Real Property

Question 1

Lawful execution of a deed

Answer 1

Lawful Execution requires:
(1) writing signed by grantor
(2) unambiguous description of the land
(3) Identify Parties
(4) Words of Intent (“grant”)
(5) Delivery and acceptance by grantee

• To pass title must be LEAD: “Lawfully executed and delivered.”
• Deliver & Oral Conditions - A delivery made unequivocally under an oral condition is still valid however the oral condition drops out,

Question 2

deed delivery requirement

Answer 2

• A deed is not effective to transfer an interest in realty unless it has been delivered, and there must be acceptance by the grantee to complete the conveyance.
• Delivery Requirement: Requires manifestation of present intent to be bound (part with legal control–legal standard). No literal delivery required.
• Deliver & Oral Conditions - A delivery made unequivocally under an oral condition is still valid however the oral condition drops out,

Question 3

Covenants for title

Answer 3

There are three types of deeds used to convey property interests other than leaseholds:
* the general warranty deed
* the special warranty deed
* the quitclaim deed.

Question 4

Quitclaim Deed

Answer 4

• Grantor isn’t even promising that he has title to convey. Worst deed. No covenants.

Question 5

The General Warranty - what are the 6 covenants?

Answer 5

• Warrants against all defects in title, including those attributable to grantor’s predecessors. Best deed. 6 major covenants:

Present Covenants – breach that occurs at delivery
* 1) Seisin: Grantors own land
* 2) Right to convey: Grantor can transfer land.
* 3) Against encumbrances: No servitudes/liens

Future Covenant – breached if grantee disturbed in possession (runs with land)
* 4) Quiet enjoyment: No 3rd party lawful claims
* 5) Warranty: Grantors will defend against reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of superior title.
* 6) Further assurances: Grantor will do whatever is needed to perfect grantee’s title if it later turns out to be imperfect.

Question 6

The Special Warranty Deed

Answer 6

• This deed contains the same covenants as the general warranty deed, but here the grantor makes those promises only on behalf of himself. (Grantor makes no representations on behalf of his predecessors in interest.)
• seisin (grantor owns)
• right to convey
• against encumbrances
• quiet enjoyment
• warrany (defense and compensation against claims)
• further assurances

Question 7

first-in-time first-in-right (common law recording)

Answer 7

If you see a recording act issue tested, you should start your answer by discussing the common law default rule of first-in-time first-in-right.

Question 8

Common Law Recording System

Answer 8

• At common law, when a grantor conveyed the same land to multiple grantees, priority went to the earlier grantee (first in time first in right).

Question 9

race statute

Answer 9

• Buyer wins if they record first before other (3rd party title holder).
• Notice is irrelevant.
• No BFP requirement
• Statutory Language: A conveyance of an interest in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded
• These are uncommon today.

Question 10

Notice Statute

Answer 10

• Buyer wins if they are the last BFP to PURCHASE THE LAND. Even if the other party records after.
• Recording always gives notice, so does possession.
• Statutory Language: A conveyance of an interest in land shall not be valid against a subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.
• The Last BFP to purchase doesn’t even need to record.

Question 11

Race-Notice statute

Answer 11

• Buyer wins if they are a BFP AND they properly record BEFORE A. (They are the first BFP to record).
• Statutory Language: A conveyance of an interest in land shall not be valid against a subsequent purchaser for value, without notice thereof, unless the conveyance is first recorded.

Question 12

Bona Fide Purchasers (BFP)

Answer 12

• Purchaser or a mortgage lender for value (even low value, but not by will, or gift transfer) without notice of prior conveyance. (Or subsequent conveyance[s] if the issue is who recorded first).
• You can be a BFP even if you were the first to hold an interest granted by a double dealer who later sold the same property that you first purchased.
• Recording acts do not protect a subsequent purchaser against interest that arises by operation of law (e.g. implied easements, title by adverse possession) because there is no instrument.
• ADVERSE POSSESSION DEFEATS BFP.

