Property for BAR Flashcards
Fee Simple Absolute:
“To A and his heirs.”
“To A.”
Duration: Absoluate ownership of potentially infinite duration.
Transferability:
Devisable
Descendible
Alienable
NO FUTURE INTEREST
Fee Tail
“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 3P)
Defeasible Fee (3 types)
1) Fee Simple Determinable
‘To A so long as…”
‘To A until…’
“To A while…”
(language providing that upon happening of a state event, the land is to refer to the grantor)
If stated condition violated forfeiture is automatic.
*You may convey less than what you started with, but you can’t convey more (can’t always get what you want, Mick Jagger).
Duration: potentially infinite, so long as event does not occur.
Transferability: Devisable Descendible Alienable Subject to Condition.
Future Interest: Possibility of Reverter (held by grantor)
FSDPOR
Fee Simple Determinable Possibility of Reverter
Frank Sinatra Didin’t Prefer Orville Redenbacher
Defeasible Fee Type 2
Fee Simple Subject to Condition Subsequent
‘To A, but if X event happens, grantor reserves right to reenter and retake.”
Grantor must carve out right of reentry.
Grantor’s perogative to choose to terminate or to look the other way. Estate NOT automatically ended, but can be cut short at grantor’s option if stated condition occurs.
Duration: potentially infinite, so long as condition is not breached and thereafter, until the holder of the right of entry timely exercises the power of termination.
Transferability: Devisable Descendible Alienable Subject to Condition.
Future Interest: Right of Entry/Power of Termination (held by grantor)
Defeasible Fee Type 3
Fee Simple Subject to an Executor limitation
‘To A, but if X event occurs, then to B.”
Just like fee simple determinable except if condition broken, estate automatically forfeighted to someone other than Grantor.
Potentially infinite, so long as stated contingency does not occur.
Transferability: Devisable Descendible Alienable Subject to Condition.
Future Interest: Executory interest, held by 3P
Life Estate
‘to a for life.’ (A is known as life tenant).
‘To A for the life of B.”
*NEVER in terms of years.
Life tenant entitled to all ordinary uses and profits from the land, but life tenant MUST NOT commit waste (must not harm future interest holders).
Duration: measured by life of transferee or by some other life (put autre vie)
Transferability:
Alienable
Devisable,
Descendible….if pur autre vie and mesaring life is still alive .
Future Interest: Reversion (if held by grantor). Remainder (if held by 3P).
Words of mere desire, hope, or intention are insufficient to create a defeasible fee.
Instead, A gets fee simple absolute (when grantor intended defeasible fee but used ‘purpose’ ‘hope’ ‘expectation’ language.
Absoluate restraints on alienation are void.
absolute ban on sell or transfer that is not linked to a reasonable time limited purpose not allowed.
‘to a so long as she never attempts to sell’ = void. A gets fee simple absolute, O gets nothing.
Voluntary or Affirmative Waste is
Overt conduct that causes a drop in value
*Beiber trashes yard doing donuts, breaks out windows of house.
Life Tenant must not consume or exploit natural resources (timber, oil, minerals) unless one of four exceptions apply…
PURGE Exceptions…
PURGE:
PU: Prior Use (prior to grant, land was use for exploitation)
R: Repairs (consume resoruces for repairs and maint.)
G: Grant (tenant may exploit minerals if granted right)
E: Exploitation (land is suitable only to exploit, quarry)
Open Mines Doctrine…
if mining done on land before life estate began, life tenant may continue to mine, but is limited to mines already open. can’t open new mines.
PERMISSIVE waste or neglect occurs when land falls into disrepair due to pattern of neglect.
Life tenant must Maintain the premises in reasonably good repair.
obligated to pay all ordinary taxes.
Ameliorative Waste
Must not engage in acts that will enhance the property’s value unless all future interest holders are known and consent.
3 Future interests (6 totalFuture interests) capable of creation in the grantor:
1) Possibility of Reverter (Fee Simple Determinable)
2) Right of Entry/Power of Termination (Fee Simple Subj. to Condition Subsequent)
3) Reversion (back-up, default) when grantor transfers an estate of lesser duration/quantum than start with, other than the 2 mentioned herein.
If future interest held by someone other than grantor, must be 1 of 3 future interests….
1) Vester Remainder (indefeasbily vested remainder; vested remainder subj to complete defeasence; vested remainder subj to open).
2) Contingent Remainder
3) Executory Interest (i - shifting or springing)
Remainder…
future interest in grantee
capable of becoming posessory upon expiration of a prior posessory estate
created in the same conveyance in which the remainder is created
Remainderman is sociable, polite.
Waits for present estate to naturally end (life estate or term of years).
Always accompanies preceding estate of FIXED DURATION.
Preceding estate usually a LIFE ESTATE OR TERM OF YEARS.
REMAINDERMAN NEVER FOLLOWS A DEFEASIBLE FEE.
