Property Law Flashcards
There are two primary types of defeasible fee-simple estates (i.e., fee-simple estates that are subject to future interests): (1) a fee-simple determinable (which gives the grantor a possibility of reverter) and (2) a fee simple subject to a condition subsequent (which gives the grantor a right of entry).
check for triggering event. If triggering event automatically terminates ownership.
The primary difference between the two types of defeasible fee-simple estates is what happens when the triggering event occurs. For a fee-simple determinable, the triggering event automatically and immediately ends the fee-simple estate and reverts ownership to the grantor. However, for a fee simple subject to a condition subsequent, the triggering event does not automatically end the fee-simple estate. Rather, even after the triggering event, ownership will remain with the grantee unless and until the grantor takes some additional step to reclaim ownership.
A fee simple determinable is typically created with durational words such as “until,” “while,” or “so long as,”
Words creating a fee simple subject to a condition subsequent include “however,” “provided that,” and “on the condition that.” See Jesse Dukeminier et al., Property 285 (9th ed. 2018). “The future interest retained by the grantor [after conveying a fee simple subject to a condition subsequent] is called a power of termination (or a right of entry).” Black’s Law Dictionary (10th ed. 2014), fee simple subject to a condition subsequent. In this case, “the grantee’s estate terminates (upon breach of the condition) only if the grantor exercises the right to retake it.”
Life tenant
Affirmative waste occurs if the life tenant actively and willingly takes an action that results in a material decrease in the value of the property, like exploitation of natural resources or destruction or removal of beneficial buildings or structures. There are several potential exceptions that might make it permissible for a life tenant to engage in what would otherwise be affirmative waste. Here, the life tenant’s actions of chopping down trees could amount to an exploitation of resources, and this exploitation could diminish the value of the property to potential future orchard users.
ne exception allows a life tenant to exploit some of the property’s resources if necessary to preserve the interests of the life tenant and future-interest holder—but that exception does not apply here because it is applicable only after the life tenant has applied all actual or potential income derived or derivable from the land toward necessary expenses. The life tenant did need money to pay the mortgage on the property or risk losing the present and future interests in the land. However, the life tenant could have sold some of the apples to provide income to help pay the mortgage, thus avoiding or reducing the need to chop down trees. Therefore, chopping down the dozen trees that he sold to the artisan most likely constituted impermissible affirmative waste.
remainderman action against life tenant
ddressing the life tenant’s possible waste is for the remainderman to bring an action to compel the life tenant to properly maintain and repair the property to preserve its value. During a life estate, a remainderman (or reversioner) generally may not enter upon, possess, or use the property in which he has a future interest, without the life tenant’s consent, except that in extreme cases of waste, the remainderman (or reversioner) may enter the property and make changes as necessary in order to protect or preserve his future interest in the property, and may also sue the life tenant if the life tenant is maintaining the property in such a way that threatens the value of the future interest.
Waste
Generally, a life tenant has a duty to avoid committing waste, although there are many exceptions. See Restatement (First) of Property §§ 138-140 (1936). There are three types of waste: (1) affirmative waste, (2) permissive waste, and (3) ameliorative waste. Affirmative waste occurs when the life tenant actively and willingly does something that results in a material decrease in the value of the property. It usually consists of either exploitation of natural resources on the property, or destruction or removal of beneficial buildings and other structures that add value to the property.
One exception to the duty to avoid affirmative waste is the open mine or customary use exception. Under this rule, if substantial mining or timbering operations had been conducted on the property prior to the creation of the life estate, the life tenant is privileged to continue such mining or timbering in a manner consistent with previous practices. Id. at § 144. The life tenant is not privileged to continue such practices if they have been supplanted by later use. However, mere discontinuation is not a supplanting use. Compare Id. at § 144 ill. 1 & 2.
Here, the grantor had previously conducted timbering operations on the property. Therefore, the grantee will be privileged to continue timbering under the “customary use” exception, unless the practice has been supplanted by later use. The fact pattern states that the grantor stopped timbering, but not that any other use had supplanted it. Therefore, the grantee will be privileged to restart timbering operations under the customary use doctrine.
vested reminder
remainder is a type of future interest. A remainder is vested if (1) the person holding the remainder is a living person whose identity is presently ascertainable, and (2) there are no conditions precedent to the complete vesting of rights in the remainderman. A remainder is contingent if it fails to meet one of the two requirements for a vested remainder, or in other words, if (1) the remainder is held by some unknown or nonliving person, or (2) the remainder is subject to some condition precedent before it can become possessory, other than the natural termination of the prior estate.
Can a remainder be sold?
A remainder is a future interest in property that confers a present right to receive possession at a future time. As an existing estate in land, a remainder can be sold, devised, given away, or otherwise alienated, just like a present interest. See Restatement (First) of Property § 162 (1936); In re Zuber’s Estate, 304 P.2d 247, 252 (Cal.App. 1956) (“A future interest, whether vested or contingent, is transferable, and may be encumbered.”).
Here, the daughter has a contingent remainder. She will inherit the property after the expiration of her brother’s life estate, but only if she moves to California. The daughter’s interest in the property requires the occurrence of a future event in order to vest. However, even when that event has not yet occurred, such that the daughter’s interest is a contingent remainder, she may transfer her interest in the property.
