Real Property Flashcards
1
Q
WHAT IS A CONCURRENT ESTATE?
A
Ownership in land by 2 or more people
2
Q
WHAT ARE THE 3 FORMS OF CONCURRENT ESTATES?
A
1) Joint Tenancy
2) Tenancy by the Entirety
3) Tenancy in Common
3
Q
WHAT ARE THE CHARACTERISTICS OF A JOINT TENANCY?
A
1) 2 or more own with RIGHT OF SURVIVORSHIP
2) Alienable inter vivos (transferable)
3) NOT devisable nor descendable
4
Q
CREATION OF A JOINT TENANCY
A
1) At same time
2) by same title
3) identical equal interests
4) Rights to possess the whole
5
Q
SEVERANCE OF A JOINT TENANCY: (SEVERANCE AND SALE)
A
1) Severance and Sale: JT may transfer interest during her life - transferee becomes tenant in common
6
Q
SEVERANCE AND PARTITION (3 TYPES)
A
1) Voluntary Agreement
2) Partition in kind - Judicial division of the property in all parties’ BEST INTEREST
3) Forced Sale - judicial action ordering sale and distribution of proceeds in BEST INTEREST
7
Q
TENANCY BY THE ENTIRETY
A
DEF: A marital estate akin to a joint tenancy with right of survivorship
8
Q
CREATION OF TENANCY BY THE ENTIRETY
A
PRESUMED when a conveyance to married partners occurs
9
Q
TENANCY BY THE ENTIRETY: CREDITORS
A
A creditor as to only one spouse cannot satisfy the debt on this property. Only CREDITOR OF BOTH PARTIES
10
Q
TENANCY BY THE ENTIRETY: CONVEYANCE
A
Neither spouse alone can unilaterally convey to a 3rd party
11
Q
TENANCY BY THE ENTIRETY: SEVERANCE
A
Death, divorce, mutual agreement, execution by joint creditor severs.
Divorce: becomes TENANCY IN COMMON
12
Q
TENANCY IN COMMON
A
Concurrent estate with NO right of survivorship. Multiple grantees PRESUMED to take as T’s in common
13
Q
PARTIES’ INTERESTS IN A T IN COMMON
A
1) Each Co-T owns an INDIVIDUAL part and right to POSSESS the WHOLE
2) Devisable, descendable and alienable
14
Q
RIGHTS AND DUTIES OF CO-T’S: POSSESSION
A
1) Each has right to possess the whole
2) No right to exclusive possession
3) Wrongful exclusion = OUSTER - legally actionable
15
Q
RIGHTS AND DUTIES OF CO-T’S: RENTS/PROFITS
A
1) Co-T in exclusive possession - Right to retain ALL profits
2) Profits from 3rd party - Fair share of income to EACH Co-T
16
Q
RIGHTS AND DUTIES OF CO-T’S: ADVERSE POSSESSION
A
CO-T in exclusive possession for statutory period DOES NOT acquire FULL TITLE.
17
Q
RIGHTS AND DUTIES OF CO-T’S: WASTE
A
Not permitted. There are 3 types
1) Voluntary - willful destruction
2) Permissive - neglect
3) Ameliorative - Unilateral changes that increase value
18
Q
LEASEHOLDS
A
An estate in land where T has a PRESENT POSSESSORY INTEREST & LL has a FUTURE INTEREST (reversion)
19
Q
WHAT ARE THE 4 TYPES OF LEASES?
