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Bar Prep Questions + Rule of Law > Real Property Flash Cards > Flashcards

Real Property Flash Cards

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1
Q

What kind of Possessory Estate?

To A

A

Fee Simple Absolute

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2
Q

What kind of Possessory Estate?

To A and his heirs

A

Fee Simple Absolute

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3
Q

What kind of Possessory Estate?

To A and the heirs of his body

A

Fee Tail

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4
Q

What kind of Possessory Estate?

To A for so long as; during; while; until

A

Fee Simple Determinable with possibility of reverter

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5
Q

What kind of Possessory Estate?

To A provided; however; however if; but if; on condition that; in the event of that

A

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

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6
Q

What kind of Possessory Estate?

To A provided; however; however if; but if; on condition that; in the event of that

A

Fee simple subject to executory interest

  • shifting/springing executory interest
  • power of termination
  • automatically terminates
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7
Q

What kind of Possessory Estate?

To A for life

A

Life estate

  • reversion/remainder
  • contingent or vested
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8
Q

What kind of Possessory Estate?

To A for life of B

A

Life estate

  • reversion/remainder
  • contingent or vested
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9
Q

What type of present possessory estates does RAP apply to?

A
  • fee simple subject to executory interest

- life estate remainder

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10
Q

When can a life estate be defeasible?

A

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.
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11
Q

RAP method of attack

A

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.

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12
Q

What interests are subject to RAP

A
  • 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
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13
Q

What interests are NOT subject to RAP?

A
  • present possessory estates
  • charitable trusts
  • resulting trusts
  • fully vested interests at creation
    • reversionary interests and completely vested remainders
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14
Q

Concurrent estates

A

when 2 or more persons share an interest.

Each is called a co-tenant

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15
Q

types of joint estates

A

tenancy in common

joint tenancy

right of survivorship

tenancy by the entirety

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16
Q

Tenancy in common

A

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

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17
Q

Joint Tenancy

A

each co-tenant owns an undivided interest in the whole and has a right of survivorship.

four unities

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18
Q

4 unities to create joint tenancy

A

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

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19
Q

Right of survivorship

A

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

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20
Q

how is the right of survivorship severed?

A

if one tenant conveys their interest voluntarily or involuntarily (creditor forces sale)

Result= tenancy in common

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21
Q

tenancy by the entirety

A

reserved for married couples

gives each spouse an undivided interest in the whole and a right of survivorship

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22
Q

what are the rights of co-tenants

A

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

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23
Q

Lease

A

gives the tenant exclusive possession of the premises for a period of time

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24
Q

how can a lease be created?

A

expressly or implied by conduct of the parties

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25
Q

implied lease

A

when a holdover tenant pays rent and the landlord accepts the rent

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26
Q

types of leases

A

terms of years

periodic

at will

tenancy at sufferance/holdover tenancy

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27
Q

Terms of years lease

A

definite beginning and end

no notice needed for termination

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28
Q

periodic lease

A

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.

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29
Q

at will lease

A

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

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30
Q

tenancy at sufferance/holdover tenancy

A

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

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31
Q

What are the duties of the tenant?

A

pay rent

not commit waste

repair

other duties as contracted

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32
Q

what are the duties of the landlord?

A

deliver legal right to possession of premises

water and heat

duties in lease document

quiet enjoyment

implied warranty and habitability

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33
Q

When does the tenant abandon the premises?

A

if they vacate without intending to return and fail to pay rent

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34
Q

what can a landlord do if the tenant abandons the premises?

A

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

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35
Q

what can a tenant do if the landlord breaches the lease?

A

may vacate and terminate the lease if have been evicted

withholding rent

repairing the property and deducting from rent

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36
Q

what is an assignment?

A

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

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37
Q

what is a sublease?

A

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

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38
Q

easement

A

interest to use the land of another

can be: affirmative, negative, appurtenant, in gross

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39
Q

affirmative easement

A

gives the holder the right to do something on the land of another

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40
Q

negative easement

A

the right to prevent a landowner from doing something on the land

common law: light, water, air, lateral and subjacent support

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41
Q

True or False: A writing is always required for a negative easement?

A

TRUE!

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42
Q

easement appurtenant

A

requires a dominant and servant tenement

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43
Q

easement in gross

A

personal in nature

resulting in a servant but not a dominant estate

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44
Q

how can you create an easement?