Question 13

Merger

Answer 13

Once the closing occurs, the contract “merges” with the deed and the buyer can only sue on the deed at that point.

Question 14

3 Forms of Notice

Answer 14

• Actual notice – when a party has actual knowledge of prior conveyance prior to closing.
• Inquiry notice (constructive) – reasonable inspection would’ve revealed evidence of prior conveyance
• Record notice (constructive) – when a deed is properly recorded in chain of title it creates constructive notice.

Question 15

shelter rule (BFP)

Answer 15

• Anyone who takes (buys, inherits, etc.) from a BFP will prevail against any interest the BFP would’ve prevailed against.

Question 16

Wild Deed

Answer 16

• A recorded deed that isn’t connected to chain of title (incapable of giving constructive notice.)
• Recording a wild deed is like not recording at all

Question 17

estoppel by deed

Answer 17

• Grantor purports to convey to grantee property they do not own but the grantor later acquires title to the property.
• Title automatically vests in grantee.
• But look out for wild deed issue.

Question 18

Purchase-Money
mortgage

Answer 18

lender’s security interest (lien) is in the very realty they are helping to finance.

Question 19

Elements of Mortgage Creation

Answer 19

• 1) Debt
• 2) Lien on debtor’s realty to secure the debt.
• 3) In writing (Statute of Frauds)

Question 20

Transfer by mortgagor (assumption and subject too)

Answer 20

The grantee either
* 1) Assumes the mortgage (grantee agrees to be primarily personally liable on the mortgage note in addition to the grantor still being secondarily personally liable as a surety), or
* 2) Takes the property subject to the mortgage (the mortgagee’s only recourse is foreclosure or suit against grantor – they cannot maintain a suit against the grantee, who assumes no personal liability).

Question 21

The order of priority for allocating mortgage foreclosure sale proceeds

Answer 21

1) Expenses of the sale, including attorneys’ fees, and court costs;
2) Pay debt to** foreclosing party **
3) Pay debt of** junior lienors **
4) surplus to mortgagor
* However, if the landowner enters into a modification agreement with the senior mortgagee the junior mortgage will be given priority over the modification.
* If the creditor takes and sells the land and their interest is not fulfilled, they will proceed against the debtor in a deficiency action.
* Foreclosure does not affect any interest senior to the mortgage being foreclosed. The buyer at the sale takes subject to such senior interest.
* Necessary Parties in foreclosure. Junior lien holders + debtors. Proper Foreclosure extinguishes any junior liens on the property. However, the mortgagor will still be personally liable to the junior mortgagee.

Question 22

Equitable redemption

Answer 22

• Mortgagor can redeem reality by paying off the mortgage + accrued interest and costs if accelerated
• If not accelerated, just missed payments + accrued interest and costs
• Equitable redemption is universally recognized up to the date of foreclosure sale.

Question 23

Statutory Right of redemption

Answer 23

• Many states give the mortgagor a statutory right to redeem for some fixed period after the foreclosure sale has occurred (usually six months or one year).
• The amount to be paid is usually the foreclosure sale price, rather than the amount of the original debt.

Question 24

Easement

Answer 24

• An easement is a grant of a nonpossessory property interest entitling holder to use/enjoyment of another land.
• An easement is presumed to be of perpetual duration unless the grant specifically limits the interest.

Question 25

Easement Appurtenant (relevant/useful to)

Answer 25

• An easement is appurtenant when it benefits its holder, and he is in use/enjoyment of his own land.
• Dominant
• Servient

Question 26

Easement Appurtenant Transfer

Answer 26

• The appurtenant easement **passes automatically **with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance. The failure to record does not affect the validity of the easement.
• The purpose of most recording statutes is to provide notice to a burdened party.
• The burden of the easement appurtenant also **passes automatically **with the servient estate, unless the new owner is a bona fide purchaser without notice of the easement.

