Real Property Flash Cards
What kind of Possessory Estate?
To A
Fee Simple Absolute
What kind of Possessory Estate?
To A and his heirs
Fee Simple Absolute
What kind of Possessory Estate?
To A and the heirs of his body
Fee Tail
What kind of Possessory Estate?
To A for so long as; during; while; until
Fee Simple Determinable with possibility of reverter
What kind of Possessory Estate?
To A provided; however; however if; but if; on condition that; in the event of that
Fee Simple Subject to a Condition Subsequent
- right of entry
OR
- power of termination
REMEMBER: does not automatically terminate the estate
- O may re-enter and terminate/ retake
What kind of Possessory Estate?
To A provided; however; however if; but if; on condition that; in the event of that
Fee simple subject to executory interest
- shifting/springing executory interest
- power of termination
- automatically terminates
What kind of Possessory Estate?
To A for life
Life estate
- reversion/remainder
- contingent or vested
What kind of Possessory Estate?
To A for life of B
Life estate
- reversion/remainder
- contingent or vested
What type of present possessory estates does RAP apply to?
- fee simple subject to executory interest
- life estate remainder
When can a life estate be defeasible?
if the life estate holder breaches their duties
MUST:
- not adversely affect the future interest (waste)
- repair and maintain
- pay all ordinary taxes
- pay the full cost of special assessments if the life of the public improvement is less than the duration of the tenants’ estate.
RAP method of attack
ID whether or not the interest is subject to RAP
ID the life or lives in being, express or implied
determine whether the interest will for certain either vest or fail to vest within 21 years of the life or lives in being.
What interests are subject to RAP
- options to purchase land
- powers of appointment
- rights of first refusal
- interests not fully vested at creation
- remainders subject to open
- contingent remainders
- executory interestes
What interests are NOT subject to RAP?
- present possessory estates
- charitable trusts
- resulting trusts
- fully vested interests at creation
- reversionary interests and completely vested remainders
Concurrent estates
when 2 or more persons share an interest.
Each is called a co-tenant
types of joint estates
tenancy in common
joint tenancy
right of survivorship
tenancy by the entirety
Tenancy in common
each co-tenant owns an undivided interest in the whole with no right of survivorship.
presumed form of co-ownership
possession: unity of possession- each has the right to possess the whole
transfer: may transfer inter vivid
divisibility: can devise interest and interest cn descend by intestacy
Joint Tenancy
each co-tenant owns an undivided interest in the whole and has a right of survivorship.
four unities
4 unities to create joint tenancy
time: at the same time
title: must take by the same instrument
interest: must take equal shares of the same type
possession: each tenant has the right to possess the whole
Right of survivorship
at the death of one joint tenant, the interest of the survivor absorbs the interests of the deceased.
only the alive tenant has an interest that is devisable
how is the right of survivorship severed?
if one tenant conveys their interest voluntarily or involuntarily (creditor forces sale)
Result= tenancy in common
tenancy by the entirety
reserved for married couples
gives each spouse an undivided interest in the whole and a right of survivorship
what are the rights of co-tenants
seek partition- voluntary or involuntarily
may seek contribution from other tenants for paid mortgage or tax
may seek contribution for land improvements if increase rent or profits.
- recoverable in partition suit
Lease
gives the tenant exclusive possession of the premises for a period of time
how can a lease be created?
expressly or implied by conduct of the parties
implied lease
when a holdover tenant pays rent and the landlord accepts the rent
types of leases
terms of years
periodic
at will
tenancy at sufferance/holdover tenancy
Terms of years lease
definite beginning and end
no notice needed for termination
periodic lease
set beginning and continues from period to period without a set termination date until notice is given.
notice must be at the end of the period.
required notice is measured by the rent payment clause (one full period) but no longer than 6 months.
at will lease
no fixed duration
terminates if: either party dies; the tenant commits waste; the tenant attempts to assign his interest; the landlord transfers her interest OR landlord transfers the premises to a 3rd party fo a term of years
tenancy at sufferance/holdover tenancy
tenant remains in possession of the property after the end of the leased terms
the landlord can recover possession and receive the reasonable rental value for the holdover period
What are the duties of the tenant?
pay rent
not commit waste
repair
other duties as contracted
what are the duties of the landlord?
deliver legal right to possession of premises
water and heat
duties in lease document
quiet enjoyment
implied warranty and habitability
When does the tenant abandon the premises?
if they vacate without intending to return and fail to pay rent
what can a landlord do if the tenant abandons the premises?
