Property Flashcards
“To A and his heirs”
Fee simple absolute
“To A and the heirs of his body”
Fee tail
“to A so long as”
“to A until”
“to A while”
Defeasible Fee: Fee Simple Determinable
“to A, but if X event happens, grantor reserves the right to reenter and retake.”
Defeasible Fee: Fee Simple Subject to Condition Subsequent
“to A, but if X event occurs, then to B”
Defeasible Fee: Fee Simple Subject to Executory Limitation
“To A for life”
Life estate
Fee Simple Absolute: Duration, Transferability, Future Interest
Potentially infinite, devisable/descendible/alienable, no future interest
Fee Tail: Duration, Transferability, Future Interest
Lasts only as long as there are lineal blood descendants or grantee. Passes automatically to lineal descendants; reversion held by grantor or third party depending on reversion interest.
Fee Simple Determinable: Duration, Transferability, Future Interest
Potentially infinite so long as event does not occur; alienable/devisable/descendible, subject to condition subsequent, and possibility of reverter held by grantor
Fee Simple Subject to Condition Subsequent: Duration, Transferability, Future Interest
Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination. Alienable/devisable/descendible, subject to condition subsequent, right right of entry reserved in grantor.
Fee Simple Subject to Executory Limitation: Duration, Transferability, Future Interest
Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination. Alienable/devisable/descendible, subject to condition subsequent, REMAINDER / executory interest in third party.
Fee Simple Determinable in NY
Fee on limitation
“To A with the hope that it will be used as a day care center”
Fee simple
“To A for the purpose of construction a day care center”
Fee simple
Types of waste
Voluntary, permissive, ameliorative
Voluntary Waste
Life Tenant must not consume/exploit natural resources except “PURGE”: Prior Use (may continue to exploit, increase in volume OK); Repairs (may consume natural resources for reasonable repairs/maintenance); Grant (if granted that right in conveyance); Exploitation (land suitable only for exploitation). NOTE: Open Mines Doctrine limits the Prior Use exception, so if a prior use of the land is to mine, the life tenant may continue to mine but only in mines already opened.
Permissive Waste
Must pay ordinary taxes, to the extent of income/profits from the land or fair rental value, and maintain premises in reasonably good repair; no more no less. But no obligation to repair/maintain something she built after becoming a life tenant (as long as not ameliorative waste). If a structure is completely uninhabitable, can tear down.
Ameliorative Waste
Life tenant must not engage in acts that will enhance property’s value, unless all future interest holders are known and consent (but in NY, tenant may make improvements unless remindermen object, and objection must be reasonable).
Reversion
Default, arises when grantor transfers estate less than fee simple determinable or subject to condition subsequent
Possibility of reverter
only accompanies fee simple determinable
Right of Entry (aka power of termination)
only accompanies fee simple subject to condition subsequent
Remainder
future interest in third party
Indefeasibly vested remainder (Example, alienability, RAP application)
“To A for life, then to B” (B is alive). B’s interest is transferable, descendible, and devisable; no RAP application.
“To A for life, then to B” (B is alive)
Indefeasibly Vested Remainder
Vested Remainder Subject to Total Divestment (Example, alienability, RAP application)
“To A for life, and on A’s death, to B, but if B predecease’s A, then to C” (B’s interest): transferable, descendible, and devisable; no RAP application.
“To A for life, and on A’s death, to B, but if B predeceases A, then to C” (B’s interest)
Vested remainder subject to total divestment
Vested Remainder Subject to Open (example, alienability, RAP application)
“To A for life, then to A’s children in equal shares.” A’s children have an interest that is freely transferable, descendible, and devisable, and RAP applies to this type of remainder as long as the class remains open.
“To A for life, then to A’s children in equal shares.”
Vested Remainder Subject to Open
Contingent Remainder (example, alienability, RAP application)
“To A for life, then to A’s surviving children” or “To A for life, then to B if B marries C.” A’s children, or B, have an interest that is transferable in most states (not at common law); descendible, devisable; subject to RAP
“To A for life, then to A’s surviving children”
Contingent remainder
Shifting Executory Interest
“To A for life, remainder to B and his heirs; but if B predeceases A, then to C and his heirs (C has shifting executory interest)
“To A for life, remainder to B and his heirs; but if B predeceases A, then to C and his heirs (C’s interest)”
Shifting executory interest
Springing Executory Interest (example, alienability, RAP application)
“To A when and if he becomes a doctor,” or “To A for life, then two years after A’s death, to B”. Transferable in most states (not common law); descendible, devisable; Subject to RAP.
“To C, when and if she passes the bar exam”
Springing executory interest
Options to purchase (RAP)
RAP applies except for interests held by current lessor
Rights of first refusal (RAP)
RAP problem
RAP and application to equitable interests
NOT APPLICABLE to equitable interests such as spendthrift clauses.
Tenancy for Years
Tenancy that lasts for some fixed period of time (months, years, etc.); e.g., “to T for 10 years”; “to O for 9 months”. Terminates at end of stated period without notice.
Periodic Tenancy
Tenancy for fixed period that continues for succeeding periods until either party terminates. “To T from month to month.” Notice at least equal to the length of the period; except 6 months’ notice for periods >1 year.
Tenancy at Will
Tenancy of no stated duration that lasts as long as parties desire. (1) “To T for and during the pleasure of L”; (2) “To T for as long as T desires” (1) L or T can give notice at any time; (2) only T can give notice to terminate.
NY: L terminated tenancy must give min. 30 days notice.
Tenancy at Sufferance
Tenant wrongfully holds over after termination of tenancy. T’s lease expires, T continues in premises. Terminates upon eviction or holdover.
NY: acceptance of rent subsequent to end of term –> implied month-to-month periodic tenancy unless otherwise agreed.
Holding Over Doctrine
L can holdover T to a new period tenancy (commercial → new year-to-year if lease one year or more, or else term based on commercial lease payments; residential → month to month regardless of original term; at old rent OR if holdover happened after notice of rent increase, at new rent). Exceptions: no holdover where (1) tenant remains only a few hours or leaves some personal property behind; (2) holdover was not T’s fault e.g., due to illness; or (3) seasonal lease.