A

writing

implication

prescription

estoppel

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45
Q

How can you create an affirmative easement?

A

implication either by prior use

by necessity

prescription (similar to adverse possession)

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46
Q

How can you create an Easement by estoppel?

A

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

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47
Q

can easements be transferred?

A

yes

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48
Q

How can an easement be terminated?

A

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

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49
Q

license

A

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

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50
Q

When does a license expire?

A

expire at the death of the licensor or the conveyance of the servient estate

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51
Q

Can a license be revoked?

A

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

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52
Q

covenant

A

promise that attaches to land

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53
Q

covenant that runs with the land

A

promise that attaches to the land

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54
Q

examples of covenants running with the land are:

A

paying renting

condominiums common charges

maintenance fees

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55
Q

how are covenants established?

A 
writing 
\+ 
Intent 
\+ 
horizontal privity and vertical privity 
\+ 
touch and concern 
\+ 
notice
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56
Q

horizontal privity

A

conveyance of land between the covenantee and covenanter

occurs by the same deed that includes the covenant

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57
Q

vertical privity

A

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

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58
Q

covenant touches and concerns the land when:

A

direct influence on the occupation, use or enjoyment of the property

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59
Q

What must be on a real estate contract?

A

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

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60
Q

What do all real property contracts convey?

A

Marketable title to the purchaser at the time for performance

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61
Q

What is a marketable title?

A

title that is reasonably free from doubt in both fact and law

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62
Q

Title is NOT marketable if…

A

contains:
- defects in the chain of title
- encumbrances
- encroachment of improvements (onto someone else land or yours)
- zoning or other restrictions

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63
Q

Remedies for failure to convey marketable title:

A
  • recision
  • damages
  • specific performance
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64
Q

implied warranty of quality

A

seller has a duty to disclose all material defects known to the seller that are not recognizable or known by the buyer

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65
Q

what are seller’s remedies for a buyer’s breach to purchase?

A
  • expectation damages
  • foreseeable damages
  • reasonable reliance damages
  • retaining the down payment
  • liquidated damages
  • if willful? punitive
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66
Q

Mortgage theory:

Title Theory:

A

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

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67
Q

Mortgage theory:

Lien Theory

A

Bank receives a lien and the Buyer keeps title and possession until foreclosure happens.

Majority Rule

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68
Q

Mortgage theory:

Intermediate Theory

A

Buyer keeps title until default. After default title and possession go to the Bank

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69
Q

what are the ways a mortgagor or life tenant can create waste?

A

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

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70
Q

What must a mortgagor do if they still have a mortgage on the property?

A

unless the mortgagor is paying off the loan with the proceeds of the sale, they must get consent from the bank.

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71
Q

Assuming an existing mortgage

A

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!!

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72
Q

Taking property “subject to” an existing mortgage

A

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
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73
Q

how do you determine priority when there are multiple mortgages?

A

by chronological order of recording

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74
Q

What does it mean when a bank “redeems up”?

A

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.

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75
Q

what does it mean when a bank “foreclose down”?

A

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

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76
Q

what are the different types of titles?

A

adverse possession
transfer by deed
transfer by operation of law and by will
recording acts

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77
Q

Adverse possession- TIME FACTOR

A

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)

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78
Q

adverse possession

A 
OCEAN 
open and notorious 
continuous 
exclusive 
actual 
non-permissive (hostile)
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79
Q

Adverse possession

privity of estate

A

when there has been a voluntary transfer of possession from the first adverse possessor to the second by deed.

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80
Q

what are the 3 types of deed?

A

general warranty
special warranty
quitclaim

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81
Q

general warranty

A

the grantor warrants that no title defects exist in the chain of title

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82
Q

special warranty deed

A

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

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83
Q

quitclaim deed

A

the grantor provides no warrants- the grantee takes whatever interest the grantor had

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84
Q

True or false:

general or special warranty deed contains a series of covenants, divided into present and future covenants

A

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

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85
Q

TRUE OR FALSE:

present and future covenants both run with the land?

A

FALSE

ONLY future covenants run with the land

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86
Q

what are types of present covenants?

A

covenant of:

seisin
right to convey
against encumbrances

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87
Q

covenant seisin

A

grantor owns and possesses the estate granted

existence of an encumbrance does not breach the covenant

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88
Q

covenant of right to convey

A

grantor has the right to convey the property.

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89
Q

covenant against emcumbrances

A

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
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90
Q

what are the types of future covenants?

