real property Flashcards
fee simple absolute
“to A” or “To A and his Heirs”
- absolute ownership of potentially infinite duration
- freely alienable, devisable, and descendible
- A LIVING PERSON HAS NO HEIRS
fee simple determinable
“to A so long as…” “to A during…” “To A until…”
(fee simple with a catch)
-if the stated durational condition is violated, then the forfeiture is AUTOMATIC
- devisable, descendible, and alienable
-ALWAYS SUBJECT TO THE CONDITION
future interest which accompanies a fee simple determinable
the grantor gets the possibility of reverter!!!!
FSDPOR–> (FRANK SIANTRA DOESN’T PREFER ORVILLE REDENBAUKER)
-forfeiture is automatic
fee simple subject to condition subsequent
“to A, but if X event occurs, grantor reserves the right to re-enter and retake”
- grantor has the right of re-entry and the power of termination (Britney Spears– it’s the grantor’s prerogative)
- future interest = the right of re-entry and termination
fee simple subject to executory limitation
“To A, but if X event occurs then to B”
- now B, a third party will take if forfeiture occurs
- B (third party) will have a shifting executory interest
- A has a fee simple subject to B’s shifting executory interest
- if condition is broken, the forfeiture is automatic in favor of someone other than the grantor
fee simple language
words of mere desire, hope, or intention are insufficient to create a defeasible fee
- “for the purpose”
- “with the hope that”
- “with the expectation that”
can the grantor place an absolute restraint on alienation?
NO! ABSOLUTE RESTRAINTS ON ALIENATION ARE VOID
- an absolute restraint on alienation is ab absolute ban on the power to sell or transfer, that is not linked to ANY reasonable time-limited purpose
- “To A, so long as she never attempts to sell”
- -A would have a fee simple absolute
- -Grantor (o) would have nothing!
the life estate
“To A for life”
- an estate that must be measure in explicit lifetime terms (never in terms of years)
- think of romantic Valentine’s Day (for life)
- A = the life tenant
- O grantor = a reversion
life estate pur autre vie
a life estate measured by a life of other than the grantee’s
- “To A for the life of B”
- if the future interest is held by O the grantor= reversion
- if the future interest is held by a third party = remainder
what are the characteristics of the life tenant?
- the life tenant is entitled to all ordinary uses and profits from the land
- the life tenant must not commit waste
What are the three types of waste that a life tenant must not commit?
- Voluntary waste–> actual, overt conduct (destruction)
- Permissive Waste–> when the land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land (neglect)
- Ameloriative waste–> life tenant must not engage in acts that will enhance the property’s value, unless all future interest holders are known and consent
voluntary waste
- general rule: the life tenant must not consume or exploit natural resources on the property (such as timber, oil, minerals) UNLESS ONE of 4 exceptions apply
EXCEPTIONS: (PURGE)
1. Prior use–> prior to the grant of land, the land was used for exploitation (for mining prior use– limited to the mines ALREADY open)
2. Reasonable repairs–> life tenant may consume natural resources for reasonable repairs and maintenance
3. Grant –> may exploit if expressly granted the right to do so
4. Exploitation–> when the land’s sole purpose is for excavating and exploitation
Permissive waste
the life tenant must simply maintain the premises in reasonably good repair
- when income or value is generated from the property– then the life tenant must pay all the taxes to the extent of that additional valuable income
- when there is no income or value generated from the property– the life tenant pays taxes only to the extent of the premises’ fair rental value
Reversion (future interest)
the future interest that arises in a grantor who transfers a estate of lesser duration than she started with
- ” O, the holder of a fee simple absolute, conveys “to A for 99 years.”
- O has conveyed less than what she started with
What are the future interests called when it is in another person and not the Grantor?
- contingent remainder
- vested remainder
1. indefeasibly vested remainder
2. the vested remainder subject to complete defeasance
3. the vested remainder subject to open - executory interest
contingent remainder
a remainder is contingent if :
1) it is created in an unascertained or unknown person
OR
2) it is subject to an unmet condition precedent
OR BOTH
1) created in an unascertained or unknown person
- “to A for life, then to B’s first child.” A is alive ad B has yet to have any children.
- “to A for life, then to B’s heirs.” A is alive. B is alive. Because a living person has no heirs, while B is alive his heirs are unknown
2) it is subject to an unmet condition precedent
- condition precedent when it appears BEFORE the language creating the remainder
- “To A for life, then, if B graduates from college, to B.” A is alive. B is now in High School.
- A has a life estate
- B has a contingent remainder
- O has a reversion
- -> if B graduates from college during A’s lifetime, then becomes an indefeasibly vested remainder
Vested Remainders
- Indefeasibly Vested Remainder
- N’Sync NO STRINGS ATTACHED
- “To A for life, remainder to B.” A is alive. B is alive.
- B has an indefeasibly vested remainder because he is known and has no strings (conditions) attached
- If B predeceases A, at common law, B’s future interest passes by will or by intestate - vested remainder subject to complete defeasance (subject to total divestment)
- remainder man is known, and not subject to any condition precedent, BUT his right to possession could be cut short because of a condition subsequent
- “to A for life, then to B, provided, however, that if B dies under the age of 25, to C.” A is alive. B is 20 years old.
