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T&D.Edits.Real Property > Property Interests > Flashcards

Property Interests Flashcards

1
Q

What is a fee simple absolute?

A

A property interest that gives an unqualified right of ownership to the holder of the fee. A fee simple absolute cannot be divested.

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2
Q

What are the types of present interest?

A
  1. Fee
  2. Life
  3. Term
    * More Info:* Present Interests
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3
Q

What words are needed in a conveyance to create a fee simple absolute?

A

A conveyance is presumed to be fee simple absolute unless the terms express a contrary intent.

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4
Q

What is a defeasible fee estate?

A

A fee estate that can terminate upon the occurrence of a specified event.

More Info: Defeasible Fee Estate

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5
Q

How is a determinable estate created?

A

When the grantor uses durational language (until, while, so long as)

More Info: Determinable Estate

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6
Q

How is a fee simple subject to a condition subsequent created?

A

When the grantor uses conditional language:

  1. On condition
  2. Provided
  3. But if
    * More Info:* Fee Simple Subject to Condition Subsequent
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7
Q

How does a determinable estate terminate?

A

The property interest terminates automatically on the happening of a named future event.

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8
Q

If language identifying the type of defeasible estates is ambiguous, then what is the default treatment?

A

Fee Simple Subject to a Condition Subsequent

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9
Q

How can a fee simple subject to an executory interest be created?

A

The grantor uses conditional language or durational language. If the condition or duration happens, then the property interest granted reverts to a third party.

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10
Q

What is a fee tail?

A

A land grant that attempts to limit ownership of property to lineal descendants: To A and only the heirs of A’s blood. The grants are presumptively void.

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11
Q

What interest is created by the language: From A to B and the heirs of his body?

A

A fee tail is created; however, it is void. The fee tail will be replaced by a fee simple absolute.

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12
Q

What is the duration of a life estate?

A

The estate interests lasts for the duration of a specified person’s life.

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13
Q

What is a life estate pur autre vie?

A

When a person other than the estate grantee is the measuring life for the life estate. If the measuring life is tied to multiple people, both must die before reversion occurs.

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14
Q

Are life estates defeasible?

A

Life estates can be made defeasible.

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15
Q

What is a term estate?

A

An estate interest for a set amount of time

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16
Q

What is the possibility of reverter?

A

The future interest automatically created whenever the grantor creates a fee simple determinable (durational language).

More Info: Possibility of Reverter

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17
Q

If grantor uses durational language, what happens to the property interest upon the occurrence of the specified event?

A

The property interest automatically reverts back to grantor.

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18
Q

Who can hold a future interest in property?

A
  1. A grantor
  2. A third party
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19
Q

What are the types of future interests a grantor can have?

A
  1. Possibility of Reverter
  2. Right of Entry/Power of Termination
  3. Reversion
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20
Q

What are the types of future interest a third party can have?

A
  1. Executory interest
  2. Remainder
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21
Q

Is a possibility of reverter a transferable asset?

A

It is freely transferable.

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22
Q

What is the right of reentry?

A

The right of a grantor to take back the property. The future interest can be created in the grantor when the grantor attempts to create a fee simple subject to a condition subsequent.

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23
Q

How can a right of reentry be created?

A

The right of reentry must be explicit in the conveyance or it does not exist. The fee becomes a fee simple if there is just the condition.

Example: A to B provided that B uses the premises for residential purposes. If B ever stops using the premises for residential purposes, A or A’s heirs can enter and retake the property.

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24
Q

Differentiate between a right of reentry and a possibility of reverter.

A

Right of reentry has to be spelled out, and

possibility of reverter is automatically created

More Info: Right of Reentry v. Possibility of Reverter

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25
Q

How is a right of reentry enforced?

A

Upon the happening of the condition, the grantor has to exercise the right of reentry to take the property back from grantee

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26
Q

When right of reentry is not expressed, what happens when a condition occurs in a fee simple to a condition subsequent?

A

The property cannot be taken; however, the grantor can file a breach of contract claim for damages.

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27
Q

What is a reversion?

A

A future interest that defaults to the grantor because there is a gap in the ownership of the property.

Reversion interest ≠ right of reentry nor possibility of reverter.

