Property Flashcards
Devisable
Can pass by will
Descendible
Can pass by intestacy if holder dies intestate
Alienable
Transferable intervivos (during holder’s lifetime)
What is a fee simple?
1) Absolute ownership of potentially infinite duration; 2) Freely devisable, descendible, and alienable.
Words to create a fee simple
“To A” (or “to A and A’s heirs” but not necessary)
What is the future interest that accompanies a fee simple?
Nothing. O conveys all that O has to A. A’s heirs have nothing because a living person has no heirs. A has everything.
Words to create a fee tail
“To A and the heirs of his body”
What is a fee tail?
Historically, fee tail passed to the lineal blood descendants of grantee no matter what. Today, the attempted creation of a fee tail creates a fee simple absolute.
What is the accompanying future interest of a fee tail?
In O, the interest is a reversion. In a 3d party, the interest is a remainder.
What are the defeasible fees?
1) Fee simple determinable; 2) Fee simple subject to condition subsequent; 3) Fee simple subject to executory limitation
How do you create a fee simple determinable?
Need clear durational language such as: “To A for so long as…”, “To A during…”, “To A until…”
How does a fee simple determinable end?
If the stated condition is violated, forfeiture is automatic.
What is a fee simple determinable?
A devisable, descendible, and alienable interest in land that passes subject to the condition stated.
The Mick Jagger Rule of FSDs
You can’t always get what you want i.e. can’t transfer more than you have (fee subj to condition) w/o forfeiting estate.
What future interest accompanies a fee simple determinable?
FSDPOR: Frank Sinatra Doesn’t Prefer Orville Redenbacher. Fee simple determinable possibility of reverter.
How to create a fee simple subject to condition subsequent?
Grantor must use 1) clear durational language and 2) carve out the right to reenter. “To A, 1) but if X event occurs, 2) grantor reserves the right to re-enter and retake.”
What is the difference between FSD and fee simple subject to condition subsequent?
FSD = automatic forfeiture if condition violated; FSSCS = estate can be cut short at grantor’s option if condition is violated.
What future interest accompanies a fee simple subject to condition subsequent?
Right of entry a.k.a. power of termination.
How to create a fee simple subject to executory limitation?
“To A, but if X event occurs, then to B.”
What is a fee simple subject to executory limitation?
Just like an FSD but if the condition is violated the estate is automatically forfeited to someone other than O.
What future interest accompanies a fee simple subject to executory limitation?
A shifting executory interest.
What are the two important rules of statutory construction for defeasible fees?
1) Words of mere desire, hope or intention are insufficient to create a defeasible fee; 2) Absolute restraints on alienation are void.
What does it mean when we say words of mere desire, hope or intention are insufficient to create a defeasible fee?
Courts favor free use of land. Need clear durational language to have an actionable condition.
What does it mean when we say absolute restraints on alienation are void?
The absolute ban on the power to sell or transfer not linked to a reasonable tie limited purpose is void. If there’s a violation, construe as a fee simple.
What is a life estate?
An estate measure in explicit lifetime terms (never in terms of years).
How do you create a life estate?
“To A for life” grants A a life estate and A becomes the life tenant.
What future interest accompanies a life estate?
O has a reversion.
What is a life estate pur autre vie?
A life estate measured by a life other than the grantee’s life.
What are the two distinguishing characteristics of the life estate?
1) The life tenant is entitled to all ordinary uses and profits of the land; 2) The life tenant must not commit waste or do anything to hurt future interest holders.
What are the three kinds of waste?
Voluntary, permissive, ameliorative
What is voluntary waste?
Overt conduct that causes a drop in value i.e. wilful destruction.
What is the rule about voluntary waste and natural resources for life tenants?
Life tenant must not consume or exploit natural resources unless one of four exceptions applies.
What are the exceptions to the rule about voluntary waste for life tenants?
PURGE. 1) Prior Use of the land was for exploitation; 2) life tenant may consume natural resources for Repairs and maintenance; 3) life tenant may exploit if Granted that right; 4) may exploit if land is suitable only for Exploitation.
What is permissive waste?
When land is allowed to fall into disrepair i.e. neglect.
What are the life tenant’s obligations in the realm of permissive waste?
1) Must maintain the premises in reasonably good repair. 2) Must pay all ordinary taxes on the land to the extent of income or profits from land; if no income or profits, responsible only to the extent of the premises fair rental value.
What is ameliorative waste?
Life tenant must not engage in acts that will enhance the property’s value unless all future interest holders are 1) known and 2) consent.
What is the future interest that accompanies the life estate?
If held by O, a reversion; if held by a third party, a remainder.