A

covenant of:

quiet enjoyment
warranty
further assurances

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91
Q

covenant of quiet enjoyment

A

grantor covenants that the grantee will not be disturbed by a superior claim

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92
Q

covenant of warranty

A

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

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93
Q

covenant of further assurances

A

grantor promises to take whatever steps may be required to perfect title defects.

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94
Q

coveyance of real property by deed

A

donative intent
- MUST intend to transfer immediately

delivery

  • usually physical act of handing over
  • words declaring intent and release of control = okay!

acceptance

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95
Q

does handing the deed to an agent = delivery?

A

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

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96
Q

Rules of construction

A 
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
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97
Q

true or false

recording a deed is not requires to validate the transfer of title

A

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

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98
Q

what are types of undocumented interests in land

A

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

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99
Q

what are the names of the recording statues?

A

race
race-notice
notice

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100
Q

race notice

A

first to record is the first to prevail

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101
Q

notice

A

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
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102
Q

constructive notice

A

if the other party’s deed is recorded in the proper chain of title in the record books

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103
Q

inquiry notice

A

if the appearance of the property is such that the claimant should have asked more questions about the property’s title

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104
Q

race-notice

A

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

105
Q

shelter rule

A

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

106
Q

what are the present estates?

A

fee simple absolute
defeasible fees
life estate

107
Q

devisable

A

can it pass by will

108
Q

descendible

A

will it pass by statutes of intestacy if its holder dies intestate

109
Q

alienable

A

is it transferable inter vivos or during the holder’s lifetime.

110
Q

fee simple absolute

how is it created

A

To A

To A and his heirs

111
Q

what is fee simple absolute

A

absolute ownership of potentially infinite duration

absolute ownership
feely alienable
freely divesable

112
Q

defeasible fees

THINK: w/ a catch or condition

A

fee simple determinable

fee simple subject to condition

fee simple subject to executory limitation

113
Q

fee simple determinable

how is it created?

A

to A so long as…

to A during…

to A until…

114
Q

fee simple determinable

what happens if the stated condition is violated?

A

they lose their rights immediately

115
Q

fee simple determinable

distinguishing characteristics

A

devisable
descendible
alienable

BUT ALWAYS subject to the condiction stated

116
Q

fee simple determinable

what is the accompanying future interest?

A

possibility of reverter in the grantor

117
Q

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?

A

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

118
Q

fee simple subject to condiction subsequent

how created

A

to A but if X event, grantor reserves the right to re-enter and retake

119
Q

fee simple subject to condiction subsequent

what 2 ingredients do you need?

A

durational langauge

statement of right to reenter

120
Q

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?

A

selena has a fee simple subject to condition subsequent

britteny has a right of reentry power of termination.

121
Q

fee simple subject to condiction subsequent

what are the distinguishing characteristics?

A

NOT automatically terminated

BUT it can be cut short at the granters prerogative if the stated condition occurs

REMEMBER:
its my perogative

122
Q

fee simple subject to condiction subsequent

what is the grantors prerogative to terminate called?

A

the right of entry

power of termination

123
Q

fee subject to executory limitation

how created

A

to A but if X occures then to B

124
Q

fee subject to executory limitation

distingushing characteristics

A

if the condition isbroken, the estate is automatically foregeited in favor of an entity otherr than the grantor

125
Q

fee subject to executory limitation

which future interest accompanies the fee simple subject to executory interest?

A

shifting executory interest

126
Q

what are 2 important rules of construction for defeasible fees?

A

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

127
Q

is this a defeasible fee?

to A for the purpose of constructing a day care center

A

NO! A is vested with a fee simple absolute and NOT a defeasible fee

128
Q

is this a defeasible fee?

To A with the hope that he becomes a lawyer

A

NO! A is vested with a fee simple absolute and NOT a defeasible fee

129
Q

is this a defeasible fee?

to A with the expectation that the premises will be used as a hardware store

A

NO! A is vested with a fee simple absolute and NOT a defeasible fee

130
Q

what is an absolute restraint on alienation?

A

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

131
Q

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?

A

VOID

absolute restraint on alienation

A: Fee Simple

O: nothing

132
Q

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?

A

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

133
Q

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?

A

Elle: Fee Simple with condition subsequent

O: power of terminantion, rightof re-entry

if Elle leaves the legal profession: Back to O

134
Q

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?