retake the property, ignore the abandonment and hold the tenant liable for the rent and reenter and relet the property
duty to mitigate its damages
what can a tenant do if the landlord breaches the lease?
may vacate and terminate the lease if have been evicted
withholding rent
repairing the property and deducting from rent
what is an assignment?
when the tenant transfers to a 3rd party all of their rights in the property
assignee is then in privity of estate with the landlord
- if assignee doesnt pay rent then the landlord can go after the assignee
what is a sublease?
when the tenant transfers less than all of their rights to a 3rd person
sublet does not come into privity of estate
if rent is not paid then the landlord goes after the tenant
easement
interest to use the land of another
can be: affirmative, negative, appurtenant, in gross
affirmative easement
gives the holder the right to do something on the land of another
negative easement
the right to prevent a landowner from doing something on the land
common law: light, water, air, lateral and subjacent support
True or False: A writing is always required for a negative easement?
TRUE!
easement appurtenant
requires a dominant and servant tenement
easement in gross
personal in nature
resulting in a servant but not a dominant estate
how can you create an easement?
writing
implication
prescription
estoppel
How can you create an affirmative easement?
implication either by prior use
by necessity
prescription (similar to adverse possession)
How can you create an Easement by estoppel?
requires proof of an act or representation by the owner of the burdened estate in respect to the easement
justifiable reliance on that act by the owner and damages suffered by owner of the benefited estate
and damages suffered by the owner of the benefited estate
can easements be transferred?
yes
How can an easement be terminated?
end of time period
when the holder of the dominant. estate releases their interest to the holder of the servient estate
abandonment
estoppel
prescription
government body acquires the servient estate by eminent domain of power
license
a privilege to do something on someone else’s property
writing and consideration is not required
not transferable unless the licensor intends for it to be
When does a license expire?
expire at the death of the licensor or the conveyance of the servient estate
Can a license be revoked?
revocable at the will of the licensor
UNLESS
coupled with an interest in personal property that is on the and of another and has a privilege that is incidental to the personal property
covenant
promise that attaches to land
covenant that runs with the land
promise that attaches to the land
examples of covenants running with the land are:
paying renting
condominiums common charges
maintenance fees
how are covenants established?
writing \+ Intent \+ horizontal privity and vertical privity \+ touch and concern \+ notice
horizontal privity
conveyance of land between the covenantee and covenanter
occurs by the same deed that includes the covenant
vertical privity
relationship between the OG party to a running covenant and the successor in interest to the Og party.
the successor steps into the shower of the OG party
covenant touches and concerns the land when:
direct influence on the occupation, use or enjoyment of the property
What must be on a real estate contract?
Statute of Frauds Applies!
Requires writing signed by the party to be charged
include:
- description of the property
- description of the parties
- price
- any condition of price or payment agreed upon
What do all real property contracts convey?
Marketable title to the purchaser at the time for performance
What is a marketable title?
title that is reasonably free from doubt in both fact and law
Title is NOT marketable if…
contains:
- defects in the chain of title
- encumbrances
- encroachment of improvements (onto someone else land or yours)
- zoning or other restrictions
Remedies for failure to convey marketable title:
- recision
- damages
- specific performance
implied warranty of quality
seller has a duty to disclose all material defects known to the seller that are not recognizable or known by the buyer
what are seller’s remedies for a buyer’s breach to purchase?
- expectation damages
- foreseeable damages
- reasonable reliance damages
- retaining the down payment
- liquidated damages
- if willful? punitive
Mortgage theory:
Title Theory:
Bank takes title to the land and has right to take possession.
Title is subject to condition subsequent that divests title if buyer repays by the due date of the mortgage
minority rule
Mortgage theory:
Lien Theory
Bank receives a lien and the Buyer keeps title and possession until foreclosure happens.
Majority Rule
Mortgage theory:
Intermediate Theory
Buyer keeps title until default. After default title and possession go to the Bank
what are the ways a mortgagor or life tenant can create waste?
fails to pay taxes or government assessments
makes physical changes to property that reduces its value
fails to maintatin and repair property in a reasonable time
fails to comply with materially with mortggage convenants:
- physical care
- maintenance
- construction
- demolition
- insurance against casualty of the property
- improvement
retains rents
What must a mortgagor do if they still have a mortgage on the property?
unless the mortgagor is paying off the loan with the proceeds of the sale, they must get consent from the bank.
