Real Property Freehold Estates Flashcards
Does the fee tail exist in GA?
No, it has been abolished by statute
A life estate may be granted:
a) expressly OR b) may arise by implication
What is a life estate pur autre vie?
A life estate measured by the life of another
O conveys Blackacre to Tarzan for the life of Jane. Tarzan dies but Jane is still alive, what happens at common law?
Seisin is vacant so anybody takes until Jane dies
Modern Rule for a life estate pur autre vie?
If the life tenant dies before the measuring life dies, the life estate passes to the estate of the deceased life tenant and continues in place until the measuring life dies
What if the life tenant dies before the measuring life dies?
General rule: the life estate passes to the estate of the life entant and continues until the measuring life dies
Can a life estate have a valid restraint on alienation?
Yes, the modern rule allows a provision that terminates the life estate IF the life tenant attempts to convey away the life estate
What is the general rule for the law of waste?
The tenant maintains the estate
Voluntary waste is:
any affirmative action beyond the right of maintenance that causes harm to the premises
Depletion of natural resources constitutes waste UNLESS
consumption of such resources consitutes the normal use of the land, as in the case of a life estate in a coal mine or granite quarry (Open Mines Doctrine)
The Open Mines Doctrine applies only to
depletable natural resources
The tenant must do three things to avoid liability for permissive waste:
1) Repair 2) Pay taxes 3) Pay mortgage interest
The life tenant’s repair obligation (and tax and interest obligations) is limited to the:
amount of rents and profits received from the land. If there are no rents and profits the the repair obligation is limited to the reasonable rental value of the land IF the tenant is using the land. If the tenant is not using the land then he has no repair obligation
What happens if the life tenant fails to pay taxes on the property?
The holder of the future interest must be sure that the taxes are paid because a tax sale will eliminate the future interest. The buyer the tax sale will take free and clear of the future interest.
Under GA law if the life tenant fials to make the property tax payment the life estate is
forfeited
Ameliorative waste occurs when the life tenant alters the property substantially but the life tenant’s activity
increases the value of the land
If changed conditions have made the property relatively worthless, then
the life tenant can alter the property without incurring liability to the holder of the future interest
What is the general rule for future interests?
The interest exists now but possession will not take place, if it takes place at all until some time in the future
What are the future interests retained by the grantor?
1) Reversion 2) Possibility of reverter 3) Right of entry
What are the future interests given to the grantee?
1) Remainder 2) Executory interest
A reversion arises in the grantor whenever:
the grantor conveys less than the full durational estate that the grantor had
What is a fee simple determinable?
An estate that automatically terminates on the happening of a stated event and goes back to the grantor
Whenever a grantor conveys an FSD, the grantor retains:
a possibility of reverter (automatically)
What are the magic words for identifying an FSD?
1) So long as 2) while 3) during 4) until
A fee simple subject to a condition subsequent is created when the grantor:
retains the power to terminate the estate of the grantee upon the happening of a specified event. Upon the happening of the event, the estate of the grantee continues until the grantor exercises her power of termination
Whenever a grantor conveys a fee simple subject to a condition subsequent, the grantor keeps a
right of reentry (right of entry/power of termination)
What are the magic words for identifying a FSCS?
1) Provided however 2) but if 3) on the condition that FOLLOWED BY: langauge where the grantor expressly reserves the right to reenter and retake the property
Are reversions, possibilities of reverter and rights of entry subject to the RAP?
NO, because they are VESTED
How do you spot a remainder?
A remainder is a future interest in a third party grantee that comes naturally and immediately on the termination of the preceding estate. Remainders are either VESTED or CONTINGENT
A remainder is vested if:
nothing stands in the way of its becoming possessory on the natural expiration of the preceding estate–the taker is ASCERTIANABLE and there are NO CONDITIONS to taking
What is a vested remainder subject to open?