More Info: Reversion

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28
Q

What is an executory interest?

A

A future interest created in favor of a third party that cuts short the preceding estate before it would naturally have terminated.

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29
Q

Every future interest that cuts a fee short will create what type of interest?

A

An executory interest

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30
Q

What is a remainder interest?

A

A future interest that follows naturally from the preceding estate.

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31
Q

What is a contingent remainder?

A

Any remainder that is not vested. A remainder interest that may not vest.

Example: A to B for life, then to the oldest child of C then living. Would be a contingent remainder. It is not known who the oldest living child of B is going to be until B dies.

32
Q

What is a vested remainder interest?

A

An interest that cannot be taken away:

  1. The remainder must be created in an ascertainable person
  2. There must not be any condition precedent other than termination of the preceding estate.
33
Q

What is a vested remainder subject to condition subsequent or vested remainder subject to complete divestment?

A

There is a condition on a vested remainder. The vested remainder could be lost entirely after the ascertainable person receives the property.

34
Q

What is a vested remainder subject to open?

A

The class of persons who have an interest can constantly be enlarged by new entrants into the class

More Info: Vested Remainder subject to Open

35
Q

How are class openings created?

A

A class is deemed to open the moment the class opens:

  1. Inter vivos conveyance: when the conveyance is made, the class opens
  2. Testamentary conveyance: when testator dies, the class opens.

Rights do not vest until the class is open.

36
Q

When does a class close?

A

A class closes to new members as soon as at least one member of the class comes into immediate possession of the land.

Example: A to B for life, remainder to the children of C. When B dies, C has two children living. Those two children would be entitled to take immediate possession of the property. This would close the class. If any other children of C are born after that point, they are shut out of the class.

37
Q

What is the rule of convenience?

A

A class closes as soon as at least one member of the class comes into immediate possession of the land; however, if there is a potential member that is alive, but has to satisfy a condition precedent to join the class, they are allowed to do so even after the class is closed.

38
Q

What is the doctrine of worthier title?

A

The preference for property passing by descent rather than devise. A to B for life, remainder to A’s heirs automatically becomes A to B.

39
Q

When is an owner of property prohibited from committing waste?

A

When they are someone who has less than a fee estate (term, life).

40
Q

What is voluntary waste?

A

A voluntary act. A tenant cannot intentionally or negligently damage property attached to it that would damage a person’s future interest in the property.

41
Q

What is permissive waste?

A

The failure of a life tenant to protect the property from damage. A life tenant must take reasonable steps to guard against damage the property, when they fail to do so and damage results, this is permissive waste.

42
Q

What are the types of waste?

A
  1. Voluntary waste
  2. Permissive waste
  3. Ameliorative waste
43
Q

What is ameliorative waste?

A

When tenant makes improvements to the land. At common law, a tenant can be sued to return the land to its original condition.

44
Q

When does the modern law allow ameliorative waste?

A

Allowed if:

  1. The market value of the property is not impaired

And either

a. The tenant has permission from the remainder holder

or

b. There is a change to the neighborhood that justifies the improvement

45
Q

Who has standing to sue for waste?

A

The holder of a remainder interest

46
Q

In a waste claim, what can a vested remainderman sue for?

A
  1. Damages

And

  1. An injunction to stop future waste.
47
Q

In a waste claim, what can a contingent remainderman sue for?

A

Only an injunction to stop future waste.

48
Q

What is a total restraint on alienation?

A

A no-sell provision. When a grantee tries to sell their property, they lose their rights to the property.

49
Q

What is the legality of a total restraint on a fee? A total restraint on less than a fee?

A

On a fee, the total restraint is void.

If less than a fee, then the restraint will be upheld if it is reasonable.

50
Q

What are two types of partial restraints on alienation?

A
  1. Purchase option

And

  1. Rights of first refusal. Both are valid if reasonable under the circumstances.
51
Q

The rule against perpetuities only applies to what types of land interests?

A

It does not apply to present estates. It only applies to

  1. Future interests:
    a. Executory interest
    b. Contingent remainder
    c. Vested remainder subject to open

And

  1. Partial restraints on alienation:
    a. Purchase options
    b. Right of first refusals
52
Q

At what time does the rule against perpetuities analysis start?