A
1) Tenancy for years
2) Periodic tenancy
3) Tenancy at will
4) Tenancy at sufferance
20
Q
TENANCY FOR YEARS
A
Has a fixed, DETERMINED period of time
21
Q
TERMINATION: TENANCY FOR YEARS
A
Ends automatically at stated date
22
Q
TERMINATION UPON BREACH: TENANCY FOR YEARS
A
1) Failure to pay rent: LL may terminate
2) LL accepts T’s SURRENDER: If 1+ yr on the term remains, surrender must be WRITTEN
23
Q
PERIODIC TENANCY
A
A lease which has successive intervals and is CONTINUOUS until properly terminated
24
Q
PERIODIC TENANCY: CREATION
A
1) Can be created EXPRESSLY
2) IMPLIED
- Lease with no mention of DURATION
- Oral term of years violating SOF
- RESIDENTIAL leases where HOLD OVER occurs
25
PERIODIC TENANCY: TERMINATION
Written notice is usually required - usually length of the period itself
26
TENANCY AT WILL
Has no fixed period and is terminable at will of EITHER PARTY
27
TENANCY AT WILL: CREATION
Generally must be created by EXPRESS AGREEMENT
28
TENANCY AT WILL: TERMINATION
Most states: Notice and reasonable time to vacate
29
TENANCY AT SUFFERANCE
Created when a tenant WRONGFULLY holds over past expiration of lease. LL can RECOVER RENT
30
TENANCY AT SUFFERANCE: TERMINATION
Terminated upon EVICTION OR LL holds T to NEW TENANCY.
NO NOTICE REQ'D
31
THE HOLD OVER DOCTRINE
1) Eviction allowed
2) Or bind T to new PERIODIC TENANCY
- length depends on how frequently rent was previously paid
32
HOLD OVER: COMMERCIAL TENANTS
May be held to NEW period tenancy IF original lease was for 1+ years
33
TENANT'S DUTIES
1) Make repairs (some)
2) Pay RENT
34
T'S DUTY TO REPAIR (SILENT LEASE)
Maintain the premises:
1) routine repairs NOT ordinary wear and tear
35
T'S DUTY TO NOT COMMIT WASTE
1) Voluntary - over conduct causing damage
2) Permissive - failing to take reasonable steps to protect premises
3) Ameliorative - unilateral alterations increasing value
36
T'S DUTY TO REPAIR - EXPRESS COVENANT IN LEASE
Residential: LL remains obligated under nonwaivable IMPLIED WARRANTY OF HABITABILITY
Nonresidential: Covenant is enforceable and LL can get damages for breach
TYPICALLY: exclude ordinary wear and tear
37
T'S DUTY TO PAY RENT: EVICTION
If T fails to pay rent while in possession - LL can EVICT through UNLAWFUL DETAINER
38
T'S DUTY TO PAY RENT: SELF-HELP
LL may NOT engage in this by changing locks, forcible removal, etc.
39
T'S BREACH WHEN OUT OF POSSESSION (SIR)
(S)urrender - LL can treat it as abandoning and end lease
(I)gnore abandonment and hold T responsible for RENT (minority view)
(R)e-let and hold original T responsible for DEFICIENCY IN RENT
40
LL'S DUTY TO DELIVERY POSSESSION
Majority Rule: Duty to put tenant in ACTUAL physical possession of the property
41
IMPLIED COVENANT OF QE
VERY IMPORTANT - applies to all residential & commercial leases
Def: provides tenants with right to quiet use and enjoyment of the premises without LL interference or from paramount title holder
42
BREACH BY WRONGFUL EVICTION: ACTUAL EVICTION
When LL or paramount title holder OR holdover T excludes T from ENTIRE premises
Terminated obligation to pay rent
43
BREACH BY WRONGFUL EVICTION: PARTIAL EVICTION
T is physically excluded from only part of premises. Partial eviction by LL relieves T of obligation to pay rent for ENTIRE premises
44
BREACH BY CONSTRUCTIVE EVICTION (SING)
DEF: Occurs when LL breaches duty and renders premises UNSUITABLE
(S)ubstantial (I)nterference:
(N)
(G)oodbye
45
LL LIABILITY FOR ACTS OF OTHER T'S
General Rule: Not liable
2 EXCEPTIONS:
1) LL has duty to abate nuisance on sit
2) LL must control COMMON AREAS
46
IMPLIED WARRANTY OF HABITABILITY
Def: must be fit for BASIC HUMAN HABITATION
Applies to RESIDENTIAL LEASES and is NONWAIVABLE
47
T'S RIGHTS WHEN WARRANTY OF HABITABILITY IS BREACHED
Acronym: M R 3
(M)ove out and terminate
(R)eapir and deduct cost from rent
(R)educe rent or withhold all rent until court makes value judgment
(R)emain in possession, pay full rent & SEEK $$ DAMAGES
48
ASSIGNMENT OF LEASE
T's generally can freely transfer their whole interest in the remainder of the lease by ASSIGNMENT
49
ASSIGNMENT: WHO HAS PRIVITY OF ESTATE?