Assuming an existing mortgage
the mortgage is transferred from the mortgagor (homeowner) to the grantee (buyer)
the mortgage is assumed via an agreement and must pay off the grantor’s (homeowner) debt to the mortgagee (bank)
KEY: the contract must be modified and state that the grantee (buyer) is in contract with the mortgagee (bank)
IF NOT then the original homeowner is still on the hook!!
Taking property “subject to” an existing mortgage
grantee (buyer) does not sign an assumption agreement and does not assume the existing mortgage, but takes the property “subject to the mortgage”
KEY: the buyer is not on the hook for the mortgage but the homeowner is.
the bank can:
- foreclose on the property
- sue the homeowner
how do you determine priority when there are multiple mortgages?
by chronological order of recording
What does it mean when a bank “redeems up”?
they can redeem up by paying off and acquiring any mortgaged of higher priority
ex: bank 2 could “redeem” from bank 1 and mortgagor then owes both mortgages to bank 2.
what does it mean when a bank “foreclose down”?
wipes out mortgages and other interests in lower priority.
A foreclosure sale wipes out all later mortgages- those coming later in time than the mortgage being foreclosed– but this does not wipe out prior mortgages
what are the different types of titles?
adverse possession
transfer by deed
transfer by operation of law and by will
recording acts
Adverse possession- TIME FACTOR
the possessor must possess he premises for the requisite time period.
- if not in possession for the entire time can tack on time of another person NOT the homeowner (if in privity of estate)
adverse possession
OCEAN open and notorious continuous exclusive actual non-permissive (hostile)
Adverse possession
privity of estate
when there has been a voluntary transfer of possession from the first adverse possessor to the second by deed.
what are the 3 types of deed?
general warranty
special warranty
quitclaim
general warranty
the grantor warrants that no title defects exist in the chain of title
special warranty deed
the grantor warrants that no title defects occurred during his ownership of the property but does not warrant against title defects that occurred prior to his ownership
quitclaim deed
the grantor provides no warrants- the grantee takes whatever interest the grantor had
True or false:
general or special warranty deed contains a series of covenants, divided into present and future covenants
TRUE
present covenants (if at all) are broken at the time of conveyance of the land and the buyer has a limited time frame to make a claim. - do not run with the land
future covenants (if at all) are broken after the time of conveyance and run with the land to any subsequent purchasers
TRUE OR FALSE:
present and future covenants both run with the land?
FALSE
ONLY future covenants run with the land
what are types of present covenants?
covenant of:
seisin
right to convey
against encumbrances
covenant seisin
grantor owns and possesses the estate granted
existence of an encumbrance does not breach the covenant
covenant of right to convey
grantor has the right to convey the property.
covenant against emcumbrances
grantor promises that there are no encumbrances.
no 3rd person has a right that diminishes the value or limits the use of the land granted.
this includes: taxes mortgage and judgment liens leases water rights easements restrictions on use
what are the types of future covenants?
covenant of:
quiet enjoyment
warranty
further assurances
covenant of quiet enjoyment
grantor covenants that the grantee will not be disturbed by a superior claim
covenant of warranty
grantor covenants that the will assist in defending title against valid claims and will compensate the grantee for losses sustained by the assertion of superior title
covenant of further assurances
grantor promises to take whatever steps may be required to perfect title defects.
coveyance of real property by deed
donative intent
- MUST intend to transfer immediately
delivery
- usually physical act of handing over
- words declaring intent and release of control = okay!
acceptance
does handing the deed to an agent = delivery?
NO!
Does not = delivery until the agent delivers the deed to h3 grantee or grantee’s agent
when delivery is accomplished through the agent, delivery relates back to the date the grantor handed the deed to the agent
Rules of construction
when there are conflicting descriptions of the property contained in the deed, the following order of superiority relies first on natural deed descriptions: - natural monuments - artificial monuments - courses and angles- distances -name and quantity
true or false
recording a deed is not requires to validate the transfer of title
TRUE
recording becomes important when 2 or more parties claim that the owner has conveyed or mortgaged the property to them and their relative priority is at issue
what are types of undocumented interests in land
adverse possession
- tile based on AP is not recordable and is not made invalid by a BFP
prescriptive easements
implied easements
boundary adjustments by acquiescence
oral agreemtn
what are the names of the recording statues?
race
race-notice
notice
race notice
first to record is the first to prevail
notice
unrecorded conveyance is invalid against a subsequent BFP for value AND without notice
must prove:
- the claimant took subsequent in time to another person claiming ownership
- the claimant was a bona fide purchaser for value
- the claimant took the property without actual, constructive or inquiry notice
constructive notice
if the other party’s deed is recorded in the proper chain of title in the record books
inquiry notice
if the appearance of the property is such that the claimant should have asked more questions about the property’s title
race-notice
an unrecorded conveyance is invalid against a subsequent bona fide purchaser for value who takes without notice and records first.