Question 27

Easement in Gross

Answer 27

• Holder has personal or commercial advantage unrelated to the use/enjoyment of their own land.
• Servient land burdened
• There is no dominant parcel as no benefit is acquired.

Question 28

Easement in Gross Transfer

Answer 28

• Personal Easement In Gross is Not Transferable. (swimming)
• Commercial Easement In Gross is Transferable. (powerlines)

Question 29

Creation Of Affirmative Easement (PING)

Answer 29

• Prescription (analagous to adverse possesion) C O A H
• Implication
• Necessity
• Grant

Question 30

Easement by necessity

Answer 30

Easement will be implied when a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land. The owner of the servient parcel has the right to locate the easement.

Question 31

Easement by Implication

Answer 31

Easement Implied from Preexisting Use (“quasi-easement”)
* Party owns two lots and sells one.
* The previous (prior to division) use on the servient part was apparent and continuous AND
* The parties expected that the use would survive division because it is reasonably necessary to the dominant tenement’s use and enjoyment

Easement Implied Without Any Existing Use
* Subdivision Plat
* Profit à Prendre

Question 32

Easement by grant

Answer 32

Grant
* Memorialized in writing signed by owner of servient property unless outside of the statutes of fraud.
* If permission is granted but not written, the using party only has a “license” (i.e., a revocable privilege) to use the land.

Question 33

Easement by Prescription

Answer 33

C O A H:

C: Continuous and uninterrupted use for the given statute’s period. Periodic acts that put the owner on notice of the claimed easement fulfill the requirement.
O: Open and notorious use (discoverable upon inspection)
A: Actual physical use
H: Hostile use (meaning, use without the servient owner’s consent)
* No exclusivity requirement
* Permission defeats the acquisition of an easement by prescription.
* Generally, prescriptive easements cannot be acquired in public land

Question 34

8 methods of Termination of an Easment

Answer 34

Estoppel–Occurs when the servient owner materially changes position in reliance OR the dominant easement owner lacks need for the easement. (construction in path of easement in reliance)

Necessity–Ends when the need that led to the easement ends unless the easement was expressed in writing.

Destruction–Destruction of the servient land, other than by the willful conduct of the servient owner.

Condemnation–Condemnation of the servient land by eminent domain. (compensation may be required)

Release–Release by holder to servient owner (must be in writing: statute of frauds)

Abandonment–Physically Abandoned. Must show by physical action (for example, building a structure that blocks access to easement on adjoining lot) an intent to never use the easement again.
* Nonuse alone is insufficient for abandonment.
* An easement may be abandoned if the holder manifests an intent never to use the easement again, evidenced by either physical acts or oral expressions of a desire to abandon accompanied by a long period of nonuse.

Merger–Easement and servient land held by the same person.

Prescription–Prescription by servient owner. When servient owner engages in continuous interferences with easement in a manner that is open notorious and hostile.
* Opposite of creating an easement by prescription.

• An oral expression of an intent to abandon an easement isn’t enough without written release of abandonment.

Question 35

5 Requirements to establish a Covenant

Answer 35

(1) Writing

(2) Intent

(3) Touch & Concern – when the promise pertains to the use of the land (not payment or personal activity not related to land itself).

(4) Horizontal & Vertical Privity (running with the land – analyze the burdened side first)
* Horizontal - At the time the original promisor entered into the covenant with the promisee, the two must have shared some interest in the land independent of the covenant. Ex. grantor-grantee. Horizontal privity is not needed for benefits to run.
* Vertical - non-hostile nexus, such as contract, devise, or descent. Only absent via adverse possession.

(5) Notice – successors to the burdened lot must have had notice. (actual, inquiry, or record notice).

