Property Law Flashcards
1) Why should we recognize property?
To avoid conflict, we do not want people fighting.
2) What is (and is not) property?
Important: to recognize that property is not the thing itself property is the rights attached to the thing. So I have rights. There are limits on my rights, so I can’t do whatever I want with my property my rights are limited. It’s not the thing itself
Property can be represented as metaphor of a “bundle of sticks”
help you see the BIG PICTURE_. These topics are connected by shared RIGHTS.
what are the shared RIGHTS AND DUTIES or property law?
Possession, control, enjoyment, exclusion and disposition (need to confirm this)
BLACK LETTER LAW seems to have not connection to: these 3 things?
- Theory 2. Policy 3. And history
black letter law
- is the law 2. it is clear 3. It’s the law that we accept 4. they are broad common law principles
black letter law. (2)
They are the things that you have to memorize because you have to cite them precisely on your midterm in your final.
the History and Theory of property
influential in Property. political theorists to talk about the theories behind property. Some of those theorist are incredibly powerful.
theory of property
understanding what drives somebody’s ideas that ultimately influence either case law or Legislature’s is really important.
Property: Theories 1. first in time
i see it, therefore it is mine
Property: Theories 2. Economic or labor theory
predominant in the late 20th and 21st century. How do we make property to make more money. How do we use property in order to make everything economically or judicially efficient.
Property: Theories 3. Utilitarian theory
provide the most happiness, along with economic or labor theory economic utility theory is also been predominant. And I’d say the last hundred years we measure that happiness and that efficiency through dollars. We’ve been taught that there’s no other way to measure efficiency, other than money. (which is not true)
Property: Theories 4. democratic theory or civic republican theory
futile origins. It did evolve in America. Civic republican theory is tied to institutional or systemic racism and sexism in this country. The only people who could own land were white men. Therefore, white men were preserving all the power within themselves. The theory wanted those people who are preserving the power to be invested in their own government. So it’s important That if people own property they are going to be invested in their government because they’re going to want to keep the government out of or away from infringing on their property rights, but it has deeply problematic origins.
Property: Theories 5. personhood theory.
highly relevant in personal property. So I’m a widow and I usually bring in my engagement ring. No amount of money could replace my engagement ring.
Natural Law
natural law is generally outside of culture, something that’s considered right or wrong (all cultures should know that murder is wrong). regardless of culture, history, or geography, know some things are wrong. This is…. Some things are just absolutely wrong. Murder is wrong. these laws DO NOT APPLY TO PROPERTY LAW.
LEGAL POSITIVISM,
which is the government decides through the culture decides what should be regulated by law, and that is what is enforced.
Why recognize private property?
Reduce conflict (First possession/first-in-time, Utilitarian-Social Good all look to reduce conflict), all do this
why a general overview of property
- big picture first, overview 2.these theories get much more complicated as we do the narrow dive into substantive law 3.different theories or as much of the theory and the history and the policy that we can give in a broad overview it does help you understand how they play out when we get into the narrow areas.
Pierson v. Post FACTS
-post organizes a fox on abandoned property, Pierson interferes and takes the fox. That’s it.
Why is this case relevant? IMPORTANT (pierson v. post)
It’s relevant because it tells you a lot about the evolution of law.
legal formalism (pierson v. post)
No laws existed, if you formally apply these ideas come straight coming straight down from the heavens, then you’re going to naturally come to the right decision. We have long since moved past legal formalism,.
Why do the authors resort to ancient legal theory (pierson v. post)
first impression, There is no case law, there is no precedent.
Pierson v. Post What is the issue in this case? IMPORTANT
is pursuit enough for ownership or must ownership require possession
Pierson v. Post, What legal theories are at work here (hint there are two)
first in time in conflict with - Economic labor theory
Pierson v. Post,, holding from this case?
The Holding here is that that you it’s not enough to just chase. It’s not enough to just invest in going after you need more than that
rule of capture (from pierson v. post) important)
“deprived of his natural liberty and brought him within his certain control.”
define certain control,p pierson v. post
means it’s not going to get away from you, mortal wounding would be something that deprives of natural liberty, but these things are less than full possession.
recognize property by creation
This is where the law is going. This is where property is being created non stop. Intellectual property, plus constitutional protections.
what are the categories of Property by Creation
- Copyright is protected , Copyright is protected and under Article one, Section eight of the Copyright Clause. 2. Trademark protected, trademark is protected by the Commerce Clause, 3. Patent 4. right of publicity
Patents
Patent is a limited duration property right relating to an____7 or_14 or 21_____depending on what it is, in exchange For complete control for your idea. Very high threshold for patents are highest level of protections .
Copyright:
copyright protection is recognized in the Constitution, but it’s not the idea that gets the protection. It’s the expression. It’s the physical embodiment of the idea easier to get copyright protection, basically you get copyright protection. Whenever you create something, whether you register it with the copyright office or not, but the type of protections. You get are relatively meager Copyright protects works of
- trademark
is the most tricky. Of the three. So, it identifies and distinguishes the source of goods. when a name becomes diluted. It’s generally referred to as Whatever the machine does or whatever the thing does it no longer gets trademark protection. So you get higher protection
- right of publicity
it’s the exclusive right to license and use the identity for commercial promotion. right of publicity has wildly different standards in different states.
White v. Samsung: The Kozinski Dissent
Kaczynski very broadly says that when we reduce, Too much in the public sphere to private property. We’re depriving everybody because basically at this point in society. We’re all standing on the shoulders of giants.
vanna white, common law right to publicity, WHY did the court expand the claim?
- they don’t want to constrain people from marketing their identities for money. 2. the court doesn’t want be somebody who is really smart who finds a clever way around that and does something that gains.
vanna white, common law right to publicity, HOW did the court expand the claim?
The court references Carson v. Hers’s Johnny portable toilets. Which is not a binding precedent, because that came out of Michigan and this case is coming out of California, but they borrow that persuasive authority and they borrow from a treatise (A legal treatise is a scholarly legal publication
vanna white case- the common law and the statutory law look the same?
the common law right of publicity. They are slightly different than the statutory right of publicity. But what is critical here is that they are interpreted very differently.
What is legal positivism regarding property
- In property nearly all of the law is legal positivism. The land. It’s almost entirely governed by legal positivism, the government, because property, especially real property rights are largely driven by culture and the government reflects that culture. We have a European view.
How is property by creation different from other types of Property?
-property by creation is infinite. It’s Anything that human beings. Come up with it’s generally thought of within the right within the roles of patents, copyrights right of publicity and trademark. -it’s different than real property because there’s only so much Earth
Johnson v. M’Intosh: is the foundation of what?
