Property Law Flashcards
What is a fee simple determinable?
A fee simple determinable terminates upon the happening of a stated event and automatically reverts to the grantor.
How is a fee simple determinable created?
By durational language, such as “for so long as,” “while,” “during,” or “until.”
Can a fee simple determinable be conveyed?
Yes, but the grantee takes subject to the state’s being terminated by the specified event
What is the correlative future interest in grantor in a fee simple determinable?
Possibility of reverter
What is a fee simple subject to a condition subsequent?
It’s an estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event. The estate does NOT automatically terminate; the grantor must take some action.
What is the language that creates a fee simple subject to condition subsequent?
Conditional words, such as “upon condition that,” “provided that,” “but if” and “if it happens that.”
What is the correlative future interest created by a fee simple subject to a condition subsequent?
Right of entry. Must be expressly reserved
What is a fee simple subject to an executory interest?
Fee simple estate that terminates upon the happening of a stated event and then passes to a third part rather than reverting to the grantor or giving the grantor the right to terminate.
Effect of conditions of limitations that violate public policy?
The are struck down and the grantee takes free of interest.
What is a fee tail and how created?
An estate where inheritability is limited to lineal heirs. Created by words “to A and the heirs of his body.”
What is a life estate?
A life estate is one measured by the life or lives of one or more persons. It may be created by operation of law, e.g., dower, or by conveyance.
What is a life estate pur autre?
life estate measured by a life other than the grantee’s, e.g., “to A for the life of B.”
What is the doctrine of waste?
A life tenant is entitled to any ordinary uses and profits of land but cannot do anything that injures the interests of a remainderman or reversioner.
What is affirmative or voluntary waste?
Is exploitation of natural resources by a life tenant. Generally limited to situations where: (i) necessary for repair or maintenance of the land, (ii) the land is suitable only for such use, or (iii) it is explicitly permitted by the grantor
What is the open mines doctrine?
If mining was done on the land prior to the life estate, then the life tenant can continue mining but is limited to mines already open.
What is permissive waste?
A tenant is obligated to (i) preserve the land and structures in a reasonable state of repair, (ii) pay interest on mortgages (not principal), (iii) pay ordinary taxes on the land and (iv) pay special assessments for public improvements of short duration. Permissive waste occurs when the tenant fails to do those things. Duty is limited to to the extent of the total income or profits generated from teh land.
What is ameliorative waste?
a change that benefits the property economically. The waste was actionable at common law but now a life tenant may alter or even demolish existing buildings if (i) the market value of the future interests is not diminished and EITHER (ii) the remaindermen do not object or (iii) a substantial and permanent change in the neighborhood has deprived the property in its current form of reasonable productivity or usefulness.
Are reversions subject to the rule against perpetuities?
No, because they are vested.
What is a reversion?
Estate left to a grantor who conveys less than what he owns, e.g., “to O for life.” It automatically reverts to the grantor and doesn’t need to be expressly stated in the conveyance.
What is a remainder?
It’s a future interest in a third person that can become possessory on the natural expiration of the preceding estate.
Difference between remainder and executory interest?
A remainder cannot “cut short” a preceding estate; executory interests are the future interests that cut short preceding estates or follow a gap after them.
What is an vested remainder?
One created in an existing and ascertained person, and not subject to a condition precedent. The remainderman has a right to immediate possession upon normal termination of the preceding estate.
What is an indefeasibly vested remainder?
vested remainder not subject to divestment or diminution
What is a vested remainder subject to open?
A vested remainder created in a class of persons, e.g., “children” that is certain to become possessory but is subject to diminution, e.g., by the birth of additional persons who will share n the remainder as a class.
What is a vested remainder subject to total divestment?
Vested remainder subject to a condition subsequent, e.g., A to life then to B and his heirs but if B does remain unmarried then to C and his heirs.
What is a contingent remainder?
It’s a reminder created (1) in unborn or unascertained persons, e.g., to A to life then to the children of B where B is childless, or (2) a remainder created subject to condition precedent, e.g., “to A to life then to B and his heirs if B marries C.” B’s remainder is contingent because he must marry C before he can take possession.
What is the destructibility of contingent remainders?
At common law, a contingent remainder was destroyed if it failed to vest before or upon the termination of the preceding freehold estate, e.g., O conveys to A for life and then to B if she reaches age 21; if A dies before B reaches 21, then B’s remainder is destroyed. (Most states have abolished it)
What is the doctrine of merger?
When one person aquires all of the present and future interests in land except a contingent remainder, under common law, the contingent remainder is destroyed, e.g., “to A for life then to B’s children. If, before B has any children, grantor purchase’s A’s life estate, O will have a life state pur autre vie and a reversion. These interests merge and the contingent remainder in B’s unborn children is destroyed
What is an executory interest?
