Condition subsequent= appears after language that, alone and set off by commas, creates remainder

Question 83

types of vested remainder

Answer 83

Indefeasibly vested- remainder certain of becoming possessory in the future & cant be divested

Vested remainder subject to open ( subject to partial divestment)
Has a condition subsequent
Open to a class ( can stll be added, siblings, children, some group)
“ to A for life, then to B’s children
B’s children= class
Rule of convenience: class closes when any member can demand possession of property= closes at either A or B’s death
Womb rule: if in womb when A or B dies they are included in class

Vested Remainder subject to complete defeasance
Subject to condition subsequent
Grantee faces the possibility of being divested at future date if condition subsequent is not satisfied
Typically followed by executory interest
“But if” language
“O to A for life, then to B; but if B gets a tattoo, to C

Question 84

abolished doctrines on remainders

Answer 84

Rule in Shelly case
Doctrine of worthier title

Question 85

future interest in 3rd parties: executory interests

Answer 85

Cut short prior taker

Shifting: follows defeasible fee, cuts short someone other than grantor
Shifting (fwd to another grantee)- divesting another grantee

Sprining: cuts short grantor
Springing (backward to grantor)- divests the transferor

Question 86

Rule against perpetuities

Answer 86

Certain future interests are void if there’s any possibility they might vest more than 21 years after a person alive at the time of the grant has died

Basic concept: if at time interest created the interest can/might vest in interest too remotely it is voided

Mechanics of the rule
1) determine if future interest subject to Rule
Applies only to interest not vested at time of the conveyance that creates them ( don’t apply to present possessory estates)
Applies to 3 interest: contingent remainders, executory interests, and class gifts ( vested remainders subject to open)

2) what has to happen for future interest holder to take

3) find measuring life
Validating Life: person found who will enable proof that contingent interest wil vest or fail w/i life, or at death of that person or w/i 21 years after that person’s death
Look for persons who lives are causually connected w/ the vesting or termination of the interest ( can effect condition)
Must be alive in being at time interest created including those en ventre sa mere

4) determine if given interest might not vest w/i the perpetuity period “ lives being in 21 years”
Prove contingent interest is certain to vest or terminate no later than 21 years after death or some person alive at the creation of the interest

Question 87

common RAP traps

Answer 87

Executory interests w/o time limit

Age contingency beyond age 21 in an open class

Unborn widow
Don’t know who will be married to at time of death

Fertile octogenarian
Gift to grandchildren

Slothful executor
Transfer based on probate of will

Question 88

Reform of RAP

Answer 88

Wait and see statute: validity determined per facts as they come to be,
Basis of facts existing at the end of the life estate rather than at the creation of the interest

USRAP: provides alternative 90-year vesting period

Cy pres: court can redraft “ as near as possible” to grantor’s intent

Question 89

Restraints on alienation

Answer 89

Disabiling
Absolute ban on transfer= void
forfeiture= attempted transfer forfeits interest= valid if reasonable/time limited
promissory= attempted transfer breaches covenant= valid if reaosnable/time limited
discriminatory= based on race, religion,ethnicity= void

An absolute restraint on the power to sell or transfer is repugnant to public policy and thus void

The prohibition against restraints on alienation will not extend itself to restraints on the power to sell or transfer that are reasonable in their nature and purpose and time limited

Question 90

If a senior mortgage is modified

Answer 90

a junior mortgage prevails over the modification if the modification materially prejudices the holder of the junior mortgage, If prejudice then order of priority changes and Jr has priority over Sr’s

Prejudice if
Increasing the amount of principal; or
Increasing the interest rate

Do not prejudice if
Extension of the mortgage maturity date
Rescheduling installment payments