Legal Positivism
What are the bundle of sticks/rights covered in Johnson v. M’Intosh
-They are: 1. right to transfer, 2.the right to exclude, and the 3. right to use (occupancy)
general information about M’Intosh and why him?
Mackintosh is a Fraudulent plaintiff. He was chosen by the government to bring this case. This case needed to be brought so that the government could establish that anybody who had received Their land directly from a Native American tribe did not have proper title,
general information about M’Intosh and why him?
if johnson won the case there would be title lawsuits all over the place. titles were coming from the government and native americans. but the government is trying to establish its legitimacy at this time. remember in 1820 the government’s still very young. they’re trying to get rid of all of this conflict and say this is the United States
what is the issue in Johnson v. M’Intosh
I had does the absolute title to the land belongs to the natives, or to the United States government.
WHO has rights in “___conquered______________________” land?
Those rights and lands vest when the United States became independent of Britain, the conqueror gets the land.
how to we acquire land
how do we get land rights is it from sale or is it have to be from the government?
what is the holding in Johnson v. M’Intosh
Macintosh holds title to the land, pursuant to the right for the government to transfer (not as important compared to the broad implications of this case)
what is the broad implications of in Johnson v. M’Intosh
Rules are bigger than the holdings, the holdings are very fact based, Rules are broader rules are taken from the holdings. see RULE
what is the rules (2) of in Johnson v. M’Intosh
- Johnson v. Macintosh and the first one is absolute title cannot exist in at the same time, in different people. What that means is you cannot have competing title, there has to be one title 2. The second rule is that the government holds absolute title over conquered lands, the government holds absolute title over conquered
how does M’Intosh build off Pierson v. Post
- Johnson builds on Pierson because they both are working from the position of first in time and conquer. 2. the difference between Johnson and Pierson and you can say that this is a difference between real property and personal property. 3. they didn’t require either Johnson or Macintosh to be doing anything with the land, whereas Pierson says you must have actual occupancy. You must be you must Have certain control so it can’t get away. 4. Pierson, personal property required a higher standard of use
what is a freeholder page 179
freeholder is someone who holds title to land.
what are the 5 property theories
- first in time. 2. economic theory 3. utilitarian theory 4. democratic or civic republican theory 5. personhood
What do we know about the law regarding the sale of human body parts after Moore?
- a person who is allowed to sell body parts that like regenerate. - the law is still really unclear, because it’s not the law is lagging behind the science, not in front of the science - if a body part is removed, you do not have rights to that body part. Once it is removed, there are some exceptions.
Compensatory damages?
compensatory damages are more common and most standard. Given to be compensated when you have been injured, or for whatever the loss you’ve suffered. Think someone hit your car you need it fixed.
What are nominal damages?
are only awarded for the infraction of a legal right when you don’t have loss. - So why do we have nominal damages at all because sometimes it’s very important to establish the legal right or that you were wronged under the law. usually $1.00 think Taylor Swift case
Punitive Damages?
awarded in addition to compensatory damages. when D has acted with recklessness malice or deceit, used to punish. meant to deter wrongdoing.
do we want to enforce the right to exclude when there is no damages
if we want as a society to protect the right to exclude we want to protect people’s rights , in steenburg it was economically advantageous for them to make a bad decision.
This is an exception to the general rule of punitive damages with no compensatory damages
trespass in the right to exclude are an exception to the general rule, if you get nominal damages, you can use this exception to get punitive damages
right to exclude
We have the rule –> then we have privileges to the rule (1. Consent, 2 necessity (a. private, b. public) –> then we have exceptions in the shack case
Shack v. State important info
- Under our state law, the ownership of real property does not include the right to bar access to governmental services that is the part that is really important. The fact that they are under a government mandate. - Hence, there was no trespass under the meaning of the penal statute. - they are implying a right to access land. It is an implied right to access land. Migrant workers must be allowed to receive visitors there of his or her own choice, so long as there is no behavior hurtful to others, and members of the press may not be denied reasonable access to the workers do not object to seeing them.
Case of first impression?
- first impression is an issue that has not been seen by the courts before and therefore the courts are the first to decide on that particular issue.
Jaques v. Steenburg
stands for the absolute right to exclude
Evolution of law property
Right to use was = value of land was in its use for (farming, tenancy, protection) Custom è the created common law (codified customs) è then statute (codified common law)(see MA)
manifest destiny
17th, 18th and 19th century America farming tendencies protection. All of that was wrapped up into the value of land in the right to do with it what you wanted.
property law today
you want to look to the statutes. If you have a question about how land is protected or what rights you have in your land. Second (then) look to the common law because the statutes are very well developed in this area. Owners still have enormous broad rights to use their land.
problem with subjective intent
Whenever they have any standard that includes subjective intent, the court has to try to get into people’s heads, who’s right here who’s actually spiteful who do really rise to that level of maliciousness
private nuisance
- Action must be intentional. 2. It must be non-trespassory - it means that whatever action is taking place. It’s happening in the defendants own yard their own space. 3. it has to be unreasonable. - The unreasonableness is the most contentious elements of private nuisance. For now, just know that the third element is unreasonable. 4. substantial interference - whatever is happening in the defendants property must create a substantial interference to the plaintiff. 5. Must affect the use and enjoyment of plaintiffs land: - it cannot simply be that it exists. And it bothers you, it must affect the use and enjoyment of plaintiffs of land.
Eyerman vs. Mercantile Trust a look at the private nuisance elements
- Action must be intentional. 2. It must be non-trespassory- the destruction is non tresspassory 3. it has to be unreasonable. core of this issue is, if the substantial interference is unreasonable. 4. substantial interference- it is a substantial interference with the neighboring houses. They are afraid that it will create a new entryway into the area and reduce their property values by close to 25% if the average value of all of the houses $40,000 at the time. 5. Must affect the use and enjoyment of plaintiffs land.
Eyerman vs. Mercantile Trust dissent
Why is the dissent important to this case? What did they say, what is the descent feel about the public policy argument of the majority? - he particularly finds problems with the public policy argument - the dissenting judge brings up that it would cause questionable legal precedent. Like, you can’t prove that the like. If alive she could just have her house torn down. No problem. So what’s the difference when she’s dead. - the dissent also finds that this public policy is wispy and ill defined. - The court failed to stick with the fact that what the plaintiffs brought is not discussed
side notes to Eyerman vs. Mercantile
Note: so you can do more with your property in life than death. And that is still an issue that is being questioned in the courts. The broad policy that unites these cases- “you may not do whatever you want with your property” your rights to your property have limits and those limits are generally how much you can harm your neighbors
Trover
- recovers the value of an item, but not the item itself.