The assignee and the LL are in P of E and each is liable to each other on all covenants that RUN WITH THE LAND
50
ASSIGNMENT: WHO HAS PRIVITY OF CONTRACT
Between LL and T ONLY
Def: Original T remains liable on their lease contract with LL
51
COVENANTS RUNNING WITH THE LAND
Def: runs with the land if the original parties to the lease intend and if the covenants TOUCH AND CONCERN the land (benefit the LL and burden the T or vice versa)
52
RENT COVENANTS
Covenants to pay rent run with the land: ASSIGNEE owes rent directly to LL
53
SUBLEASE
A transfer of part of the remaining lease by the original T to the sublessee
54
SUBLEASE: RELATIONSHIPS
LL and Sublessee are NEITHER in P of E or P of K
INSTEAD: T2 and T1 are responsible to each other and T2 is not PERSONALLY liable to LL for rent
55
SUBLESSEE RIGHTS
1) NO right to enforce any covenants in MAIN LEASE except warranty of habitability
56
ASSIGNMENTS BY LL
LL can assign rents and reversionary interest they own without T's consent.
57
LIABILITY OF LL'S ASSIGNEE TO T'S
Covenants that run with the land are the liability of the assignee and ALSO original LL
58
LL'S TORT LIABILITY (CLAPS)
(C)ommon Areas: reasonable care
(L)atent Defects: warn of hidden defects unable to be discovered
(A)ssumption of repairs: once undertaken, complete w/in reasonable time
(P)ublic Use Rule: liable for any defects on premises that cause injury when defect is significant
(S)hort-term lease of furnished dwelling
59
EASEMENTS
A grant of a nonpossessory property interest that entitles the holder to a form of use or enjoyment of another's land
PRESUMED PERPETUAL unless expressly limited
60
AFFIRMATIVE EASEMENTS
The right to go onto and do something on the land - only created EXPRESSLY
61
NEGATIVE EASEMENTS (LASS)
Entitles holder to prevent the landowner from doing something otherwise permissible:
(L)ight
(A)ir
(S)upport
(S)tream of water from artificial flow
62
EASEMENT APPURTENANT
It benefits the holder in physical use or enjoyment of his own land. 2 PARCELS OF LAND INVOLVED.
Ex. A grants B right of away across A's lot to more easily reach B's parcel
63
EASEMENT APPURTENANT: DOMINANT TENEMENT
Parcel that DERIVES the benefit
64
EASEMENT APPURTENANT: SERVIENT TENEMENT
Parcel that bears the burden
65
EASEMENT IN GROSS
When it confers on the holder only some PECUNIARY or PERSONAL benefit unrelated to use or enjoyment of the land.
