Property Flashcards
Present Estates: Fee Simple Absolute - How It’s Created + Distinguishing Characteristics
Created: “To A” or “To A and his heirs”
Characteristics: Freely alienable (transfer inter vivos), devisable (pass by will), and descendible (pass intestate/no will)
Present Estates: Defeasible Fee Types + Remember What Defeasible Means
1) Fee Simple Determinable
2) Fee Simple Subject to Condition Subsequent
3) Fee Simple Subject to Executory Limitation
Remember: Defeasible means the land is capable of forfeiture if a condition is not met
Present Estates: Fee Simple Determinable - How to Create + Distinguishing Characteristics (Devise/Descend/Alienate) + Future Interest
Create: “To A SO LONG AS…” “To A UNTIL…” or “To A DURING”
Characteristics: This estate, like all defeasible fees, is DEVISABLE, DESCENDIBLE, and ALIENABLE, subject to the condition
Future Interest: Possibility of Reverter for original owner - automatic transfer if condition is violated
Present Estates: Fee Simple Subject to Condition Subsequent - How It’s Created + Future Interest
Create: 1) Durational language + 2) Clear statement of right of reentry (e.g. “To A but if X event occurs, grantor reserves the right to re-enter and retake.”
Future Interest: Right of Entry for original owner - optional transfer if original owner claims land back after condition is violated
Present Estates: Fee Simple Subject to Executory Limitation - How It’s Created + Distinguishing Characteristics + Future Interest
Create: “To A, but if X event occurs, then to B”
Characteristic: This estate is just like FS Determinable, only now, if the condition is broken, the estate is AUTOMATICALLY TRANSFERRED TO SOMEONE OTHER THAN THE GRANTOR
Future Interest: Shifting Executory Interest
Present Estates: Two Important Rules of Construction for Defeasible Fees (Desire/Hope/Expectation + Absolute Restraints)
1) Words of mere desire, hope, or intention are INSUFFICIENT to create a defeasible fee (courts WILL NOT FIND a defeasible fee UNLESS clear durational language is used)
2) Absolute restraints on alienation ARE VOID
Present Estates: Life Estate - How It’s Created + Future Interest + Remember Pur Autre Vie + Distinguishing Characteristics (Remember Waste)
Create: “To A for life”
Future: Original owner has a REVERSION, if held by a third party its a REMAINDER
Remember: A life estate pur autre vie is measured by the LIFE OTHER THAN GRANTEE’S (e.g. To A for the life of B)
Characteristics: The life tenant is entitled to ALL ORDINARY USES and profits, BUT may not commit waste
Present Estates: Three Types of Waste
1) Voluntary Waste - ACTUAL, OVERT CONDUCT that causes a decrease in property value
2) Permissive Waste - Land is NEGLECTED or life tenant fails to reasonably protect the land (including taxes based on either profit from land OR fair rental value - NOT fair market value)
3) Ameliorative Waste - ENHANCEMENT OF PROPERTY value is prohibited unless ALL FUTURE INTEREST HOLDERS CONSENT
Future Interest: Future Interests Capable of Creation in the Grantor
1) Possibility of Reverter (available in fee simple determinable)
2) Right of Entry (available in fee simple subject to condition subsequent)
3) Reversion (grantor who transfers an estate lesser than the duration she started with, other than fee simple determinable or fee simple subject to condition subsequent)
Future Interest: Interests in Transferees
Held by someone other than the grantor:
1) Contingent remainder, or
2) Vested Remainder ((i) indefeasibly vested remainder, (ii) vested remainder subject to complete defeasance, or (iii) vested remainder subject to open), or
3) Executory Interest ((i) shifting executory interest, or (ii) springing executory interest)
Future Interest: What is a Remainder? + Tip
A future interest created in a grantee that transfers upon expiration of a prior estate
Tip: Think of remainders as SOCIABLE, they are ALWAYS accompanied by a preceding estate of known fixed duration (life estate or term of years) and never cut shorts the prior taker, but instead waits for their turn to take the property patiently
Future Interest: Remainders - Contingent v. Vested
Contingent - A remainder is contingent if: (1) it is created in an UNASCERTAINED OR UNKNOWN PERSON (e.g. To A for life, then to B’s first child. A is alive but B has no children), or (2) it is subject to an UNMET CONDITION PRECEDENT (e.g. “To A for life, then, if B graduates from college, to