Question 36

Negative v. Affirmative Covenant

Answer 36

Affirmative Covenant – Promise to do something (related to the land)
(Negative/Restrictive Covenant) –Promise to refrain from doing something (related to the land)
* remedy can be injunction or damages

Question 37

Equitable Servitude

Answer 37

• An equitable servitude is a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser
• The remedy is injunction
• same requirements as a covenant but without privity requirement

Question 38

4 Requirements for Equitable Servitude

Answer 38

(1) Writing – Generally promise must be in writing (except common scheme)
(2) Intent – a writing must demonstrate an intent to create a covenant that runs with the land.
(3) Touch & Concern – when the promise pertains to the use of the land (not payment).
(No Privity required in equity)
(4) Notice – successors to the burdened lot must have had notice. (Actual, inquiry, or record notice)

Question 39

The implied equitable servitude (Common Scheme Doctrine)
Two Elements

Answer 39

• Implied based on division of a property into lots.
• The two elements of the general or common scheme doctrine:
• When the sales began, the subdivider:
  (A) When the sales began, the subdivider had a general scheme of residential development which included the defendant’s lot (the scheme may be evidenced by: a recorded plat, a general pattern of restrictions, or oral representations to early buyers); and
  (B) The defendant lot-holder had notice of the promise contained in those prior deeds when it took.
• Court will imply an equitable servitude to a term of a promise that is not contained in a deed if it is contained in all of those predecessor deeds to predecessor lot holders or other lot holders whose lots were carved from the same property with the same general scheme in mind (reciprocal negative servitude).

Question 40

Termination of a Covenant

Answer 40

• (1) written release from the benefit holders,
• (2) merger of the benefited and burdened estates, or
• (3) condemnation of the burdened property.

Question 41

The four Elements of Adverse Possession

Answer 41

COAeH

(1) Continuous – Uninterrupted, not intermitted, but an adverse possessor can tack her own possession onto the periods of adverse possession of her predecessors.

(2) Open and Notorious – Apparent to put owner on notice.

(3) Actual and Exclusive –Physical occupation to exclusion of the owner
* Occupation of only a portion of property can create a claim on the whole property described in a deed through “constructive possession” if the occupier enters under color of title (meaning by invalid deed).
* Without color of title, as long as there is a reasonable proportion between the portion actually possessed and the whole of the unitary tract.
* Possession can be multiple people, in which case they would gain title as tenants in common.
* A minority of states require the adverse possessor to pay property taxes.

(4) Hostile – without the true owner’s consent.
* Permission defeats hostility.
* Possessors state of mind is irrelevant.

Question 42

5 Requirements of Land Sale Contract

Answer 42

(1) In writing
(2) signed by defendant
(3) identify parties
(4) describe property
(5) state consideration

Question 43

Doctrine Part Performance for Oral Land Sale Contract

Answer 43

Allows buyer to enforce oral contract by specific performance if (i) Contract is certain and clear and (ii) Acts prove existence of contract.
Satisfied by 2/3 of the following acts by buyer:
* possession
* paid purchase price or significant portion.
* making substantial improvements.

Question 44

Joint Tenancy requirements for creation and severance

Answer 44

Creation
* Must use magic words “with right of survivorship”
* Joint tenants must share 4 UNITIES in creation
o T- same TIME **
o T- same TITLE**
o I- Identical/Equal INTEREST (%)
o P- EQUAL Right to POSSESS whole.

Severance:
Transfer by one tenant severs the joint tenancy as to the transferee, because it violates the four unities, however, the other original tenants still have a joint tenancy between them.
Partition (Amicable or Judicial)
Mortgage(encumbrance/lien, not a transfer of title) – usually no severance (sometimes tested)
* majority of states use a lien theory of mortgages (no severance)
* minority of states use title theory of mortgages (severance)
* If co-tenant who took out the mortgage dies, the ownership goes to the other joint tenant free and clear of the mortgage.

Question 45

Doctrine of Equitable Conversion

Answer 45

Legal Title – Deed gives Buyer the right to possess.

Equitable Title (held during Escrow) – Buyer bears the risk of loss unless the contract says otherwise. Can buy insurance.