Replevin
you want the actual item back
the law uses title in 2 different ways
Law uses title in two different ways. 1. as an indication of actual ownership, 2. also referred to title as the entire bundle. (finders?)
title in reference to finders
in finders the title is relative not absolute. You can split the paper title from possession. the finder has possession (some of the bundle) only . the owner has absolute title, the whole bundle of rights
what does possession give the owner
A rebuttal presumption of ownership- means the rightful owner could still rebut the presumption. (in court)
finders and capture are linked
Abandoned property is the link between the two.
test questions for finders,
-Usually only prima facia cases but you will see precedent cases again for finders - On an exam discuss what category that the item belongs (lost mislaid or abandoned). - And realize that it’s incredibly rare that it’s going to be clear cut. Almost always, you’re going to want to talk about at least two and maybe all three categories. “I am choosing this item as falling into lost (mislaid or abandoned) because” and explain all the facts that tell you that it is more like lost (mislaid or abandoned) and list all the factors that explain lost (mislaid or abandoned), which category and why. (public or private, you need to determine YOU MUST DISCUSS THE ROLE OF THE FINDER) if you’re in a weird place realized that the law is constantly evolving. So when we get to finders the law has evolved to decide. There are places that are private but have public spaces and those are different than public or private • 01:25:07discussed how the space that you’re talking about on the exam falls into one category better than the other. Don’t get flustered by the ambiguity. This is why Staffordshire is so important to know , if you are an employee, whatever you find is in control or possession of your employer in less your employer. Says you can have it.
what affects property
-location- where found -state of property- new v. old type of property can change from where it is found, my VW engine was in my yard, they it was in the street. what happened, someone claimed it.
A buys a safe at auction and asks B to sell it a garage sale. B is showing the safe. Find a wad of cash stuff between the inner lining in the metal wall. Who should have it in why
-because a was never aware of the money. So he never knowledge of it. peel v. hannah. -in lindner aviation the money went to the bank -So because b was the possessor of the safe in why had no knowledge of its existence the cash was originally lost or abandoned, but not mislaid 01:34:13The Court distinguishes the actions of an agent from an employee.
why is death a problems with a conditional gift statutes?
Death is a problem with a conditional gift statute because the there has never been a case on this it they’ve all been settled out of court. - -If the donor dies. The donor is not there to complete the condition. - Court hasn’t dealt with that and it’s a problem with conditional gift statutes, is there so many holes in them. - The thinking is, we should move away from conditional gifts, because they are so complicated. In practice, and you’re dealing with people with a lot of emotions.
How does gift casui mortis it differ from an inter vivos gift?
1 element that is not listed about, the inter vivos gift it is not revocable at any time up to death for any reason. On the other hand, gift Causa Mortis is revokable at any point up to death for any reason.
leaseholds modify
the right to exclude. - The lease separate who holds title from who has possession and modifies that right to exclude. - Owner return is governed by statutes both federal statutes and state statutes, they will tell you when an owner may return and who they may exclude.
governance capture cases where there is illegal interference.
pre-possessory interest
gives up some rights against subsequent possessors but it does not give title.
a qualified right to possession
limits how much Popov would apply in other cases.
custom
how to analyze a property question, example Pierson v. Post
Pierson v. Post: 1. What? Wild animal 2. Where? Public, unclaimed land 3. When? it’s deprived of natural liberty. And brought under certain control ( it makes escape and impossible, you have dominion and control) 4. How? through possession. When you’re able to possess through depriving of natural liberty and natural and certain control. You could possess the animal you have captured it
What is Chattel
It is movable property. It’s tangible personal property. (tangible = things you can touch)
how do i acquire chattel
1- Capture 2- find 3- adverse possession 4- gift
what are the catagories of found property
1. LOST-Property is lost when the owner unintentionally and involuntarily part with it
- Mislaid -Property is mislaid when the owner voluntarily and knowingly places it somewhere, but then unintentionally forgets it.
3. Abandoned- property is abandoned when the owner knowingly relinquishes all right, interest and title. (think RIT, Right, Interest, Title)
How can you tell the difference between lost and mislaid property? Voluntarily placed v. involuntarily placed
look for the sublte distinctions in finders
we are learning her subtle disticntions between finders and mislaid property. and we need to look at the context clues, it is location, both broadly and narrowly
The locations is the presumption
Broad- where did I find it (the found it in the store)
Narrow- where specifically did I find it (they found it in the public area of the store)
Also need to look at the type of property
Who finds it matter- was it an employee or a guest
Manner as which it was found (character of the finding)
Categorizing Found Property
Categorizing Found Property
The TYPE of found property is determined by examining ALL the facts and circumstances. What factors are considered?
Place
Location and manner
manner
appearance- pristine v. beat up
character of finder- why were they there
IF THE QUESTION ON THE EXAM IS ONE OF THESE 2 WORDS:
YOU ARE WRONG!!!!!!!!
Never say “__clearly ________” “____obviously_________” _____________________________on an exam.
DELIVERY OF GIFTS (Words are never enough)
3. Manual Delivery is required by law unless you cannot deliver , Manually deliver manual delivery is required by law unless you can’t manually deliver something.
So if you’re looking at delivering something that’s incredibly large, it can be very difficult to have manual delivery, in which case constructive or symbolic is going to be allowed. But if it is not impracticable or impossible manual delivery is required by the court.
2. CONSTRUCTIVE Delivery- is manually providing physical delivery of an item that provides access to whatever the inter vivos goes gift is. So a key unlocks the house, therefore it’s providing access. Think keys.
3. Symbolic Delivery- the donor physically transfers to the donee and object that represents or symbolizes the gifted item like the letters and groom. LEAST FAVORED BY THE COURT.
- Symbolic is difficult because can interpret the symbol differently.
- It’s even more of a challenge when you’re dealing with transfer of an intangible object like stock options.
- as soon as you meet the elements of interview vivos gift it belongs to the donate, even if the Donee dies in the process of taking it and then it goes into their estate.
delivery hypos from class
Delivery Problems
Pointing to Gold Pen on desk? None WORDS ARE NEVER ENOUGH (plus can you carry this away)
Pointing: “Drawer and everything in it.” O hand P key. Diamond and Title to O’s car. Constructive delivery the answer is maybe. Look at the working this, this is not delivery if you can pick up the drawer (look at how she plays with these.