Remainder vested if
BOTH Created in an ascertained person and is NOT subject to any condition precedent.
Remainder is Contigent if
created in an unascertained person OR subject tot a condition precedent, or both.
Rule of Destructability of Contigent Remainders
Common Law: continent remainder destroyed if still contingent, at time the preceding estate ended. (O gets fee simple absolute)
Today: Destructability rule abolished.
To A for life, and if B has reached 21, to B. (A dies and B is only 19). Common law, O gets fee simple. Today: O holds the estate subject to B’s springing execturoy int.
The Rule in shelley’s case
Applies in one setting: O to A for life then on A’s death, to A’s heirs. A is alive.
Common law: present and future int merge to give A fee simple absolute. Applies even in face of contrary grantor intent.
TODAY: rule of shellye’s case abolished.
O to A for life then on A’s death, to A’s heirs. A is alive.
A has life estate. A’s unknown heirs have a contigent remainder. O has a reversion.
Doctrine of Worthier Title - viable in most states today.
When O is alive, tries to crate a future int in his heirs (to A for life then to O’s heirs)
Grantor’s intent controls and will be honored.
If Doctrine of Worthier title did not apply, A has life estate and Os heirs have contigent remainder.
Due to Doc of Worthier title, Contigent remainder in Os heirs void. A has life estate and O has reversion.
Promotes free land transfer.
Indefeasibly vested remainder (1 of 3 vested remainders)
Holder of remaidne is certain to acquire setae in future with no strings attached.
vested remainder subject to complete defeasence (Forfeiture) (1 of 3 vested remainders)
Also called vested remainder subject to total divestment.
right of remainder man possession could be cut short b/c of condition subsequent.
Comma Rule - when conditional language in transfer follows language that, taken alone and set of by commas, would create a vested remainder, condition is a cond. subsequent = vested remainder subj to complete defeasence.
Note: condition precedent results in contingent remainder.
Vested remainder subject to open (1 of 3 vested remainders)
Remainder is vested in group of takers, at least one of whom is qualified to take, but each class emmber’s share is subj. to a particle diminution b/c additional members can still join.
Rule of Convenience: Class closes whenever any member can demand possession.
Executory Interest….
Future interest created in 3P, 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).
SHIFTING exec interest
always follows a defeasible fee and cuts short someone other than the Grantor.
Holder of Exec. Interest is the interrupter.
SPRINGING exec interest
Cuts short O, the Grantor.
A is the interptor.
Rule Against Perpetuities (RAP)
Future interest void if any possibility that interest may vest more than 21 years after death of measuring life.
RAP potentially applies only to…
Contingent Remainders
Executory Interests
Certain Vested Remainders Subject to OPEN
RAP DOES NOT Apply to..
Any of the 3 future interest in O, the Grantor
indefeasibly vested remainders
vested remainders subjct to complete defeasence.
Once you know RAP Applies..
Step 2: ID the Conditions Precedent to the Vesting of the suspect future interest.
Step 3: find a measuring life (look for person alive at date of conveyance). Persons life or death is relevant to condition’s occurrence. (Grant to A specifically = A measuring life)
STEP 4: will we know for certain that within 21 years of death of the measuring life that future interest holders can or cannot take?
Fertile Octogenearion Rule
A could have another child, no matter how old she is.
Bright Line RAP RULE:
A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates RAP.
Bad as to one, bad as to all - entire class gift void if disposition might vest too remotely for just one class member.
Bright LINE RAP RULE 2:
Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP
- Shifting Exec. Interest that violates RAP will result in Fee Simple Determinable in A (‘ so long as’) and Possibility of Reverter in O.
- Shifting Exec Int that violates RAP where conveyance uses “But if” will result in Fee Simple absolute in A and nothing in O. (b/c conveyance must remain grammatically sound.)
Charity to Charity Exception of RAP
!
Reform of RAP:
The wait and see or second look doctrine
Validity of any suspect future int determined on bases of facts as they know exist, at the end of the measuring life. Then see if it passes scrutiny.
Reform of RAP
Uniform Statutory Rule Against Perpetuities (USRAP)
Codifies common law rap and provides for an alternative 90 year vesting period.
Cy Pres Doctrine = “As Near As Possible”
If disposition violates RAP, court may reform in way that most closely matches Grantor’s intent while complying with RAP.
Both wait and see and USRAP reform embraces Cy Pres Doctrine.
Both reform efforts take the reduction of any offensive age contingency to 21 years.
Three forms of Concurrent Ownership…
Joint Tenancy (2 or more own with right of survivorship)
Tenancy by the Entirety (Betweeen married partners with the right of survivorship)
Tenancy in Common (2 or more own with no right of survivorship)
Joint Tenancy is distinct due to role of survivorship (1 joint tenant dies, his share goes automatically to the surviving joint tenant).