A vested remainder created in a class of persons that is certain to take on the termination of th epreceding estates but subject to diminution by reason of other persons becoming entitled to share in the remainder
Under a rule of convenience, the class closes for a class gift whenever:
any class member is entitled to distribution. This is a rule of construction, NOT a rule of law.
Remainders (vested or contingent) will become possessory, if at all, ONLY on
the natural exipration of the estate that comes before them, they never affect the estate that comes before them.
How do you identify an executory interest?
An executory interest operates to cut short the estate that comes before it
Remainders NEVER EVER follow a
fee simple
If a future interest in a grantee is NOT a remainder then it must be
an executory interest
Can holders of executory interests sue for waste?
No, they do not have standing
The defeasible fees are:
1) fee simple determinable 2) fee simple subject to condition subsequent 3) fee simple subject to executory interest
A grantor who conveys a fee simple subject to a condition subsequent retains
A right of entry
A grantor who conveys a fee simple determinable retains
A possibility of reverter
A grantor who transfers a lesser estate than the grantor owns retains
A reversion
When do we apply the RAP (generally)
validity of an interest under RAP is determined at the time the conveyance is made at the time the interest is created. DO NOT wait and see what actually happens
Uniform RAP
codifies the common law rule BUT provides for an alternative 90 year vesting period.
The RAP in GA?
GA has adopted a wait and see approach, so apply common law rule and if void apply 90 year alternative period
Does RAP apply to the grant of a right of first refusal?
Yes, contingent interests in property, violate the RAP if they could possibly be exercised outside of the time period of the rule.
Is the RAP violated when the gift over is from one charity to another?
No, charity-to-charity exception
General rule for class gifts and the RAP
if the RAP operates to void the gift over to any member of the class because their interest might vest outside the time frame of the rule then all class members lose
In order to create joint tenancies at common law
the four unities must be present 1) time 2) title 3) interest 4) possession and the right of survivorship must be clearly stated
Any time the intent of the grantor is unclear, the modern rule will presume that a _______ has been created
tenancy in common
Joint tenancy carries a right of survivorship, which means that
the surviving joint tentants take automatically on the death of a joint tenant
If any joint tenant wants to be relieved of common ownership he can do so by asking that
the property be partitioned (by agreement or judicial action)
What is the general rule for severance of a joint tenancy?
Severance occurs whenever any one of the four unities is disturbed
Joint tenancy cannot be severed by:
Will
Joint tenancy is severed by:
1) conveyance 2) mortgage (title theory) 3) K for sale 4) creditor’s sale of the interest
In a lien theory state there is _______ of the joint tenancy
no severance, when the mortgage is executed the lien attaches to the the title but the title is not transferred
In a title theory state there is ______ of the joint tenancy
severance, because when the mortgage is executed title passes from mortgagor to mortgagee even though title goes back to the mortgagor when the mortgage is satisfied
GA is a _____theory state
lien
When does severance occur with a K for sale?
when it is signed because of the doctrine of equitable conversion
When does severance occur in a credit dispute?
when the judicial sale actually takes place, filing of lien doesn’t count
What unities are required for a tenancy in common?
the unitiy of possession which means each co-tenant is entitled to possess the whole of the property
What unities are required for a tenancy by the entirety?
the four unities plus the unity of marriage
The tenancy by the entirety ______ severable by the unilateral act of one of the co-tenants
is not, there is no right of partition
Termination of the tenancy by the entirety may occur by:
1) death 2) mutual agreement in writing 3) divorce 3) execution by a JOINT creditor
Does the tenancy by the entirety exist in GA?
No
One co-tenant does not have to account to another co-tenant for his share of the profits, subject to four exceptions:
1) Ouster or exclusive possession 2) agreement to share 3) lease of the property by a co-tenant to a third party 4) depletion of natural resources
What is contribution?
Contribution concerns the right of one co-tenant to force the other co-tenants to pay their fare share of some expenditure made on the property. Depends on what type of expenditure was made.
When must a co-tenant contribute?
For necessary repairs, paying the mortgage, assessments and taxes BUT NOT for improvements
