Real Property Flashcards
Fee Simple Absolute
A conveyance of absolute ownership of real property.
The property is freely devisable, descendible, and alienable.
Fee Tail
A conveyance of real property to a person AND their heirs.
*Most states have abolished fee tail ownership.
What is a Fee Simple Defeasible, and when is it created?
A conveyance of property that has conditions placed on it.
It is created when the grantor uses express conditional language to indicate that it will be terminated upon the occurrence/non-occurrence of an event or condition.
What are the three types of Fee Simple Defeasibles?
Fee Simple Subject to a Condition Subsequent – reserves a future interest in the grantor (right of re-entry). But if, on condition that, provided that.
Fee Simple Determinable – reserves a future interest in the grantor (possibility of reverter). As long as, while, until, during.
Fee Simple Subject to Executory Interest – reserves a future interest in a third-party.
Life Estate
A conveyance of real property where a specified life-tenant is entitled to possession of the property during their lifetime.
Upon the life tenant’s death, the property transfers outright to another party (the remainderman).
Possibility of Reverter
Creates a future interest of possession in the grantor upon the occurrence of a specific condition.
(Property automatically vests to the grantor upon occurrence of the condition).
Right of Re-entry
Creates a future interest in the grantor, wherein the grantor has the right to re-enter and take the property upon the occurrence of a specific condition.
Tenancy in Common
The default estate created by a conveyance/bequest of real property to two or more people.
No Right of Survivorship.
*Each tenant has an undivided interest and the right to use and enjoy the entire property.
Joint Tenancy Creation
4 conditions must concurrently exist when the tenants take their interests:
1) Time- JT’s must take their interest at the same time;
2) Title- JT’s must receive their conveyance through the same instrument;
3) Interest- JT’s must take equal and identical interests; and
4) Possession- JT’s must have equal possessory rights.
(alienable but not devisable or descendible).
Vested Remainder
A remainder that automatically becomes possessory upon the natural expiration of the preceding estate.
Limitations- Vested Remainders cannot:
a) Be subject to any condition precedent; or
b) Vest in an unknown or unascertained person.
Indefeasibly vested remainder
Becomes possessory immediately upon termination of the prior estate (to A for life, then to B).
Vested remainder subject to total divestment
subject to some condition subsequent, such that the remainderman could be divested after taking possession (to A for life, remainder to B; but if B weds, to C).
Vested Remainder subject to open (class gift)
remainder vested in a described class of takers, at least one of whom is capable of taking possession (by virtue of being alive) (to A for life, remainder to children of B and their heirs”; B has one child, who has a vested remainder subject to open {because B may have more heirs}.
Open vs. Closed class
class stays open to allow for future members and closes when no new members can be created (life tenant dies).
Rule of Convenience- class closes whenever any member can call for distribution of her share.
Contingent Remainder
A remainder will be contingent if it is either:
a) Subject to a condition precedent, or
b) Created in favor of an unascertained or unborn person.
Contingent Remainder Subject to Condition Precedent
remainder’s taking is contingent on the occurrence of some event or condition.
-Once the event or condition occurs, the interest automatically becomes an indefeasibly vested remainder (to A for life, then to B and his heirs when B gets married…If B is unmarried at the time of the conveyance, A has a life estate, B has a contingent remainder (because marriage is a condition precedent), and grantor has a reversion in case B is not married when A dies; If B gets married he has an indefeasibly vested remainder).
Contingent Remainder Subject to unborn or unascertained persons
A remainder is contingent if it is created in favor of unborn or unascertained persons (to A for life, then to B’s heirs…If B has no children at the time of the conveyance, remainder is contingent because heirs of B cannot be ascertained until B dies).
Rule of Destructibility
At common law, a contingent remainder is destroyed if it remains contingent (the condition not satisfied) when the preceding estate ends
(O grants to A for life, then to B once he goes to law school; A dies and B has not gone to law school…At common law, B gets nothing; at modern law, a reversion to grantor or grantor’s heirs until grantee satisfies the condition).
Merger (Shelly’s Rule)
Arises when a conveyance attempts to give a life estate to grantee with remainder to grantee’s heirs.
At common law, the two estates merge (“to A for life, then to A’s heirs”…and A is alive)
Common Law- remainder merges and A has a fee simple absolute.
Modern rule- A has a life estate and his heirs have contingent remainders; O has a reversion because A could die without heirs.
Doctrine of Worthier Title
Arises when grantor creates a life estate in another but creates a future interest in grantor’s heirs.
(O grants “to A for life, then to O’s heirs”)
Under the doctrine, the contingent remainder in O’s heirs is void; A instead has a life estate and O has a reversion.
Shifting Executory Interest
Always follows a defeasible fee.
Cuts short someone other than the Grantor
(to A, so long as the property is used for storage. But if used for any other purpose, to B)
-A has a fee simple subject to an executory interest
-B has a shifting executory interest- If A stops using the property for storage, A’s interest is cut short (not the grantor’s).
Springing Executory Interest
Cuts short the interest of the Grantor or his heirs.
(To A, if and when he gets married)
A has an executory interest
Grantee has a fee simple subject to an executory interest; If A gets married, possession springs from Grantor to A.
