property Flashcards
first rule of property law
we can’t completely prevent other people from “alienating” property.
this just means that we can’t stop people from transferring land altogether.
If our contract says “to the Goat Gang so long as they never attempt to sell the land” … this will not be allowed.
what happens if someone TRIES to pull an absolute restraint on alienation?
The law just CUTS OUT that part and you get full rights to the property in fee simple absolute
are racist contracts resisting the sale of land to people of certain races, religious groups, or ethnic groups enforceable?
fuck no
what is fee simple absolute?
Ever heard of a bundle of sticks in 1L property law?
This is all the fucking sticks thrown together at once.
The fee simple absolute is full ownership of the land.
the duration? infinite
You can sell it, transfer it, put it in a will, and pass it down to your heirs without a will.
In the property game we call this DDA.
It is devisable, descendible and alienable.
You fully own this fucking thing forever, and it is the highest level of property ownership. And nobody has a future interest in it.
how is a fee simple absolute created?
“to goat”
“to goat and his heirs”
weaker fee simple - defeasible fees
Defeasible fee’s are fee simple estates that can be terminated upon the happening of a stated event.
To create these we need durational language i.e. “so long as”, “during”, “until”
Durational language, not language of hope. Your hope or desire or dreams for this pathetic piece of property will not turn it into a defeasible fee.
These are ALL FEE SIMPLE ABSOLUTES EXAMPLES:
“I give this property to Goat, with the hope that he becomes a kitty”
or
“I give this property to the Law School, for the purpose of constructing a bar exam tutoring center.”
or
“To Nancy Riverfoot, with the expectation that she uses this property as a podiatry surgical center.”
So absolute restraints: i.e. “you can never sell”, and fake ass durational language which is actually language of HOPE will revert your little property transfer to not what you WANTED…. but to a fee simple absolute.
how do we properly make our first defeasible fee?
fee simple determinable
the legendary fee simple determinable
ex: “to A so long as”
“to A during”
“to A until”
“to A while”
So we need clear durational language and a condition. If the condition is met, it’s reverting back to Daddy Grantor.
to Mr. Meow so long as he uses the land to play with kitties
This is a fee simple determinable.
Now we have a fee simple interest with a potential restriction (not playing with the kitties) that could terminate Mr. Meow’s interest.
to Mr. Meow so long as he uses the land to play with kitties.. but what happens if Mr. Meow stops playing with the kitties on his land?
So the property automatically reverts back to the owner if the condition is not met.
He would never be able to play with those kittens again… and the fee simple had sadly become determined once and for all.
The grantor got the barn back.
possibility of reverter
there is a possibility that the land will revert some day back to the original owner.
can a fee simple determinable be transferred?
Yes!
Mr. Meow can sell the land to whoever he wants, but the new owner will still be subject to the condition that the kitties must be played with.
the rule against perpetuities does not apply to…
automatic reverter
if the transfer happens automatically and immediately, rules against perpetuities does not apply.
summary of rule against perpetuities
we hate the idea that a motherfucker who has been dead for 600 years would put creepy uncertain conditions into a property conveyance that might not happen
contingent conditions - UNCERTAIN event that could occur BEYOND the 21 year timeline.
If a property interest says “hm… Mr. Meow will have the land. If, at any time in the future, willowy tree grows to over 100 feet… then Mr. Puppy will get the land.”
Problem: How will we know if this tree ever reaches over 100 feet?
Now we have this creepy sex maniac skeleton conductor directing an UNCERTAIN condition from the grave.
RAP only ever carried about interests vesting. But there was one thing you didn’t know: some interests were always vested. And possibilities of reverter was one of them.
rule against perpetuities reverter
reverter is an AUTOMATIC VEST from the time it was SEWN into the CONTRACT. it is like a BUTTON in the vest.
RAP only gives a shit about UNCERTAIN CONDITIONS that MAY OR MAY NOT VEST.
THIS REVERSIONARY INTEREST WAS VESTED THE MOMENT IT WAS PUT INTO THE CONTRACT
IT WAS VESTED FROM DAY ONE. Do you see how nothing more needs to happen in the real world for its power to have effect? It has INHERENT PERSONAL vesting power.