TO PREVAIL:
- claimant took subsequent in time to another person claiming ownership
- the claimant was a bona fide purchaser for value
- the claimant took the property without actual, constructive, or inquiry notice
AND
- the claimant recorded first
shelter rule
provides protection for a subsequent purchaser who does not satisfy the applicable recording statute.
a person who is a successor in interest to a person protected by the recording statue is also protected
what are the present estates?
fee simple absolute
defeasible fees
life estate
devisable
can it pass by will
descendible
will it pass by statutes of intestacy if its holder dies intestate
alienable
is it transferable inter vivos or during the holder’s lifetime.
fee simple absolute
how is it created
To A
To A and his heirs
what is fee simple absolute
absolute ownership of potentially infinite duration
absolute ownership
feely alienable
freely divesable
defeasible fees
THINK: w/ a catch or condition
fee simple determinable
fee simple subject to condition
fee simple subject to executory limitation
fee simple determinable
how is it created?
to A so long as…
to A during…
to A until…
fee simple determinable
what happens if the stated condition is violated?
they lose their rights immediately
fee simple determinable
distinguishing characteristics
devisable
descendible
alienable
BUT ALWAYS subject to the condiction stated
fee simple determinable
what is the accompanying future interest?
possibility of reverter in the grantor
frank sinatra conveys Sinatra Palace to Orville Redenbacher so long as popcorn is never made omn the premises.
What does orville have?
wha tdoes frank have?
orville has a fee simple determinable
frank has a possibility of reverter
FSDPOR
Frank Sinantra does not prefer orval redenbacher
Fee simple deterrminablle with a possibility of reverter
fee simple subject to condiction subsequent
how created
to A but if X event, grantor reserves the right to re-enter and retake
fee simple subject to condiction subsequent
what 2 ingredients do you need?
durational langauge
statement of right to reenter
brittey conveys “ to selena buf ig selena ever serves alcohol on site, britney reserves the right to renter and retake
what does selena have?
what does brittany have?
selena has a fee simple subject to condition subsequent
britteny has a right of reentry power of termination.
fee simple subject to condiction subsequent
what are the distinguishing characteristics?
NOT automatically terminated
BUT it can be cut short at the granters prerogative if the stated condition occurs
REMEMBER:
its my perogative
fee simple subject to condiction subsequent
what is the grantors prerogative to terminate called?
the right of entry
power of termination
fee subject to executory limitation
how created
to A but if X occures then to B
fee subject to executory limitation
distingushing characteristics
if the condition isbroken, the estate is automatically foregeited in favor of an entity otherr than the grantor
fee subject to executory limitation
which future interest accompanies the fee simple subject to executory interest?
shifting executory interest
what are 2 important rules of construction for defeasible fees?
words of mere desire, hope or intention are insufficient to create a defeasible fee
(courts will not find a defeasible fee unless clear durationn language is used)
absolute restriants on alienation are void
is this a defeasible fee?
to A for the purpose of constructing a day care center
NO! A is vested with a fee simple absolute and NOT a defeasible fee
is this a defeasible fee?
To A with the hope that he becomes a lawyer
NO! A is vested with a fee simple absolute and NOT a defeasible fee
is this a defeasible fee?
to A with the expectation that the premises will be used as a hardware store
NO! A is vested with a fee simple absolute and NOT a defeasible fee
what is an absolute restraint on alienation?
an absolute restraint on alienation is an absolute ban on the power to sell or transfer that is not linked to any reasonable time-limited purpose
O conveys: To A so long as she never attempts to sell
what is the problem with the grant?
what does A have?
what does O have?
VOID
absolute restraint on alienation
A: Fee Simple
O: nothing
O conveys: To elle woods so long as she remains a lawyer
elle is a lawyer. what does elle have?
what does O have?
what result if Elle leaves the legal profession?
Elle: fee simple determinable
reason: to A w/ a catch
O: possibility of reverter
If Elle leaves the legal profession: then back to O automatically
O conveys: To Elle Woods but if she leaves the legal profession, grantor reserves the right to re-enter and retake. elle is a lawyer.
what does elle have?
what does O have?
what result if Elle leaves the legal profession?