Under what circumstances can an out-of-possession co-tenant collect rent from an in-possession co- tenant (who is in exclusive possession of the property)?
When:
* There is an agreement stating as such; OR
* The co-tenant seeking rent was wrongfully ousted.
When is a co-tenant entitled to reimbursement from other co-tenants for improvements made to the property?
ONLY IF there is a separate agreement stating as such.
BUT, if the property appreciated due to the improvements, only the improving co-tenant is entitled to the increase in value.
Tenancy for Years
-Lasts for a fixed period of time;
-Requires a definitive beginning and end date;
-If duration is longer than one year, lease must be in writing;
-Terminates automatically at the end of the fixed period (no notice is required);
-Also referred to as an “estate for years,” “term for years,” or “fixed term tenancy.”
Periodic Tenancy
A leasehold that is continuous for successive intervals (weeks or months) until either party gives notice of termination.
Creation-
-Express agreement- conveyed to tenant for agreed interval
-Implication- a lease that does not specify duration, but provides for rent to be paid at set intervals
Periodic Tenancy-Operation of Law- 2 situations:
1) Invalid lease- if tenant takes possession despite an invalid lease, periodic tenancy arises upon the landlord’s acceptance of payment (period of the tenancy is determined by the period the payment covers;
2) Holdover tenant- if landlord accepts rent from a holdover tenant, a periodic tenancy arises for the period the payment covers.
Periodic Tenancy Termination
occurs when the tenant gives proper notice, which requires:
1) Sufficient time- tenant must give notice one full period in advance; year to year tenancies require 6 months notice;
2) Effective Date- effective date of termination must be at the end of the period of the tenancy.
(Parties can agree to modify these requirements).
Tenancy at Will
A tenancy with no fixed duration, terminable by either party at any time without notice.
Creation- express agreement
-Without an express agreement, courts will treat the release as an implied periodic tenancy.
Tenancy at Will Termination
-By will- either party can terminate the lease at any time without notice, but a reasonable demand to vacate the premises is usually required.
-By operation of law- occurs upon any of the following:
1) Death of either party;
2) Waste by the tenant;
3) Assignment by the tenant;
4) Transfer of title by the landlord; or
5) Lease by the landlord to a third party.
Landlord’s Remedies for Tenant Breach
Tenant retains possession- landlord may:
a) File for notice of eviction; or
b) Continue the lease and sue for rent due.
Landlord’s Remedies for Tenant Breach
Tenant abandons premises- landlord may
a) Surrender- treat the abandonment as tenant’s surrender and accept it, releasing the tenant from the lease; or
b) Ignore (minority rule)- hold tenant liable for unpaid rent; or
c) Re-let (majority rule)- lease premises to new tenants and hold the breaching tenant liable for any losses.
No self-help
Security Deposit
No retaliatory eviction
What are the Landlord’s two options if a tenant holds over?
He may:
* Evict the tenant; OR
* Hold the tenant over (by holding the tenant over, an implied month-to-month tenancy is created).
What is the Warranty of Habitability?
It’s implied in EVERY residential lease, and requires the Landlord to provide a place to live that is habitable (reasonably suitable for human needs).
What can the Tenant do upon breach of Warranty of Habitability?
- Move out and terminate the lease;
- Withhold or reduce the rent;
- Repair the issue and deduct the cost from the rent; OR
- Remain on the premises and sue for damages.
When does Constructive Eviction occur?
When:
1. The landlord breached a duty to the tenant;
2. The landlord’s breach caused a loss of the substantial use and enjoyment of the premises;
3. The tenant gave the landlord notice of the condition;
4. The landlord failed to remedy it in a reasonable time after notice was given; AND
5. The tenant vacated the premises.
Does a Landlord have a duty to mitigate his damages?
At common law, a landlord DID NOT have a duty to mitigate.
BUT, now most states DO impose a duty to take reasonable steps to mitigate losses (i.e. attempting to lease to another tenant).
*Mitigation doesn’t need to be successful to recover damages, and a landlord is entitled to sue for the difference in rent between the new and original tenant.
Landlord is liable for injuries involving:
1) Common Areas- duty of reasonable care (stairways, hallways);
2) Latent Defects- duty to disclose he should reasonably know of;
3) Assumption of Repairs- negligence standard (negligent repairs LL chooses to undertake);
4) Public Use- liable for known defects if he knows the property is for public use and tenant is unlikely to repair (concert hall, convention center);
Seasonal or short-term lease of a furnished dwelling- LL is liable for defects that cause harm to tenant.
When does an Assignment occur, and who is liable to the Landlord for rent thereafter?
It occurs when the assignor transfers ALL of his remaining interest in a lease to a third-party (the assignee).
Assignee → liable to the landlord for rent and all other covenants that run with the land (privity of estate).
Assignor (Original Tenant) → also remains liable for rent (privity of contract).
When a lease has a Silent Consent Clause, what two approaches have been adopted by state courts to determine how consent is given?
Most States, allow the landlord to withhold consent for any reason (even if unreasonable).
Some States, require the landlord to have a reasonable basis for withholding consent.
For example: Inability to fulfill lease terms, financial irresponsibility, instability, etc.