- A = life estate
- B= vested remainder subject to complete defeseance
- C= shifting executory interest
- If B is under age 25 at the time of A’s death, B still gets to take but he has to live to be 25 (or else C and his heirs take) - Vested remainder subject to open
- remainder is vested in a group of takers, at least one of whom is qualified to take possession
- “to A for life, then to B’s children.” A is alive. B has two children, C and D.
- C and D have vested remainders subject to open because they are part of a group that is capable of increasing in size
- a class is still open when others can still join
- a class closes when any member can demand possession
- a child IN THE WOMB when A dies will share possession with C and D
Executory Interests
- Shifting executory interest –> always follows a defeasible fee and cuts short someone OTHER than the Grantor
- Springing Executory Interest –> cuts short the interest of Grantor
Shifting Executory Interest
“To A, but if B returns from Canada sometime next year, to B and his heirs.”
- B has a shifting executory interest
- A has a fee simple subject to B’s shifting executory interest
- RAP does not apply because of the one year limit
Springing Executory Interest
O conveys: “To A, if and when he marries.” A is unmarried.
- A has a springing executory interest, b/c if A marries, her interest will cut the Grantor’s interest short
- O has a fee simple subject to A’s springing executory interest
- does not violate RAP because we will know by the end of A’s life whether she has married or not
Rule Against Perpetuities (RAP)
- that the given interest could vest more than 21 years after the death of a measuring life
1. determine which future interest have been created (contingent remainder, executory interests, and certain vested remainders subject to open)
2. determine what has to happen for the future interest holder to take
3. look for the people alive at the date of the conveyance whose lives and/or deaths are relevant
4. determine whether the future interest will vest within 21 years of the death of the measuring life
Which future interests does RAP not apply?
- indefeasibly vested remainders
- vested remainders subject to a complete defeasance
- future interest capable of vesting in O (grantor)
Reforms of the RAP
- “wait and see” –> the validity of any suspect future interest is determined on the basis of the facts as they now exist, at the conclusion of our measuring life.
- Uniform Statutory Rule against Perpetuities (USRAP) –> provides for an alternative 90 year vesting period
*** Cy Pres doctrine applicable to both= a court may reform it in a way that most closely matches the grantor’s intent, while still complying with RAP
Adverse Possession
COAH (objective view point)
C: continuous– the possession must be continuous and uninterrupted for the statutory period
O: Open and Notorious– the sort of possession the usual owner would make under the circumstances
A: Actual– the entry must be actual and not sharing possession with the owner
H: Hostile– the possessor does NOT ave the owner’s permission to be there
Tacking on for adverse possession
- one adverse possessor may tack on to his time with the land his predecessor’s time, so long as there is privity between the possessors
- privity = by any non-hostile nexus between the possessors
- no privity= when the possessor acquires possession by OUSTING his predecessor in possession
disability implicated in adverse possession
the statute of limitations will not run against a true owner who is afflicted by a disability AT THE INCEPTION of the adverse possession
- insanity
- infancy
- imprisonment
what are the three Concurrent Estates?
- the joint tenancy = two or more own with the right of survivorship
- the tenancy by the entirety = a protected marital interest between spouses with the right of survivorship
- the tenancy in common = two or more own without the right of survivorship
The joint tenancy
THE RIGHT OF SURVIVORSHIP
- share passes to the surviving joint tenant
- alienability = joint tenant can sell or otherwise give away her respective share
- NOT devisable or descendible (cannot pass through a will or intestacy because right of survivorship)
How do you create a joint tenancy?
(4 unities) T-TIP w/ clear expression of the right of survivorship
T: created at the same time
T: by the same title (same instrument)
I: with identical interests (interests have to be equal)
P: with the right to possess the whole
– must use “straw man” to create joint tenancy so that the parties get possession at the same time and through the same instrument
how do you sever a joint tenancy?
SPAM:
S: Sale –a joint tenant may sell or transfer her interest during her lifetime (even without the other tenant’s knowledge)
– the buyer becomes a tenant at common b/c 4 unities destroyed
– mere contract of entering into a sale will sever the joint tenancy
P: partition –
- by voluntary agreement
- partition in kind- judicial action for a physical division (farm land)
- forced sale- judicial action for best interest of all parties (home or single building)
A: AND
M: Mortgage –either title theory (minority states) or lien theory (majority of states)
Title theory of mortgages
minority of states follow this
- giving a creditor a lien is the equivalent of transferring title to that creditor
lien theory of mortgages
majority of states follow this
- a joint tenant’s execution of a mortgage on his or her interest will not sever the joint tenancy
- in line with the reasonable expectations
tenancy by the entirety
can be created ONLY BETWEEN MARRIED PEOPLE
- contains the right of survivorship
- very protective form of co-ownership 9CANT TOUCH THIS song)
- creditors–> creditors of only one spouse CANNOT touch this tenancy for satisfaction of the debt
- unilateral conveyance–> one spouse, acting alone, CANNOT defeat the right of survivorship by unilaterally conveying to a third party
tenancy in common
- each co-tenant owns an individual part, and each has a right to possess the whole
- each interest IS devisable, descendible, and alienable (b/c NO RIGHT OF SURVIVORSHIP)
- when in doubt, the presumption favors tenancy in common because it does not escape probate
Rights of Co-Tenants
- Possession– each co-tenant has the right to possess the whole (cannot exclude co-tenant or else that is OUSTER)
- Rent– if one of the co-tenants leases all or part of the premises to a third party, he must account to his co-tenant the fair share of the rental income
- cannot acquire title through Adverse Possession because hostility element is missing (unless OUSTED)
- each tenant must pay his fair share of carrying costs (per his percent interest in the whole)
- REPAIRS–> if one co-tenant makes a reasonably necessary repair and puts the other co-tenant on notice of it, then he gets the right of contribution from that co-tenant
- Improvements–> one co-tenant’s improvement could be the other’s worst nightmare!!