SERVIENT LAND is burdened
EX. Right of utility company to lay power lines on another's lot
66
EASEMENT APPURTENANT: TRANSFER
Passes AUTOMATICALLY with transfer of dominant tenement
67
EASEMENT IN GROSS: TRANSFER
NOT transferable unless COMMERCIAL purpose
68
4 WAYS TO CREATE EASEMENTS (PING)
(P)rescription
(I)mplication
(N)ecessity
(G)rant
69
EASEMENT BY GRANT
Must be in WRITING and signed by holder of SERVIENT tenement unless brief enough to NOT be subject to SOF
70
EASEMENT BY IMPLICATION - FROM PREEXISTING USE
1) Previous use on the servient part was APPARENT and CONTINUOUS and
2) Parties EXPECT use would SURVIVE division because it is REASONABLY NECESSARY to use and enjoyment of DOMINANT TENEMENT
71
EASEMENT BY NECESSITY
IMPLIED whenever landowner conveys a portion of land with NO WAY OUT except over part of grantor's land
72
EASEMENT BY PRESCRIPTION (COAH) - Adverse Possession
(C)ontinuous and uninterrupted use for statutory period
(O)pen and notorious use
(A)ctual use
(H)ostile use (without servient's consent)
73
EASEMENT TERMINATION (END CRAMP)
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
74
EASEMENT TERMINATION: ESTOPPEL
Termination of easement needs to be in writing. BUT, if servient owner MATERIALLY changes position in REASONABLE RELIANCE of easement holder's assurance of discontinued use - terminates through estoppel
75
EASEMENT TERMINATION: NECESSITY
Easement ends when necessity ends unless expressed otherwise
76
EASEMENT TERMINATION: DESTRUCTION
of the SERVIENT land ends it
77
EASEMENT TERMINATION: CONDEMNATION
of SERVIENT estate by eminent domain terminates it
78
EASEMENT TERMINATION: RELEASE
Release given by HOLDER to SERVIENT landowner
79
EASEMENT TERMINATION: ABANDONMENT
Holder shows by PHYSICAL ACTION an intent to NEVER use it again
80
EASEMENT TERMINATION: MERGER
When title to easement and to servient land is vested in the HOLDER - (acquiring ownership)
81
EASEMENT TERMINATION: PRESCRIPTION
interference by ADVERSE POSSESSION
82
LICENSE
Def: Merely a privilege to enter another's land for some delineated purpose. It is FREELY REVOCABLE
83
LICENSE CREATION
Can simply be ORAL
84
LICENSE: REVOCATION
FREELY REVOCABLE unless estoppel applies
85
RESTRICTIVE COVENANTS
Covenant: promise to do or not do something
86
NEGATIVE COVENANTS (MOST ARE)
Refrain from doing something on the land
87
AFFIRMATIVE COVENANTS
Promise to do something related to the land
88
COVENANT VS. EQUITABLE SERVITUDE
Distinguish by the REMEDY SOUGHT
1) Damages: Covenant
2) Injunction: Equitable servitude
89
RUNNING WITH THE LAND - QUESTION
We ask when can the covenant be capable of BINDING SUCCESSORS?
90
4 REQUIREMENTS FOR BURDEN TO RUN (WITHN)
1) (W)riting - original promise
2) (I)ntent - for covenant to run
3) (T)ouch and concern
4) (H)orizontal AND vertical privity
5) (N)otice - successor has notice when they take subject to the covenant
91
REQ'S FOR BURDEN TO RUN: TOUCH AND CONCERN
1)Restrictive Covenants: restrict burdened land owner in USE of the parcel
2) Affirmative Covenants: Require servient holder to do something on the land
92
REQ'S FOR BURDEN TO RUN: HORIZONTAL PRIVITY
There was a nexus between the original promising parties when the promise was made (grantor-grantee, LL-T, etc.)
93
REQ'S FOR BURDEN TO RUN: VERTICAL PRIVITY
Nexus between the successor in interest and the original covenanting.
A contact, devise, or descent required
94
EQUITABLE SERVITUDE
Promise equity will enforce against the successors of the burdened land
95
CREATION OF EQUITABLE SERVITUDE (WITNES)
Writing
Intent
Touch and Concern
Notice
Equitable Servitude
96
EQUITABLE SERVITUDE: ENFORCEMENT AGAINST ASSIGNEES
Regardless of whether the covenant runs with the land, it can be enforced against all assignees who have notice of it.
97
EQUITABLE SERVITUDE: IMPLIED WHEN NO WRITING
Can be enforced as reciprocal negative servitudes when:
1) There is a COMMON SCHEME FOR DEVELOPMENT and
2) the Grantee had actual, record or inquiry notice of the covenant
98
WHAT DOES THE LAND SALE K DO?
