Real Property Flashcards
Fee Simple Absolute
Property Estates
Freehold Estate that can be sold, divided, devised, or inherited and has or can have an infinite duration (presumed absent express contrary intent).
Fee Tail
Property Estates
Freehold Estate - estate where inheritability is LIMITED to lineal heirs. MUST state expressly (i.e. “to A and the HEIRS OF HIS BODY”).
Life Estate
Property Estates
Freehold Estate - an estate interest measured by the life of a person. (i.e. “to A for life.”)
- Life Estate Tenants are held to the Doctrine of Waste (voluntary, permissive, and ameliorative)
- Life Estate Pur Autre Vie - life estate measured by the life of another (instead of the tenant). (i.e. “to B for the life of A.”)
Voluntary Waste
Property Estates
Harm to the property done by the tenant, that results in a loss of value.
-Exploitation of natural resources limited to when i) land is suited to such use, ii) necessary for repair or maintenance, or iii) permitted by the Grantor (can be implied).
Permissive Waste
Property Estates
Failure to maintain the property by the tenant. Must do the following:
1) Repairs - to preserve in a reasonable state.
2) Taxes - must pay ordinary taxes.
3) Mortgageable Debt - must pay interest (not principle)
4) Insurance - NO OBLIGATION TO PAY
Ameliorative Waste
Property Estates
Altering of the property by the tenant, that results in a GAIN in value. Only occurs when CHANGED CONDITIONS make the property RELATIVELY WORTHLESS, then tenant makes the changes.
Reversion
Property Estates
Future Interest in the Grantor Only - A defeasible fee that automatically reverts to the Grantor upon the happening of a stated event (look for “…for so long as…”, “…while…”, “…during…”, or “…until…”).
The possibility of Reverter is kept by the Grantor for as long as in existance. It is transferable, descendible, and devisable.
Right of Re-Entry
Property Estates
Future Interest in the Grantor Only - A defeasible fee simple subject to condition subsequent. It is held by the Grantor as a reserved right to terminate the estate upon the happening of a stated event (look for “…upon condition that…”, “…provided that…”, “…but if…”, “…if it happens that…”).
MUST be EXPRESSLY preserved!
Vested Remainder
Property Estates
A future interest held by a third party Grantee, that follows the natural expiration of the preceeding estate, and is expressly created. No conditions can exist for it to be deemed vested.
-Vested Remainder Subject to Open - no conditions, but estate will pass to a still open Class (i.e. “children, heirs”).
Executory Interests
Property Estates
Future Interest in the Grantee Only - A defeasible fee that terminates upon the happening of an event, then passes to a third party (the Grantee).
(i.e. “to A and heirs, SO LONG AS LIQUOR IS NOT SOLD ON THE PREMISE; in that event, to B.”)
Class Gifts
Property Estates
If a grant is to a group of persons that can change over time (i.e., to heirs, children), the RULE OF CONVENIENCE applies:
the class CLOSES when ANY CLASS MEMBER is entitled to distribution (i.e. all children collect at same time, so predeceased kids wont take)
Rule Against Perpetuities
Property Estates
A future interest is INVALID if possible that the interest CAN vest after every named party in the grant dies, plus 21 years. Applies to Executory Interests, Contingent Remainders, and Vested Remainders Subject to Open.
- If applicable, strike the invalid phrase and re-analyze the grant.
- Charity-to-Charity EXCEPTION: Both Transferees MUST be charities in order to qualify.
- Class Gift RAP issue –> if grant puts an age contingency beyond 21 years old, RAP makes it invalid. (i.e. To A for life, then A’s heirs that reach age 30)
Joint Tenancy (Property Tenancy)
Formed if TIPP Test is satisfied (PLUS clarity of grant):
- Unity of TIME
- Unity of TITLE
- Unity of INTEREST
- Unity of POSSESSION
(ie. in joint tenancy WITH RIGHTS OF SURVIVORSHIP) must be express!!!
Severance of Joint Tenancy
Property Tenancy
An INVOLUNTARY termination of the joint tenancy relationship severs the relationship.
-Severs ONLY survivorship for the party that acts. Others still have survivorship rights to each other’s share in property.
Tenancy In Common
Property Tenancy
Each interest is freely alienable (do what you want). Each tenant is entitled to use of the whole.
Tenancy By the Entirety
Property Tenancy
Between a Husband and Wife. Right of Survivorship to spouse.
Co-Tenancy Issues
Property Tenancy
Possession - each has a right to the whole.
Accountability (req if):
- Ouster - if keeping co-tenant off or exclusive possession
- Agreement to Share
- Lease to a third-party
- Depletion of natural resources
Contribution (paying fair share):
- Improvements - can be recouped but not required
- Repairs - only if necessary
- Mortgage payment - if signed by ALL co-tenants
- Taxes -
Tenancy for Years
Property Tenancy
Non-Freehold Estate (Landlord Tenant estate) - tenancy that continues for a FIXED period. Must be in writing if more than one year (SoF).
Periodic Tenancy
Property Tenancy
Non-Freehold Estate (Landlord Tenant estate) - tenancy that continues for successive periods (i.e., month to month), until terminated by proper notice to either party.
-Automatically renews without express termination. Valid termination is one full period in advance.
Tenancy At Will
Property Tenancy
either party can terminate this tenancy at any time, if NOTICE is given and REASONABLE TIME to vacate.
Tenancy At Sufferance
Property Tenancy
ONLY FOUND when tenant WRONGFULLY holds over. Landlord has two options:
1) Sue to Evict, or
2) Impose a New Periodic Tenancy
-Landlord may raise rent if given notice BEFORE expiration of the lease.
Duties of the Tenant
Property Tenancy
1) Duty to Pay Rent
2) Duty to Maintain Premises (use WASTE rules)
Remedies for Landlord if Tenant Breaches
Property Tenancy
If Tenant Fails to Pay Rent - landlord may sue for damages AND terminate lease.
If Tenant Abandons - Landlord can EITHER 1) accept surrender and terminate, OR 2) make REASONABLE EFFORTS to relet, and hold tenant liable for intermediate losses.
Duties of the Landlord
Property Tenancy
1) Duty to Deliver Premises
2) Duty regarding CONDITION - MAJ is implied warranty of fitness, which means must provide a property that is reasonably suited for residential use; COMMON LAW - no duty.
3) Implied Covenant of Quiet Enjoyment - breached by Total, Partial, or Constructive Eviction.