- Waste–> a co-tenant must NOT commit waste
- Partition–> co-tenant has a right to bring an action for partition
- partition in kind, voluntary agreement, or partition in sale
Tenancy for years
-whenever you have a fixed, determined period of time
(Taylor Swift end game)
-“A leases Blackacre to B from January 1-July 1 2018”
-no notice to terminate is needed because terms tells you when it will end
Statute of friends for leases
a term of years greater than one year MUST be in writing to be enforceable
periodic tenancy
lease which continues for successive intervals until L or T give proper notice of termination
- “Taylor conveys to Calvin from week to week; from month to month”
- periodic tenancy can also arise by implication when no mention of duration but the payment of rent is set at intervals
- -termination by notice (usually in writing)
- -> must give notice in length at least equal to the interval itself (renting month to month– must give one months notice EXCEPT for year to year leases only need 6 months notice!!)
tenancy at will
tenancy for no fixed period of duration
- “To T for as long as L or T desires”
- can be terminated by either party at any time but today probably after a reasonable demand to vacate the premises
tenancy at sufferance
created when the tenant has wrongfully heldover past the expiration of the lease
-last only until L either evicts T or decides to elect to hold that tenant to a new term of lease
Tenant’s three primary duties
- liability to third parties
- duty to repair
- duty to pay rent
Tenant’s liability to third parties
tort law
- Tenant is liable for injuries sustained by third parties she invited, even where Landlord has expressly promised to make all repairs
- T can seek indemnification from L is third party sues T
Tenant’s Duties to repair
- T’s duty to repair when lease is silent
- T must make routine repairs other than those due to ordinary wear and tear (ONLY NEED TO MAINTAIN THE PREMISES) - T’s duty to repair when T covenanted in lease to make repairs
- common law–T was responsible for any loss to the property, including that from natural disasters such as hurricane and earthquakes
- majority view today– T may end the lease when the premises are destroyed without the tenant’s fault!
the law of fixtures
- when a tenant removes a fixture, she commits voluntary waste
- a fixture = a once movable thing, that by virtue of its attachment to the realty, objectively shows an intent to improve the realty (heating systems, furnace, lighting installations)
- FIXTURES PASS WITH THE OWNERSHIP OF THE LAND
- TEST:
1. any agreement between the Landord and Tenant is binding as to fixtures
2. Tenant may remove a chattel she installed as long as removal WILL NOT substantially harm the premises - –> if substantial harm to the premises will result from the removal of the chattel– then it’s a fixture and stays with the property
Tenant’s duty to pay rent
- when T breaches duty to pay rent and is in possession of the property
- Landlords only options are to EVICT through the courts OR continue the relationship and SUE for rent owed
* *LANDLORD MUST NOT ENGAGE IN SELF HELP–> flatly outlawed and can be punishable civilly and criminally - T breaches duty to pay but is out of possession
- SIR
- S: Surrender– can treat tenant’s abandonment as a surrender
- I: Ignore the abandonment and hold the tenant responsible for the unpaid rent
- R: re-let the premises and old the wrongdoer tenant liable for any deficiency
* *majority rule: landlord must try to at least re-let because mitigates damages
Landlord’s Duties
- implied covenant of quiet enjoyment
- implied warrant of habitability
Implied covenant of quiet enjoyment
Tenant has a right to quiet use and enjoyment of the premises without interference from the landlord
-breach by either wrongful eviction of by constructive eviction
constructive eviction (breach of implied covenant of quiet enjoyment)
SING
SI: substantial interference– chronic or permanent problem due to Landlord’s actions or failures
N: notice– tenant must give landlord notice of the problem and landlord must file to respond meaningfully
G: goodbye– tenant must vacate within a reasonable time after landlord failed to fixe the problem
ex: every time it rains, the apartment gets flooded
is landlord liable for the acts of other tenants?
generally NO
- EXCEPTIONS:
- -Landlord has duty to abate a nuisance on site
- -landlord must control common areas
implied warrant of habitability
APPLIES TO RESIDENTIAL LEASES ONLY
- non-waivable because against public policy
- the premises must be fit for basic human dwelling (bear living requirements must be met)
ex: no heat in winter, no running water no plumbing