Property - Interests in Land & Duties Flashcards
A grant “to A and his heirs” or “to A” will create a
fee simple absolute
If O conveys a fee simple absolute to A, A’s heirs have
nothing. Only A has absolute ownership (and note that A doesn’t even have heirs until dead)
A grant “to B and the heirs of his body” will create a
fee tail
Today an attempted creation of a fee tail will instead create a
fee simple absolute
The three types of defeasible fees are
- Fee Simple Determinable
- Fee Simple Subject to Condition Subsequent
- Fee Simple Subject to Executory Interest
A grant “to B for so long as….” “to B during…” “to B until…” will create a
fee simple determinable.
Grantor must use CLEAR DURATIONAL language.
If the stated condition is violated on a fee simple determinable, forfeiture occurs
automatically.
The accompanying future interest to a fee simple determinable is a
possibility of reverter
which, remember, happens automatically upon violation of the condition
A conveyance “to B, but if X event occurs, grantor reserves the right to reenter and retake” creates a
Fee simple subject to condition subsequent
grantor must use CLEAR DURATIONAL language and must EXPLICITLY carve out a grantor’s right of reentry upon condition
The accompanying future interest to a fee simple subject to a condition subsequent is a
right of entry (i.e. power of termination)
Between a fee simple determinable and a fee simple subject to a condition subsequent, a court will prefer ______ because ______
fee simple subject to a condition subsequent, because we prefer the grantor to have to reassert their rights in order to regain the estate (instead of automatic reverter). We hate to reward people who sleep on their rights!
A grant “to B, but if X event occurs, then to C” creates a
fee simple subject to executory limitation
A fee simple subject to an executory interest is just like a fee simple determinable except
that when the condition is broken, the estate automatically forfeits in someone OTHER than the grantor
The accompanying future interest to a fee simple subject to an executory interest is a
shifting executory interest
A defeasible fee cannot be created with mere words of
hope, desire, or intention.
The court will presume it’s a fee simple (because we hate restrictions on land) with precatory words unless clear durational language is used
An absolute restraint on alienation is not permitted unless it is
linked to a reasonable time-limited purpose
An attempt to convey land with a restraint on alienation will create
a fee simple absolute
example: “to A so long as he never sells” will create a fee simple for A
The accompanying future interests to a life estate are
a reversion, if held by grantor; a remainder, if held by a third party
A life tenant is entitled to all ordinary
profits and uses of the land
The life tenant must not commit any of the three types of waste, which are
- ) voluntary/affirmative waste
- ) Permissive waste/neglect
- ) Ameliorative waste (unless all future interest holders are known and consent)
Voluntary waste occurs when a life tenant consumes or exploits natural resources on the property, unless one of these four exceptions apply:
PURGE
Prior Use
Repairs and Maintenance
Granted that right
Exploitation (land suitable only for exploitation)
The cornerstone of a life tenant’s obligation is to
maintain the premises in reasonably good repair
A life tenant is obligated to pay all ordinary taxes on income or profits from land, and if there is no income the life tenant must pay ordinary taxes to the extent of
the premises’ fair rental value
The life tenant must not engage in acts that will enhance the property’s value unless
all future interest holders are known and consent. (remember, “making it better” is still ameliorative waste and improvements can be in the eye of the beholder)
Whenever a grantor conveys less of a property interest than what they hold (i.e. holds in fee simple but conveys life estate), the future interest that arises is a
reversion*
*unless fee simple determinable or fee simple subject to condition subsequent
A remainder is a future interest created in a
grantee (someone other than grantor)
A remainderman always accompanies a preceding estate of
known, fixed duration.
remember: a remainderman is patient and never cuts short someone else’s estate like an executory interest would
A remainderman NEVER follows a
defeasible fee
A remainder is vested if it is both
- created in an ascertained person, AND
2. is not subject to any condition precedent
A remainder is contingent if it is
- created in an unascertained person, OR
- subject to a condition precedent, OR
- BOTH.
A condition is a condition precedent when the conditional language appears
before the language creating the remainder or is woven into the grant to the remainderman
If a remainder is created in an ascertained person and is not subject to fulfillment of a condition precedent (or it was but the condition was fulfilled) it now becomes an
indefeasibly vested remainder
At common law under the Destructability Rule, if a contingent remainder was still contingent at the time the preceding estate ended, the contingent remainder
was destroyed. So O/O’s heirs would just take in fee simple absolute.