What are the present possessory categories of freehold estates?
Fee simple absolute, fee tail, defeasible fees, and life estates.
What are the future interests capable of creation in the grantor?
Possibility of reverter, right of entry, and reversion (reversion = default)
What is the possibility of reverter?
An interest in O that accompanies the FSD.
What is the right of entry (or power of termination)?
An interest in O that accompanies the fee simple subject to condition subsequent.
What is a reversion?
A future interest that arises in O who transfers an estate of lesser quantum than O started with, other than a FSD or FSSCS. This is the default.
What are the future interests that can be created in a transferee?
Vested remainder, contingent remainder, or executory interest
What are the three kinds of vested remainder?
Indefeasibly vested remainder, vested remainder subject to complete defeasances, and vested remainder subject to open.
What is a remainder?
A future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.
What are the characteristics of a remainder?
1) Always accompanies a preceding estate of known fixed duration. 2) It never follows a defeasible fee and can’t cut short or divest a prior transferee. Think FORREST GUMP.
What is a vested remainder?
A remainder that is both created in an ascertained person and is not subject to any condition precedent.
What is a contingent remainder?
A remainder created in an unascertained (unborn) person or is subject to a condition precedent, or both.
What is a condition precedent?
A condition that appears before the language creating the remainder or is woven into the grant to the remainderman.
How do conditions precedent relate to vested remainders?
If B satisfies the condition prior to the death of A (life grantee), his interest auto transforms into an indefeasibly vested remainder.
What is the Rule of Destructibility of Contingent Remainders?
At CL, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.
What is the modern rule relating to the Rule of Destructibility of Contingent Remainders?
It’s been abolished. If B has not met the condition when A dies, O or O’s heirs take subject to B’s springing executory interest.
What is the Rule in Shelley’s Case?
Applies when O conveys “to A for life, then, on A’s death, to A’s heirs.” If A is alive, the present and future interests would merge, giving A a fee simple absolute. This is a rule of law.
What is the modern version of the Rule in Shelley’s Case?
It’s been abolished. If O conveys “to A for life, then to A’s heirs,” A has a life estate and A’s heirs as yet unknown have a contingent remainder. O has a reversion if A dies w/o heirs.
What is the Doctrine of Worthier Title?
Applies when O, who is alive, conveys “to A for life, and then to O’s heirs.” The rule transforms this so that A has a life estate and O has a reversion, so land can be transferred if parties consent. BUT! This is a rule of construction, so if O intends to create a contingent remainder in his heirs the intent is binding.
What is an indefeasibly vested remainder?
The holder is certain to acquire in the future with no strings attached (NSYNC).
What if the holder of an indefeasibly vested remainder dies before the original grantee?
The interest passes by will or intestacy.
What is a vested remainder subject to complete defeasance?
Remainderman’s interest could be cut short because of a condition subsequent a.k.a. a string attached.
What is the comma rule?
When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent and you have a vested remainder subject to complete defeasance. EX: “to A for life, remainder to B, provided that if B dies under age 25, to C.” If the conditional language appears before the language creating the remainder, the condition is a condition precedent and you have a contingent remainder. EX: “to A for life, and if B has reached age 25, then to B.”
What is a vested remainder subject to open?
A remainder is vested in a group of takers, at least one of whom is qualified to take, but each class member’s share is subject to partial diminution because additional members can still join in.
Open v. closed class
Open = others can still join; closed = no others can join.
When does the class close?
When any member can demand possession. The rule of convenience demands this bright line even if there might be more class members at some undefined future point.
What is the womb rule?
A child of B in the womb at the time of A’s death will share with the other members of the class.
What if a class member predeceases A?
At CL, their share goes to their devisees or heirs.
What is an executory interest?
A future interest created in a 3d party which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or in the grantor or his heirs (springing).
What is a shifting executory interest?
It always follows a defeasible fee and cuts short someone other than O. It does not matter who (A or B or X) has the power to trigger the premature forfeiture.
What is a springing executory interest?
An interest that cuts short O’s interest.
What is the Rule Against Perpetuities (RAP)?
Some future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
RAP does not apply to…
Any future interest in O, indefeasibly vested remainders, vested remainders subject to complete defeasance.
RAP applies to…
Contingent remainders, executory interests, and certain vested remainders subject to open.
Steps to addressing a RAP issue…
(1) Determine which future interests have been created by the conveyance and if the rule applies. (2) ID conditions precedent to the vesting of the suspect future interest. (3) Find a measuring life i.e. a person alive at the date of conveyance and ask whether that person’s life or death i relevant to the condition’s occurrence. (4) Ask: will we know with certainty w/in 21 years of the death of our measuring life if our future interest holder can or can’t take?
