Real Property Flashcards
Present Possessory Estate: Fee Simple Absolute
Infinite present possession
“To A and his heirs” “To A”
Grantor has no future interest
Present Possessory Estate: Fee Simple Determinable
Limited present possession, and AUTOMATICALLY reverts back to grantor upon specified event
“To A and his heirs, until…”
Grantor has possibility of reverter (REVERTER ONLY FOR FEE SIMPLE DETERMINABLES)
Present Possessory Estate: Fee Simple Subject to a Condition Subsequent
Limited present possession until the happening of a named event. However, it will NOT AUTOMATICALLY revert to grantor - grantor must take an additional step
“To A and his heird, but if…”
Grantor has right of entry (ONLY IF HE EXERCISES IT)
Executory interest
Possibility of reverter only in grantor, not a third party. But if grantor puts it in a third party then that third party has an executory itnerest.
“To A and his heirs for so long as liquor is not sold, in that event, to B.”
Third party is executor interest and can reenter on the stated event, grantor cannot.
Subject to RAP (whereas possibility of reverter is not)
Life Estate
Estate measured by the life of one or more persons
“To A for life” or “To A for the life of B”
Grantor has reversion
Subject to the same rules as fee simple determinable, condition subsequent, exec interest
Rights and duties of a life tenant
Entitled to
(1) ordinary uses and profits of the land
CANNOT:
(1) injure interests of remainderman or reversioner
Types of life tenant waste
Affirmative Waste - Natural Resources
Permissive Waste
Ameliorative Waste
Affirmative Waste
Can exploit natural resources if
(1) necessary for repair and maintenance
(2) land suitable for such use
(3) permitted by grantor
Permissive Waste
Obligated to
(1) preserve land and structures
(2) pay interest on mortgates (not principal)
(3) pay ordinary taxes
(4) pay special assessments
Ameliorative Waste
Change that benefits property economically - can do it if
(1) market value of the future interests is not diminished, AND EITHER
(1) remaindermen do not object, OR
(2) substantial change in neighborhood conditions has deprived property in its current form
Future interests
Possibility of FUTURE possession, but it is a present, legally protected right in property.
Whats a reversion?
estate ends and no one else entitled to it because there is no other future interest (ex. To A for life.), grantor has a reversion.
NEVER subject to Rules Against Perpetuates
Reversion is alienable, inheritable, devisable
What is a remainder?
It’s the third party who has the estate after a life estate. There can be no gaps between grantee and remainder.
Remainders CAN NEVER follow a fee simple since fee simples are indefinite, and remainders cannot cut short the preceding estate
Four types of remainders
(1) Vested remainder
(2) Vested remainder subject to open
(3) Vested remainder subject to total divestment
(4) Contingent remainder
vested remainder
It’s an existing person - has immediate possession upon normal termination of preceding estate
No RAP
Vested remainder subject to open
Remainder created in a class of persons (children)
Subject to RAP as long as class stays open
Vested remainder subject to total divestment
remainder subject to a condition SUBSEQUENT
“to A for life, then B, but if B never marries then to C”
If the action in the future happens then it goes to C so B has a remainder subject to total divestment
No RAP
Contingent remainder
Created in unborn or unascertained persons, OR, it’s a remainder subject to a condition PRESCEDENT
“To A for life, then to B IF he marries C.”
Subject to RAP
Two types of executory interests
Shifting exec interest - shifts from transferee to executor interest (cuts short prior estate)
Springing exec interest - follows a gap (goes to transferee, then back to owner, then to exec interest after a gap in time)
Class Gifts - Rule of convenience
Class will close once a member of the class can call for a distribution
Rule Against Perpetuities
No interest in property valid unless it vests within 21 years after some life in being. Only effects violating circumstance - rest is OK
When does RAP period begin?
Will: Testator’s death
Irrevocable Trust: date it is created
Revocable Trust: date it becomes irrevocable
Rule Against Restraints on Alienation
Cannot restrain transferability of legal interest in property
Joint Tenancy
Each tenant has an undivided interest in the whole estate, and the surviving co-tenant has a right to the whole estate (right of survivorship).
Must have and take interest as to the same (EVERYTHING MUST BE EQUAL!)
(1) time
(2) title
(3) interest
(4) possession
How do you terminate a joint tenancy?
(1) Severance - convereted to tenancy in common (unless more than three - then only terminated as to that conveyor)
(2) conveyance by one joint tenant
(3) death of co-tenant
(4) voluntary/involuntary partition
Tenancy by the Entirety
Husband and wife each has an undivided interest in the whole estate and a right of survivorship.