B.” A is alive. B is now in high school), or both
Vested - Created in a known taker who is not subject to a condition precedent
Future Interest: Types of Vested Remainders + Comma Rule + Rule of Convenience
1) Indefeasibly Vested Remainder - certain to acquire an estate in the future with no strings attached
2) Vested Remainder Subject to Complete Defeasance - remainder’s taking is not conditioned on an unmet precedent (that would be contingent remainder), BUT can be cut short by a CONDITION SUBSEQUENT
Comma Rule: To tell the difference between a contingent remainder and vested remainder subject to complete defeasance, apply this rule. When conditional language in a transfer follows language that, taken alone and set off by commas, would recreate a vested remainder, the condition is a subsequent, and you have a vested remainder subject to complete defeasance
3) Vested Remainder Subject to Open - Remainder vested in a CLASS or GROUP, at least one of whom is qualified to take possession, but each class member’s share could decrease with each additional member added, not yet ascertained
Rule of Convenience: The class closes whenever any member is within its rights to demand possession
Future Interest: Executory Interest Definition
An executory interest is a future interest created in a transferee (third party), which is NOT a remainder because it takes effect by either CUTTING SHORT some interest in another person (“shifting”) or in the grantor or his heirs (“springing”)
Future Interest: Executory Interests - Shifting Executory Interest v. Springing Executory Interest
Shifting: A shifting executory interest ALWAYS FOLLOWS A DEFEASIBLE FEE and cuts short someone OTHER THAN THE GRANTOR
Springing: An executory interest that cuts short the INTEREST OF THE GRANTOR
Rule Against Perpetuities
A future interest is void if there is ANY POSSIBILITY, however remote, that the given interest could vest MORE THAN 21 YEARS AFTER THE DEATH OF A LIFE IN BEING
Rule Against Perpetuities: Four-Step Technique for Assessing Potential Rap Problems
1) Determine which future interests have been created by conveyance, RAP ONLY applies to (i) contingent remainders, (ii) vested remainders subject to open, and (iii) executory interests;
2) Determine what has to happen for the future interest holder to take;
3) Look for the people alive at the date of the conveyance whose lives/deaths are relevant to what has to happen for conveyance (i.e. measuring life); and
4) Determine whether we will know for sure within 21 years after the death of a measuring life if the future interest holders can take. If we will not know, only the future interest is void
Rule Against Perpetuities: Bright Line Rule
An executory interest with NO LIMIT on the time within which it must vest VIOLATES RAP
Rule Against Perpetuities: Reform of the RAP - “Wait and See” or “Second Look” Doctrines
The validity of any suspect future interest is determined on the basis of the facts as they now exist, at the CONCLUSION OF OUR MEASURING LIFE
Rule Against Perpetuities: Reform of the RAP - Uniform Statutory Rule Against Perpetuities (USRAP)
Codifies the common law RAP and, in addition, provides for an ALTERNATIVE 90-YEAR VESTING PERIOD
Rule Against Perpetuities: Reform of the RAP - Cy Pres Doctrine
If a given disposition violates the rule, a court may reform it in a way that MOST CLOSELY MATCHES the grantor’s intent, while still complying with RAP
Adverse Possession Elements + Tip + Remember State of Mind
1) Continuous,
2) Open and Notorious,
3) Actual, and
4) Hostile
Tip: COAH
Remember: Possessor’s subjective state of mind is IRRELEVANT, it doesn’t matter if he thought he was on his own land or knew he was encroaching on another’s land
Adverse Possession: Tacking + Remember Privity Definition or Lack Thereof
One adverse possessor may tack on to his time with the land his predecessor’s time, so long as there is PRIVITY between the possessor
Remember: Privity is satisfied by any NON-HOSTILE nexus (e.g. contract, deed, or will), by contrast privity is absent when the possessor acquires land BY OUSTING his predecessor
Adverse Possession: Disabilities
The statute of limitations WILL NOT RUN against a true owner who is afflicted by a disability AT THE INCEPTION of the adverse possession (e.g. insanity, infancy, imprisonment)