Real Property Flashcards
Present Estates: Fee Simple Absolute (define)
A fee simple absolute is a conveyance of absolute ownership of real property (without any conditions placed upon it). The property is freely devisable (leave it in a will), descendible (passed to descendants), and alienable (may be transferred during the grantor’s lifetime).
Present Estates: Fee Tail (define)
A fee tail is a conveyance of real property to a person and their heirs. Most jurisdictions have abolished fee tail ownership, and treat such conveyances as a fee simple
absolute.
Present Estates: Defeasible Fees (define)
A fee simple defeasible is a conveyance of property that has conditions placed on it. It is created when the grantor uses express conditional language to indicate that the conveyance will be terminated upon the occurrence (or non-occurrence) of an event or condition. A fee simple defeasible gives the grantee a present possessory interest in the property, BUT reserves a future interest in the property in favor of either the grantor or a third party.
Present Estate: Defeasible Fees - Name the types of fee simple defeasible
(1) fee simple subject to a condition subsequent (reserves a future interest in the grantor); (2) fee simple determinable (reserves a future interest in the grantor); AND (3) fee simple subject to executory limitation (reserves a future interest in a third party)
Present Estates: Fee Simple Determinable (define)
A fee simple determinable is a conditional conveyance that allows the grantor to retain a possibility of reverter. It is created when the grantor uses words of duration (i.e. so long as, during, while, the property shall revert) in the conveyance to indicate that the interest being conveyed will automatically terminate if a specified condition occurs.
Present Estates: Defeasible Fees - Fee simple on Condition Subsequent (define)
A fee simpe subject to a condition subsequent is a conditional conveyance that allows the grantor to retain a right of re-entry. It is created when the conyance expressly states that the interest being conveyed is subject to the grantor’s right of re-entry if a specified condition occurs. If the condition occurs, the grantee’s present interest in the property will be lost ONLY IF the grantor affirmatively exercises his right of re-entry and re-takes possession of the land.
Present Estates: Defeasible Fees - Fee Simple Subject to Executory Interest (define)
- A fee simple subject to an executory interest is a conditional conveyance of real property, in which a third party (not the grantor or his heirs) will be entitled to the property upon the occurrence of a specified condition.
- It is created when the grantor uses words such as “To person X, so long as (or “but if”) … to person Y.”
Present Estates: Fee simple - if its unclear whether a fee simple determine or a fee simple subject to a condition subsequent is intended, what is the outcome?
The courts will typically favor a fee simple subject to condition subsequent.
Present Estates: Life Estate (define)
- A life estate is a conveyance of real property where a specified life-tenant is entitled to possession of the property during their lifetime, and upon the life-tenant’s death the property transfers outright to another party (as specified in the deed). The person who takes the property after the lifetenant’s death is known as the remainderman.
- The life-tenant is responsible for ordinary expenses and taxes relating to the property during their lifetime, and cannot commit waste (causing the property to decrease in value).
Present Estates: Statute of Limitations (define)
An interest in a fee simple determinable or fee simple subject to condition subsequent lasts through the applicable statute of limitations period for that interest. An action for possession can be a (and must be) brought anytime within the statute of limitations (usually a set number of years after the cause of action accrues).
Future Estates: Vested and Contingent Remainders (define both)
- A vested remainder is a future interest in land that is given to an identifiable person with no conditions (or the conditions that it was subject to have been satisfied)
- A contingent remainder is a future interest in land that is conditioned upon the occurrence or non-occurrence of a specified event.
Co-Tenancy: Tenancy in Common (define the right of a tenant in common)
- Each tenant in common owns an undivided interest in the property, and has the right to use and enjoy the entire property.
- There are NO survivorship rights with a tenancy in common, and upon death the tenant’s interest passes to their estate.
Co-Tenancy: Tenancy in Common - how is it created?
TnC = default estate created by a conveyance or bequest of real property to two or more people, UNLESS: (a) there is express language stating that the parties have a survivorship right creating a joint tenancy; OR (b) if the conveyance of real property is stated “as husband and wife” creating a tenancy by the entirety (some states create a tenancy by the entirety by default if the conveyance is to a married couple). To create a tenancy in common, the grantor need not use explicit language.
Joint Tenancy: Formation (requirements)
- A conveyance of real property to two or more persons creates a joint tenancy when the four unities are present: (1) unity of time (all interests were received at the same time); (2) unity of title (all interests were acquired by the same instrument); (3) unity of interest (all ownership interests are equal); AND (4) unity of possession (all interests have equal rights of possession).
- There MUST be clear express intent to create a joint tenancy, which may be satisfied by including such terms as “joint tenants”, “right of survivorship”, “joint tenants with right of survivorship”, or even “jointly” (if intent is proven).
- A right of survivorship means that when one joint tenant dies his interest in the land is automatically transferred to the other joint tenant(s).
Joint Tenancy: Severance
After severance occurs, the tenants will hold the property as tenants in common. Severance may occur through:
- a joint tenant conveying his interest to a third-party (and that 3rd party will take as a tenant in common; also note that if there were more than 2 tenants, joint tenancy will continue between the remaining tenants)
- a joint tenant mortgaging their interest in a title theory jurisdiction.