• Once contract is signed, seller or their estate must go through with sale.
• Once the parties have entered into a valid land sale contract, the rights of the parties are fixed. A deceased buyer’s interest passes to the taker of the buyer’s real property interests, who can compel specific performance and demand a conveyance of the land. In addition, under the traditional common law rule, the taker of the real property interest is entitled to exoneration out of the personal property estate.

Question 46

Tenancy in Common

Answer 46

• Two or more (concurrent) own without the right of survivorship.
• Co-tenant owns individual part (not necessarily equal) + right to possess whole.

Question 47

The tenancy for years

Answer 47

• Lease for a known, fixed period of time (any duration).
• Termination automatic at end date
• No notice needed to terminate.
• contract must be in writing if term is for more than 1 year (statue of frauds)

Question 48

The Periodic Tenancy requirement for formation and termination.

Answer 48

• Continues for successive intervals, automatically renews, until property terminated.

Formation
* Expressly (“from month to month”)
* Implication (no mention of duration or end date)
* A tenancy for years in oral form violating statute of fraud become a periodic tenancy based on intervals of rent tender.
* Landowner decides to holdover tenant after lease ends.

Termination
* requires notice, not automatic
* Common law: requires notice at least equal to length of period (unless parties have agreed otherwise)
o Month to month: 1 month notice.
o Week to Week: 1 week notice.
o Year to year: 6 months common law; 1 month under Restatement (bar examiner prefer restatement).

Question 49

The Tenancy at Will

Answer 49

• No fixed duration.
• Terminable at will of either party.
• Needs to be explicitly “at will” or it will be construed as periodic tenancy.

Question 50

The Tenancy at Sufferance

Answer 50

• Tenant wrongfully holds over past lease expiration.
• Landlord proceeds to recover rent.
• Terminates when landlord (i) moves to evict or (ii) holds tenant to new tenancy.

Question 51

The Holdover Doctrine

Answer 51

• The length of the new tenancy generally mirrors the way the rent was computed under the lease that has ended. The maximum tenancy that can be created by the election to hold the tenant to another term is a year-to-year tenancy. The various promises made by the landlord and the tenant in the original lease become part of the tenancy for the additional term.
• In commercial leases, the new tenancy will be year-to-year if the original lease term was for one year or more.

Question 52

Tenant’s two main Duties

Answer 52

• A tenant has two primary duties: (1) to repair, and (2) to pay rent.

Duty to repair
* If lease is silent:
o Maintain premises. In reasonably good repair (make routine repairs). Excludes ordinary wear and tear repairs.
o Waste Prohibited.

Duty to pay rent
* If the tenant breaches and remains on premise the landlord can:
o Move to Evict
 Landlord entitled to rent until tenant vacates
 No self-help remedy is allowed. (don’t change the locks!)
* Tenant wrongfully vacates with time left. Three options
o Surrender: end lease
o Ignore: Do nothing (hold T liable for rent) (not always available)
o Relet: Majority rule is that the Landlord must attempt to establish a new lease to mitigate damages.

Question 53

Landlord’s three main Duties

Answer 53

• Duty to deliver possession
• Implied covenant of quiet enjoyment
• Implied Warranty of habitability

Question 54

Implied covenant of quiet enjoyment

Answer 54

Tenant has right to quite use & enjoyment without interference from Landlord. (Residential & Commercial).

Triggered By:
* Wrongful eviction
* Constructive eviction (SING)
 Substantial Interference – Landlord causes a chronic/permanent problem with the premise
 Notice – Notify Landlord and they fail to remediate
 Get out – TENANT MUST VACATE

Question 55

Implied Warranty of habitability

Answer 55

• Exception to general rule that landlord is not liable to the tenant for damages caused by the landlord’s failure to maintain the premises.
• Premise must be fit for basic human habitation. Standard is governed by case law and local housing code
• Residential Property Only – not commercial

Tenants’ options if Landlord breaches:
* MAY Move (optional)
* Repair & Deduct
* Reduce or withhold rent (place in escrow).
* Remain and seek damages.