Conveys equitable title
99
2 STEPS FOR A LAND SALE CONVEYANCE
1) The K
2) Closing: deed passes legal title to the buyer
100
SOF REQUIREMENTS: LAND SALE K'S
1) Must be in writing
2) Signed by the party against whom enforcement is sought
3) ID parties
4) Describe property
5) State the price
101
LAND SALE K: PART PERFORMANCE EXCEPTION TO THE SOF
If part performance has occurred, the buyer can enforce an ORAL K by SPECIFIC PERFORMANCE IF:
1) the K is certain and clear AND
2) ACTS prove EXISTENCE of the K (need 2/3 following things)
- Possession
- payment
- buyer's substantial performance
102
DOCTRINE OF EQUITABLE CONVERSION
Once the K is signed, the buyer is regarded as the OWNER of the REAL PROPERTY and bears the RISK OF LOSS regardless of FAULT unless stated otherwise.
103
WHAT ARE THE 2 PROMISES IN EVERY LAND SALE K?
1) Marketable title
2) No false statements of material fact
104
PROMISE TO CONVEY MARKETABLE TITLE
DEF: seller's implied promise to provide reasonably feee from doubt/threat of litigation at closing
105
MARKETABLE TITLE DEFECTS: ADVERSE POSSESSION
Adverse possession of any part of the land renders title unmarketable
106
MARKETABLE TITLE DEFECTS: ENCUMBRANCES
Mortgages, liens, easements, restrictive covenants render title unmarketable UNLESS WAIVED by the buyer
107
MARKETABLE TITLE DEFECTS: ZONING VIOLATIONS
Existing violations of zoning ordinances renders title unmarketable
108
SELLER: NO FALSE STATEMENTS OF MATERIAL FACT
This is an implied promise and the seller will be liable for failing to disclose LATENT DEFECTS
109
SELLER'S DISCLAIMER OF LIABILITY
Generally NOT acceptable EXCEPT for:
1) specific types of defects (ex. roof)
110
THE CLOSING: DEEDS
The deed must be lawfully executed AND delivered. It is required to be:
1) in writing signed by the Grantor
2) an UNAMBIGUOUS land description,
3) ID the parties
4) words of INTENT
111
DEED DELIVERY: REQUIREMENTS (TEST)
Grantor must physically or manually deliver the deed to the grantee - NOT LITERALLY
TEST: there must be a PRESENT INTENT by the grantor to give away LEGAL CONTROL
112
DEED DELIVERY: EXPRESS REJECTION BY GRANTEE
Acceptance is presumed but if the grantee EXPRESSLY REJECTS - legal title does not pass
113
DEED DELIVERY WITH ORAL CONDITIONS
If the deed is absolute on its face with oral conditions - they are NOT INCLUDED
114
DEED DELIVERY: TO A 3RD PARTY
The Grantor MAY:
1) deliver the deed to a third party
2) with instruction to deliver to grantee
3) once certain conditions are met
115
COVENANTS FOR TITLE: 3 TYPES OF DEEDS
1) Quitclaim deed
2) General Warranty deed
3) Special warranty deed
116
QUITCLAIM DEED
Contains NO covenants of title - "promising no promises"
117
GENERAL WARRANTY DEED: DEFINITION
Warrants against all defects in title - INCLUDING by the grantor's PREDECESSORS
118
GENERAL WARRANTY DEED: PRESENT COVENANT - SEISIN
Covenant that the GRANTOR OWNS the land
119
GENERAL WARRANTY DEED: PRESENT COVENANT - RIGHT TO CONVEY
Covenant that Grantor can TRANSFER legal title
120
GENERAL WARRANTY DEED: PRESENT COVENANT - AGAINST ENCUMBRANCES
Promise that there are no servitudes, liens
121
GENERAL WARRANTY DEED: FUTURE COVENANTS - DEFINITION
Can ONLY be breached when the grantee is in POSSESSION
122
GENERAL WARRANTY DEED: FUTURE COVENANTS - QUIET ENJOYMENT
No 3rd party lawful claims
123
GENERAL WARRANTY DEED: FUTURE COVENANTS - WARRANTY
GRANTOR will defend against claims of title by 3rd parties
124
GENERAL WARRANTY DEED: FUTURE COVENANTS - FURTHER ASSURANCES
GRANTOR promises to PERFECT TITLE if it is imperfect
125
SPECIAL WARRANTY DEED: DEFINITION
Warrants against all defects in title ONLY concerning the GRANTOR
126
RECORDING SYSTEM: RACE STATUTE
Whoever wins the RACE TO RECORD wins
Language: "Unless... first recorded
127
BONA FIDE PURCHASES: DEFINITION
1) Purchaser
2) for VALUE
3) w/o notice of prior conveyance
128
ACTUAL NOTICE
B learns of A's possession (literal knowledge)
129
INQUIRY NOTICE
B is charged with what INSPECTION would have revealed
130
RECORD NOTICE
B is on notice of deeds properly recorded in the chain of title
131
NOTICE STATUTES
A later purchases W/O NOTICE prevails over the grantee who didn't record - LAST BFP WINS
Language: "Subsequent purchases for value w/o notice.. unless recorded."
