Real Property Flashcards
What are the four basic ways property can be transferred (i.e., “alienated”)?
Sale
Gift
Devise (will)
Intestate succession (will-less)
What is the default/presumed estate, and what does it mean exactly?
Fee simple: the largest possessory estate.
Goes on FOR EV ER
How does one create a fee simple?
Magic words = to X and his/her heirs
But even just “to X” is enough.
If ambiguous, creates a fee simple.
What’s the difference between a fee simple defeasible and a fee simple absolute?
Defeasible fees can also last forever, but they may be terminated.
What are the three types of fee simple defeasible?
Fee Simple Determinable: durational
Fee Simple Subject to Condition Subsequent
Fee Simple Subject to Executory Interest
What is a fee simple determinable?
Limited by specific durational language
E.g., O conveys B to A “SO LONG AS”/”WHILE”/”DURING” its use as a farm.
As soon as the time period ends, fee simple ends.
What is a fee simple subject to condition subsequent?
Limited by specific conditional language. RETURNS TO GRANTOR
E.g., BUT IF, PROVIDED THAT, ON THE CONDITION THAT
Focus on language to the grantor.
What is a fee simple subject to executory interest?
Ends upon the happening of an event and the future interest will vest in a third party.
Executory interest belongs to third party.
What are the three future interests that can associated with defeasible fees?
What’s the difference?
Possibility of reverter: future interest held by grantor after a fee simple DETERMINABLE.
Right of entry (aka power of termination): future interest held by grantor following a fee simple SUBJECT TO CONDITION SUBSEQUENT.
Possibility of reverter vest automatically after the durational period ends, while a right of entry doesn’t vest automatically, it must be reclaimed.
Also executory interest, held in a third party
What is a life estate, what creates one, and when does it end?
A life estate lasts for the duration of the measuring life, and ends upon that person’s death. Cannot be willed or or given away by succession (because it ends at death!).
“For life”.
What are the two options for a future interest after a life estate, and what’s the difference?
Reversion: when the fee simple returns (reverts) to the grantor after the life estate ends.
Remainder: when possession of the land goes to a third party (transferee) after the life estate ends.
What is waste? What are the three kinds?
Waste comes into play when more than one party has an interest in the same piece of real property (e.g., hazardous dumping).
1) Affirmative waste: caused by voluntary conduct that decreases value
2) Permissive waste: caused by neglect toward property which causes a decrease in value
3) Ameliorative waste: change in use of property that increases value
To what kind of a remainder does the RAP generally only apply?
Contingent remainders, not vested remainders.
What makes a remainder vested? And why’s that important?
1) Given to an ascertained (i.e., identifiable) grantee, AND
2) NOT subject to a condition precedent
If either of those is not met, it’s contingent and thus likely subject to the RAP.
Most importantly, if it’s vested, the interest can pass to the holder’s heirs upon the holder’s death.
When is a class gift “subject to open”?
When 1) vested remainder in a class gift; and 2) full class membership is unknown; and 3) at least one person in the class is vested.
When does a class gift “close”?
When all members of the class are identified.
Does the RAP apply to a vested remainder subject to open?
Yes, unless the rule of convenience applies, which closes the class when any member of the class becomes entitled to immediate possession.
What is the doctrine of worthier title?
Prevents against remainders in a grantor’s heirs. Instead of a remainder, presumes a reversion to the grantor.
What is the rule in Shelley’s Case?
Prevents against remainders in a grantee’s heirs. Instead, would create a fee simple in the grantee.
What are the two kinds of executory interests?
Springing EI: divests the grantor (2 parties, typically)
Shifting EI: divests a prior grantee (3 parties, typically)
What is the goal of the RAP? What is the period?
Testing for certainty! Like a SOL for contingent future interests. A life plus 21 years.
What are the three steps of applying the RAP?
1) When: when the interests are created?
2) What: are the interests subject to RAP?
3) Who: is there a validating life?
In applying RAP, when could the interests be created?
Inter vivos (created at time of grant), or
Devise (will) (created at testator’s death)
Which interests are subject to RAP?
Contingent remainders
Executory interests
Class gifts (subject to open, not closed)