A

Elle: fee simple with executory limitation

Luke: shifting executory interest

If elle leaves the legal profession: Fee simple subject to shifting executory interest

135
Q

life estate

how created

A

this is an estate that must be measured in explicit lifetime terms and never in terms of years

REMEMBER: Romantic estate

136
Q

life estate

what does A have?

what is A known as?

what does O have?

A

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

137
Q

is it still a life estate if measured by a life other than the grantee’s?

A

Yes!

life estate pur autre vie

138
Q

life estate

what is the accompanying future interest?

A

if held by O it is called a reversion

if held by a 3rd party it is called a remainder

139
Q

life estate

distinguishing characteristics

A

the life tenants entitlements are rooted in the important doctrine of waste

140
Q

what are the 2 rules for life tenants and the land?

A

the life tenant is entitled to all ordinary uses and profits from the land

the life tenant must not commit waste

141
Q

what are the 3 types of waste?

A

voluntary (affirmative)

permissive (neglect)

ameliorative

142
Q

voluntary (affirmative) waste

A

aka affirmative waste

actual, overt conduct that causes a drop in value

143
Q

voluntary waste and natural resources

A

the life tenant must not consume or exploit natural resources on the property

UNLESS (PURGE) 
Prior 
Use 
Reasonable Repairs 
Grant 
Exploitation
144
Q

what are the 4 exceptions of voluntary waste

A 
(PURGE) 
Prior 
Use 
Reasonable Repairs 
Grant 
Exploitation
145
Q

4 exceptions of voluntary waste

prior use

A

prior to the grant, the land was used for exploitation when that is the case the tenant may continue to exploit unless otherwise agreed

146
Q

4 exceptions of voluntary waste

prior use an the open mines doctrine

A

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

147
Q

4 exceptions of voluntary waste

reasonable repairs

A

the life tenant may consume natural resources for the purposes of repairs and maintenance

148
Q

4 exceptions of voluntary waste

grant

A

the life tenant may exploit if expressly granted the right to do so

149
Q

4 exceptions of voluntary waste

exploitation

A

the land is suitable only for exploitation

150
Q

4 exceptions of voluntary waste

permissive waste (neglect)

A

occurs when the land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land.

151
Q

4 exceptions of voluntary waste

permissive waste and the obligation to repair

A

the life tenant must simply maintain the premises in reasonably good repair

THINK: basic maintenance

152
Q

4 exceptions of voluntary waste

permissive waste and the obligation to pay all ordinary taxes

A

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

153
Q

4 exceptions of voluntary waste

ameliorative waste

A

the life tenant must not engage in acts that will enhance the property’s value unless all future interest holders are known and consent

154
Q

what are the 3 future interests capable of creation in the grantor

A

the possibility of reverter

the right of entry

the reversion

155
Q

3 future interests capable of creation in the grantor

possibility of reverter

which present estate does the possibility of reverter accompany?

A

fee simple determinable

156
Q

3 future interests capable of creation in the grantor

the right of entry

which present estate does it accompany?

A

fe simple subject to condition subsequent

157
Q

3 future interests capable of creation in the grantor

the reversion

A

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)

158
Q

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

A

reversion

159
Q

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?

A

reversion

160
Q

future interest in transferees

A

if our future interest is held by someone other than the grantor, it has to be either:

a contingent remainder

vested remainder

executory interest

161
Q

future interest in transferees

vested remainder

types

A

indefeasibly vested remainder

vested remainder subject to complete defeasance

and

the vested remainder subject to open

162
Q

future interest in transferees

executory interest

types

A

the shifting executory interest

AND

the springing executory interest

163
Q

what is a remainder

A

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
164
Q

remainder are either:
__________
OR
__________

A

vested

OR

contingent

165
Q

what is a contingent remainder?

A

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

166
Q

To A for life then to B’s first child

A is alive

B as yet has no children

A

remainder that is contingent because it is created in an unascertained or unknown person

167
Q

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.

A

remainder that is contingent because it is created in an unascertained or unknown person

168
Q

condition precedent

A

when it appears before the language creating the remainder or is woven into the grant to the remainderman.

169
Q

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?