132
RACE/NOTICE STATUTES
A subsequent buyer must have had NO NOTICE of the prior grant & MUST WIN the race to RECORD
Language: "w/o notice... whose conveyance is first recorded."
133
CHAIN OF TITLE: DEFINITION
Sequence of recorded documents capable of giving NOTICE to later takers. It is usually established through a title search
134
CHAIN OF TITLE PROBLEMS: SHELTER RULE
Anyone who takes from a BFP will prevail against any interest the BFP would've prevailed against
Applies in NOTICE OR R/N jurisdictions
135
CHAIN OF TITLE PROBLEMS: WILD DEED (DEF & RULE)
Def: A recorded deed is NOT connected to the chain of title
RULE: if a deed entered on the records has a GRANTOR MISSING, the deed is wild and cannot give NOTICE
136
CHAIN OF TITLE: ESTOPPEL BY DEED
Occurs when:
1) Grantor conveys title he DOES NOT OWN
2) Grantor LATER ACQUIRES title
3) Title will AUTOMATICALLY VEST in GRANTEE
4) Grantor is ESTOPPED from denying validity of the previous conveyance
137
MORTGAGES: THE PARTIES
1) Mortgagor: debtor - person who owes money
2) Mortgagee - creditor (lender)
138
PURCHASE MONEY MORTGAGE
Def: Lender has a security interest in the real estate (collateral) that the buyer purchased with the LOAN given to them.
139
NON-PURCHASE MONEY MORTGAGE
A grant of collateral in land to finance something else
140
EQUITABLE MORTGAGE
A landowner who needs money can "sell" land by giving an absolute deed to the buyer but the sale will be deemed an equitable mortgage requiring creditor foreclosure if:
1) grantor promises to repay an existing debt or there is one
2) grantee promises to return land upon payment
3) grantee advanced much lower amount to grantor
4) level of grantor's financial stress
5) prior negotiations
141
MORTGAGE CREATION
1) Debt (note) and a lien in land to secure the debt
2) IN WRITING
142
MORTGAGE: TRANSFER BY CREDITOR
A mortgagee can transfer the interest by:
1) INDORSING the note and DELIVERING to transferee OR
2) execute a separate document of ASSIGNMENT
143
MORTGAGES: EFFECTS OF RECORDING ACTS
If recorded, a mortgage STICKS WITH THE LAND BUT, the grantee is NOT PERSONALLY LIABLE.
However, the creditor CAN still FORECLOSE
144
MORTGAGE: PERSONAL LIABILITY (ASSUMPTION)
1 IF buyer "ASSUMES THE MORTGAGE" - Buyer AND seller are personally liable
145
MORTGAGE: PERSONAL LIABILITY (SUBJECT TO)
If the buyer takes SUBJECT TO the mortgage - ONLY the seller is LIABLE but foreclosure is still allowed
146
MORTGAGE DEFAULT: SALE PROCEEDS & DEFICIENCY
1) mortgagee brings a deficiency action
2) Junior interests are EXTINGUISHED
3) Junior lienholders and debtor REMAIN
4) SENIOR interests - UNAFFECTED
147
ACCELERATION CLAUSE
A mortgage which contains an acceleration clause gives the mortgagee the right to declare the entire mortgage due in the event of default. Once acceleration occurs, to redeem and prevent foreclosure, mortgagee must pay the full balance of the debt.
