Property Flashcards
Fee Simple Absolute
Runs forever and is fully alienable.
From O to A.
Voluntary Waste
Any affirmative action beyond the right of maintenance that causes harm to the premises.
Exception: Open mines doctrine
Permissive Waste
Tenant has failed to maintain.
Must:
- Be responsible for ordinary repair (NOT replacements)
- Pay taxes
- Pay interest on the mortgage. (Life tenant)
Ameliorative Waste (definition)
Affirmative act that alters the property substantially but INCREASES the value of it.
Ameliorative Waste (rule)
If CHANGED CONDITIONS have made the property RELATIVELY WORTHLESS in its current use, the life tenant can tear down without liability to the holder of future interest.
Rule of Convenience
Class closes when any one of the class is entitled to a distribution. (Only a rule of construction, not law)
Five Future Interests
Future interest = future possession
Retained by GRANTOR:
- Reversion
- Possibility of Reverter
- Right of Entry (Power of Termination)
Given to GRANTEE:
- Remainder
- Executory Interest
Reversion
Interest kept by GRANTOR when he gives LESS than the durational estate the grantor had.
Ex. O to A for life.
Property reverts back to O after A’s death.
Possibility of Reverter
Matches with: FEE SIMPLE DETERMINABLE.
Grantor keeps possibility of reverter
Fee Simple Determinable
Ends automatically when the condition happens
Ex. O to A FOR SO LONG AS no liquor is consumed on the premises.
Look for DURATIONAL language.
for so long as, while, during, until, …
Right of Entry
When grantor give fee simple to condition subsequent, grantor keeps a right of entry.
Does not occur automatically. Grantor must exercise the right.
Fee Simple Condition Subsequent
Language gives to grantee with condition introduced by “provided however” and gives O the right to “go and retake”
Ex. O to A; provided, however that if liquor is ever served on the premises the O shall have the right to reenter and retake the premises.
Other possible language: but if, upon condition that…
WATCH OUT: Grantor must EXPRESSLY reserve the right and a failure to do so will result in the condition being ignored.
Vested Remainder
Nothing stands in the way of its becoming possessory on the expiration of the estate that comes before it. (We know who will take and there are no conditions to taking)
ex. O to A for life, then to B and his heirs.
B has the vested remainder
Vested Remainder Subject to Open (Vested Remainder Subject to Partial Divestment)
Where the remainder interest is to a class who’s members are not yet fully known, the class remains open to allow for future persons who qualify as members of this class.
Types of Contingent Remainders
Something must happen or be known before the remainder can become possessory. One of three:
Ex. O to A for life, then to B and his heirs if B is 21 on A’s death.
- Condition
- Grantee not in existence (contingent upon grantee being born)
- Identity of exact taker unknown.
Contingent Remainders become possessory when:
(if at all) only upon the NATURAL EXPIRATION of the estates coming before them.
Remainders NEVER affect the estate that comes before them.
Executory Interest
Operates to CUT SHORT the estate that comes before it.
Ex. O to A for life, then to B and his heirs; but if at B’s death B is not survived by issue, then to C and her heirs
RAP applies to:
- Contingent remainders
- Executory interests
- Vested remainders subject to open
Rule Against Perpetuities
No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of interest.
BAR: Look at facts and ask if EVERYONE alive at time of grant die and 21 years pass before the interest might vest? If so. VOID.
Charity to Charity RAP exception
RAP never violated if gift over is from one charity to another. Note: BOTH must be charities.
RAP: Age contingency in open class
Watch for facts where the class is open and the gift over is contingent on a class member reaching a certain age. (Remember 21 years. More than that of an age restriction is probably a violation.)
RAP: Fertile Octogenarians
Regardless of age anyone is capable of having children.
Remember - age in bar questions is irrelevant.
Class gifts void because of RAP
Remember - bas as to one, bad as to all! NO member of class can take, even if they’ve already satisfied the class condition.
RAP: The unborn spouse
A giftover following a widow’s life estate where the gift over cannot vest until the widow dies.
Transfer by deed look at situation:
at the time the deed is executed.
Transfer by will look at situation:
at the time of the testator’s death.
Joint Tenancy Characteristics
- Right of survivorship
2. Right to partition
Creation of joint tenancy:
TTIP
- Time
- Title
- Interest
- Possession
Ways to sever joint tenancy
- Conveyance
- Mortgage (in a title theory state)
- Contract of Sale
- ACTUAL Creditor’s Sale
JT Destruction by Conveyance
JT’s transfer of his interest destroys just the sellers JT, turning it into a tenancy in common for the buyer, the other JT’s are still in tact.
JT Destruction by Contract of Sale
Doctrine of equitable conversion means severance occurs when a contract of sale is signed, NOT at closing.
JT Destruction by Mortgage (lien theory state)
Does not sever. When mortgage is executed NO TITLE TRANSFERS, so no unity is disturbed.
JT Destruction by Mortgage (title theory state)
Severance occurs. Title actually passes from mortgagor to mortgagee and when paid off goes back to mortgagor - therefore unity is disturbed.
Tenancy in Common
- Right to partition.
- NO right to survivorship.
- All TIC must have equal rights of possession.
This is the default tenancy.
TIC: Possession
Each co-tenant has the right to possess all the property consistent with other co-tenants’ rights to also possess it.
TIC: Accountability
Requirement that one co-tenant may have to account to another for a share of profits the co-tenant received.
GENERAL RULE: One co-tenant does NOT have to account to another co-tenant for a share of the profits.
TIC: Exceptions to Accountability General Rule
Under these exceptions a co-tenant DOES have to share his profit with the other TICs.
- Ouster
- Agreement to share
- Lease of the property
- Depletion of natural resources
TIC: Contribution
Right of one co-tenant to force the others to pay their share of some expenditure the co-tenant made.
Contributions that may be compelled:
Necessary repairs
Mortgage payments that co-tenant signed on.
Taxes and other government levies.
Contributions will not be compelled for improvements.
Tenancy for years
Any estate measured by a fixed period of time NO MATTER HOW SHORT is a tenancy of years.
Key phrase is a SPECIFIED TIME - does not have to be for years.
Statute of Frauds applicable for tenancy for years OVER one year. (So must be in writing.)
Periodic Tenancy
An ongoing, continuing, repetitive estate, until one party gives valid notice.
Periodic tenancy by implication
Created where lease is silent as to its duration.
If a lease does not specify how long it is to last, then it is presumed to be a periodic tenancy measured by the RENT payment.
Periodic tenancy by operation of law
- Acceptance of Rent when lease violates Statute of Frauds
2. The Hold-Over Case
Hold-Over Case
Tenant stays after expiration of lease, then the landlord accepts the rent.
Note: exceptions in cases where it’s only a few hours or the hold-over is beyond the tenants control (death, serious injury)
Termination of periodic tenancy
Must give proper notice.
1. Time - equal to the period.
(Unless period is over a year, then just six months notice is required.)
2. The correct effective day of termination: the last day of the period, ONLY.
Ex. Rent period starts on the 15th of the month then the only correct effective date of termination is the 14th.
Tenancy at Will
Either party can terminate at any time, without notice.
Termination of tenancy at will
- Death of either party
- Waste by tenant
- Assignment by tenant
- Transfer of title by the landlord
- Lease by landlord to someone else