Property Flashcards
Fee Simple Absolute
Language: “To A and his heirs” or “To A”
Duration: Absolute ownership, of potentially infinite duration
Transferability: Devisable, descendible, alienable
Future Interest: None
Fee Tail
Language: “To A and the heirs of his body”
Duration: Lasts only as long as there are lineal blood descendants of grantee
Transferability: Passes automatically to grantee’s lineal descendants
Future Interest: Reversion (if held by grantor); Remainder (if held by 3rd party)
In IL: Creates a life estate, with remainder in grantee’s heirs
Defeasible Fees
1) Fee Simple Determinable
2) Fee Simple Subject to Condition Subsequent
3) Fee Simple Subject to an Executory Interest
Courts disfavor restrictions on alienability. So to create a defeasible fee, must use clear durational language.
No absolute restrains on transferability
Fee Simple Determinable
Language: “To A so long as…” or “until…” or “while…”
Duration: Potentially infinite, so long as event doesn’t occur
Transferability: Alienable, devisable, descendible, subject to condition
Future Interest: Possibility of Reverter (held by grantor)
Fee Simple Subject to Condition Subsequent
Language: “To A, but if X event happens, grantor reserves the right to reenter and retake”
Duration: Potentially infinite, so long as the condition is not breached and thereafter until holder of the right of entry timely exercises the power of termination
Transferability: Alienable, devisable, descendible, subject to condition
Future Interest: Right of Entry/Power of Termination (held by grantor)
Fee Simple Subject to Executory Interest
Language: “To A, but if X event occurs, then to B”
Duration: Potentially infinite, so long as stated contingency does not occur
Transferability: Alienable, devisable, descendible, subject to condition
Future Interest: Executory Interest (held by 3rd party)
Life Estate
Language: “To A for life” or “To A for the life of B”
Duration: Measured by life of transferee or by some other life (per autre vie)
Transferability: Alienable, devisable, and descendible if pure autre vie and measuring life is still alive
Future Interest: Reversion (if held by grantor); Remainder (if held by 3rd party)
Waste
Life Tenant is entitled to all ordinary uses and profits from the land
Must not harm the future interest holders
Types of Waste
1) Voluntary or Affirmative Waste
2) Permissive Waste, or Neglect
3) Ameliorative Waste
Voluntary Waste
Overt conduct that causes a drop in value (willful destruction)
Includes consumption of natural resources, unless PURGE
- PU: Prior Use
- R: Repairs
- G: Grant
- E: Exploitation
Permissive Waste
Allowing the land to fall into disrepair
- Must maintain the premises in reasonably good repair
- Must pay ordinary taxes
Ameliorative Waste
Must not engage in acts that enhance property value, unless future interest holders are a) known and b) consenting
Vested Remainder
Vested if: 1) created in an ascertained person and 2) not subject to any condition precedent
1) Indefeasibly Vested Remainder
- The holder is certain to acquire an estate in the future with no strings attached
2) Vested Remainder Subject to Complete Defeasance
- The holder’s right to possession could be cut short because of a condition subsequent
3) Vested Remainder Subject to Open
- A group of takers, where at least one is qualified to take
- Each classmember’s share is subject to partial dimunition because additional members can join
- Rule of Convenience: The class closes whenever any member can demand possession
Contingent Remainder
Contingent if either: a) created in an unascertained person or b) is subject to a condition precedent
Executory Interests
1) Shifting: Cuts short someone other than the Grantor
2) Springing: Cuts short the Grantor
Remainders vs. Executory Interests
1) Remainders accompany a preceding estate of fixed duration (e.g., a life estate or a term of years)
2) Remainders never follow a defeasible fee. Cannot cut short or divest a prior transferee
The Rule of Destructibility of Contingent Remainders
Rule: Contingent remainders destroyed if still contingent at the time the preceding estate ended
Today: Rule is abolished. If still contingent, grantor and heirs take subject to springing executory interest.
The Rule in Shelley’s Case
Rule: If conveyance says “To A for life, then, on A’s death, to A’s heirs” –> present and future interests merge. A gets a fee simple absolute.
Interpretation: Rule of Law. Applies even if contrary to Grantor’s intent.
Today: Rule is abolished. A would get a life estate, A’s unknown heirs have a contingent remainder, O has a reversion.
The Doctrine of Worthier Title
Rule: If O is still alive, tries to create a future interest in his heirs, the future interest is void.
- E.g., O, who is alive, conveys “To A for life, then to O’s heirs” –> Contingent remainder in O’s heirs is void, and O has a reversion.
Interpretation: Rule of Construction. Does not apply if contrary to Grantor’s intent.