A future interest in third parties that either divests a transferee’s preceding freeholding estate (shifting interests) or follow a gap in possession or cut short a grantor’s estate (springing interests)
What is Shelley’s Rule?
Usually just the wrong answer on the MBE
What is the rule against perpetuities?
No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being (“measuring life”) at the creation of the interest.
What kinds of estates does the rule against perpetuities apply to? (5 major ones)
Contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase, rights of first refusal
When does the perpetuities time begin to run on wills?
From the date of the testator’s death
What happens as a consequence of violating the rule against perpetuities?
It destroys only the offending interest
Application of rule against perpetuities to class gifts
“Bad as to one, bad as to all”: if the interest of any class member may vest too remotely, the whole class gift fails.
What are the three types of restraints on alienations and which ones are automatically void?
1) disabling restraints (attempted transfers are ineffective)
2) forfeiture restraints (an attempted transfer forfeits the interest)
3) promissory restraints (an attempted transfer breaches a covenant)
A disabling restraint in any legal interest is void
What is a joint tenancy and what is its distinguishing feature?
Estate owned by several persons concurrently, all of whom have the right to enjoyment and possession of the land and the joint tenancy’s distinguishing feature is the right of survivorship. When one property owner dies, the property is freed from her concurrent interest and her survivors do not inherit it.
How do you create a joint tenancy under common law?
Requires four unities: time, title, interest, possession. Interests of joint tenants must be equal in every way
How can a joint tenancy be severed?
Inter vivos conveyance (conveying undivided interest destroys the joint tenancy). Transferee takes as a tenant in common
What is a tenancy by the entirety?
Marital estate akin to joint tenancy.
What is effect of mortgage or sale by one spouse in a tenancy by the entirety?
It’s invalid. An individual spouse cannot convey or encumber tenancy by the entirety property.
How do courts prefer to partition land?
They prefer to partition in kind (split up the land)rather than by sale and division of the proceeds.
How do you terminate a periodic tenancy?
It’s automatically renewed until proper notice is given. Usually the notice must be one full period in advance.
How do you create a tenancy at will?
Generally it must be created by an express agreement that the lease can be terminated at any time. Absent such an agreement, periodic rent payments will be interpreted as a periodic tenancy.
What is the hold over doctrine?
If a tenant continues to be in possession after his right of possession ends, the landlord can either evict the tenant or bind him to a new periodic tenancy. Generally the terms of the old lease govern the new lease except for residential tenants. They are generally held to a new month to month tenancy. If landlord notified them if raised rent and they stayed on, reissued rent applies, even if they objected.
What are exceptions to the common law rule that covenants in the lease are independent? (3)
1) constructive evictions and
2) implied warranty of habitability
3) eviction for nonpayment of rent
What are the three duties of tenants?
2) duty to repair - tenant cannot damage or commit waste in leased premises
Effect of covenant to repair, residential v commercial tenant
Under modern doctrine if implied warrant of habitability, residential landlord will still be required to repair; a nonresidential tenant’s covenant to repair is enforceable. Usually doesn’t require rebuilding after structural damage
Majority / minority rule of landlord duty to mitigate when tenant unjustifiably abandons property
Majority: has a duty to mitigate by re-letting. So long as landlord doesn’t accept surrender of property, tenant is responsible for the difference between promised rent and what it is rented for.
Minority/CL: landlord can do nothing and tenant just owes all the rent
What are the modern landlord duties?
1) duty to deliver possession of premises - put tenant in actual possession of the premises
2) quiet enjoyment
3) implied warranty of habitability
What is a constructive eviction? How does tenant prove (4)
When landlord’s breach of duty renders property unsuitable for occupancy.
1) landlord breached a duty
2) breach substantially and materially deprived the tenant if he ride and enjoyment of the premises, e.g., flooding, no heat in the winter, loss of elevator service in a warehouse
3) tenant gives landlord notice and opportunity to repair
4) after a reasonable period of time, tenant vacated the premises.
NB: tenant must vacate the premises in order to claim constructive eviction
Six modern exceptions to the common law rule that a landlord has no duty to make the premises safe
One. Concealed dangerous condition two. Common areas three. Public use for. Furnished short term residence pies. Negligent repairs six. Landlord contracts to repair.
what is the implied warranty of habitability?
Nonwaivable warranty written into residential leases tied to standards of local housing codes.
Tenant’s remedies in the event that landlord breaches the implied warranty of habitability?
1) terminate the lease; 2) make repairs and offset the cost against future rent; 3) abate the rent to an amount equal to the fair rental market in view of the defects, 4) remain in possession, pay full rent, and sue for damages.