Today, under modern law, if a contingent remainder is still contingent at the time the preceding estate ended,
O or O’s heirs hold the estate subject to B’s springing executory interest. Then once B’s remainder is vested, B takes.
The Rule in Shelley’s Case has been virtually abolished, so under modern law a grant “to A for life, then to A’s heirs” creates
a life estate for A and contingent remainders for A’s as-yet-unknown heirs, with a reversion in O (since A could die without heirs)*
*Shelley’s Case would have just merged A’s interests into a fee simple absolute
Under the Doctrine of Worthier Title, a grant by O “to A for life, then to O’s heirs” conveys
a life estate to A but NOTHING to O’s heirs (because O can’t create future interests in his own heirs who can’t even exist until he’s died).
*We like this doctrine because we don’t like O to be able to tie up his land like that. This is just a rule of construction though, and the grantor’s intent controls, so evidence will be allowed that he intended to create a future interest in his own heirs
In a jurisdiction WITHOUT the Doctrine of Worthier Title, O’s (who is alive) conveyance “to A for life, then to O’s heirs” will grant
a life estate to A and a contingent remainder in O’s heirs (since O is still alive, he can’t have heirs yet).
*courts typically prefer NOT to do this because we don’t like restraints on land
O’s grant “to A for life, remainder to B” gives B an
indefeasibly vested remainder*
*If B predeceases, his future interest passes by will or intestacy
A remainderman who is ascertained and whose taking is NOT subject to a condition precedent but whose right to possession could be cut short because of a condition subsequent has a
vested remainder subject to complete defeasance
If conditional language appears before the language creating a remainder, the condition is a
condition precedent
The accompanying future interest to a condition precedent is a
contingent remainder
O’s grant “to A for life, then to B’s children” where B has two children creates this type of future interest in B’s children
vested remainders subject to open
A class closes whenever
any member can demand possession*
*exception: the womb rule - a kid in utero won’t be shut out
An executory interest is a future interest created in a third party, which is not a remainder and which takes effect by either
- cutting short some interest in another person (“shifting”), OR
- in the grantor and his heirs (“springing”)
A shifting executory interest always follows a _________ and cuts short someone other than a ____________
defeasible fee; grantor
The Rule Against Perpetuities potentially applies ONLY to
- contingent remainders,
- executory interests,
- certain vested remainders subject to open
The Rule Against Perpetuities NEVER applies to
- any future interest in O, the grantor,
- to indefeasibly vested remainders, or
- vested remainders subject to complete defeasance
The guiding question to ask when assessing validity under the RAP is
will we know, with certainty, within 21 years of our measuring life whether our future interest holders can or cannot take?
The common law RAP is ALWAYS violated by a gift to an open class that
is conditioned on all members surviving to an age beyond 21 (“bad as to one, bad as to all”)
When you see a _______ you should be on the lookout for a RAP violation
shifting executory interest (if it doesn’t have a certain time in which it must vests, it will violate the RAP)
The RAP does not apply to gifts from
one charity to another
Under “wait and see” or “second look” RAP reforms, validity of future interests is assessed at the time of
the end of the measuring life
The Uniform Statutory Rule Against Perpetuities codifies the common law and provides for an
alternate 90-year vesting period
Under USRAP, if a given disposition violates the rule cy pres will apply and the court will
reform it in a way that most closely matches grantor’s intent while still complying with RAP
A tenancy by the entirety is defined as a
marital interest between spouses with a right of survivorship
A tenancy in common is defined as
two or more owners with no right of survivorship
A joint tenancy is defined as a
two or more owners with rights of survivorship
A joint tenancy is alienable, but not
devisable or descendible (winner takes all!)
To create a joint tenancy, the four unities must be present and they are:
T-TIP
T: at the same time
T: in the same title
I: identical shares
P: right to possess the whole
Joint tenancies are disfavored, so in addition to the four unities, the grantor must clearly state
the right of survivorship
Someone who already holds an interest in land and wishes to now hold it as a joint tenancy with someone else must use a
straw
otherwise, four unities not met
A joint tenant (can/cannot) sell her interest during her lifetime
CAN! Even secretly if she wants to. But it disrupts the four unities, so now the buyer becomes a tenant in common.