Elle: Fee Simple with condition subsequent
O: power of terminantion, rightof re-entry
if Elle leaves the legal profession: Back to O
O conveys “to Elle woods but if she leaves the legal profession, then to Luke Wilson. Elle is a lawyer
what does elle have?
what does luke have?
what result if elle leaves the legal profession?
Elle: fee simple with executory limitation
Luke: shifting executory interest
If elle leaves the legal profession: Fee simple subject to shifting executory interest
life estate
how created
this is an estate that must be measured in explicit lifetime terms and never in terms of years
REMEMBER: Romantic estate
life estate
what does A have?
what is A known as?
what does O have?
A: life estate
A known as: life tenant
What does O have: reversion
at the end of A’s life it reverts back to O
is it still a life estate if measured by a life other than the grantee’s?
Yes!
life estate pur autre vie
life estate
what is the accompanying future interest?
if held by O it is called a reversion
if held by a 3rd party it is called a remainder
life estate
distinguishing characteristics
the life tenants entitlements are rooted in the important doctrine of waste
what are the 2 rules for life tenants and the land?
the life tenant is entitled to all ordinary uses and profits from the land
the life tenant must not commit waste
what are the 3 types of waste?
voluntary (affirmative)
permissive (neglect)
ameliorative
voluntary (affirmative) waste
aka affirmative waste
actual, overt conduct that causes a drop in value
voluntary waste and natural resources
the life tenant must not consume or exploit natural resources on the property
UNLESS (PURGE) Prior Use Reasonable Repairs Grant Exploitation
what are the 4 exceptions of voluntary waste
(PURGE) Prior Use Reasonable Repairs Grant Exploitation
4 exceptions of voluntary waste
prior use
prior to the grant, the land was used for exploitation when that is the case the tenant may continue to exploit unless otherwise agreed
4 exceptions of voluntary waste
prior use an the open mines doctrine
if mining was done on the land before the life estate began, the life tenant may continue to mind, but is limited to mines already open
the life tenant must not open any new mines
4 exceptions of voluntary waste
reasonable repairs
the life tenant may consume natural resources for the purposes of repairs and maintenance
4 exceptions of voluntary waste
grant
the life tenant may exploit if expressly granted the right to do so
4 exceptions of voluntary waste
exploitation
the land is suitable only for exploitation
4 exceptions of voluntary waste
permissive waste (neglect)
occurs when the land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land.
4 exceptions of voluntary waste
permissive waste and the obligation to repair
the life tenant must simply maintain the premises in reasonably good repair
THINK: basic maintenance
4 exceptions of voluntary waste
permissive waste and the obligation to pay all ordinary taxes
the life tenant must pay all ordinary taxes on the land, to the extent of any income or profits that the life tenant is reaping from the land
if there is no income or profit the life tenant is required to pay all ordinary taxes only to the extent of the premises fair rental value
THINK: when no income or profits are coming in from the land, the life tenants tax liability for the parcel will be computed not on the basis of the FMV but instead on the basis of its mere FMV
4 exceptions of voluntary waste
ameliorative waste
the life tenant must not engage in acts that will enhance the property’s value unless all future interest holders are known and consent
what are the 3 future interests capable of creation in the grantor
the possibility of reverter
the right of entry
the reversion
3 future interests capable of creation in the grantor
possibility of reverter
which present estate does the possibility of reverter accompany?
fee simple determinable
3 future interests capable of creation in the grantor
the right of entry
which present estate does it accompany?
fe simple subject to condition subsequent
3 future interests capable of creation in the grantor
the reversion
the future interest that arises in a grantor who transfers an estate of lesser duration than she started with, other than a fee simple determinable (gives O of reverter)
OR
a fee simple subject to condition subsequent (which gives O the right of re-entry)
O, the holder of a fee simple absolute (which can endure forever) conveys: To A for life. O has conveyed less than what she started with
what does O have
reversion
O, the holder of a fee simple absolute, conveys: To A for 99 years. O has conveyed less than what she started with. what does O have?
reversion
future interest in transferees
if our future interest is held by someone other than the grantor, it has to be either:
a contingent remainder
vested remainder
executory interest
future interest in transferees
vested remainder
types
indefeasibly vested remainder
vested remainder subject to complete defeasance
and
the vested remainder subject to open
future interest in transferees
executory interest
types
the shifting executory interest
AND
the springing executory interest
what is a remainder
future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate in the same conveyance in which thee remainder is created.