“I want you to have my Van Gogh. Pick it up (office in Rome) whenever.” No, transfer of any physical object, this the letters form gruen.
Handing over bank book, all the money is yours. NO, a bank book is symbolic of a savings account with a bank book it either has to be delivered to the done and a letter must be fully delivered to the bank in order for it to constitute proper delivery. So that if it’s just a bank book with no delivery to the bank or the money was never taken out. It is not delivery but bank books have separate rules.
200 shares of Google stock, handing them to P. “…when I die. Keep them safe.” No, this needed to be in a will, because when I die.
O lends a book. Finds 2nd copy. Calls “Keep that book I let you. It’s yours!” physical , the order does not mater, you can inform intent after delivery! The 3 elements can happen in any order.
Beware of checks and bank books!
Majority rule on checks? Majority rule on checks, is that they are not considered delivered until they are cached.
WhyBecause the time period between when you hand the check in, when they actually cash the check all of the money from the bank can be withdrawn
examptions to FHA
The Fair Housing Act applies to most housing. There are a few exemptions to the Fair Housing Act:
A dwelling with four or fewer units, if the owner lives in one of the units –
Single family housing sold or rented without the use of a broker, if the private individual owner does not own more than three such single-family homes at one time. In addition, religious organizations and private clubs can give preference to members if they don’t discriminate in their membership.
comnents on Gift Causa Mortis delivery
But if you say you may have all of my jewelry. Here’s a piece of lintThat comes from my pocket where I normally keep my ring. Some courts will say, that’s enough. There was a physical transfer, even though that physical transfer doesn’t really meet what we would look for an interview those gifts.
Other states have said no, absolutely not. You need to have something in writing, you need to have some sort of constructive delivery of something
Even if it’s here are my house keys. I’m jumping out of a plane that was house keys will give you access to the jewelry
Gifts and delivery on the exam
On an exam you need to use manual delivery, if not you need to explain
Constructive gives access and keys
History of leaseholds
History:
Non-freehold estates (leased)- estate theory,
on top of the land did not matter, this is common law 15-17 century, the value was in the land, never had an issues because land cannot be desytroyed (farming)
a leasehold was seen as an “estate in land” or a “nonfreehold estate” are leases. Under this model the (lessor) transferred the exclusive right to possession of the premises to the tenant (or Lessee) and retained a future interest (usually a Reversion), the lease was governed by property law concepts.
Things started to change in 1960s, today most jurisdictions view the lease as a hybrid, governed by both property law and contract law. Landlord tenant revolution – in favor of the tenant.
Modern rule- “contract theory”, governed by statutes, modern leases cover only structure, without modern rule could not cover condos or coops.
Residential Lease-
largely governed by statutes, housing courts, health statutes. People just want a place to live, you want the same basic things, no roof leak, hot water etc
some rules that apply to both
Commercial Leases
largely governed by common law because parties knowledgeable and they know what they want Negotiated into the lease by sophisticated parties
SOME RULES APPLY TO BOTH
Immutable Rules-
Immutable Rules-
Supersede terms of the lease; does not matter what is written in the lease.
Immutable rules usually deal with unconscionable terms , health and safety ( habitability )
usually governed by state property statutes
Default rules
Default rules- these rules fill in the gaps that the parties did not address in the lease.
these are Gap filler if not written into contract, and if a problem develops in this area they we will use a gap fill
- gap fillers when provisions are left out of a lease
- usually found in statute, under contract law governing leases
- can be under UCC , or common law
·leasehold modify the right to exclude HOW?
·leasehold modify the right to exclude because they separate.
- who holds title from who has possession and modifies that right to exclude. once a property is leased the owner has limited rights to return to the property.
- Owner return is governed by statutes both _federal statutes and state statutes, t_hey will tell you when an owner may return and who they may exclude.
How do you prove discrimination under disparate treatment under FHA?
2 theories of discrimination:
disparate treatment
disparate impact (this discrimination is not covered in this course)
Other FHA Exemptions
The federal Fair Housing Act provides an exemption provides exemptions to the following types of housing situations:
· Religious organizations and nonprofit institutions associated with religious organizations. These groups are permitted to limit the sale, rental, and occupancy of dwellings they own and operate for non-commercial reasons to persons of the same religion. This exemption is only valid, however, if membership in the religion is not restricted on the basis of race, color or national origin.
· Private clubs which provide housing for other than commercial purposes as long as the provision of housing is “incident[al] to its primary purpose” 24 CFR 100.10(a)(2).
· Housing for older persons as defined under the act.
· Homes sold or rented by the owner without the services of the real estate agent, broker, or any person in the business of buying and selling real estate so long as the owner has no interest in the proceeds, has most recently lived in the property at issue, and owns no more than three single family homes. Please contact the Fair Housing Enforcement Program for more details related to this exemption.
· Transactions involving apartments located within private homes or buildings containing four or fewer living units in which the owner resides in one unit. (“Mrs. Murphy’s Exemption”)
Leseholds: what is actual possession
English rule
Leaseholds 3 rules
General Definition (book): exercise have dominion over property. (Part of that exercise of Dominion includes the right to exclude) But this broad definition breaks down into two other definitions:
Actual Possession: actual possession means that you have the right to physical occupancy. You can move in with your stuff. you must have the right to be able to physically move into the space to occupy the space a holdover tenant may not be there. ENGLISH RULE
Legal Possession: legal possession is the right to obtain physical possession. (that is the issue with legal possession, LL has signed a lease and if there is a holdover tenant it is the new lessee’s responsibility to get the holdover out.) Florida still has this distinction for residential. legal right of possession gives you the right to evict the holdover tenants. (this works with related entities) AMERICAN RULE!
3 types of leaseholds
Term of years tenancy – fixed years or months often used in commercial (on and exam look for a start AND end date, it automatically ends at this date) Definite duration!
A term of years would say January 1 2022 December 31 2020
Periodic tenancy- automatically renewed unless landlord or tenant terminates
A periodic Tenancy would say January 1 2020 for a period of one year.
The only way to distinguish this from a years of tenancy is that it will not have an end date), could go on forever.
Tenancy at will- no end point, continues “only so long as tenant and landlord desire”
tenancy at will, is for a term until people decide they don’t want to live together anymore. (this is a common law, you will need to go to the states statute to see what each states rules are), AT will can go on potentially forever, but has a much shorter length than a periodic tenancy. Month to month.
Tenancy at sufferance—a person who rightfully took possession of land continues possession after right ends. isn’t a real type of tendency, just a holdover.