Fee simple subject to executory
he sister has a fee simple subject to an executory limitation because her fee simple estate is followed by an executory interest. Where the future interest that corresponds to a present estate is created in a grantee, it can either be a remainder or an executory interest—and only an executory interest can follow a fee simple estate. A fee simple subject to an executory limitation can be conditional or determinable. The conveyance to the sister includes the conditional phrase “but if,” signaling that her interest is conditional (here, conditioned on an event not happening). Therefore, answer options A and B are incorrect, because a determinable interest uses durational rather than conditional words. As for the brother’s interest, a shifting executory interest, when it materializes into possession, divests a grantee of an estate; a springing executory interest divests the grantor of an estate. Here, because the brother’s interest would divest the sister of her fee simple, and the sister is a grantee, the brother possesses a shifting executory interest
conditional fee simple vs determinable fee simple
hen a property owner conveys a future interest out of his fee simple absolute estate, making it subject to conditional language, the grantee has an executory interest. The grantor retains a fee simple interest subject to an executory limitation. The fee simple interest is conditional if it uses conditional language, such as “but if” or “on condition that.” The fee simple interest is determinable if it uses durational language, like “until” or “so long as.” See Restatement (First) of Property §§ 25, 156 (1936). An executory interest is a future interest created in favor of a grantee. Unlike a remainder, it can prematurely terminate the immediately preceding possessory estate before the natural expiration of that estate. Id.
constructive eviction
ecause the tenant has not been constructively convicted, and his suit
against the landlord was not based on a constructive-eviction theory.
Under the constructive-eviction doctrine, if the premises become
uninhabitable for the tenant’s intended purposes, due to the wrongful
act of the landlord, the tenant may stop paying rent and terminate the
lease. And it’s true that, as this choice implies, the tenant cannot rely
on a constructive eviction theory unless he has timely moved out of
the premises following the event that made them uninhabitabl
remedy when land is not conveyed
promised person is entitled to specific performance when land is not conveyed.
If a long period of time had
elapsed between the scheduled closing date and the investor’s attempt
to get specific performance, this might have been a reason for the
court to deny specific performance (a remedy that is equitable and
thus highly dependent on whether it would be fair to both parties’
expectations), and leave the investor to resort to a claim for money
damages. But since the suit followed quickly after the scheduled
closing date, specific performance is an appropriate remedy
creditor’s lien and Joint tenancy
hen a creditor gets a judgment lien good
against the debtor’s real estate interests, the lien does not cause a
severance of any joint tenancy with right of survivorship to which the
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debtor is a party. S&W, § 5.4, p. 192. So even after the lien came into
existence by virtue of the filing of the judgment, the joint tenancy with
right of survivorship continued in place. (In some states, the creditor
would have been entitled to enforce the judgment by having the
tenancy severed and the debtor’s interest sold; but the creditor here
didn’t do that.)
As to question (2): When the son died, his death automatically
caused his interest to be extinguished, with full title vesting in the
daughter. At that moment, the creditor’s lien disappeared, since that
lien attached only to the son’s interest in the property, not to the
property itself, and the son’s interest was extinguished at his death
if a cotenant leases the apartment
each tenant in any form of co-tenancy is entitled to
possession of all parts of the land at all times. S&W, § 5.8, p. 203. So
any tenant in common (such as the man) is entitled to occupy the full
premises at all times, so long as he does not interfere with the rights of
the other tenants (here, the sister and the cousin) to co-occupy them.
race notice jurisdiction
In a race-notice jurisdiction, a subsequent bona fide purchaser (“BFP”) for value without notice prevails over prior takers, but only if he records first. If the BFP for value without notice records after the prior grantee records, he loses, whether or not he had notice. Here, the second buyer recorded his deed first, so his claim would be superior to the first buyer’s and the third buyer’s.
common law rule for adverse possession
A subsequent bona fide purchaser (“BFP”) for value and without notice is generally not protected against a prior taker who took by adverse possession. In this case, the common-law rule applies, so that the squatter prevails against all later comers, notwithstanding any recording act. As a practical matter, an adverse possessor’s open and notorious possession at the time of a sale to an alleged BFP for value should generally provide inquiry notice to the purchaser. This would render any protections offered by a recording act inapplicable, as the buyer would take with notice.
shelter rule
In a race-notice jurisdiction, a subsequent bona fide purchaser for value without notice prevails over prior takers, but only if she records first. J. Bruce and J. Ely, Cases and Materials on Modern Property Law, pp. 467 (6th ed. 2007). Under the shelter rule, anyone who takes property from a bona fide purchaser steps into the shoes of the bona fide purchaser and therefore prevails against anyone against whom the bona fide purchaser would have prevailed, even if the later taker is not a bona fide purchaser herself. James E. Krier, Gilbert Law Summaries: Property, p. 446 (18th ed. 2013).
Here, the second buyer was a bona fide purchaser for value without notice of the man’s sale of the property to the first purchaser. Additionally, the second buyer recorded before the first buyer, so the second buyer will prevail against the first buyer. The second buyer’s daughter will also prevail against the first buyer, or any grantee of the first buyer, because under the shelter rule she steps into the shoes of the second buyer.