THINK: sociable!
- never travel alone
- always accompanies a preceding estate or known fixed duration
- patient and polite
- never cuts short or divests the prior taker
remainder are either:
__________
OR
__________
vested
OR
contingent
what is a contingent remainder?
a remainder is contingent if:
it is created in an unascertained or unknown person
OR
it is subject to an unmet condition precedent
OR
BOTH
To A for life then to B’s first child
A is alive
B as yet has no children
remainder that is contingent because it is created in an unascertained or unknown person
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.
remainder that is contingent because it is created in an unascertained or unknown person
condition precedent
when it appears before the language creating the remainder or is woven into the grant to the remainderman.
to A for life then if B graduates from college to B. A is alive. B is now in high school. Before B can take he must graduate from college.
he has not yet satisfied this condition precedent
what does B have
what does O have
what if B graduates from college during A’s lifetime?
B: contingent remainder
O: reversion
If B graduates from college during A’s lifetime: B has an indefeasibly vested remainder
vested remainder
a remainder is vested when it is created in a known taker who is not subject to a condition precedent
what are the 3 types of vested remainders
indefeasibly vested remainder
vested remainder subject to complete defeasance
vested remainder subject to open
indefeasibly vested remainder
the holder of this remainder is certain to acquire an estate in the future with no strings or conditions attached
THINK: NYSNC
NO strings
known
to A for life, remainder in B. A is alive. B is alive
what does A have
what does B have
why
what if B predeceases A
A: life estate
B: indefeasibly vested remainder
Why: B exists without strings attached
If B predeceases A: at common law B’s future interest passes by
- will
- intensity
vested remainder subject to complete defeasance
AKA
vested remainder subject to total divestment
the remainderman exists
taking is not subject to any condition precedent
his right to possession could be cut short because of a condition subsequent
condition precendent
VS
condition subsequent
condition precendent creates a contingent remainder
condition subsequent creates a vested remainder subject to complete defeasance
comma rule
when conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent and you have a vested remainder subject to complete defeasance
O conveys TO A for life then to B, provided however, that iif B dies under the age of 25, to C. A is alive. B is 20 years old.
What does A have
what does b have
what does C have
A: life estate
B: vested remainder subject to complete defeasance
C: shifting executory interest
if the conditional language appears before the language creating the remainder the condition is….
a condition precedent and you have a contingent remainder
O conveys to A or life and if B has reached the age of 25 to B. A is alive. B is 20 years old.
what does A have
what does B have
A: life estate
B: contingent remainder subject to his condition precedent
vested remainder subject to open
the remainder is vested in a group of takers at least one is qualified to take possession
but each class member’s share could get smaller because additional takers not yet ascertained can still join the class
Subject to open= to a class!!
to A for life then to B’s children. A is alive. Be has 2 children C and D
What do C and D have
why?
vested remainders subject to open
why: part of group or class still open
when a class is open what does that mean?
additional members can still join
when is a class closed?
when no others can join
how will you know when a given class has closed
common law rule of convenience
common law rule of convenience
the class closes when any member can deman possession
To A for life then to B’s children. A is alive. B has 2 children, C and D
The class closes at B’s death and also because of the rule of convenience, at A’s death- no matter that B is alive.
Why?
bc that is when C and D can demand possession
womb rule
if B is pregnant include the unborn in the class
executory interests
a future interest created in a transferee (3rd party) which is not a remainder because it takes effect by either cutting short some interest in another person (“shifting”) or in the grantor or his heirs (“springing”)
shifting executory interest
always follows a defeasible fee and cuts short someone other than the grantor
to A but if B returns from canada to B and his heirs
what does B have
why doesnt B have a remainder
what does A have
does the conveyance violate the rule agasint perpetuities
B: shifting executory interest
B doesnt have a remainder because remainders do not follow defeasible fees
A: fee simple subject to B’s shifting executory interest
No the conveyance does not violate the rule agaisnt perpetuities becasue B is the measuring life. Will know by the end of B’s life if return from Canada
springing executory interest
cuts short the interest of O, the grantor
O conveys To A if and when she becomes a lawyer. A is in high school.
What does A have
why
what does O have?
does the conveyance violate RAP?
springing executory interest
If A becomes a lawyer cuts off O
O ha sa fee simple subject to A’s springing executory interest
No the conveyance does not violate RAP because know within the life of A if became lawyer.