The type nonfreehold estate matters because it determines how much notice you need to give before you leave!
do you know how much notice you need to give?
term of years tenancy-usually you need to give one or two months notice if you’re moving out before the end of the term. Note: in Massachusetts. You can be held to a term of years.through the end of the lease (exceptions are domestic violence and inhabitable).
periodic tenancy a months notice. If you have a month to month periodic. if it’s a one year. You need to give six month notice
At will- you technically can just leave whenever you want. In reality there are statutory terms that vary by state that tell you how much notice you need to give
American rule for commercial leases
The Massachusetts rule is the American rule- right to legal possession, can have holdovers
English rule for residnetial leases
residential leases have had the English rule for a while its statutory in most States except for Florida (florida can have holdovers).
massachusetts lead law
- Must de-lead or cover paint hazards when there is a child under six years old living there.
- May not refuse to rent to someone with a child under six years old because of the presence of lead paint. This is a violation of FHA Massachusetts anti discrimination law end family status.
- If a child under six years old is poisoned buy lead paint the owner or agent is liable civilly being perhaps criminally, child endangerment.
Jurisdiction on test questions
I also almost always either have a jurisdiction that is a new state and therefore has every cases first impression and they haven’t had a chance to enact statutes or a give you the statute from the state.
The reason I do this is if you have different jurisdictional interpretations. I want you to tell me both
I want you to say in this jurisdiction, they adopted it this way. And in this jurisdiction, they adopted it that way. Here is how these facts would apply in jurisdiction, a
Here’s how they would adopt how that would be adopted at b. This is the one that this new jurisdiction state of hope should adopt.
right of physical possession. of a lease is called
right of physical possession. LL has responsibility to ensure property is empty
the ENGLISH RULE
THE Legal right of physical possession. is called
the American Rule you can have holdovers on this one
Substandard Housing:
The legal term or the cause of action, you would bring would be implied warranty of habitability. But how you would explain it to someone, is it deals with substandard housing.
constructive eviction
is similar to IWH but it applies to commercial. In commercial leases.
You don’t want to talk about habitability on the exam with a commercial lease.
What is permissive waste?
permissive waste is the tenants failure to make normal repairs on the property to protect it from substantial deterioration. Removing snow or mowing lawns.
failure to maintain and estate.
What is the doctrine of independent covenants? ( Looked upon unfavorably now)
leases are made up of a number of clauses. At history, each one of those clauses was independent of one another. What that meant in practice is that if a landlord failed to maintain the property per the terms of the lease the tenants still had a responsibility to pay rent
the only remedy was a lawsuit. At times, when there is a housing shortage. No one wants to sue their landlord.
Doctrine of indepentant covenants is NO More:
If a landlord fails to maintain a habitable property
what can you do?
withhold rent (put it in escro)
withhold rent for the area of the apartment that is not habitable.
or a lawsuit to end lease and move out.
historically under commone law: Lease was interpreted as a bunch of independent covenants.
Implied covenant of quiet enjoyment
Constructive Eviction:
is still good law for both residential and commercial leases today. BUT mostly uses with commercial law
because implied warranty of habitability has more remedies.
common law independent covenant of:
Implied covenant of quiet enjoyment.
what is it:
It was a promise by the landlord that he would not wrongfully interfere with tenants right of possession. This Covenant was put into leases to prevent the landlord’s from coming in and taking all the crops from stealing the cows and saying, well, it’s my land
NOW: i believe it evolved into constructive eviction (my notes are weak in this area)
how to argue constructive eviction on the test!
exmaple
Example of test question:
If in a rainstorm, T has rain leaking through the roof. Lets say, There was a small leak coming from the roof. They had actually started to buckle, the wall, but the wall was structurally safe just really ugly. But then the rain started to actually pull on the floor so that the floor was slippery.
You want to argue. Okay, that is reasonable to leave because its It is a safety hazard once there is rain on the floor.
OR You want to argue with it, not reasonable to leave because you could throw a towel over that that’s not really harmful, you go both ways. It is a question of fact.
remember that substantial interference differs per jurisdiction.
JMB Properties Urban Co v. Paolucci
what is waiver
whas is the defesne of the “doctrine of Laches”
Waiver: waiver is the failure to vacate
Doctrine of Laches- Failure to bring a legal claim in the proper, or a reasonable, time.
Constructive eviction has a “Goldilocks” problem:
the landlord has to be given time to remedy the problem. if Paolucci said, “I’m out tomorrow,” the Court would say you gave no time to remedy this isn’t a constructive eviction issue.
Warranty of habitability
Warranty of habitability is based on housing codes, would these standards, they are considered immutable terms.
Housing coded vary significantly by jurisdictions. Some housing codes are just the bare living essentials.
Constructive eviction
Constructive eviction is the only remedy for commercial tenants in 49 states)
utah has both implied warranty of habitability and constructive eviction for commercial leases.
Implied warranty of habitability
Implied warranty of habitability works better for residential tenants, why?
There are more remedies available.
You can withhold rent.
You can repair it yourself and deduct what you spent for the repair from your rent
you can sue for damages, if you continue paying rent.
Or you can terminate the lease, you can say this is not the least, that I signed, you’re not pulling up your end of the bargain. I’m out.
Commercial leases imply suitability for the stated purpose
the building or space has to be right for lets say a retail store. you cannon move a retail store into bowling alley. So it needs to be suitable for the stated purpose.
for the test, implied covenant quiet enjoyment of
implied covenant of quiet enjoyment is not a cause of action. Do not bring this up on the midterm or the final exam implied warrant covenant of quiet enjoyment.
Is something that is a part of the idea of leasing land and it has its historical predates constructive eviction, it’s not a cause of action unless it is an explicit terminal lease. if there is a line in the lease that says, and the landlord warrants implied covenant of quiet enjoyment. All that this means is that the landlord (LL) had noted constructive eviction as a part of the lease. Even if it is not in the lease it is still an options.
Privity of contract
Privity of contract is the four corners of the contract (lease) that you sign, it is a document between you and your landlord.
