Property Flashcards
Fee simple absolute
Largest possible estate in land, indefinite duration (“to A [and his heirs]”)
Fee simple determinable
Terminates automatically after a duration, grantor has possibility of reverter (“so long as”)
Fee simple subject to condition subsequent
Can terminate after a named event, grantor has right of reentry (“but if”)
1. If ambiguous whether FSD or FSSCS (contains both language), treat as if FSSCS (grantor may elect forfeiture)
Fee simple subject to executory interest*:
Automatically divests in a third party on the happening of a named event
v. Invalid conditions: violate public policy, penalize marriage, promote divorce (OK to support until marriage/divorce)
Restraint on Alienation
Public policy favors free alienability of property. Courts generally uphold reasonable conditions and restraints. Any unreasonable language (e.g., indefinite restraint) are struck from the instrument
Life estate
Lasts for duration of grantee’s life (life estate transferred to someone else lasts for named grantee’s life)
1. Life tenant duties: Maintain the property in reasonable state; pay mortgage interest only; pay ordinary taxes
2. Remainderman is free of encumbrances by LT, has right to immediate possession from any lessee on LT’s death
3. Life estate pur autre vie (life of another): Measured by life other than grantee’s (“to A for life of B”)
a. May also result when LT conveys its life estate to another (B has a life estate for the life of A (LT))
Waste (and three types)
Waste: Grantee of less than fee (life, term) cannot adversely injure future interest of remainderman or reversioner
1. Future interest holder may seek damages or injunction, or reimbursement if $ spent to perform LT’s obligations
2. Voluntary waste: Volitional act that decreases value of estate, intentional/negligent damage
a. Exploitation of natural resources by LT limited to PURGE: prior use of land for exploitation before grant, necessary for repair or maintenance of land, express/implied grant to exploit, suitable only for exploitation
b. Open mines doctrine: LT can continue mining existing resources; remainderman can enjoin if new mines
3. Permissive waste: Failure by LT to take reasonable steps to preserve land, or pay taxes or interest (not principal)
4. Ameliorative waste: Change that benefits property. CL: Prohibited. Modern: Allowed if FMV not impaired and either remaindermen consent or substantial, permanent change in neighborhood deprived property of reas. value
Future Interests
Possibility of reverter
ii. Right of reentry (power of termination)
iii. Reversion
iv. Executory interest
1. Shifting executory interest
2. Springing executory interest
v. Remainder:
Possibility of reverter
A type of right that is automatically in effect when a grantor creates FSD (see above)
Right of reentry
(power of termination): Must expressly state in conveyance of FSSCS and affirmatively exercised
Reverter
Created when grantor transfers less than a fee interest to 3P (“to A for life, then to B for life” → O)
Executory interest
Created in favor of 3P, cuts short previous estate before its natural termination
1. Shifting executory interest: Future interest in 3P that divests preceding freehold estate (3P1 → condition → 3P2)
2. Springing executory interest: Follows a gap or cuts short grantor’s estate (O → condition → 3P, 3P → O → 3P)
Vested Remainder
Created in ascertained person + not subject to a condition precedent (other than termination)
Remainder
Future interested created in 3P (remainderman), to be taken after natural termination of previous estate (“to A for life, then to B”—B has remainder), thus cannot follow a fee simple (but executory interest can cut it short)
VR Subject to Open
(partial divestment) (class gift): Interest subject to diminution due to new class members (birth of additional persons who will share in the remainder as a class) (“to A for life, then to children of B”)
a. Class closes when at least one member of the class becomes entitled to distribution, per rule of convenience
VR subject to total divestment
Vested interest subject to condition subsequent (“to A for life, then to B and heirs, but if B dies unmarried, then to C and heirs”; B has VR subject to divestment by C’s executory interest)
a. If ambiguous, construe as subject to divestment rather than contingent remainder or executory interest
Contingent remainder
Remainder not yet vested in unborn/unknown person, or subject to condition precedent
a. “To A for life, then to children of B”: Remainder is contingent if B has no children (cf. VR subject to open)
Contingent
Remainder not yet vested in unborn/unknown person, or subject to condition precedent
a. “To A for life, then to children of B”: Remainder is contingent if B has no children (cf. VR subject to open)
Common Law Future interests Rules
a. Transferability: Remainders and executory interests are transferable, descendible, and devisable inter vivos
b. Shelley’s rule: Modernly, if life estate in A with remainder to A’s heirs only, heirs get contingent remainder
c. Doctrine of Worthier Title: Remainder in grantor’s heirs (“to A for life, then O’s heirs”) is invalid and becomes reversion in grantor (O’s heirs get contingent remainder)
Rule Against Perpetuities