Rule against perpetuities
certain kinds of future interests are void if there is any possibility, however remote, that the given interest could vest more than 21 years after the death of a measuring life.
what is the 4 step technique for assessing potential rap problems
- determine which future intersts have been created by the conveyance
- determine what has to happen for the future interest holder to take
- look for the people alive at the date of the conveyance whose lives and /or deaths are relevant to what has to happen for the future interest holder to take– that person is the measuring life.
- determine whether we will know for sure within 21 years of the death of a measuring life if the future interest holders can take.
what does RAP not apply to?
any of the 3 future interests capable of creation in O, the grantor.
NOT apply to: indefeasibly vested remainders
OR
vested remainders subject to complete defeasance
RAP only applies to?
contingent remainders
executory interests
vested remainders subject to open
what is the bright line rule of common law RAP
an executory interest with no limit on the time within which is must vest violates the RAP.
wait and see
OR
Secodn look
doctrine
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)
codifies the common law RAP and in addition provides for an alternative 90 year vesting period
cy pres doctrine
if a given disposition violates the rule, a court may reform it in a way that most closely matches the grantors intent, while still complying with the rule against perpetuities
adverse possession
possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title
elements of adverse possession
COAH continuous Open and notorious Adverse Hostile
adverse possession
continuous
uninterrupted for given statutory period
adverse possession
open and notorious
sort of possession
the owner would have seen the other person
adverse possession
actual
entry actual and occupation must be exclusive
no sharing with the owner!
adverse possession
hostile
possessor does not have owners consent to be there
adverse possession
possessors subjective state of mind
irrelevant!!!
does not matter that hte possessor actually thought that he was on his own land OR knew that he was encroaching on anothers land.
adverse possession
tacking
one adverse possessor may take on to his time with the land his predecessor’s time, so long as there is privity between the possessors
adverse possession
tacking
privity is satisfied by….
by any non hostile nexus between the possessors
adverse possession
tacking
privity is NOT satisfied when….
the possessor acquires possession by ousting his predecessor in possession
ousting=
contract
deed
will
adverse possession
disabilities
the SOL will not run against a true owner who is afflicted by a disability at the inception of the adverse possession
adverse possession
disabilities
what are common disabilities?
insanity
infancy
imprisonment
concurrent estates
joint tenancy
tenancy by the entirety
tenancy in common
joint tenancy
two or more own with the right of survivorship
tenancy by the entirety
protected marital interest between spouses with the right of survivorship
tenancy in common
two or more own without the right of survivorship
joint tenancy
distinguishing characteristics
the right of survivorship
alienability
not devisable or descendible
joint tenancy
right of survivorship
when one joint tenant dies, the share passes automatically to the surviving joint tenant
Destiny Child– i am a survivor
joint tenancy
alienability
a joint tenants interest is alienable inter vivos
transferable during holders lifetime
joint tenancy
not devisable or descendible
a joint tenants interest is neither devisable nor descendible
not successful to pass to heirs because of right of survivorship
joint tenancy
how to create a joint tenancy
4 unities- T-TIP
time
title
identical interests
rights to possess the whole
in addition to the fourt unities, to create a joint tenancy the grant must…..
clearly express the right of survivorship
TO A & B as joint tenants with the right of survivorship
severance of joint tenancy
SPAM Sale Partition And Mortgage
joint tenancy
severance and sale
a joint tenant may sell or transfer their interest during their lifetime
can do so secretly
disrupts the 4 unities
the buyer then is a tenant in common
joint tenancy
severance and sale
what if there are more than 2 joint tenants?
if more than 2 joint tenants the joint tenancy remains intact as between the other non-transferring joint tenants
joint tenancy
severance and sale
act of entering into a contract for the sale
will sever the joint tenancy as to that contracting party’s interest
doctrine of equitable conversion
doctrine of equitable conversion
equity regards as done that which ought to be done
joint tenancy
severance and partition
what are the 3 types
voluntary agreement
partition in kind
forced sale
joint tenancy
severance and partition
voluntary agreement
an allowable and peaceful way to end the relationship
joint tenancy
severance and partition
partition in kind
a judicial action for a phsyical division of the property if in the best interests of both parties
joint tenancy
severance and partition
forced sale
a judicial action when in the best interests of all parties, the land is sold AND the sale proceeds are divided up proportionately
joint tenancy
severance and mortgage
MINORITY VIEW
one joint tenant’s execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that now encumbered share only in the minority of states that follow the title theory of mortgages
joint tenancy
severance and mortgage
MAJORITY VIEW
states follow lien theory of mortgages
a joint tenant’s execution of a morgage on his or her interest will NOT severe the joint tenancy
tenancy by the entirety
created only between married partners who take as fictitious one person with the right of survivorship
tenancy by the entirety
how is it created
arises presumptively in any conveyance to married partners
grantor must clearly specify that he conveyance is to A and B as married partners as tenants by the entirety.
tenancy by the entirety
what happens with creditors?