In equity, a joint tenant’s mere act of entering into a contract for the sale of her share will
sever the joint tenancy as to the contracting party’s interest (this happens at the time of contracting, not just at closing of sale)
To end a joint tenancy peacefully, tenants may use
severence and partition
If a joint tenancy is on a rural tract of land and one tenant wish to end it, they should use
partition in kind: court action for physical division of the property
*note: if ALL tenants wish to end it they can do so by voluntary agreement without court action
If a joint tenant on a home/business/building wishes to end the joint tenancy without agreement from the others,
the tenant should bring a court action for a forced sale. Proceeds are divided proportionately.
*note: if ALL tenants wish to end it they can do so by voluntary agreement without court action
In the minority of states, one joint tenant’s execution of a mortgage or lien on her share will
sever the joint tenancy as to that now-encumbered share
In the majority of states (following the lien theory), a joint tenant’s execution of a mortgage on her interest
will not sever the joint tenancy
In states recognizing a tenancy by the entirety, it arises presumptively in any grant to
married partners unless clearly stated otherwise (presumption is for it though)
A tenancy by the entirety is a protected form of co-ownership because
creditors of only one spouse can’t touch the tenancy
In a tenancy by the entirety, neither tenant, acting alone, can defeat the right of survivorship by
unilateral transfer
In a tenancy in common, each tenant owns ________ and each has a right to ____________
an individual part; possess the whole
In a tenancy in common, each interest is/is not devisable, descendible, and alienable
is!
If it is unclear whether a grant intended to create a tenancy in common or a joint tenancy, the court presumes
a tenancy in common
remember, we love free transfers of land, so we’d really prefer the land to not have survivorship rights
If one co-tenant wrongfully excludes another from possession of the whole (or any part of the whole), he has committed
wrongful outster
Unless there’s been an ouster, a co-tenant who is in exclusive possession is not entitled to
rent
A co-tenant who leases all or part of the premises to a third party must
account to his co-tenants, providing them their fair share of rental income
A co-tenant in exclusive possession for the statutory period can’t acquire title by adverse possession unless
there’s been an ouster
otherwise it isn’t hostile
Each co-tenant is responsible for her fair share of carrying costs such as
taxes and mortgage interest
A co-tenant making repairs has the right to contribution for
reasonable and necessary repairs, provided she’s told others of the need
While a co-tenant doesn’t have right to seek contribution for “improvements,” at partition the improving co-tenant is entitled to
a credit for any increase in value caused by her efforts OR bears full liability for the drop in value they caused
Tenancy for Years is a least lasting for a
fixed period of time
don’t let name confuse you, doesn’t have to be years
Notice is/is not required before terminating a Tenancy for Years
Is not, because this type of tenancy states from the outset when it will terminate
A lease which continues for successive intervals is a
periodic tenancy
If land is leased with no mention of duration but with payment of rent at set intervals, the courts presumes
a month-to-month periodic tenancy
An oral term of years tenancy in violation of the Statute of Frauds (i.e. for longer than one year) will create
an implied periodic tenancy, measured the way rent is tendered
In a residential lease, if L elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease, the court will presume
an implied periodic tenancy, measured by the way rent is tendered
To terminate a periodic tenancy
notice must be given, usually in writing, at least equal to the length of a period itself unless otherwise agreed
If a tenancy is from year-to-year or greater and a party wishes to terminate, they must give at least _______ notice.
six months, unless otherwise agreed
A period tenancy can’t end mid-period but can only end
at the natural conclusion of the lease period
A tenancy at will is a tenancy for
no fixed duration
Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the lease as a
implied periodic tenancy
A tenancy at will may be terminated by _______ at ________
any party; at any time but a reasonable demand to vacate is usually needed
A tenancy at sufferance is created when
T has wrongfully held over past the expiration of the lease, lasts only until L either evicts T or decides to hold T to a new tenancy
A tenant is liable for injuries sustained by _______, even where _________
guests; landlord promised to make all repairs
If the lease is silent on the subject, T’s default duty to repair consists of the duty to
maintain the premises and make ordinary repairs
When a tenant removes a fixture she commits
voluntary waste
A fixture is a once movable chattel that
by virtue of its annexation to realty OBJECTIVELY shows the intent to permanently improve the realty
Law regarding fixtures are generally just rules of construction, ________ prevails
the contract! any agreement on point between the two parties is binding.