A

At the time of creation of the property interest, is there a possibility of a rule against perpetuities violation?

53
Q

If rule against perpetuities applies, what is the analysis?

A

Can someone come into existence more than 21 years after everyone currently alive is dead that will have a possessory interest?

More Info: Rule Against Perpetuitites

54
Q

What happens when rule against perpetuities prohibits a future interest?

A

Read the conveyance omitting the voided interest

55
Q

What is a joint tenancy?

A

A form of concurrent ownership, where each co-tenant owns:

  1. An undivided interest in the whole of the property

And

  1. Has a right of survivorship
    * More Info:* Joint Tenancy
56
Q

What is a tenancy in common?

A

A tenancy in common is a form of concurrent ownership where each co-tenant owns an undivided interest in the whole of the property.

57
Q

What is the key difference between joint tenancy and tenancy in common?

A

A joint tenancy creates a right of survivorship and a tenancy in common does not.

58
Q

Any conveyance to two or more people is presumed to create what type of tenancy specifically stated otherwise:

Common law v. Majority

A

Common Law: Joint Tenancy

Majority: Tenancy in common

59
Q

What is the effect of a right of survivorship?

A

Upon the death of joint tenant, the property automatically transfers to the remaining joint tenant(s).

60
Q

What has priority, a right of survivorship or a will?

A

A right of survivorship has priority over a will.

61
Q

How is a joint tenancy created?

A
  1. Each joint tenant must have an equal ownership interest in the property
  2. Each joint tenant must have the equal right to possess the entire parcel

And

  1. Each tenant must have the right of survivorship
62
Q

How is a tenancy in common created?

A

Each tenant in common must have the equal right to possess the entire parcel.

63
Q

What are the main differences between a joint tenancy and a tenancy in common?

A

In a joint tenancy, the tenants have equal equity stakes and have the right of survivorship.

In tenancy in common, tenants do not have either.

64
Q

What is a tenancy by the entirety?

A

A joint tenancy only between a husband and a wife

65
Q

What happens to tenancy by the entirety in event of divorce?

A

A divorce severs the tenancy by the entirety and it becomes a tenancy in common.

66
Q

How is a joint tenancy severed?

A
  1. Partition action in court to create tenancy in common
  2. Contracting to sell interest in property

Or

  1. If a joint tenant mortgages their interest in the land
67
Q

What happens when a joint tenancy is severed?

A

The joint tenancy becomes a tenancy in common.

68
Q

What happens when a joint tenant contracts to sell interest in the property or mortgages the property?

A

The joint tenancy remains intact between remaining joint tenants and the interest sold is held as a tenancy in common between all parties

69
Q

If a joint tenant mortgages their interest in land, what happens in a lien theory versus a title theory state?

A

Lien Theory: Transferring a lien on property will not severe the tenancy.

Title Theory: Transferring a title on property will sever the tenancy.

70
Q

What are the rights and duties of co-tenants?

A
  1. Each co-tenant is entitled to possess the whole property.
  2. Each co-tenant must share profits and expenses.
71
Q

If a co-tenant is denied whole property possession, what is their remedy?

A

They can sue for damages or ejectment.

72
Q

If profits are produced by the property from one of the cotenant’s efforts, how are the profits split?

A

Profits stay with the tenant that earned it.

73
Q

How are profits split that are generated by what a third party is doing with the property (renting)?

A

Split based upon co-tenant equity share.

74
Q

What is a cotenant’s liability to taxes/mortgage payments?

A

Required to make a pro rata share of taxes/mortgage payments.

75
Q

What is a cotenant’s liability for repairs?

A

There is no duty of repair placed upon a co-tenant. Repairs occur at their own expense and cannot put on co-tenants. If the property is rented, a repairing tenant can offset repairs against third-party rents before the pro-rata distribution of profits occurs.

76
Q

What is a cotenant’s liability for improvements?

A

There is no duty of improvement placed upon a cotenant; however, if the improvement creates increased sale price and is sold then, increase in profit goes to the co-tenant that improved the land.

T&D.Edits.Real Property (5 decks)

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