An interest is valid only if it must vest or fail within 21 years after the death of any measuring life in being (someone who existed when the deed or will takes effect) at the creation of the interest
1. Applies to interests marked * and to rights of first refusal, options to buy, but NOT charity-to-charity gifts
Joint tenancy / Joint tenants (JT)
- 4 unities of time, title, interest, possession: JTs must take identical interests at same time by same instrument w/ same right to possession
- Right of survivorship: Upon death of a joint tenant, property interest automatically passes to surviving joint tenants (reduces JTs by 1)
- Ownership interests are equally divided
- Severance by JT creates TIC for the severed interest. Transferee becomes TIC; others still own one interest as JTs (if 2+ JTs remain)
- JT may be severed by: inter vivos conveyance/transfer/sale, partition action (to make TIC), mortgage taken on JT interest under title theory jx (no severance under lien theory—majority view), NOT by will
Tenancy in Common
- Unity of possession required only: Each TIC is entitled to possess and control the whole property
- Presumed form of co-tenancy unless grantor had clear intent/language for rt of survivorship. No such rt for TIC
- Ownership interests are static and not necessarily equal
- Any tenant in common has a right to judicial partition of the property (e.g., if they’re having a disagreement)
- TIC may be terminated by partition
Tenancy in Entirety
(4 unities + 5th unity of marriage): Only between legally married parties at time of grant
1. Conveyance needs both spouses (ineffective if by one spouse). Severed by death, divorce, mutual agreement
Co-tenant (CT) rights, duties, and relief (Six)
- Possession: Right to possess the whole property. If ousted from any portion, can sue for $ and/or ejectment
- Partition: Right to demand (bring action) to physically divide if feasible, or seek to sell and divide proceeds
- Profits: Entitled to 3P rent and profit from land proportionally. Profits belong to CT if brought by own efforts
- Contributions for preservation of property: Entitled to taxes, mortgages, necessary repairs shared proportionally
a. Extraordinary repairs: No duty w/o agreement, but can offset with any rent collected and split rest of rent
b. Improvements: No duty w/o agreement, but difference from increased price created goes to improving CT - Waste: CT can bring an action for waste against another CT during life of the tenancy
- Duty of fair dealing: If a CT gets title or lien in the property, other CTs may join and pay share or forfeit interest
Communities
property owner (homeowner) associations (HOAs), cooperative apartments (co-ops), condominiums
1. Each homeowner is under overarching covenants & restrictions (incl. fees) that govern whole community
a. HOA may apply to planned unit developments (PUDs) or common interest developments (CIDs)
2. Each shareholder of co-op is tenant of corp. that holds title to land; co-op board decides who can occupy
3. Each condo owner owns fee simple to unit interior; all owners own walls, land, common areas as co-tenants
Adverse Possession
A trespasser may acquire title to real property by AP. Possessor must show actual entry giving exclusive possession that is open and notorious, hostile, and for the statutory period. Gov’t land not subject to AP
i. Actual and exclusive: Physically occupied portion, not shared with the true owner or the public at large
1. If reasonable portion of parcel actually occupied, under color of title (document purporting to give title but does not actually do so), may be deemed to possess entire parcel as if actually occupied
ii. Open and notorious: Plainly apparent occupation of land so as to put the true owner on notice of use upon inspection
iii. Hostile: Contrary to true owner’s intent (regardless of possessor’s intent). Owner’s permission destroys hostility
iv. Statutory period: Continuity of stay is a QOF based on circumstances (e.g., leaving for a year breaks continuity)
1. May be tolled if disability (insanity, jail, non-age) already exists at the time of entry until disability is removed
2. May tack periods of AP by privity. Requires intentional transfer. Combine to meet statutory requirement
v. Rights: Same as true owner (remainder, life estate, etc.) at time of entry. Must quiet title to make marketable
Landlord Tenant Estates (Four Kinds)
- Tenancy for years: For fixed period. Terminates automatically. Created by express agreement (writing > 1 yr)
- Periodic tenancy: Created by express or implied agreement (LL leases at monthly rent), or operation of law (T stays after lease expires). For fixed period that self-renews until notice equal to length of period, up to 6 months
- Tenancy at will: No stated duration. Lasts until termination, death, or transfer. Created by express agreement
- Tenancy at sufferance: T occupies after lease expires. Terminates when LL evicts or holds T to another term
Tenant Duties and Defenses
Duty to pay rent. Duty to pay rent ends when T surrenders leasehold interest back to LL
a. DEFENSES: failure to deliver actual possession of premises (LL duty), eviction, LL accepts surrender of premises, LL duty to mitigate damages, offsets for warranty of habitability (residential only), impossibility
2. Duty to avoid waste (see § I-vii for types of waste). No waste if premises damaged without fault of LL or T