What is the fertile octogenarian rule?
Presumes everyone is fertile no matter their age.
What are the two bright line rules of CL RAP?
(1) A gift to an open class that is conditions on the members surviving to an age beyond 21 violates CL RAP i.e. “bad as to one bad as to all.” (2) Many shifting executory interests violate the RAP. An executory interest with no limit on the time w/in which it must vest violates RAP.
How do we solve if a conveyance has many shifting executory interests?
Get rid of the offensive future interest and evaluate. If the result is ungrammatical, strike entire clauses even if we get odd results.
What is the charity-to-charity exception?
A gift from one charity to another doesn’t violate RAP because we want to encourage charitable gift giving.
What is the “wait and see” or “second look” doctrine?
A reform of RAP (majority) under which the validity of any suspect future interest is determined on the basis of the facts as they now exist at the end of the measuring life.
What is the Uniform Statutory Rule Against Perpetuities? *VA has this.
USRAP codifies the CL RAP and provides for an alternative 90 year vesting period.
Wait and see as well as USRAP embrace:
(1) Cy pres as near as possible to grantor’s intent, and (2) if transfer depends on taker exceeding 21, we knock this down to 21.
What are the three concurrent estates?
Joint tenancy, tenancy by the entirety, and tenancy in common.
What is a joint tenancy?
Two or more own with a right of survivorship. These are disfavored so have to comply with rules of creation.
What is a tenancy by the entirety?
Joint ownership between married partners with right of survivorship.
What is a tenancy in common?
Two or more own with no right of survivorship.
What are the distinguishing characteristics of a joint tenancy?
(1) Right of survivorship i.e. when one tenant dies, his share automatically goes to surviving tenants; (2) a joint tenant’s interest is alienable but is not devisable or descendable bc of 1. This means last JT alive gets to keep all.
How is a joint tenancy created?
1) Grantor must express the right of survivorship; (2) the four T-TIP unities i.e. tenants must take at the same TIME, by the same TITLE, with IDENTICAL interests, and the right to POSSESS the whole.
If you already own by title, how do you create a joint tenancy?
Use a straw. Convey to straw and have straw convey back to you and your JT as JTs w/ right of survivorship.
How can you sever joint tenancy?
SPAM: Sale, Partition and Merger
Can a joint tenant sell during his lifetime?
Yes, even if he does it in secret or w/o consent. Buyer is a tenant in common, but joint tenancy as to other JTs remains intact.
What is the effect of entering a contract for sale of her share of a joint tenancy?
It will sever the joint tenancy as to that contracting party’s interest. Why? Equitable conversion provides “equity regards as done that which ought to be done.”
Partition and its variations…
(1) Voluntary agreement i.e. peaceful; (2) partition in kind i.e. a court action for physical division of Blackacre if in the best interest of all parties works better if land is large and rural; (3) forced sale i.e. court action if in the best interests of all where BA is sold and proceeds divided proportionately.
What is mortgage?
One joint tenant’s execution of a mortgage or lien on his or her share will sever the JT as to that now encumbered share only in the minority of states to follow the title theory of mortgages. Majority of states follow the lien theory of mortgages, where JT execution of mortgage on his or her interest will not sever the joint tenancy.
How do you create tenancy by the entirety?
In jurisdiction where it exists, any grant to married partners unless stated otherwise will create tenancy by the entirety.
What are the characteristics of tenancy by the entirety?
Can’t touch this. Creditors of only one spouse can’t touch the tenancy; unilateral conveyance by one spouse can’t transfer to a 3d party.
What are the characteristics of a tenancy in common?
(1) Each co-tenant owns an individual part and right to possess the whole; (2) Each interest is devisable, descendible, and alienable w/o survivorship rights between tenants; (3) The presumption favors tenancy in common.
The nine rights and duties of co-tenants…
(1) Right to possess the whole and if one tenant excludes the other he commits wrongful ouster; (2) Tenant is not liable to others for rent; (3) Tenant who leases to a 3d party must account to co-tenants providing fair share of rental income; (4) Co-tenants cannot win by adverse possession; (5) Co-T responsible for fair share of carrying costs (taxes, mortgage); (6) Repairing co-T enjoys right of contribution provided she has told the others of the need; (7) No right to contributions for improvements but entitled to a credit or debit at partition; (8) A co-T must not commit waste; (9) Right to bring action for partition.
What are the four leasehold or nonfreehold estates?
Tenancy for years, periodic tenancy, tenancy at will, and tenancy at sufferance.
