Property Flashcards
1
Q
What are the three forms of concurrent ownership?
A
Joint tenancy, tenancy by the entirety, tenancy in common
2
Q
What is a joint tenancy, and what are its distinguishing characteristics?
A
Two or more own with the right of survivorship
Shares automatically go to surviving joint tenants, alienable inter vivos, neither descendible or devisable.
3
Q
How do you create a joint tenancy?
A
- Four unities (time, title, possession, identical interest) AND
- Clear expression of right of survivorship (otherwise it’s a tenancy in common)
4
Q
How can you sever a joint tenancy?
A
SAP: Sale and Partition
Severance and Sale - voluntary conveyance destroys the joint tenancy and the transferee takes as a tenant in common
Severance and Partition - voluntary agreement or judicial action (partition in kind or forced sale).
5
Q
What is tenancy by the entirety?
A
A protected marital interest between spouses with right of survivorship. Only created between married partners, who take as a fictitious “one person”
**Very protected form - creditors of only one spouse can’t touch, unilateral conveyance is unenforceable
6
Q
How do you create a tenancy by entirety?
A
In states that recognize it, it arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise.
7
Q
How do you sever a tenancy by the entirety?
A
Only death, divorce, mutual agreement, or execution by a joint creditor of both spouses
On divorce, property becomes tenancy in common
8
Q
What is a tenancy in common, and what are its primary features?
A
A concurrent estate with no right of survivorship. Multiple grantees are presumed to take as tenants in common.
Each co-tenant owns an individual part with right to possess the whole and each interest is devisable, descendible, and alienable.
9
Q
What are the rights and duties of co-tenants?
A
-Possession: each co-tenant has the right to possess all portions of the property (exclusion from any part amounts to ouster)
-Rents and Profits (not from co-tenant in exclusive possession, but entitled to fair share from third parties)
-No acquisition of whole through adverse possession
-Carrying costs: each pays his fair share of taxes and mortgage interest payments
-Repairs: repairing co-tenant has right to contribution for reasonable, necessary repairs upon notice, but no right to contribution for improvements
-Waste: must not commit waste and can bring actions against each other
-Partition: right to bring action
-Encumbrance: may encumber their own interest, but not the interests of co-tenants.
-Duty of Fair Dealing
10
Q
What are the three types of waste?
A
- Voluntary (willful destruction)
- Permissive (neglect)
- Ameliorative (unilateral change that increases value)
11
Q
What is a leasehold, and what are the four types of leasehold estates?
A
Estate in land under which tenant has a present possessory interest and landlord has future interest.
Types:
1. Tenancy for years
2. Periodic tenancy
3. Tenancy at will
4. Tenancy at sufferance
12
Q
What is the tenancy for years, and when does it terminate?
A
Lease for a fixed, determined period of time (you can see the end date). It ends automatically at its termination date with no notice required.
If for a term greater than one year, must be in writing because of the Statute of Frauds
13
Q
What is a periodic tenancy?
A
A lease which continues for successive intervals until either the landlord or the tenant gives proper notice of termination.
14
Q
How is a periodic tenancy created?
A
-Expressly; or
-Implied/by operation of law (where there is no mention of duration but rent is paid at set intervals or oral term of years in violation of SoF)
15
Q
How is a periodic tenancy terminated?
A
Written notice must be given
-Common law: notice equal to length of period itself, six months for tenancy that is year to year or greater
-Restatement: one month for tenancy year-to-year or greater (preferred by bar examiners)
16
Q
What is a tenancy at will, and how is it created and terminated?
A
Tenancy of no fixed duration that is terminable at the will of the landlord or the tenant.
Must be created by express agreement, most states require notice and a reasonable time to vacate.
17
Q
What is the tenancy at sufferance? How is it created and terminated?
A
A tenancy at sufferance is created when a tenant wrongfully holds over (remaining in possession past the expiration of the lease). A leasehold is created so the landlord can recover rent.
Lasts only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy.
18
Q
What are the tenant’s two primary duties?