Today: Rule is abolished in Illinois (but viable in other states). If abolished, O’s heirs have a contingent remainder.
Rule Against Perpetuities
Certain kinds of 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.
Step 1: Determine which future interests have been created by the conveyance. RAP only applies to contingent remainders, executory interests, and certain vested remainders subject to open
Step 2: Identify the conditions precedent to the vest of the suspect future interest
Step 3: Find a measuring life in being at the date of conveyance
Step 4: Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holders can take? If not, the future interest is void.
Bright Line Rules: 1) A gift to an open class that is conditioned on the members surviving beyond age 21 always violates the common law RAP.
2) An executory interest with no limit on the time within which it must vest always violates the RAP.
Fixing a RAP problem: Cross out the future interest. If that doesn’t work grammatically, the entire conditional clause is stricken.
Charity-to-Charity exception
“Wait and See” or “Second Look” Doctrine
The validity of any suspected future interest is determined on the basis of the facts as they exist at the end of the measuring life.
Uniform Statutory Rule Against Perpetuities
Codifies the common law RAP; also provides for an alternative 90-year vesting period
Cy Pres Doctrine
Adopted by the “Wait and See” and USRAP doctrines
Court may reform a conveyance to most closely match Grantor’s intent. Reduction of offensive age contingency is reduced to 21 years.
Joint Tenancy - Generally
Definition: Two or more own with the right of survivorship
Transferability: Alienable, but not divisible or descendible
Creation:
1) Four Unities – same time, same title, same interests, right to possess the whole
2) Grantor clearly expresses right of survivorship
3) Use of a straw (but not in IL)
Tenancy by the Entirety
Definition: Between married partners with a right of survivorship
Creation: Arises presumptively in any grant to married partners, unless stated otherwise
Protections/Restrictions:
1) Creditors of only 1 spouse can’t touch this
2) Neither tenant acting alone can defeat right of survivorship by unilateral transfer to 3rd party
Tenancy in Common
Definition: Two or more own with no right of survivorship. Each co-tenant owns an individual part, and each has a right to possess the whole.
Transferability: divisible, descendable, and alienable
Joint Tenancy - Severance
SPAM = Sale, Partition, And Mortgage
1) Sale
- JT can sell or transfer interest during lifetime
- Disrupts the 4 unities
- In equity, mere act of entering into a contract for sale severs (equitable conversion)
2) Partition
- By voluntary agreement
- In Kind (e.g., sprawling acreage)
- Forced Sale (e.g., a building)
3) Mortgage
- Lien Theory (IL): JT’s execution of a mortgage does not sever
- Title Theory: JT’s execution DOES sever
Rights and Duties of Co-Tenants
1) Possession: If co-tenant excludes another from possession in whole or part, Wrongful Ouster
2) Rent from 3rd parties: Co-tenant must account to others, providing them their fair share of the rent income
3) Carrying costs: Each co-tenant is responsible for his or her fair share of carrying costs (e.g., taxes or mortgage interest payments) based upon undivided share
4) Repairs: Repairing co-tenant enjoys a right to contribution for reasonable, necessary repairs provided she has told the other of their need. Contribution is based upon undivided share.
5) Waste: Must not commit waste
6) Partition: Right to bring an action for partition
- At partition, improving co-tenant is entitled to a credit equal to any increase in value she caused. Or bears liability for drop in value.
Non-rights
1) Rent from co-tenant in exclusive possession: No right, absent ouster
2) Adverse possession: No hostility, absent ouster
3) Contribution for Improvements
Tenancy for Years
Definition: A lease for a fixed period of time.
- If more than 1 year, must be in writing because of S/F
Termination: No notice is needed to terminate
Periodic Tenancy
Definition: A lease which continues for successive intervals. Until L or T give proper notice to terminate.
Creation: Expressly or by implication
- Land is leased with no mention of duration, but provision is made for payment of rent at set intervals
- An oral term of years in violation of the S/F, measured by the way rent is tendered
- If residential, if L elects to hold over a T, measured by the way rent is tendered
Termination:
- Usually written notice, at least equal to the length of the period itself. If year-to-year –> 60 days
- Parties can contractually agree to different notice provisions
Tenancy at Will
Definition: Tenancy for no fixed duration. Parties must expressly agree to a tenancy at will (otherwise it becomes an implied periodic tenancy)
Termination: By either party at any time, but a reasonable demand to vacate is usually needed
Tenancy at Sufferance
Definition: Created if T has wrongfully held over past the expiration of the lease. We give a leasehold estate so that L can collect rent.
Termination: Lasts until L either a) evicts T or b) elects to hold T to a new tenancy