What is a tenancy for years?
Lease for a fixed period of time when you know the termination date from the outset.
How does a tenancy for years end?
Because a term of years states form the outset when it will terminate, no notice is needed to terminate.
How do you create a tenancy for years?
Must be in writing to be enforceable because of the Statute of Frauds.
What is a periodic tenancy?
Lease that continues for successive intervals until L or T give notice to terminate.
How do you create a periodic tenancy?
Expressly “to T from month to month (or year to year or week to week).” It can also arise by implication.
How can a periodic tenancy be created by implication?
(1) Land is leased w/o mention of duration but provision is made for the payment of rent at set intervals. (2) An oral term of years in violation of SOF creates an implied periodic tenancy measured by the way rent is tendered. (3) If L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease an implied periodic tenancy arises measured by the way rent is now tendered.
How can you terminate a periodic tenancy?
Written notice at least = to length of the period itself unless otherwise agreed. BUT! if tenancy is from year to year or greater only 6 mos. notice required (in VA 3 mos.). Parties may lengthen or shorten by K.
When does the tenancy terminate?
Must end at the conclusion of a natural lease period.
What is a tenancy at will?
A tenancy for no fixed duration. Unless parties expressly agree to a tenancy at will, the payment of a regular rent will cause a court to treat this as an implied periodic tenancy.
How can a tenancy at will be terminated?
By either party at any time BUT a reasonable demand to vacate is usually needed.
What is a tenancy at sufferance?
Created when T has wrongfully held over past the expiration of the lease.
Why do we have a tenancy at sufferance?
Need to give wrongdoer a leasehold to permit L to recover rent. It lasts until L evicts T or elects to hold T to a new tenancy.
What are tenant’s duties?
(1) T’s liability to 3d parties; (2) T’s duty to repair; (3) T’s duty to pay rent.
What is T’s liability to 3d parties?
T is responsible for keeping the premises in good repair. T is liable for injuries sustained by 3d parties T invited even where L promised to make all repairs.
What is T’s duty to repair when the lease is silent?
T must maintain premises and make ordinary repairs. T must not commit any of the three kinds of waste.
What is the law of fixtures?
When a tenant removes a fixture, she commits voluntary waste. T must not remove a fixture no matter that she installed it because fixtures pass with ownership of land.
What is a fixture?
A once movable chattel that by virtue of its annexation to realty OBJECTIVELY shows the intent to permanently improve the realty. EX: heating systems, custom storm windows, furnace, lighting installations.
How can you tell when a tenant installation qualifies as a fixture?
(1) An express agreement controls; (2) In the absence of agreement, T may remove a chattel she has installed as long as removal doesn’t cause substantial harm to premises. If removal will cause substantial damage, then in objective judgment T has shown the intent to install a fixture and the fixture stays put.
What is T’s duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease?
At CL, T was liable for any loss to the property including loss due to a force of nature. Today, the majority view is T may end the lease if the premises are destroyed w/o T’s fault.
What happens when T breaches duty to pay rent and is in possession of the premises?
L’s options are to evict thru courts or continue relationship and sue for rent due. If L moves to evict, entitled to rent form T form T until T at sufferance vacates.
What can a landlord not do?
Engage in self-help such as change locks, forcibly removing T, or removing T’s possessions. Why? Punishable civilly and criminally.
What if T breaches duty to pay rent and is out of possession?
SIR. (1) Surrender i.e. chose to treat T’s abandonment as an implicit offer of surrender which L accepts (must be in writing SOF if unexpired term is more than a year); (2) Ignore the abandonment and hold T responsible for unpaid rent (only available in minority states); (3) Re-let premises on wrongdoer T’s behalf and hold him or her liable for any deficiency (must at least try in majority).
What is surrender?
T shows by words or actions that she wants to give up the lease.
What are the landlord’s duties?
(1) Duty to deliver possession; (2) Implied covenant of quiet enjoyment; (3) Implied warrant of habitability; (4) Retaliatory eviction
What is the duty to deliver possession?
Majority rule requires L put T in actual possession of the premises. If at the start of T’s lease prior holdover T is still in possession, L has breached and the new T gets damages. Minority rule is that L need only provides legal possession and not physical possession.
What is the implied covenant of quiet enjoyment?
T has a right to quiet use and enjoyment of premises w/o interference from L. Applies to both residential and commercial leases.
What happens if the implied covenant of quiet enjoyment is breached?
T can sue for (1) breach by actual wrongful eviction when L wrongfully evicts T or excludes T from the premises or (2) breach by constructive eviction i.e. SING.