A

B: contingent remainder

O: reversion

If B graduates from college during A’s lifetime: B has an indefeasibly vested remainder

170
Q

vested remainder

A

a remainder is vested when it is created in a known taker who is not subject to a condition precedent

171
Q

what are the 3 types of vested remainders

A

indefeasibly vested remainder

vested remainder subject to complete defeasance

vested remainder subject to open

172
Q

indefeasibly vested remainder

A

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

173
Q

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

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

  1. will
  2. intensity
174
Q

vested remainder subject to complete defeasance

AKA

vested remainder subject to total divestment

A

the remainderman exists

taking is not subject to any condition precedent

his right to possession could be cut short because of a condition subsequent

175
Q

condition precendent

VS

condition subsequent

A

condition precendent creates a contingent remainder

condition subsequent creates a vested remainder subject to complete defeasance

176
Q

comma rule

A

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

177
Q

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

A: life estate

B: vested remainder subject to complete defeasance

C: shifting executory interest

178
Q

if the conditional language appears before the language creating the remainder the condition is….

A

a condition precedent and you have a contingent remainder

179
Q

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

A: life estate

B: contingent remainder subject to his condition precedent

180
Q

vested remainder subject to open

A

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!!

181
Q

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?

A

vested remainders subject to open

why: part of group or class still open

182
Q

when a class is open what does that mean?

A

additional members can still join

183
Q

when is a class closed?

A

when no others can join

184
Q

how will you know when a given class has closed

A

common law rule of convenience

185
Q

common law rule of convenience

A

the class closes when any member can deman possession

186
Q

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?

A

bc that is when C and D can demand possession

187
Q

womb rule

A

if B is pregnant include the unborn in the class

188
Q

executory interests

A

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”)

189
Q

shifting executory interest

A

always follows a defeasible fee and cuts short someone other than the grantor

190
Q

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

A

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

191
Q

springing executory interest

A

cuts short the interest of O, the grantor

192
Q

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?

A

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.

193
Q

Rule against perpetuities

A

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.

194
Q

what is the 4 step technique for assessing potential rap problems

A
  1. determine which future intersts have been created by the conveyance
  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 to what has to happen for the future interest holder to take– that person is the measuring life.
  4. determine whether we will know for sure within 21 years of the death of a measuring life if the future interest holders can take.
195
Q

what does RAP not apply to?

A

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

196
Q

RAP only applies to?

A

contingent remainders

executory interests

vested remainders subject to open

197
Q

what is the bright line rule of common law RAP

A

an executory interest with no limit on the time within which is must vest violates the RAP.

198
Q

wait and see

OR

Secodn look

doctrine

A

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.

199
Q

Uniform statutory rule against perpetuities (USRAP)

A

codifies the common law RAP and in addition provides for an alternative 90 year vesting period

200
Q

cy pres doctrine

A

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

201
Q

adverse possession

A

possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title

202
Q

elements of adverse possession

A 
COAH 
continuous 
Open and notorious 
Adverse 
Hostile
203
Q

adverse possession

continuous

A

uninterrupted for given statutory period

204
Q

adverse possession

open and notorious

A

sort of possession

the owner would have seen the other person

205
Q

adverse possession

actual

A

entry actual and occupation must be exclusive

no sharing with the owner!

206
Q

adverse possession

hostile

A

possessor does not have owners consent to be there

207
Q

adverse possession

possessors subjective state of mind

A

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.

208
Q

adverse possession

tacking

A

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

209
Q

adverse possession

tacking

privity is satisfied by….

A

by any non hostile nexus between the possessors

210
Q

adverse possession

tacking

privity is NOT satisfied when….

A

the possessor acquires possession by ousting his predecessor in possession

ousting=
contract
deed
will

211
Q

adverse possession

disabilities

A

the SOL will not run against a true owner who is afflicted by a disability at the inception of the adverse possession

212
Q

adverse possession

disabilities

what are common disabilities?

A

insanity
infancy
imprisonment

213
Q

concurrent estates

A

joint tenancy
tenancy by the entirety
tenancy in common

214
Q

joint tenancy

A

two or more own with the right of survivorship

215
Q

tenancy by the entirety

A

protected marital interest between spouses with the right of survivorship

216
Q

tenancy in common

A

two or more own without the right of survivorship

217
Q

joint tenancy

distinguishing characteristics

A

the right of survivorship

alienability

not devisable or descendible

218
Q

joint tenancy

right of survivorship

A

when one joint tenant dies, the share passes automatically to the surviving joint tenant

Destiny Child– i am a survivor

219
Q

joint tenancy

alienability

A

a joint tenants interest is alienable inter vivos

transferable during holders lifetime

220
Q

joint tenancy

not devisable or descendible

A

a joint tenants interest is neither devisable nor descendible

not successful to pass to heirs because of right of survivorship

221
Q

joint tenancy

how to create a joint tenancy

A

4 unities- T-TIP

time

title

identical interests

rights to possess the whole

222
Q

in addition to the fourt unities, to create a joint tenancy the grant must…..