147
148
ADVERSE POSSESSION DEFINITION
Possession for a statutory period of time can turn into title of real property
149
ELEMENTS OF ADVERSE POSSESSION (COAH)
For possession to ripen into title, it must be:
(C)ontinuous
(O)pen and notorious
(A)ctual and exclusive
(H)ostile
150
ELEMENTS OF ADVERSE POSSESSION: CONTINUOUS
Intermittent periods of occupancy are not permitted BUT you do not need to have continuous possession by the same person. An adverse possessor can TACK her own possession onto other periods of AP.
151
ELEMENTS OF ADVERSE POSSESSION: OPEN AND NOTORIOUS
occupation must be SUFFICIENTLY APPARENT and put the real owner on NOTICE of the trespass
152
ELEMENTS OF ADVERSE POSSESSION: ACTUAL AND EXCLUSIVE
Actual possession of some part of the land, not all is needed. Exclusive means that the possessor is not sharing with the true owner or public but could be a friend acting together
153
ELEMENTS OF ADVERSE POSSESSION: HOSTILE
Requirement satisfied if the possessor enters WITHOUT OWNER'S PERMISSION
154
ADVERSE POSSESSION: TACKING
Adverse possessors may tack onto their own time if their is PRIVITY between them and another predecessor. Privity is acquired by some non-hostile nexus (deed, will, contract) between the AP and predecessor
155
ADVERSE POSSESSION: FUTURE INTERESTS
SOL does not run against a holder of a future interest until the interest becomes POSSESSORY (right is asserted by the Grantor).
156
WHAT ARE THE 3 PRESENT POSSESSORY ESTATES
1) Fee simple absolute
2) Defeasible fee (3 types)
3) Life Estate
157
WHAT 3 THINGS DO WE NEED TO KNOW ABOUT EACH PRESENT POSSESSORY ESTATE?
1) What language creates it?
2) Is it devisable, descendible and/or alienable?
3) Is the estate capable of any FUTURE INTERESTS?
158
FEE SIMPLE ABSOLUTE
1) Def: Absolute ownership of indefinite/potentially indefinite duration
2) Language: "To A" or "To A and his heir"
3) Freely transferable, devisable, descendable
159
DEFEASIBLE FEES
There are 3 types. Defeasible simply means CAPABLE OF FORFEITURE. Think of defeasible estates as fee simple estates WITH CONDITIONS ATTACHED.
160
FEE SIMPLE DETERMINABLE (FSDPOR)
1) Terminates upon the happening of a stated event and AUTOMATICALLY REVERTS TO GRANTOR (POR)
2) Transferable, devisable and descendible
161
FSD: CREATION
Language: DURATIONAL
"To A for SO LONG AS"
"To A WHILE"
"To A DURING"
162
FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT (FSSCS)
An estate in which the grantor RESERVES THE RIGHT TO TERMINATE upon the happening of a stated event but unlike FSD is not AUTOMATIC.
163
FSSCS: LANGUAGE AND RIGHT OF RE-ENTRY
"Upon condition that" or "provided that" or "but if"
REQUIRED: An EXPLICIT statement by the grantor of THE RIGHT TO RE-ENTER
164
FSSCS: RIGHTS
1) NOT transferable inter vivos
2) FREELY devisable and/or descendible
165
FEE SIMPLE SUBJECT TO EXECUTORY INTEREST
It is essentially an FSD but has AUTOMATIC FORFEITURE to a third party when the condition occurs
Ex. To A but if X happens, then to B" (not grantor")
166
ABSOLUTE RESTRAINS ON ALIENATION: FEE SIMPLE
Disfavored and are VOID
167
LIFE ESTATE: DEFINITION
One measured by the life or lives of one or more people (CANNOT be in YEARS)
168
LIFE ESTATE PUR AUTRIE VIE (LIFE OF ANOTHER)
Measured by a life other than the grantee's. It ALSO occurs when the LIFE TENANT CONVEYS to another.