Question 56

anti-descrimination legislation in housing

Answer 56

• The Civil Rights Act bars racial or ethnic discrimination in the sale or rental of all property
• The Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (except in senior housing)
• Exemptions:
  (1) Owner-occupied buildings with 4 or fewer units.
  (2) Single-family homes of owner who owns no more than 3.

Question 57

Assignment of Leashold

Answer 57

• An assignment is a transfer of the entire remaining term of a lease.
• Assignee Tenant - in “privity of estate” with landlord (possessory interest) and each is liable to the other on all covenants in the lease that “run with the land.”
• Original Tenant – retains privity of contract with landlord (but not estate). remains liable for original lease obligation (including paying rent if assignee does not).
• Privity of Contracts extends to the original tenant and the last assignee. Anyone in between doesn’t count.
• Slight majority view: reservation of a right of reentry does not result in a sublease, but rather is still an assignment.

Question 58

Covenants that Run with the Land

Answer 58

• A covenant runs with the land if the original parties to the lease so intend and if the covenant ** “touches and concerns”** the land (that is, benefits the landlord and burdens the tenant (or vice versa) with respect to their interests in the property).

Question 59

Sublease of leasehold

Answer 59

• A sublease is a transfer of a portion of the remaining term of a lease.
• Sublessee has no privity with landlord.
• The original tenant is exclusively liable for any breach. The sublessee can address any breaches in contract with the sublessor not the landlord.
• A sublessee is the tenant of the original lessee
• Rights in a Sublease – A sublessee cannot enforce any covenants made by the landlord in the main lease, except a residential sublessee may be able to enforce the implied warranty of habitability against the landlord.
• Original lessee can sue or implead the sublessee.

Question 60

Landlord’s Tort Liability - 5 exceptions to common law rule

Answer 60

The** common law norm** is: Let the tenant beware (CAVEAT LESSEE). In tort, a landlord was under no duty to make the premises safe.

Five Exceptions:
C - Common areas
L – Latent defects (Landlord must warn (not fix) the lessee of hidden defects)
A – Landlord Assumption of Repairs (negligence standard): Landlord has no duty to repair but if he undertakes repairs then the landlord Assumes the duty to repairs (landlord is liable for negligence)
P - Public Use Rule – the landlord who leases a public use space (convention hall) is liable for any defects on site that proximately injure members of the public.
S – Short-Term Lease of a furnished dwelling – a landlord who leases a short-term dwelling is under stricter duty because the tenant doesn’t have the time or duty to repair.

• Modern Trend: a landlord owes a general duty of reasonable care toward residential tenants and will be held liable for injuries in tort resulting from ordinary negligence if the landlord had notice of a defect and an opportunity to repair it.

Question 61

Fee Simple Absolute

Answer 61

• “To A” or “To A and heirs”
• Absolute ownership of potentially limitless duration
• Freely Devisable, descendible, alienable
• A living person has no heirs, just prospective heirs.
• A’s heirs have no ownership rights until A dies. This is a present possessory interest only.

Question 62

Defeasible Fees what are they and what are the three types?

Answer 62

Defeasible Fees
* Defeasible Fees – Fee simples with a condition attached (defeasance = forfeiture)
* The present owner has a risk of defeasance based on a condition.

Three types:
* Fee Simple Determinable (and Possibility of Reverter)
* Fee Simple Subject to Condition Subsequent (and Right of Entry)
* Fee Simple Subject to an Executory Interest

Rules of construction
* Words of mere desire, hope, intention, expectation, DO NOT create a defeasible fee. Not legally sufficient.
* Absolute restraints on alienation are VOID. Language of condition is stricken and transfer still occurs.