A
- To repair (when lease is silent, they must maintain and make routine repairs but not make repairs occasioned by ordinary wear and tear & cannot commit waste)
- To pay rent
Also: not to use premises for illegal purpose
19
Q
Who is responsible when the premises are destroyed (landlord/tenant)?
A
Common law: tenant responsible for any loss, including loss attributable to force of nature
Modern majority view: T may end lease when premises are destroyed without T’s fault
20
Q
What are the landlord’s options when a tenant breaches duty to pay rent and is in possession of premises?
A
-Evict or continue the relationship and sue for rent
-Must not engage in self-help!
21
Q
What are the landlord’s options when the tenant breaches but is out of possession?
A
SIR:
-Surrender (treat tenant’s abandonment as implicit offer of surrender and accept, thereby ending the lease)
-Ignore the abandonment and hold the tenant responsible for unpaid rent until natural end of lease
-Re-let the premises and hold the wrongdoer-tenant liable for any deficiency
*The majority rule requires the landlord to at least try to re-let to mitigate damages.
22
Q
What are the landlord’s duties?
A
- Deliver possession
- Implied covenant of good enjoyment (commercial & residential)
- Implied warranty of habitability (residential)
23
Q
How can the landlord breach the implied covenant of quiet enjoyment?
A
- Wrongful Eviction
-Actual eviction - landlord excludes from entire leased premises, terminates tenant’s obligation to pay rent
-Partial eviction - tenant is physically excluded from part of leased premises, relieves tenant of obligation to pay rent for the entire premises - Constructive Eviction (renders premises unsuitable for occupancy, requires SING: substantial interference, notice, goodbye)
24
Q
What is the standard for the implied warranty of habitability? What are the tenant’s options when it is breached?
A
It is a nonwaivable warranty providing that the premises must be fit for basic human habitation.
If the warranty is breached, the tenant’s options are MR3:
-Move out and terminate the lease
-Repair and deduct cost from future rent
-Reduce rent or withhold rent until the court determines fair rental value
-Remain in possession, pay full rent, and seek money damages
25
What are the main anti-discrimination legislative acts? Are there exemptions?
-Civil Rights Act bars racial or ethnic discrimination in the sale or rental of all property
-Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, disability, or family status (exceptions: senior housing, owner-occupied buildings with four or fewer units, single-family homes sold or rented by owner who owns no more than 3 single-family homes)
26
What is the difference between an assignment and a sublease?
An assignment is a transfer of interest in the entire remaining term of a lease, while a sublease is when the tenant retains some part of the remaining term.
27
What is the implication of an assignment?
Assignee stands in shoes of original tenant.
-Privity of estate: assignee and landlord, for all covenants that run with the land
-Privity of contract: original tenant and landlord, so original tenant remains secondarily liable for original contractual obligations
28
What are the implications of a sublease?
Sublease is a relationship between the original tenant and the new tenant, so T2 is responsible to T1 and vice versa. The sublessee is not personally liable to the landlord for rent or any covenants unless they expressly assume them.
29
Can the landlord include covenants against assignment or sublease in the lease?
Yes, can prohibit without prior written approval, but they are strictly construed (so a prohibition on assignment does not prohibit subleasing).
Once a landlord consents to a transfer, they waive the right to object to future transfers by that tenant unless they expressly reserve the right.
30
Can the landlord be liable in tort?
Yes, the common law norm is caveat lessee, but there are five exceptions (CLAPS):
1. Common areas (reasonable care)
2. Latent defects (must warn)
3. Assumption of repairs (must complete with reasonable care once undertaken)
4. Public use rule (liable for defects when leasing public space and should know that tenant will not make repair)
5. Short-term lease of furnished dwelling (responsible for any defective condition which proximately injures a tenant)
The modern trend is a general duty of reasonable care, liable only for injuries resulting from ordinary negligence if landlord had notice and opportunity to repair.
31
What is an easement?
A grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land. Presumed to be of perpetual duration unless the grant specifically limits the interest.
32
What is the difference between an affirmative and negative easement?