169
LIFE ESTATE: ACCOMPANYING FUTURE INTEREST
If the future interest is held by GRANTOR: REVERSION
If FI is held by a 3rd party - REMAINDER
170
LIFE TENANT: EXPLOITATION OF NATURAL RESOURCES
Limited to:
1) Necessity for repair or maintenance
2) Land is suitable ONLY for such USE
3) OR expressly or impliedly PERMITTED by GRANTOR
171
FUTURE INTEREST: DEFINITION
Gives the holder the right or possibility of FUTURE possession. It is still a PRESENT interest though that is legally protectable
172
FUTURE INTERESTS: HELD BY GRANTOR/TRANSFEROR (3)
1) Possibility of reverter
2) Right of entry
3) Reversion
173
FUTURE INTEREST: HELD BY SOMEONE ELSE (3)
1) Contingent remainder
2) Vested Remainder (3)
3) Executory interest (2)
174
FUTURE INTEREST (GRANTOR/TRANSFEROR): POSSIBILITY OF REVERTER
Accompanies a FSD and AUTOMATICALLY happens upon occurrence of the stated CONDITION
175
FUTURE INTEREST GRANTOR/TRANSFEROR): RIGHT OF ENTRY
Accompanies an FSSCS and allows the grantor to EXERCISE HIS RIGHT OF ENTRY at his DISCRETION
176
FUTURE INTEREST GRANTOR/TRANSFEROR): REVERSION
Is the estate lef tot the grantor who conveys less than what they own.
Ex. O conveys to "A for life" - Well, A can die before O who has the reversion if A dies first
TRANSFERABLE, DEVISABLE, DESCENDIBLE
177
FUTURE INTEREST (TRANSFEREE): REMAINDER
Future interest in a THIRD PERSON that can become POSSESSORY on the natural expiration of the previous estate. It must be EXPRESSLY CREATED
178
FUTURE INTEREST: CONTINGENT REMAINDER
Remainder is contingent IF:
1) it is created in UNBORN OR UNASCERTAINED persons OR
2) It is subject to a condition precedent OR BOTH
Ex. To A for life and then to B's first child (who isn't alive) - B's child has a contingent remainder
179
FUTURE INTERESTS: SUBJECT TO CONDITION PRECEDENT
CP if it must be satisfied BEFORE the remainderman has right of possession.
180
FUTURE INTEREST: VESTED REMAINDERS (DEFINITION)
One created in an existing and ascertained person and NOT subject to a condition precedent
181
FUTURE INTEREST: INDEFEASIBLY VESTED REMAINDER
One that is not subject to divestment or diminution. The holder is CERTAIN TO ACQUIRE THE ESTATE IN THE FUTURE WITH NO CONDITIONS
EX. To A for life, remainder to B. (both alive)
182
FUTURE INTEREST: VESTED REMAINDER SUBJECT TO TOTAL DIVESTMENT
This remainder is subject to a CONDITION SUBSEQUENT which could cut short his right to possession.
Ex. To A for life, then to B and his heirs; but if B dies unmarried, to C and his heirs.
183
FUTURE INTEREST: VESTED REMAINDER SUBJECT TO OPEN
Created in a CLASS OF PERSONS that is certain to become possessory but subject to DIMINUTION.
(Each members' share could become smaller due to additional takers)
184
WHEN CLASS CLOSES - RULE OF CONVENIENCE
It closes when no other members can join. In the absence of contrary intent, a class closes when:
1) some member of the class can call for distribution of their share.
185
FUTURE INTEREST: EXECUTORY INTEREST
FI's in 3rd parties that divest a transferee's preceeding estate or FOLLOW A GAP or CUT SHORT a grantor's estate.
186
SHIFTING EXECUTORY INTEREST
Always follows a defeasible fee and cuts short someone other than GRANTOR
Ex. To A, but if A returns from Canada, to B and his heirs
187
SPRINGING EXECUTORY INTEREST
Cuts short the interest of the GRANTOR