A

clearly express the right of survivorship

TO A & B as joint tenants with the right of survivorship

223
Q

severance of joint tenancy

A 
SPAM 
Sale 
Partition 
And 
Mortgage
224
Q

joint tenancy

severance and sale

A

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

225
Q

joint tenancy

severance and sale

what if there are more than 2 joint tenants?

A

if more than 2 joint tenants the joint tenancy remains intact as between the other non-transferring joint tenants

226
Q

joint tenancy

severance and sale

act of entering into a contract for the sale

A

will sever the joint tenancy as to that contracting party’s interest

doctrine of equitable conversion

227
Q

doctrine of equitable conversion

A

equity regards as done that which ought to be done

228
Q

joint tenancy

severance and partition

what are the 3 types

A

voluntary agreement
partition in kind
forced sale

229
Q

joint tenancy

severance and partition

voluntary agreement

A

an allowable and peaceful way to end the relationship

230
Q

joint tenancy

severance and partition

partition in kind

A

a judicial action for a phsyical division of the property if in the best interests of both parties

231
Q

joint tenancy

severance and partition

forced sale

A

a judicial action when in the best interests of all parties, the land is sold AND the sale proceeds are divided up proportionately

232
Q

joint tenancy

severance and mortgage

MINORITY VIEW

A

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

233
Q

joint tenancy

severance and mortgage

MAJORITY VIEW

A

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

234
Q

tenancy by the entirety

A

created only between married partners who take as fictitious one person with the right of survivorship

235
Q

tenancy by the entirety

how is it created

A

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.

236
Q

tenancy by the entirety

what happens with creditors?

A

REMEMBER: Cant touch this!!!

very protected form of co-ownership

creditors of only one spouse cannot touch this tenancy for satisfaction of the debt

237
Q

tenancy by the entirety

unilateral conveyance

A

one spouse acting alone cannot defeat the right of survivorship but unilaterally conveying to a 3rd party

238
Q

tenancy in common

A

each co-tenant has thier own individual part and each has a right to possess the whole

each interest is devisable descendable and alienable

239
Q

rights and duties of co-tenants

A

possession

rent from co-tenant in exclusive possession

rent from 3rd parties

adverse possession

carrying costs

repairs

improvements

waste

partition

240
Q

rights and duties of co-tenants

possession

A

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

241
Q

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?

A

No absent ouster bc not liable to the other for rent

242
Q

rights and duties of co-tenants

rent from 3rd parties

A

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.

243
Q

rights and duties of co-tenants

adverse possesion

A

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

244
Q

rights and duties of co-tenants

carrying costs

what are kevin and randalls respective responsibilities with respect to the cabin’s carrying costs?

A

each must pay their fair share

BASED ON undivided interest in the whole

245
Q

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.

A

Randall gets a right of contribution as long as repairs are:

reasonable
necessary
AND
gave notice to the other party

246
Q

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?

A

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

247
Q

rights and duties of co-tenants

waste

A

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)

248
Q

rights and duties of co-tenants

partition

A

a joint tenant or tenant in common has a right to bring an action for partition.

types:
voluntary agreement
partition in kind
forced sale

249
Q

what are the 4 leasehold estates?

A

tenancy for years
periodic tenancy
tenancy at will
tenancy at sufferance

250
Q

tenancy for years

A

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

251
Q

how much notice is needed for a tenancy for years?

A

none bc tells you from start when it ends

252
Q

when must a term of years be in writing?

A

a term of years greater than one year must be in writing to be enforced bc of SOF

253
Q

periodic tenancy

A

lease which continues for successive intervals until L or T give proper notice of termination

254
Q

what is the KEY point for the periodic tenancy?

A

that it continues until properly terminated

255
Q

how is a periodic tenancy created?

A

express

by implication

256
Q

how is a periodic tenancy created?

express

A

can be created expressly.

257
Q

how is a periodic tenancy created?

by implication

A

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.

258
Q

how is a periodic tenancy terminated?

A

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

Bar Prep Questions + Rule of Law (15 decks)

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