IT IS THE CONTRACT BETWEEN T AND LL
If you transfer your interest in a property before that contract runs out. you are still on the hook for that contract. (UNLESS NOVATION)
privacy of Estate
privacy of Estate your relationship with your landlord is based on your possession of the land.
if you leave the land and you’re not coming back, privity of estate is broken between you and your landlord.
if you transfer your rights and duties to the land (via a sublease). It doesn’t sever the contract, the contract is still existing
ASSIGNMENT
more preferable to LL
deep pockets can sue both T1 and T2
Requirement: T1 gives away ALL his rights in the land to T2
T1 and LL will remain connected by privity of contract, (unless novation, novation is a separate contact between T1 and LL. To break The original lease)
T1 and T2 have privity of contract (there should be a contract between T1 and T2 setting out their relationship is. And T2 and LL have P of contract)
T2 and LL have privity of estate (even if there is not a written contracts between T2 and landlord, they still have a relationship. And it’s a relationship that can be the basis for a lawsuit)
If T2 breaks lease, LL can sue T1 (through privity of contract) or T2 (through privity of estate(
ii. SUBLEASE:
T1 plans to come BACK to the land. Can be 6 months, 1 week, or 1 minute=T1 only needs the ability to come back for transfer to be sublease, not assignment.
T1 has privaty of contract and estate with LL (none are broken)
T1 and T2 have privaty of contract and estate
T2 and LL have no relationship
sole discretion Clause
tends to be in there when there’s a hot market where everybody wants the property and T don’t really care whether the landlord is going to be arbitrary because the T desperately need the property.
what are commercially reasonable objections to a potential transfer
page 506
financial responsibility that straight up makes sense
suitability of the use for the property. So this comes up when you’re dealing with restaurants or grocery stores or anything that needs a lot of refrigeration equipment or major renovations to the property that may make it unusable to the next tenants.
legality of proposed use this is presently a fight in both Rhode Island and Massachusetts and when you’re dealing with People who are trying to start up farms for marijuana cultivation. at the state level. This is legal. At the federal level, it is not. so they’re currently fights over whether it is
Need for alteration of the premises is very close to suitability of use nature of occupancy. There are some examples there in the book. So if you have a lease where one tenant must be the lead tenants.You can’t have to leave tenants. It’s okay to say we’re not going to sublease to this because there’ll be a lead tenant. What do I need by lead tenants. So if you go to a mall Macy’s. JC Penney’s Sears when it existed. We’re all lead tenants, they always had in their leases with malls that there could only be certain other types of lead tenants.
test tip this is a repeat
i did not have time to clean this up, but professor went into detail 3 times on this
Note on :No Standard in lease”: means the only language in the lease is that the Landlord has the right to approve an assignment or sublease. (use this to decipher what clause they have)
you want to read this language closely because:
if it says that the landlord has discretion to choose if there’s an assignment. It means just an assignment.
If the language and the lease says that the landlord may approve our must have to be able to approve anybody who is a sublet, it is just subleases.
Or it can say the landlord’s consent is required for any transfer of any type of the premises, which means assignment sublease or adding somebody else to the lease.\
This should be on a test.
Read the least terms very carefully.
- if Lease says that sublease is are barred. That does not mean that assignments are barred
- If the lease says there will be no assignments or sub leases or transfers of any kind, to another party. That means subleasing and assignments, and having someone else come into the lease is going to be barred,
If it just says no sub leases then assignment is fine if it says no transfer of any kind, sublease is in assignments are both going to be barred
If it says no sub lease or assignments sub lease or an assignment are barred, but there may be another transfer, as in bringing somebody else on the lease that would be okay.
lease hypos from the book
do you know what a silent consent clause is?
Hypotheticals, Pg. 510 In a 25 year commercial lease for space in L shopping mall T will use as a furniture store the lease contains a silent consent clause under the Kendall standard
U plans to open a wine store the store will include a wine bar where customers may sample various wines. LL believes that drinking alcohol is morally wrong. He’s also concerned that customers at the wine bar may become drunk, causing problems for other businesses in the mall under kendal’s reasonableness. Is that commercially reasonable to deny the sublet or assignment.
ANS: U’s wine store - I thought it was unreasonable to deny, It’s because it was on moral grounds in the thought process of people could get drunk (speculation is not commercially reasonable, but is there was proof from a different location), but he has no proof of that.
V will open a green card store G, Another tenant in the same shopping mall already operates a greeting card store LL is convinced that V store will adversely affect G store.
Ans: V’s greeting card store- if they were to bring on a gift card shop. Well, there’s another gift card shop already in the mall. It’s going to be taking business away from gift card shop. Number one, which probably can inhibit its ability to pay rent.
X wants to start a comic book store X is 24 years old and has no business experience, but her wealthy father will co-sign the lease and ensure all rent payments are made L has met X and does not like her (this was a reg herring).
Ans: you don’t have any experience. So how am I supposed to know that you know how to run a business and then that could be like An issue. Also, a poorly operated business in a mall can negatively impact how the mall is viewed by others, and it can negatively impact the other stores and how they operate.
Abandonment:
Abandonment means that a tenant vacates without justification and without any pretense of returning and defaults on payments. It does not matter whether the tenant tells the landlord. They’re leaving or not abandonment is they have left. They’re not coming back in the landlord has not legally accepted that they’re leaving. T is on the hook for rent. Need to add to this after case
Surrender:
Surrender is when the landlord and the tenant agree to end the lease early Generally, this happens when the landlord knows they can re rent the apartment for a higher price.
Rule in Dumpor’s Case: THIS CASE IS FOR ASSINGMENTS ONLY, NOT SUBLEASES.
Residential Leases can have “no assignment without consent”
If the landlord approves the first assignment, but does not tell T2 that they reserve the right to consent to future assignments, he is deemed to have waived the right to few to consent to future assignments. (THIS CASE IS FOR ASSINGMENTS ONLY, NOT SUBLEASES. ) (the reason it is for assignment only is because in a sublease T1 still has privity on contract with LL, so there was no need to write it into a contact)
Abandonment
duty to mitigate damages for T
the majority rule before this case? “ no duty to mitigate” (meaning LL does not need to fill the apartment if you leave early)
This is still the case in Massachusetts.
NOW! “Landlord has a duty to mitigate damages when he seeks to recover rents due to a defaulting tenant” page 515
It is also the new rule: Landlord has a duty to mitigate damages when he seeks to recover rents due to a defaulting tenant”
Eviction
eviction is when a person is required to quit a premises outside the terms of their lease.
heirs and heirs apparent
heirs are the people who recieve real property
heirs apparent - living people do not have heirs, they have heirs apparent.
dying intestate , you have no will, she are the distribution definitions
issue and
What are the characteristics of a Fee Simple Absolute?
Absolute ownership with potentially infinite duration and no limitation on its inherent ability and it cannot be divested
Ameliorative Waste In property law,
refers to a situation where a tenant makes repairs and improvements on property that increase the value of the property, but, did not ask permission of the landowner or any future interest holders to make these improvements.