Question 63

Fee Simple Determinable (and Possibility of Reverter)

Answer 63

• Created by clear durational language “so long as,” “while, ” “during,” “until.”
• Terminates automatically on occurrence of condition.
• Devisable, descendible, alienable
• If the prescribed condition occurs, forfeiture is automatic.
• Possibility of Reverter (this is a future interest) – When a defeasible fee is subject to return to the GRANTOR.

Question 64

Fee Simple Subject to Condition Subsequent (and Right of Entry)

Answer 64

• Use of conditional language (as “provided that” “but if” “However if” , “On the condition that”) + explicit right to re-enter.
• Terminates only if the grantor exercises its right to terminate it. This is optional.
• X can have Y, but if C happens (Condition), W can have Y (right of entry = power of termination)
• If the question applies language that combines features of Fee Simple Determinable and Fee Simple Subject to Condition Subsequent construe it in favor of a Fee Simple Subject to Condition Subsequent.

Question 65

Fee Simple Subject to an Executory Interest

Answer 65

• To A, but if X occurs, then to B (shifting executory interest – future interest)
• 3rd party, not a grantor, takes if condition occurs.
• Forfeiture is automatic but in favor of a third party.

Question 66

Life Estate

Answer 66

• Must be measured in explicit lifetime terms (not in term of years)
• To A for life (A = life tenant)
  o If years are used, it is a “tenancy for years” in the leasehold estates section.
• Life Estate Pur Autre Vire – a life estate of another’s life.
• Subject to Possibility of Reversion (back to grantor), or Remainder (to another)

Question 67

Future Interests in Transferor—Reversionary Interests (there are 3)

Answer 67

• **Possibility of Reverter **– accompanies fee simple determinable.
• Right of entry/power of termination – accompanies fee simple subject to condition subsequent.
• Reversion – Accompanies when grantor conveys estate of lesser duration (life estate, term of years) other than above.

Question 68

Future Interests in Transferees–Remainder (how is it different than a reversionary interest?)

Answer 68

• Future possessory interest in third party. Possession upon natural expiration of preceding estate (e.g. expiration of life estate or term of years).
• may be contingent or vested.

Question 69

Future Interests in Transferees–Contingent Remainder

Answer 69

• When the takers are not yet ascertainable (ex. unborn), or is subject to condition precedent. (unfavorable under the common law but now constraints have been abolished)
• Not yet ascertainable: to A for life, then to those children of B who survive A.)
• Subject to condition precedent: to A for life, then to B and his heirs if B marries C, otherwise to D and his heirs (alternative contingent remainders).
• Applies to a group who are not yet born or who may not all be alive when the possession is taken
• Subject to RAP

Question 70

Future Interests in Transferees – Indefeasibly Vested Remainder

Answer 70

• Not subject to divestment or diminution
• The holder of this reminder is certain to acquire the estate with no strings attached.
• “To A for life, remainder to B.” A is alive. B is alive.
• Not subject to RAP

Question 71

Future Interests in Transferees–Vested Remainders

Answer 71

• A remainder created in an existing and ascertained person, and not subject to a condition precedent. 3 types:
  (1) Indefeasibly Vested Remainder
  (2) Vested Remainder Subject to Total Divestment
  (3) Vested Remainder Subject To Open
• Vested remainders are fully transferable, descendible by intestacy, and devisable by will.

Question 72

Future Interests in Transferees – Vested Remainder Subject to Total Divestment

Answer 72

• A remainder is subject to complete defeasance: subject to condition subsequent (not precedent).
• “to A for life, then to B and his heirs; but if B dies unmarried, then to C and his heirs.”
• B will get it, but may lose it if the condition later occurs.
  o B has vested remainer. C has a shifting executory interest.
• Where language is ambiguous, the preference is for vested remainders subject to divestment rather than contingent remainders or executory interests.
• Not subject to RAP