REMEMBER: Cant touch this!!!
very protected form of co-ownership
creditors of only one spouse cannot touch this tenancy for satisfaction of the debt
tenancy by the entirety
unilateral conveyance
one spouse acting alone cannot defeat the right of survivorship but unilaterally conveying to a 3rd party
tenancy in common
each co-tenant has thier own individual part and each has a right to possess the whole
each interest is devisable descendable and alienable
rights and duties of co-tenants
possession
rent from co-tenant in exclusive possession
rent from 3rd parties
adverse possession
carrying costs
repairs
improvements
waste
partition
rights and duties of co-tenants
possession
if one co-tenant wrongfully exclused another co-tenant from possession of the whole or any part, he has committed ouster.
outser is an actionable wrong
rights and duties of co-tenants
rent from co-tenant in exclusive possession
K leaves the cabin voluntarily, for a 3 month tour of Europe. On his return, he demands rent from Randall for the 3 months randall enjoyed the exclusive possession of the land.
will kevin prevail?
No absent ouster bc not liable to the other for rent
rights and duties of co-tenants
rent from 3rd parties
a co-tenant who leases all or part of the premises to a 3rd party must ccount to his co-tenants providing them fair share of the renatl income.
rights and duties of co-tenants
adverse possesion
unless he has ousted the other co-tenant the co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other co-tenant
rights and duties of co-tenants
carrying costs
what are kevin and randalls respective responsibilities with respect to the cabin’s carrying costs?
each must pay their fair share
BASED ON undivided interest in the whole
rights and duties of co-tenants
repairs
squirrel breaks the cabins front window. Randall has repaired the window. he seeks cotribution rom Kevin for the cost of that repair.
Randall gets a right of contribution as long as repairs are:
reasonable
necessary
AND
gave notice to the other party
rights and duties of co-tenants
improvements
randall unilaterally converts part of the cabin into a science lab to foster his passion for chemistry.
To do so, he has to eliminate the cabin’s game room. He seeks contribution from Kevin, for Kevin’s fair share of Randall’s improvements. will randall succeed?
what about partition?
No
REMEMBER: co-tenants “improvements” ould be the others worst nightmare
at partition the improver gets any credit for any increase he caused OR a debit for any drop in price he caused
rights and duties of co-tenants
waste
a co-tenant must not commit waste.
during the life of the co-tenant, a co-tenant is permitted to bring an action for waste against another co-tenant.
types:
voluntary (obstruction)
permissible (neglect)
amerolative (increase in value)
rights and duties of co-tenants
partition
a joint tenant or tenant in common has a right to bring an action for partition.
types:
voluntary agreement
partition in kind
forced sale
what are the 4 leasehold estates?
tenancy for years
periodic tenancy
tenancy at will
tenancy at sufferance
tenancy for years
AKA estate for years or term of years
for a fixed determined period of time
could be for a week or 50 years
REMEMBER: anytime you have a termination date then is a tenancy for years
how much notice is needed for a tenancy for years?
none bc tells you from start when it ends
when must a term of years be in writing?
a term of years greater than one year must be in writing to be enforced bc of SOF
periodic tenancy
lease which continues for successive intervals until L or T give proper notice of termination
what is the KEY point for the periodic tenancy?
that it continues until properly terminated
how is a periodic tenancy created?
express
by implication
how is a periodic tenancy created?
express
can be created expressly.
how is a periodic tenancy created?
by implication
can always arise out of implication in any of the following ways:
land is leased with no mention of duration but provision is made for the payment of rent at set intervals
an oral term of years in violation of the SOF creates an implied periodic tenancy measured by the way rent is tendered
in a residential lease, if a landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises measured by the way rent is now tendered.
how is a periodic tenancy terminated?
written notice
at common law at least need to provide notice to the length of the period itself unless agreed otherwise.
by private agreement: the parties may lengthen or shorten these common-law prescribed notice provisions