Common law for waste:
Anything that altered the identity of the process was considered waste. you could not do anything.
Except, keep the property in the same condition that you got it in. So you had to maintain it. If you didn’t, maintain it. It was considered permissive waste.
Waste generally
generally the duty of a life tenant and should use the property in a manner that does not injure the rights of future interest holders.
Rule for IHW
The implied warranty of habitability requires that the landlord must, within a reasonable time, fix any reported conditions that are dangerous to tenant health, safety, or the habitability of their apartment. In determining whether a condition is unsafe, courts frequently apply the local housing code if one exists; if there is none, the court asks whether the conditions are reasonably suitable for human residence.
but if
conditional language associated with FSSCS, unless there is a “,” and a thirp party
“provided That”
conditional language associated with FSSCS, unless there is a “,” and a third party
“on condition that”
conditional language associated with FSSCS, unless there is a “,” and a third party
“so long as”
durational language, indicanting a FSD, (favored under the law), unless has “,” and a third party.
“until”
durational language, indicanting a FSD, (favored under the law), unless has “,” and a third party.
“during”
durational language, indicanting a FSD, (favored under the law), unless has “,” and a third party.
while
durational language, indicanting a FSD, (favored under the law), unless has “,” and a third party.
If the conveyance has CONDITIONAL language and a reversion (no third person)=
Fee Simple Subject to Condition Subsequent (FSSCS)
If the conveyance has DURATIONAL language and a reversion (no third person)=
Fee Simple Determinable
If the conveyance has durational OR conditional language, and event cuts short the prior estate with 3rd party interest=
Fee Simple Subject to Executory Limitation
“Right of entry” follows ONLY
Fee Simple Subject to Conditions Subsequent.
“Possibility of reverter “only follows:
Fee Simple Determinable. (proprty automatically goes back to O)
Reversion may follow:
a Life Estate: Fee Tail; or contingent remainder.
EXECUTORY INTEREST
EXECUTORY INTEREST follows an estate that is curt short or a termination of the prior estate
REMAINDER
REMAINDER follows the Natural Termination of the prior estate
For example if you have a life estate with no conditions with a third party.
future interests include questions:
- questions of law and
- questions of fact
Present Possessory Estate-
is the holder of the estate. At the present time, the person who has the current right to possess the real estate.
you need to recognize is if you are looking at who currently has it, and has the right to have it. That’s your present possessor estate. So if I give you a problem where oh conveys to X for life Oh dies, who has it.
Vested
Vested- assigned to an ascertained person and ascertained person is a person who is alive and identifiable
Vested Remainder
Vested Remainder- is an absolute right to receive title after the presently existing interest in real property terminates.
we know who the person is, and they have CERTAINTY they they are going to get the estate.
there are no conditions or restriction
Indefeasible(Y)
Indefeasible(Y)- means that which cannot be defeated revoked or made void.
Indefeasibly Vested Remainder
Indefeasibly Vested Remainder- goes to an ascertained. Identifiable person we know who they are and they’re born alive right now and nothing can take it away. There are no conditions or restrictions on they’re holding there is no uncertainty on they’re holding. They are absolutely going to get it.
Example: X for life then to Y:
Indefeasibly Vested Remainder
Example: X for life then to Y: Y is definitely going to get it there and ascertained person there identifiable. We know that there are no conditions or restrictions on Y getting the estate. it and they’re absolutely going to get the present possessory estate in the future because eventually x will die.
Reversion
Reversion- Means is returned to the grantor
- A reversion can follow a life estate or reversion
- can follow a term of yours a reversion
- absolutely must follow fee simple determine and fee simple subject to condition subsequent
what is the future interest in FSSCS
If I have fee simple subject to condition subsequent. What is the future interest the future interest must be right of entry, sometimes called power of termination.
NOTE THIS IS A TYPE OF REVERSION FOR FSSCS
FSD FUTURE INTEREST
Possibility of Reverter (TYPE OF REVERSION FOR FSD OR LED (LIFE ESTATE DETERMINABLE)
LIFE ESTATE DETERMINABLE FUTURE INTEREST
Possibility of Reverter (TYPE OF REVERSION FOR FSD OR LED (LIFE ESTATE DETERMINABLE)
Remainder
The land when the land will pass to someone other than the grand tour after the natural termination of the prior estates.
an estate that has a time limit or something on it that’s going to make it ends without cutting it off. So think a life estate a life estate, with no conditions. What comes after that the future interest is a remainder. always in a third party.
can only come after and estate that ends on its own terms.
- Example: for x for life., then to y.the remainder goes to y
An executory interests
an executory interest is a future interests that will be triggered by the happening of a stated event and will automatically past property to a third party.
An executory interests like remainder must be in a third party, it must be in a third party when an executive very interest rips away or cuts off the prior estate.
to x, so long as she never wears red shoes, if she wears red shoes, then to Y.
Y can be ripped away from from her wearing red shoes and it goes to a third party. that’s an executory interest
NOTE: THIS MAY NEVER BE VESTED, BECAUSE X MAY NEVER WEAR RED SHOES.
Example of and estate that is cut off
Sure to x, so long as she never wears red shoes if she wears red shoes, then to y.
it can be ripped away from from her wearing red shoes and it goes to a third party. So that’s an executory interest.
CONTINGENT
Contingent: (ONLY USED WITH REMAINDER) Contingent means occurring or existing only if certain other circumstances ARE dependent on.
Contingent Remainder
- Contingent remainder: . (two types of contingent remainders)
- unascertained person contingent remainder- For example: a life estate to cassidy brown, then to the children of cassidy brown. Since Cassidy does not have any children they are unascertained at this time.
- Type II- when the event is may or may not happen- for example, to X for life. Then to Sally once she graduates from law school. (the condition is on the person who has the remainder. (you can never mix contingent remainder or remainders and executory interests. An executory interest has to cut off the prior state a remainder is the opposite, It’s the natural termination of the prior state. you can have one or the other)
· to X for life.
· Then to Sally once she graduates from law school. (please note that in this case there could be an instance where O springs and holds the estate until sally graduates law school)
Remainder Subject to Divestment
remember hard to distinguish from contingent remainder.