Question 73

Future Interests in Transferees – Vested Remainder Subject To Open

Answer 73

• a vested remainder created in a class or group of takers, at least one of whom already qualified to take. (children)
• A class is open when others can still join.
• A class is closed when no one else can demand possession.
• Q: O transfers a life estate to A and then to B and his children. B had 2 children, C and D. When does the class close?
• Rule of convenience – absent explicit provision to the contrary, a class closes at the end of the life tenant’s death or whenever any member can demand possession. Even if B who can still bear children is still alive, because C & D can now demand possession.
  o Our one exception is the womb rule. Under this rule, persons in gestation at the time the class closes are included in the class.
• If C or D predecease A, their share will go to their devisees or heirs.
• Subject ot RAP as long as class remains open

Question 74

Future Interests in Transferees—Executory Interests

Answer 74

• Defeasible fee – is a fee simple with a catch/condition. Cut short prior takers.
  *** Shifting Executory Interest **– Follows a defeasible fee and cuts short the interests of a 3rd Party. “To B, unless X occurs, then to C”
• Springing Executory Interest– executory interest holder receives property from the grantor when the condition arises. O has a fee simple subject to A springing executory interest. “To A, if and when she becomes a lawyer.”
• Predecessor has a fee simple subject to either springing or shifting executory interest.
• Subject to RAP

Question 75

When does the rule against perpetuities (RAP) apply?

Answer 75

• Some future interests are void if there’s a possibility that they might vest more than 21 years after a person alive at the time of the grant, who is relevant to the grant, dies.

Applies to:
(1) Contingent remainders (conditions precedent).
(2) Executory interests
(3) Class gifts (vested remainder subject to open)

Does not apply to:
(1) Interests in the grantor (Reversions, rights of entry, possibilities of reverter) because they are interests that the grantor keeps.
(2) Vested remainders not subject to open – a remainder subject to complete defeasance or indefeasibly vested remainder.

Question 76

What are the 4 steps for RAP?

Answer 76

The four steps for RAP:
* 1) Determine the type of future interest (within RAP?)
* 2) What has to happen for future interest holder to take? What condition?
* 3) Find measuring life (whose life and or death is relevant for the future interest holder to take?)
* 4) When will we know whether future interest holder can take? Will it be within 21 years of measuring lifetime?

Often tested
(A) The executory interest without time limit
* This always violates RAP.
* “O to A and heirs so long as land issued for farming, otherwise to B.”
* This tries to bind all of A’s heirs forever.

(B) Age Contingency Beyond Age 21 in Open Class
* A gift to an open class conditioned on members surviving beyond age 21 violates the Rule. Surviving TO age 21 is ok.

If RAP is violated the violating part is stricken

Question 77

Reform of RAP

Answer 77

Alternate approaches:
* Wait & See – validity determined per facts as they come to be at end of measuring life, rather than invalidating all violating provisions.
* USRAP – provides an alternative to RAP – a 90-year vesting period.
* Cy Pres – Courts can redraft “as near as possible” to grantors intent

Question 78

Rights and duties of co-tenants

Answer 78

Possession – No ouster (wrongful exclusion from part/whole)

Rents and Profits – Unless there has been an ouster, a co-tenant in exclusive possession is not liable to the others for rent.

Fair share of rent: (proportional) division of rent income if leased to 3rd party.

Adverse Possession – No adverse possession unless an ouster occurs; hostility element is absent so adverse possession is inoperative.

Carrying Cost (taxes and mortgage interest payments) – Each pays fair share.

Repairs – fair share contribution for reasonably necessary repairs with notice.

Unilateral Improvements – No contribution for unilateral improvement owed.
* At dissolution, the improver gets a credit equal to any value increase, or debit equal to any diminution, caused.

A co-tenant must not commit waste. All actionable.
* Voluntary Waste – Willful destruction
* Permissive Waste – Neglect (forgot to close windows)
* Ameliorative Waste – Unilateral change increasing value.

A joint tenant or tenant in common has a right to bring an action for partition (three types above) – court prefer partition in kind if physically feasible. Right to partition may be temporarily restrained by court.