Affirmative - the right to go onto and do something on servient land
Negative - entitles holder to prevent the servient landowner from doing something that would otherwise be permissible. Can ONLY be created expressly by a writing signed by the grantor.
-4 categories (LASS): Light, Air, Support, Stream water from artificial flow (& scenic view in a minority of states).
33
What is an easement appurtenant?
When an easement benefits its holder in his physical use or enjoyment of his own land. There must be two parcels involved:
-dominant tenement, which derives the benefit
-servient tenement, which bears the burden
34
What is an easement 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. Servient land is burdened, but there is no dominant tenement.
35
Are easements transferable?
Easement appurtenant - passes automatically with transfers of the dominant tenement (even if not mentioned in the conveyance). Burden passes automatically with servient estate unless the new owner is a BFP without notice.
Easement in gross - not transferable unless it is for commercial purposes.
36
How do you create an easement?
PING:
1. Prescription - Acquired by analogy to adverse possession
2. Implication - Created by operation of law. Can be implied from preexisting use (quasi-easement) if the previous use was apparent and continuous AND the parties that the use would survive division because it is reasonably necessary to dominant tenement's use and enjoyment
3. Necessity - Implied when a landowner conveys a portion of her land with no way out except over some portion of the grantor's remaining land (owner of servient parcel has right to choose location)
4. Grant - memorialized in writing and signed unless of a brief enough duration to fall outside the SoF
**Can also be expressly reserved by grantor of land, but not for the benefit of a third party
37
How do you terminate an easement?
END CRAMP:
Estoppel - servient owner materially changes positions in reliance
Necessity - as soon as necessity ends UNLESS it was reduced to an express grant
Destruction - of servient land
Condemnation - of servient estate by eminent domain
Release - given by easement holder to servient land owner IN WRITING
Abandonment - physical action by easement holder
Merger - when title to easement and to servient land become vested in the same person
Prescription - servient owner interferes with it in accordance with elements of adverse possession
38
What is a license?
A mere privilege to enter another's land for some delineated purpose. It is inalienable since it is personal to the licensee.
39
How do you create a license?
Need not be in writing because it is not subject to SoF. Failed attempt to create an easement creates a license.
40
Are licenses revocable?
Yes, unlike easements, they are freely revocable at the will of the licensor unless estoppel applies to bar revocation. Estoppel applies only when the licensee has invested substantial money/labor in reasonable reliance on license's continuation.
Classic examples: tickets, neighbors talking by fence
41
What is the profit? What are the rules for creation and termination?
Profit entitles its holder to enter servient land and take from it resources or the product of the property.
Easement rules are applicable, and profits may be additionally extinguished through surcharge (misuse that overly burdens the servient estate).
42
What is a covenant?
A written promise to do or not do something related to the land. It is NOT the grant of a property interest (that's an easement); rather, it is a contractual limitation or promise regarding land.
43
What is the difference between negative and affirmative covenants?
Negative - restrictive covenants that are promises to refrain from doing something related to the land
Affirmative - promise to do something related to the land
44
How do you tell the difference between a covenant and an equitable servitude on the exam?
On the basis of the remedy that the plaintiff seeks
Money damages = covenant
Injunction = equitable servitude
45
When does the burden run to successors in the burdened estate?
WITHN:
Writing - original promise must be in writing
Intent - original parties must have intended that covenant would bind successors
Touch and concern - promise must affect parties' legal relations as landowners, not just as members of the community
Horizonal Privity - original parties must be in succession of estate (they must have some shared interest in the land independent of the covenant)
Vertical Privity - there must be a non-hostile nexus between the successor in interest and the original covenanting party
Notice - successor must have notice of promise when she took.
46
What are the requirements for the benefit to run?
WITV:
Writing
Intent
Touch and concern
Vertical Privity (between original promisee and successor in interest)
*It is easier for the benefit to run because there is no horizontal privity requirement.
47
How may a covenant or an equitable servitude be terminated?
Written release, merger of benefitted and burdened estates, condemnation of burdened property
48
What is an equitable servitude?
A promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law UNLESS successor is a BFP
49
How is an equitable servitude created?
Created by promises contained in a writing that satisfies the Statute of Frauds: WITNES
-Writing
-Intent (original parties intended promise would be enforceable by and for successors)
-Touch and concern (original promise affected parties as landowners)
-Notice (subsequent purchasers of land had actual, inquiry, or record notice of covenant when they acquired the land)
-ES = Equitable Servitude
*NOTE that no privity of estate is required
50
How does an implied equitable servitude arise?
It is an exception to the requirement that the original promise be in writing. The court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise under the common scheme doctrine.
51
What are the elements of the common scheme doctrine?
1. When sales began, the subdivider had a general scheme of residential development which included the defendant's lot
2. The defendant lot-holder had notice of the promise contained in those prior deeds when it took
Does not apply if the scheme arose after some lots were already sold - those previously sold lots can't have the scheme enforced against them.
52
What are the three forms of notice?
AIR:
Actual - literal knowledge
Inquiry - the lay of the land
Record - publicly recorded documents (in the deed)
53
What are the equitable defenses to enforcement?
-Changed conditions in neighborhood (so significant that enforcement would be inequitable)
-Unclean hands (person seeking enforcement is violating similar restriction on his own land)
-Benefited party acquiesced in a violation of the servitude by a burdened party
-Estoppel (benefitted party acted in such a way that a reasonable person would believe the covenant was abandoned or waived)
-Laches (benefitted party failed to bring suit within a reasonable time)
54
What is adverse possession, and what are the elements?
Possession for a statutorily prescribed amount of time can ripen into title to real property if owner does not take action to eject a possessor.
COAH:
-Continuous - throughout statutory period (intermittent periods not sufficient unless that is the type of possession a usual owner would make)
-Open and notorious - visual/visible
-Actual and exclusive - literal occupation by possessor exclusive of the true owner and general public (usually only the land that they actually possess, unless they enter under color of title)
-Hostile - defeated by permission (state of mind is irrelevant)
55
Do most states require the adverse possessor to pay taxes on the property?
No, but such payment is good evidence of a claim of right.
56
What is tacking?
One adverse possessor may tack on his time with the land his predecessor's time, so long as there is privity (any non-hostile nexus) between parties.
57
What are disabilities in the context of adverse possession?
Statute of limitations will not run against a true owner who is afflicted by a disability AT THE INCEPTION of the adverse possession.
Includes insanity, infancy, imprisonment
58
When does the statute of limitations run against the holder of a future interest for purposes of adverse possession?
When the interest becomes possessory.
59
Are adverse possessors subject to covenants in the true owner's deed?
-No, if they use the land in violation of the restrictive covenant for the statutory period
-Yes, if their use complies with the covenant
60
Requirements of a real estate contract
-Writing
-Signed by the party against whom enforcement is sought
-Identifies the parties
-Describes the property
-Includes the price or a means of determining the price
Must be sufficiently definite for a court to enforce the contract.
61
What is the doctrine of part performance for a land contract?
It is an equitable doctrine allowing a buyer to enforce an oral real estate contract (i.e. an exception to the SoF) by specific performance if:
1. The oral contract is certain and clear; AND
2. The acts of partial performance clearly prove the existence of a contract (Buyer has done 2 of the following: taken possession, paid purchase price, made substantial improvements)
62
What is the doctrine of equitable conversion in the context of land sales?
Once the contract is signed, equity regards the buyer as the owner of the real property. The contract conveys equitable title, while the closing conveys legal title. Right to possession rests with legal title, so seller has possession until closing.
This also means that the buyer bears the risk of loss between contract and closing unless the contract provides otherwise.
63
What are the two implied promises in every land sale contract?
1. Seller will provide marketable title
2. Seller will not make false statements of material fact
64
What is marketable title, and what are the common defects that render title unmarketable?
Marketable title is title reasonably free from doubt and the threat of litigation.