Remainder Subject to Divestment (always attached to remainder)- at least one person is known, BUT something can take the property after they get possession. You have it but if you do something, it is ripped away by a 4th party. So there is a Life estate, third party has remainder subject to divestment (example: Y never wears red shoes, if where red shoes it goes to A)
this is hard to distinguish from contingent remainder
Contingent Remaninders and
(Remainder Subject to) Divestment (just called Divestment)
contingent remainders something has to happen before in order for the remainder to be operative.
divestment (remainder) means they have it, but it can be ripped away.
conditions precedent
Conditions precedent is a descriptive term condition precedent is a descriptive term that describes “__an event that must be met before the contingent remainder is operative”
Conditions Precedent (you see this linked to contingent remainders, ) (in future interests) If you identify a conditions precedent, you know there is a contingent remainder, so you need to see what FIs are attached to condition remainders
Ascertainable Persons-
Ascertainable Persons- we know who they are and they’re born (you can physically point them out)
The following will always have a reversion as a Future interest back to O?
- Reversion - any time you have a LE there is a reversion
- Contingent remainder- you always have a reversion with a contingent remainder because it is possible the condition needs to happen, never happens.
- Fee Tail
- Term of years
What is the ONLY TYPE of estate has possibility of reverter as a future interest?
What is the ONLY TYPE of estate has possibility of reverter as a future interest?
- Fee Simple Determinable – has to be followed by the future interest of Possibility or Reverter
What is the ONLY TYPE (2) of estate has right of entry as a future interest?
What is the ONLY TYPE (2) of estate has right of entry as a future interest?
- Fee Simple Subject to Conditions Subsequent
- Life Estate Subject to Conditions Subsequent
check tennancy on test
So make sure that if there is anything asks about what does somebody hold you understand that if somebody holds
00:21:11By tenancy in common, or joint tenancy and they later get married, they have to actively choose and go through a process with an attorney in order to have tendency by the entirety.
Present Possessory Estate
- is the holder of the estate. At the present time, the person who has the current right to possess the real estate.
Vested (ONLY TO BE PUT IN FRONT OF A TYPE OF REMAINDER)
- assigned to an ascertained person and ascertained person is a person who is alive and identifiable
Vested Remainder- is an absolute right to receive title after the presently existing interest in real property terminates.
Indefeasible(Y) (ONLY TO BE PUT IN FRONT OF A TYPE OF REMAINDER)
- means that which cannot be defeated revoked or made void.
Reversion-3 DIFFERENT TYPES OF REVERSION) Means is returned to the grantor
- straight REVERSION
- POSSIBILITY OF REVERTER
- RIGHT OF ENTRY
right of entry
fee simple subject to condition subsequent FSSCS you must have a right of entry
Possibility of Reverter
Possibility of Reverter (TYPE OF REVERSION FOR FSD OR LED (LIFE ESTATE DETERMINABLE)
straigh remainder
LE, TOY or missing one
Remainder
future interest is a remainder. always in a third party.
hint if you do not see a 3rd party, then you cannot have a remainder
Executory Interest-
is a future interests that will be t_riggered by the happening of a stated event_ and will automatically past property to a third party.
Contingent remainder:
is when there is some uncertainty about who or how the person is going to get the remainder. (two types of contingent remainders)
Contingent remainder: TYPE I
unascertained person contingent remainder- For example: a life estate to cassidy brown, then to the children of cassidy brown. Since Cassidy does not have any children they are unascertained at this time.
Contingent remainder: TYPE II
when the event is may or may not happen- for example, to X for life. Then to Sally _once she graduates from law schoo_l. (the condition is on the person who has the remainder.
note sally has a springing execurtoy interest
never mix contingent remainder or remainders and executory interests
.An executory interest has to cut off the prior estate, it is the HATCHET.
-a contingent remainder is the opposite, It’s the natural termination of the prior state. you can have one or the other. PILLOW
(Vested) Remainder Subject to Divestment
(always attached to remainder)- at least one person is known, BUT something can take the property after they get possession. You have it but if you do something, it is ripped away by a 4th party. Example: O to X for Life (natural end), third party has remainder subject to divestment (example: Y never wears red shoes, if where red shoes it goes to A)
Conditions precedent
there is a preceding condition.
Conditions precedent is a descriptive term condition precedent is a descriptive term that describes “an event that must be met before the contingent remainder is operative”
preceding condition that needs to be met prior to the estate becoming operative.
Future Interests in the TRANSFEROR (meaning: when they go back to grantor, these are the only FI you can have. as a reversion
Reversion - any time you have a LE there is a reversion
Contingent remainder- you always have a reversion with a contingent remainder because it is possible the condition needs to happen, never happens.
Fee Tail
Term of years
What is the ONLY TYPE of estate has possibility of reverter as a future interest?
back to tranferor (grantor)
Fee Simple Determinable – has to be followed by the future interest of Possibility or Reverter
What is the ONLY TYPE (2) of estate has right of entry as a future interest?
back to tranferor (grantor)
Fee Simple Subject to Conditions Subsequent
Life Estate Subject to Conditions Subsequent
Problems in future interests: you need to know these
Step-by-step
notes #21 page 6
1) Is this a devise or a conveyance? (what does O devise or convery)
a device limits what can happen next. O is dead. You can’t have anything in the Grantor (and maybe transferor) because O is dead. You have to have a third party involved.
If conveyance it can be anything.
2) What is the first estate/second party after the comma? (who gets the first estate)
FSA- then you are done
Fee tail. You are done. We know what happens next. it goes to the descendants, the heirs of the body.
life Estate- you know that there’s going to be something after it.
Defeasible Fee simples-
FSD- possibility or reverter
FSSCS- Right of entry next
FSSEL- they whole host of possibilities
3) Who has the future interest? (third section of sentence, who has the FI)
It if goes to a third party (one of 2 things)
Remainder
Executory interest
If goes back to transferor or grantor ( can be one of three things and you are done)
A reversion
Right of entry
Or reverter
4) How will the future interest will become possessory? (this was not explained well)
If it’s naturally terminating “to X for life” with no conditions we know we have a remainder
To x for life, provided she keeps the property in pristine condition. There’s a condition on X is holding it has to be an executive, the interest
5) if the interest is a remainder, is the interest is vested or contingent?
Contingent Remainders
Not an estate, but the possibility of an estate. Need to meet a condition to get it.
- Follow the ___expiration of the preceding estate.
- Does NOT immediately become _possessory _at the expiration of the prior estate.
At time of creation, the remainder is created in:
at the time of creation, the remainder is created in a person who is unascertained that either we don’t know where they are OR
the remainder can only become possessed rate after the condition is met the there is a condition precedent something before that must happen for it to become possessory. Contingent remainders always have a reversion by operation of law,
Contingent remainders ALWAYS have a __REVERSION_______________________by operation of law.