Joint Tenancy is distinct b/c joint tenants interest is alienable. Not devisable or descendable b/c of automatic right of survivioshrip.
Last survivor in joint tenancy takes everything.
Creation of Joint Tenanncy requires T-TIP
T-TIP
Joint tenants must take interest at same: TIME TITLE (by same title) IDENTICAL (identical interest) and POSESS (rights to possess the whole)
GRANTOR MUST CLEARLY EXPRESS RIGHT OF SURVIVORSHIP
Joint tenancies are disfavored.
Use of a straw man. To satisfy four unities, must use a straw man (middleman).
Severance of Joint Tennancy: SPAM
Sale, Partition, and Mortgage
SPAM:
(S)
Severance and Sale
- (joint tenant can sell or transfer her interest during lifetime. Can do so secretly. Buyer becomes tenant in common. if 2 joint tenants remain, there joint tenancy remains in tact)
- In equity, joint tenant’s mere act of entering into K to sale her share will sever joint tenancy. B/c Doc of Equitable Conversion
Severance of Joint Tennancy: SPAM
Sale, Partition, and Mortgage
SPAM - (P)
Severance and Partition (3 variations)
1) By voluntary agreement - peaceful way to end relationship
2) Partition in kind: Court action for physical division of land if in best interest in all.
3) Forced Sale: - Court Action if in best interest of all, Land sold and proceeds divided proportionally.
Severance of Joint Tennancy: SPAM
Sale, Partition, and Mortgage
SPAM - M (Severance and Mortgage)
One joint tenants execution of mortgage or lien on his share will sever joint tenancy as to that share in MINORITY of states following TITLE THEORY>
Mortgage in LIEN Theory states (MAJORITY) will not sever joint tenancy.
TENNANCY BY THE ENTIRITY (21 STATS)
Between married partners with right of survivorship (can’t be engaged, married only).
very protected form of co-ownership
cCANT TOUCH THIS. Creditors of only one spouse can’t touch this tenancy. Immune from attack.
Neither tenant acting alone can defeat right of survivorship by unilateral transfer to 3rd party.
TENNANCY IN COMMON
Each co-tennant owns an individual part and each has a right to possess the whole.
Each interest divisble, descendable, and alieanble.
NO SURVIVORSHIP RIGHTS.
Presumption favors tenancy in common.
Each co-tennant is entitled to possess the whole.
if one co-tenant wrongfully excludes another co-tenant from possession of the whole or part, he has committed a WRONGFUL OUSTER.
absent ouster, a co-tenant in exclusive possession, is not liable to the others for rent (as long as others left voluntary)
A co-tenant who leases all or part of the premises to a 3P MUST ACCOUNT to his co-tennants FOR RENT from 3P tenant, giving them their fair share of the rent in the account. (fair share equal to undivided interest in the whole).
Adverse Possession - Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period CANNOT acquire title to the exclusion of the others.
Hostility element of adverse possession is absent. No hostility b/c there was never an ouster.
Each co-tenant is responsible for his or her share of CARRYING COSTS (taxes, mortgage interest payments), based upon his undivided share.
REPAIRS: The repairing co-tenant enjoys a right of contribution for reasonable and necessary repairs, provided that the co-tennant has told the other of the need for the repair.
During life of co-tenancy, there is NO RIGHT to contribution for IMPROVEMENTS
At partition, improveing co-tenant is entitled to CREDIT, equal to any increase in value she caused for improvement.
IMPROVER also bears full liability for any drop in value that the unilateral improvement caused.
WASTE - a co-tenant must not commit waste (voluntary, permissive, ameliorative).
A covenant can bring a waste action during the life of the cotennancy
PARTITION - a joint tenant or tenant in common has a right to bring an action for partition.
Four Leasehold, Non-freehold Estates
1) Tenancy for Years (Estate of Years or Term of Years) - lease for a fixed period (termination date known from start).
* NO NOTICE NEEDED to TERMINATE. Term of years greater than one year must be in writing to be enforceable b/c of SoF.
2) Periodic Tenancy - Lease which continues for SUCCESIVE intervals until L or T give proper notice of termination. Can be created expressly (yr to yr; mo to mo; wk to wk)
3) Tenancy at Will - no fixed duration. To T for as long as T desires.
4) Tenancy at Sufferance - crated when T has wrongfully held over past expiration of lease. Lasts only until L either evicts T or elects to hold T to a new tenancy.
Periodic Tenancy can be by implication
(3 ways)….
1) Land is leased w/ no mention of duration, but provision is made for payment of rent at set intervals.
2) An oral term of years in violation of the SoF creates an implied periodic tenancy, measured by the way rent is tendered.
3) The Holdover - in a RESIDENTIAL lease, if L holds over a T who has wrongfully stayed past the conclusion of the original lease… an implied periodic tenancy arises measured by the way rent is now tendered.