Common defects:
-Defects in record chain of title (adverse possession)
-Encumbrances (mortgages, liens, restrictive covenants, easements, options to purchase, and significant encroachments - unless waived by buyer)
-Zoning violations
-Future interests held by unborn or unascertained parties
This covenant is no longer available after closing has occurred
65
When is the seller liable for failure to disclose under the implied promise not to make false statements of material fact?
-The seller knew or had reason to know of the defect;
-The seller must realize that the buyer is unlikely to discover the defect; AND
-The defect must be serious enough that the buyer would probably reconsider the purchase
66
Can the seller disclaim liability?
Not by a general disclaimer of liability, but it is permissible if the seller identifies specific types of defects.
67
Does the land contract include the implied warranties of fitness or habitability?
No - caveat emptor is the common law norm (requires due diligence)
*Exception: warranty of fitness or quality in sale of a new home by the builder
68
Is time generally of the essence in land sale contracts?
Presumed NO - closing date therefore is not binding and parties late in tendering their own performance can still enforce the contract if they tender within a reasonable time.
69
What is the impact of closing in a land sale?
The contract merges with the deed and the seller only remains liable on the promises in the contract. The deed transfers legal title from grantor to grantee.
70
What does the execution of a valid deed require?
-Writing signed by grantor
-Unambiguous description of land
-Identification of the parties by name or description (grantee is presumed to be able to fill in the name if left blank)
-Words of intent to transfer, such as "grant"
**Need not recite consideration
71
What is the delivery requirement for deeds?
A deed is not effective to transfer an interest in realty unless it has been delivered. Acceptance is presumed. Literally just a test of present intent: Did grantor have the present intent to part with legal control?
72
What is the result if a deed is transferred to the grantee with an oral condition?
The oral condition drops out (void) and delivery is done.
73
What are the three types of deed, and what is different about them?
1. General warranty deed
2. Special warranty deed
3. Quitclaim deed
The difference is the scope of title assurance
74
What covenants does a quitclaim deed contain?
None - it is the worst deed, only conveying what the grantor has at the time of the conveyance.
75
What is the general warranty deed?
It is the best deed a buyer could hope for, warranting against ALL defects in title including those attributable to the grantor's predecessors. It typically contains six total covenants.
76
What are the six covenants in a general warranty deed?
Present covenants (SoL begins to run at delivery):
-Seisin - grantor owns the estate
-Right to convey - grantor has power to transfer
-Against encumbrances - no servitudes or liens on the land
Future covenants (not breached, if ever, until grantee is disturbed in possession):
-Quiet enjoyment - grantee will not be disturbed in possession by a third party's lawful claim of title
-Warranty - promise to defend against reasonable claims of title by a third party
-Further assurances - promise to do whatever is needed to perfect grantee's title
77
What covenants does the special warranty deed contain?
The same covenants as the general warranty deed, but the grantor makes those promises only on behalf of himself (not for predecessors in interest)
States often have statutes that create a special warranty deed if the word "grant" is used in a conveyance without specifying the type of deed. These statutes usually have two limited assurances that (1) grantor has not conveyed the same estate to anyone else and (2) the estate is free from encumbrances made by the grantor.
78
What deeds are void?
-Forged
-No delivery
-Dead or nonexistent grantee
-Deed obtained by fraud in factum (grantor did not know what they were signing)
79
What deeds are voidable?
-Executed by minor
-Executed by one without mental capacity
-Deed obtained by fraud in inducement
-Deed obtained by duress or undue influence
-Deed obtained by mistake
-Deed through breach of fiduciary duty
80
When is there a fraudulent conveyance of a deed?
-Conveyance with intent to hinder, delay, or defraud grantor's creditor
-Conveyance made without receiving equivalent value by insolvent debtor (or one who becomes insolvent because of the transfer)
81
What is the rule in a jurisdiction with a race recording statute?
The first party to record wins (only the rule in a small number of states)
82
What is the rule in a jurisdiction with a notice recording statute?