In the absence of an agreement otherwise, T may remove a chattel that she has installed so long as
removal doesn’t cause substantial harm to the premises
If removal of an installed chattel will cause substantial damage to the property, then in objective judgment T has shown
the intent to install a fixture.
The fixture STAYS PUT!
At common law, historically T was liable for (none/some/all) loss to the property
ALL (remember Paula’s tropical storm in Hawaii example)
Under the majority view today, if premises are destroyed without T’s fault, T may
end the lease
If T stops paying rent, the landlord’s options are to
evict through the courts or continue relationship and sue for rent due
If a landlord moves to evict a tenant through the courts, she is nonetheless entitled to _____ from the tenant until the tenant, who is now a __________, vacates.
Rent; tenant at sufferance
If tenant wrongfully vacates and stops paying rent with time left on a term of years lease, the landlord can
SIR.
- Surrender: must be in writing if longer than one year left on lease to satisfy SOF
- Ignore: hold T responsible for unpaid rent (only available in minority of states)
- Re-let premises on wrongdoer tenant’s behalf and hold them liable for any deficiency
Under the majority rule, L’s duty to deliver possession means that L must
put T in actual physical possession
also sometimes called English Rule
Under the minority (American) rule, L’s duty to deliver possession means that L must
only provide legal, not physical, possession
The implied covenant of quiet enjoyment gives T a right to
quiet use and enjoyment of premises without interference from L
Breach of the implied covenant of quiet enjoyment by actual wrongful eviction occurs when
L wrongfully evicts T or excludes T from premises
Breach of the implied covenant of quiet enjoyment by constructive eviction occurs when
SING.
- Substantial Interference
- Notice given to L of problem and L fails to act meaningfully
- Goodbye: T must vacate within reasonable time after L fails to fix
Generally, a landlord is not liable for acts of other tenants except for these two exceptions
- L must not permit a nuisance on site
2. L must control common areas
The implied warranty of habitability applies only to
residential leases
remember this! MBE testers love to ask you this about commercial leases. no dice
To meet the standard for the implied warranty of habitability, the premises must be
fit for basic human habitation
If the implied warranty of habitability is breached, T’s options are to
MR3 (Mister Cubed)
Move
Repair and Deduct
Reduce Rent
Remain in Possession, Pay Rent, Seek Damages
Retaliatory eviction occurs when
T lawfully reports L for housing code violations and L raises rent, ends lease, harasses tenant, or other reprisals
Unless the lease says otherwise, T can/cannot assign or sublease
can, although some leases require L’s prior written approval
Once L consents to one transfer of rights under the lease by T, L waives
the right to object to future transfers unless L specifically reserves that right
When T1 assigns rights under the estate to T2, L and T2 are in
privity of estate. So they’re liable to each other for all of the covenants in the original lease that run with the land (i.e. promise to pay rent, repair, etc.)
When T1 assigns rights under the estate to T2, L and T2 are NOT in
privity of contract, unless T2 expressly assumed all promises in the original lease
When T1 assigns rights under the estate to T2, L and T1 are no longer in privity of ________ but they remain in privity of _________
estate; contract.
So L and T1 are secondarily liable to each other.
In a sublease, L and sublessee are in neither privity of _________ nor
privity of estate; privity of contract.
T2 is liable to T1 and vice versa. Relationship between L and T1 remains fully intact
Under the common law of caveat lessee, the landlord was under no general duty to
make the premises safe
Under the common law of caveat lessee, L had no general duty to make premises safe EXCEPT under these five exceptions
(When tenant sees these she CLAPS)
- Common areas
- Latent Defects: L must warn
- Assumption of Repairs: L who voluntarily makes repairs must complete them with reasonable care
- Public use rule: L leasing public space who should know because of nature of defect and short length of lease that T won’t repair is liable for any defects on the premises
- Short term lease of furnished dwelling: liable for any defects on site