How do you terminate a tenancy by the entirety?
(1) Death
(2) divorce
(3) mutual agreement
(4) joint creditor
NO involuntary partition
Tenancy in Common
Each tenant has a distinct, proportionate, undivided interest in the property - NO RIGHT OF SURVIVORSHIP
How do you terminate a tenancy in common?
Partition
Rights and duties of cotenants
(1) possession
(2) No need to share profits of own making unless agreement otherwise. MUST share profits if rents from third parties or exploitations of land/mining.
(3) Not encumber other’s interest (mortgate example - mortgage only applies to your interest, not others)
(4) Partition
Transactions that won’t destroy joint tenancy
(1) mortgage
(2) Judgment liens
(3) Leases - although states are split
Cotenants responsibilities with expenses
(1) Repairs - can be reimbursed for NECESSARY reparis
(2) Improvements - no right of contribution
(3) Taxes and mortgages - if paid on entire property UNLESS co-tenant in sole possession, then only entitled to expenses that exceed rental value of her use
Tenancy for Years
Tenant has present possessory interest and landlord has a future interest (reversion)
Ends automatically at termination date (or surrender, failure to pay rent)
Periodic Tenancy
Tenancy continues for successive periods. Created by
(1) express agreement (agree month to month)
(2) implication (Lease only payable monthly - silent on time frame)
(3) Operation of law (tenancy in years ends and tenat keeps leasing)
AUTOMATICALLY RENEWS until notice
Tenancy at Will
Termiable at will of either landlord/tenant - must be created by written agreement. Give notice and reasonable time to quit
Tenancy in Sufferance
Tenant WRONGFULLY remains in possession - tenant can stay until landlord evicts tenant
Hold Over Doctrine
If tenant continues in possession after his right has ended, landlord may:
(1) Evict
(2) Bind to new periodic tenancy
(3) If commercial - hold to year to year if previous lease was year or more
(4) If residential - month to month
DOESN’T APPLY IF (1) seasonal lease, (2) severe illness, (3) hold for only a few more hours, (4) landlord gives notice that he doesn’t want it to continue
What can landlord do if tenant on premises and fails to pay rent
Evict or sue for rent
What can landlord do if tenant abandons?
Do nothing or repossess
Landlord dutes to tenant
(1) Deliver premises on starting of lease
(2) Quiet enjoyment
Partial Eviction by landlord
Tenant released from paying rent, even if tenant continues in possession of the remainder
Partial Eviction by third person
Tenant liable for the reasonable rental value of the portion she possess
Constructive Eviction
Landlord’s breach of duty renders premises unsuitable for occupancy, tenant must prove
(1) landlord breached duty
(2) breach material to tenant’s enjoyment
(3) Tenant gave landlord notice and time to repair
(4) Tenant vacated premises
Implied Warranty of Habitability
ONLY RESIDENTIAL TENANTS - NONWAIVABLE - landlord duties tied to local housing codes. At breach tenant may:
(1) Terminate lease
(2) Make repairs and offset cost against future rent
(3) Abate the rent
(4) remain in possession, pay full rent, sue for damages
Can a tenant freely transfer leasehold interest?
YES - unless express restriction
Complete transfer is an assignment
If tenant retains any part then it’s a sublease
Consequences of lease assignment
Assignee and landlord are in “privity of estate” - each responsible for all convents that run with the land (touches and concerns)
How does assignment impact rent payments between transferor and assignee?
Assignee owes rent directly to landlord
Transferor no longer in privity of estate with landlord
Transferor remains obligated on original contractual obligation to pay rent (privity of contract)
How does subless impact rent payments between original lessee and sublessee?
Sub pays original lessee rent, who pays to landlord
Sub not personally liable to landlord
Sub cannot enforce main agreement (except warranties of habitability)
Does assignment or sublease make lease void?
NO, but landlord may terminate lease or sue
Condemnation of leases
If entire lease taken - rent extinguished and lessee is entitled to compensation
If partial lease is taken - not discharged from rent but lessee is entitled to compensation for the taking
Landlord’s tort obligation
Modern trend is will be held liable for injuries resulting from ordinary negligence if he had notice of a defect and an opportunity to inspect it
Fixture
chattel that is affixed to land and has ceased being personal property but is now part of the real property
How to determine whether an item is a fixture
Look at
(1) nature of the article
(2) manner of attachment
(3) amount of damage it would cause removing it
Are annexed chattels from lessee fixtures?
NO, unless agreement existed. Annexed chattels must be removed by end of lease term