A subsequent purchaser who had no notice of a prior conveyance by the grantor will prevail over a prior grantee who failed to record.
i.e. the last BFP wins
83
What is the rule in a jurisdiction with a race-notice recording statute?
To prevail, the subsequent purchaser must not have any notice of the prior grant AND must record first.
84
When is a grantee considered a BFP?
The grantee...
1. Is a purchaser (did not receive property by gift, will, or inheritance);
2. Pays valuable consideration; AND
3. Takes without notice (actual, inquiry, or constructive)
85
How can a grantee give record notice to subsequent takers?
Record the deed properly within the chain of title, which can be searched using the grantor-grantee index.
86
What is the Shelter Rule?
Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against. The transferee steps into the shoes of the BFP even if they otherwise fail to meet the BFP status requirements.
The shelter rule protects the BFP by making it easier for them to transfer successfully.
87
What is a wild deed, and what is its impact?
A wild deed is a recorded deed that isn't connected to the chain of title, so it does not impart constructive notice. The recording is a nullity, so subsequent BFPs can take.
88
What is estoppel by deed?
One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he subsequently acquires the title that he had previously purported to transfer.
If the early transferee records before the transferor actually acquires title, their deed is a nullity and won't be connected to the chain of title.
89
What is a purchase money mortgage?
An extension of value by a lender who takes as collateral a security interest in the very real estate that its loan enables the debtor to acquire.
90
What two elements comprise a mortgage?
Debt and a voluntary transfer of lien in debtor's land to secure the debt.
91
How can a creditor-mortgagee transfer their interest?
Indorsing the note and delivering it to the transferee OR executing a separate document of assignment.
92
What is the difference between assuming the mortgage and taking property subject to a mortgage?
Assuming the mortgage means the grantee has agreed to be personally liable on the mortgage note. The person assuming the mortgage is primarily liable, while the original mortgagor remains secondarily liable.
Taking property subject to a mortgage is not agreeing to personal liability, but mortgagee can still foreclose on the property. Only the original mortgagor is personally liable.
93
What do recording statutes apply to?
Deeds and mortgages
94
What happens to the proceeds of a foreclosure sale?
1. Attorneys' fees, expenses of sale, and accrued interest on the foreclosing mortgage are paid
2. Sale proceeds are used to pay off mortgages in order of their priority
3. Remaining surplus goes to the debtor (if there is no surplus, mortgagee can bring a deficiency action against the debtor
95
What is the effect of foreclosure on different mortgage interests?
Foreclosure terminates interests junior to the mortgage being foreclosed but does not affect senior interests. Thus, the buyer at the sale takes subject to any senior mortgages and will likely want to pay off those liens.
Junior lienholders are paid in descending order with proceeds, so they can proceed for a deficiency judgment if they are not fully satisfied from the proceeds of the sale.
96
Who are the necessary parties to the foreclosure action?
-Junior lienholders
-Debtor-mortgagor
Failure to include a necessary party results in the preservation of that party's claim--their mortgage will remain on the land.
97
How is priority of mortgages determined?
Creditors must record, otherwise they have no priority. Priority is determined by first-in-time, first-in-right. First to record takes first with the exception of purchase-money mortgages, which will have first priority in the parcel that they finance.
98
When is equitable redemption recognized?
Up to the date of sale. Any time prior to the sale, the debtor can redeem the land by freeing it of the mortgage. The right to redeem CANNOT be waived.
If there is no acceleration clause, the debtor only needs to pay off missed payments and accrued interests and costs.
If there is an acceleration clause, the debtor must pay off the entire balance owed plus accrued interest and costs.
99
What power is zoning based off?
Police powers. Government can enact statutes to reasonably control land use for the protection of the health, safety, morals, and welfare of its citizens.
100
What is a variance?
Grants a landowner permission to depart from the literal restrictions of a zoning ordinance. The proponent must show undue hardship and that granting the variance will not diminish neighboring property values.
101
What is the difference between cumulative and noncumulative zoning?
Cumulative: creates a hierarchy of uses of land. Land that is zoned for a particular use may be used for the stated purpose and any higher use.
