Property Flashcards
Defeasible fees
A fee simple of potentially infinite duration that can be terminated upon the occurrence of some specified event.
Fee simple determinable – property automatically reverts back to grantor upon the happening of a given event
- Accompanying future interest = transferable possibility of reverter
Fee simple subject to condition subsequent – grantor retains power to terminate grantee’s estate
-Accompanying future interest = right of reentry (retained by grantor) > not transferable inter vivos but devisable by will and descendible to grantor’s intestate heirs
Fee simple subject to an executory interest – property automatically transfers to a third party upon the happening of a given event
-Accompanying future interest = transferable shifting executory interest (owned third party)
o All transferable > the fee estate is alienable, devisable, and descendible, subject to the condition
Remainder
Future interest following a life estate that identifies a third person
- Transferable – alienable, devisable, and descendible, but cannot cut off or divest an interest held by a prior transferee
Vested remainders
A remainder that automatically becomes possessory upon the natural expiration of the preceding estate.
- Indefeasibly vested remainder - becomes possessory immediately upon termination of the prior estate
- Vested remainder subject to total divestment - subject to some condition subsequent, such that the vested remainderman could be divested after taking possession
- Vested remainder subject to open (class gift) - remainder vested in a described class of takers, at least one of whom can take possession
- Class stays open to allow for future members and closes when no new members can be created
- Class closes whenever any member can call for distribution of her share
Contingent remainders
Arise if the remainder is:
-Subject to condition precedent – remainder’s taking is contingent on the prior occurrence of some event/condition. Once it occurs, the interest automatically becomes an indefeasibly vested remainder
-Subject to unborn or unascertained persons—a remainder created in favor of unborn or unascertained persons
Executory interests
A future interest in a third party that takes effect by cutting short some interest > any future interest that is not a remainder
- Transferability—devisable, descendible, and usually transferable
o Shifting executory interest – always follows a defeasible fee or vested remainder subject to total divestment
o Springing executory interest – cuts short a present interest held by the grantor or grantor’s estate
Rules Against Perpetuities
No property interest is valid unless it vests no later than 21 years after the death of a life in being at the time the interest was created. Charity exception.
- Applies only to contingent remainders, vested remainders subject to open, executory interests, options to purchase, and rights of first refusal.
Doctrine of waste
Acts that constitute unreasonable use of land and/or injure interests of a future interest-holder
o Affirmative (voluntary) waste – Consume or exploit natural resources on the land except where necessary for repairs/maintenance, when grant expressly gives the right to exploit, or if land was previously used for exploitation of resources prior to the grant
o Permissive waste – harm to property due to neglect
o Ameliorative waste – acts that economically benefit the land.
Tenancy in common
An estate with multiple Ts in which each co-T owns a distinct, undivided interest and each has a right to possession of the whole estate
Joint tenancy
Creates an interest with right of survivorship.
Requires an express intent to create a JT and concurrent T-TIP for creation
o Time – JTs must take their interests at the same time
o Title – JTs must receive conveyance through the same instrument
o Interest – JTs must take equal and identical interests
o Possession – JTs must have equal possessory rights
Transferability – alienable by severance (creates a TiC), but not devisable or descendible
Mortgages may sever the JT depending on theory:
* Lien theory Jx – Mortgage does not sever JT until foreclosure
* Title theory Jx – Mortgage does sever JT b/c title passes to the mortgagee
Tenancy by the entirety
Marital estate, req. are the same for a JT but between a married couple
o Right of survivorship, no right to unilaterally convey or partition, and protected from creditors
o Severance will only take place by the death of one co-T, a divorce decree, or execution by joint creditor
Leasehold Estates
- Tenancy for years – Lasts for a fixed period (req a definitive beginning and end date and terminates automatically at the end of the fixed period).
- Periodic tenancy – Tenancy estate that is continuous for successive intervals until either party gives notice of termination (one full period in advance)
- Tenancy at will – Either party can terminate at any time without notice.
- Tenancy at sufferance –A default tenancy that arises when a T continues to possess prop after the lease expires (holdover T)
Implied covenant of quiet enjoyment
T has an implied right to quiet use and enjoyment of the premises, without interference from the LL. Breach may occur by actual or constructive eviction
Constructive eviction
(1) Breach of LLs duties
(2) following notice and opportunity to repair (3) that substantially interfere w T’s rights.
(4) T must vacate
Implied warranty of habitability
For residential leases only – fit for human dwelling. After giving notice to LL, T can vacate and move, repair and deduct costs from future rent, reduce/without rent, or remain in possession and seek $ damages
Tort liability
LL may be liable to T for injuries occurring on leased property
- Common areas
- Latent defects
- Assumption of repairs
- Public use – liable for known defects if he knows the property is for public use and tenant is unlikely to repair
- Seasonal/short term lease of a furnished dwelling