I KNOW in my heart, that the reversion has power. It is not uncertain. We DON’T need the wheelbarrow to get out the skeleton guy because we have a VESTED interest subject to ZERO UNCERTAINTY
how to tackle rule against perpetuity problems
just look at EVERYONE who was there when the contract was originally made.
Step 1: Kill everyone who was there originally for the contract. These are your so-called “life in beings”… but kill them IN YOUR MIND… don’t touch a hair on their head in reality.
Step 2: Look at the barren landscape of dead bodies and think “is it possible that in 22 years this land may still be waiting uncertainly… like a willowy tree waiting to grow?”
Example: We can have things like “a right of first refusal” for the grantor’s lifetime. When the grantor dies i.e. when we kill him off in our minds, we will know whether the future interest will vest or not.
But a right of first refusal with NO duration violates RAP… because we don’t know if it will vest once everyone who was there originally dies.
We can’t have a great, great, great grandchild possibly exercise a right of first refusal on property (a right of first refusal is just a contractual right to give someone the opportunity to enter into a business deal with you before anyone else… kind of like a “first dibs” situation)
rule against perpetuities - “wait and see” and “second look” doctrines
where the courts just actually waits until everyone dies and sees what happens to the land -> whether it vests or not within 90 years -> so they don’t have to guess. (probably because they don’t understand RAP).
fee simple subject to condition subsequent versus fee simple determinable
THESE ARE THE SAME EXACT THING AS FEE SIMPLE DETERMINABLES.
The ONLY difference is that if the condition is not fulfilled, it does not AUTOMATICALLY go back to the grantor… the grantor has a CHOICE whether they want to take the land back or not.
If Mr. Meow stops playing with the kitties on the land in a fee simple subject to condition subsequent… the grantor has a CHOICE to take the land back or not. If the grantor wants to, they can just LET Mr. Meow keep his interest in the land even though he violated the condition.
If Mr. Meow stops playing with the kitties on the land in a fee simple determinable… he loses the land IMMEDIATELY.
fee simple subject to condition subsequent
durational language + carve out the right to reenter
Example: “To depressed Bar Exam taker, but if depressed Bar Exam taker ever drinks two Celsius drinks in one day on the premises… the grantor reserves the right to re-enter.”
So now the bar exam taker has a fee simple subject to condition subsequent
The grantor has an optional right of re-entry.
But remember… the estate is not automatically terminated when the Bar Exam Taker invariably drinks 14 Celsius drinks on February 15th… the Grantor has to actually re-enter the property and re-take (using legal process obviously, not a shotgun)
executory interests
An executory interest is just a future interest in someone other than the grantor that is not a reversion or right of re-entry.
springing executory interest
goes from the grantor to the grantee upon a specific condition happening
if the condition is violated .. forfeiture of the land happens automatically.
“to my beautiful goats, but only if they pass the bar.”
so it springs directly from the grantor (me) to the third party (my goats)
shifting executory interests
Instead of springing to the grantee, we cut off the grantee’s interest in favor of another grantee.
grantee –> grantee
to goat bar prepians, but if they ever use barbri, to my cat Walter.
SHIFT from one grantor to another.
The Bar exam likes to try and trick you into thinking executory interests DISAPPEAR when people die…. THEY DON’T.
are executory interests subject to RAP?
yes - because these things might not vest.
“to goat when Saiga becomes fully extinct….”
Well how the fuck are we going to know if that will vest within 21 years?
Literally me and you could die, and Saiga’s could live on for millions of years (and they will, based on my recent work in Kazakhstan).
You get it. Don’t be afraid of RAP -> love it.
“Shit happens instantly” -> No RAP issue.
“Shit could happen in 17 million years” -> We got a RAP issue.
life estate
Their creation must be measured in terms of ACTUAL LIVES, not just years
A life tenant has the exclusive right to use and enjoy the property before their death… but they cannot pass it to their heirs.
A life tenant can sell the property… but there’s kind of a problem with this… the actual conveyance can’t exceed the life of the original tenant. So if you sold it to Bob and you died… Bob would lose it lmao. In practice, almost no one actually buys these shitty life estates.
When a life tenant dies, the property reverts to the original grantor or their successors, or it shifts to another grantee named in the deed or will.
This grantee has a future interest that we call a remainder.