Noncumulative: Land may only be used for the purpose for which it is zoned.
102
What is a special use permit?
One that must be obtained even though the zoning is proper for the intended use. The use is permitted, but deemed to have to comport with safeguards to operate (may be required for hospitals, funeral homes, drive-in businesses, etc.)
103
What does the owner of a condominium own?
The interior of their individual unit plus an undivided interest in the exterior and common elements.
104
What does the HOA oversee?
Common elements of the community, rules, operations, and enforcement. The rules will be in the declaration of covenants, conditions, and restrictions.
105
What natural rights does an owner of real property have incidental to their ownership of land?
-Use and possess the surface
-Lateral support (support of land in its natural state by adjoining land)
-Water rights
-Airspace above a parcel (incl. freedom from excessive noise)
-Right to exclude
106
What is the riparian doctrine of water rights?
The water belongs to those who own the land bordering the watercourse. Under the reasonable use theory, all riparians share the right of "reasonable use," which is determined by balancing the utility of the owner's use against the gravity of the harm. Natural uses will prevail over artificial uses.
107
What is the prior appropriation doctrine of water rights?
The water initially belongs to the state, but the right to divert it and use it can be acquired by an individual through their actual use. The first person to put water to beneficial use receives appropriative rights, which can be lost by abandonment.
108
What is surface water?
Water without a channel that passes over land, such as water coming from rain, springs, or melting snow, which has not yet reached a natural watercourse or basin. A landowner can use such water within their boundaries for any purpose they desire. Liability for changing the natural flow is determined by varying rules.
109
What are the three present possessory freehold estates?
Fee simple absolute, defeasible fee, life estate
110
How is a fee simple absolute created, and what are its distinguishing characteristics?
A fee simple absolute is absolute ownership of indefinite duration. There is no accompanying future interest.
Created with the language "To A" or "To A and his heirs."
Characteristics: Freely transferable, devisable by will, descendible through intestacy
111
What are defeasible fees, and what are the three main categories?
Defeasible fees are fee simple estates that can be terminated upon the happening of a stated event (i.e. susceptible to forfeiture).
1. Fee simple determinable
2. Fee simple subject to condition subsequent
3. Fee simple subject to an executory interest
112
What is a fee simple determinable?
A fee simple that terminates upon the happening of a stated event and automatically reverts to the grantor. It is created by durational language (for so long as, while, during, until).
It is transferable, devisable by will, and descendible through intestacy, but always subject to the attached condition.
113
What is the accompanying future interest for a fee simple determinable?
Possibility of reverter (an automatic reversion back to granter upon happening of stated event).
Recall: FSDPOR
114
What is a fee simple subject to condition subsequent?
An estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event (no automatic termination - the grantor can choose to terminate AND must take action).
Created using conditional words with an explicit statement of the grantor's right to reenter.
115
What is the accompanying future interest for a fee simple subject to a condition subsequent?
A right of entry (which is devisable and descendible, but not transferable inter vivos)
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What is a fee simple subject to an executory interest?
An estate that terminates upon the happening of a stated event but passes to a third party rather than reverting to the grantor or giving the grantor a right to terminate. The estate is automatically forfeited upon the occurrence of the condition.
Created using language that involves a third party: "To A, but if X event occurs, then to B."
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What is the accompanying future interest for a fee simple subject to an executory interest?
The shifting executory interest
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What are the basic rules of construction for defeasible fees?
-Words of mere desire, hope, aspiration, or intention are insufficient to create a defeasible fee.
-Absolute restraints on alienation are void (okay if linked to a reasonable time-limited purpose)
-Conditions or limitations that violate public policy are struck down
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What is a fee tail?
An estate where inheritability is limited to lineal heirs. Abolished in most jurisdictions.
120
What is a life estate, and how is it created?
A life estate is measured by the life or lives of one or more persons (never in a term of years). Can either be for the life of the grantee or the life of another (a life estate pur autre vie).
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What is the accompanying future interest for a life estate?
If held by O, it is a reversion. If held by a third party, it is a remainder.
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What are the distinguishing characteristics of a life estate?
-Entitled to ordinary uses and profits from the land
-Must not commit waste
-Must preserve land and structures in reasonable state of repair, pay ordinary taxes, pay interest on mortgages, and pay special assessments.
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What is a future interest?
The right or possibility of future possession of an estate. It is a present, legally protected right in property.
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What are the types of future interests held by a transferor?
-Possibility of reverter
-Right of entry
-Reversion
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What are the types of future interests held by someone other than the transferor?
-Contingent remainder
-Vested remainder
-Executory interest
126
What is a reversion?
The estate left in a grantor who conveys less than they own.
It is transferable, devisable by will, and inheritable, and the holder can sue for waste and tortious damage to the reversionary interest.
Importantly, they are VESTED and not subject to the RAP.
127
What is a remainder, and what are the two types of remainder?
A future interest in a third person that can become possessory on the natural expiration of the preceding estate. It does not divest a prior estate or follow a time gap after the preceding estate.
Two types: vested and contingent.
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When is a remainder contingent?
1. created in unborn or unascertained persons (this includes remainders to heirs, since a living person has no heirs)
2. subject to a condition precedent (it is a prerequisite, language appearing before language creating remainder)
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What rules regarding remainders have been abolished?
-Destructibility of contingent remainders
-Rule in Shelley's Case
-Doctrine of Worthier Title
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When is a remainder vested?
When it is created in an existing and ascertained person and not subject to a condition precedent.
Three types: indefeasibly vested, subject to total divestment, subject to open
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What is the indefeasibly vested remainder?
A vested remainder that is not subject to divestment or diminution. Holder is certain to acquire the estate in the future, no strings attached.
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What is the vested remainder subject to total divestment?
A vested remainder that is subject to a condition subsequent. The right to possession could be cut short.
A condition subsequent is determined using the comma rule. Look for language that, taken alone and set off by commas, would created a vested remainder that is then followed by conditional language.
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What is the vested remainder subject to open?
A vested remainder created in a class of persons that is certain to become possessory but is subject to diminution. Each group member's share could get smaller because additional takers may join the class.
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When does a class close?
Under the rule of convenience, the class closes when some member of the class can call for distribution. Under the womb rule, persons in gestation at the time the class closes are included in the class.
135
What is an executory interest?
Future interests in third parties that either divest a transferee's preceding freehold estate or follow a gap in possession or cut short a grantor's estate.
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What is the difference between a shifting and springing executory interest?
Shifting follows a defeasible fee and cuts short someone other than the grantor.
Springing cuts short the interest of the owner/grantor.
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What is the RAP?
Certain kinds of future interests are void if there is any possibility, however remote, that the interest might vest more than 21 years after a person alive at the time of the grant has died.
Policy: balance between landowner control after death and uncertainty of future takers.
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What does the RAP apply to?
Contingent remainders, executory interests, vested remainders subject to open, options to purchase, and rights of first refusal.
Any interest of the grantor is not subject to the RAP.
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What are the steps to approaching a RAP problem?
1. Determine the interests and whether the RAP applies to them.
2. Determine what has to happen for the future interest holder to take
3. Find a measuring life (people alive at the date of conveyance whose lives/deaths are relevant to what has to happen for future interest holder to take.
4. Determine whether we'll know for sure within 21 years of the death of a measuring life if the future interest holders can take.
140
How do you treat executory interests with no limit on the time within which it must vest?
It's a violation of the RAP, so the executory interest is stricken.
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What are the two methods of RAP reform?
1. Wait and see - validity of suspect future interests is determined on the basis of the facts as they exist at the end of the measuring life.
2. USRAP - codifies common law RAP, but has an alternative 90-year vesting period.
3. Cy pres - court reforms in way that most closely matches grantor's intent while still complying with the RAP.
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Are restraints on alienation valid?
Generally, no, unless they are for a limited time and reasonable purpose.
Especially troublesome if it is a discriminatory restriction.
