Rule Statements Flashcards
What is a “bundle of rights”?
We have the right to:
1. Lease, sale, trade, gift, devise, descend
2. Use
3. Mortgage
4. Invite onto the property
5. Exclude
6. Distribute to others partial rights and/or access
What is acquisition by capture?
Mere pursuit is insufficient to establish a title in a wild animal. Killing or capturing is necessary
What are the elements for acquisition by gift?
- Intent
- Delivery
- Acceptance
Under acquisition by gift, what is intent?
The donor must intend to give the irrevocable gift.
(No reservation for return - no backsies)
Under acquisition by gift, what is delivery?
The donor must transfer possession to the donee with the manifested intention to make the gift
Under acquisition by gift, what are the three types of delivery?
- Manual/actual delivery
- Constructive delivery
- Symbolic delivery
Under acquisition by gift, what is manual/actual delivery?
Handing over the gift
Under acquisition by gift, what is constructive delivery?
Hands over the keys to the car that is not present. Keys to the house (life estate)
Under acquisition by gift, what is symbolic delivery?
Physically transfers an object that represents or symbolizes the gift such as deed to property or pink slip to auto
Under acquisition by gift, what is acceptance?
Generally, specific rejection is required. (Acceptance is presumed)
Gifts can be rejected or disclaimed (think inheritance)
What is adverse possession?
Allows a party to gain title to land upon which they were originally trespassing by meeting the requirements
What are the elements of adverse possession?
“ROACH”
1. Running of the statute;
2. Open and notorious use;
3. Actual and exclusive possession of the land (excluding owner);
4. Continuous possession (based on normal use); and
5. Hostility (w/o permission);
Can be hostile w/o knowledge or intent
Under adverse possession, what is running of the statute?
It is when the adverse possessor must remain in possession for a specific period of time, as set by the statute
Under adverse possession, what is open and notorious?
Trespasser must “act like an owner” when occupying the property, and their actions must be obvious to any observer
Under adverse possession, what is active and exclusive?
Active means actual possession trespasser is actively using the property the same way an owner would.
Exclusive means the trespasser does not share control of the property, and excludes others from possession acting as if they were the actual owner, exercising their right to exclude
Under adverse possession, what is continuous?
Trespass must be uninterpreted for the entire duration of the running of the statute. “Seasonal exceptions may apply”; “typical use”
Under adverse possession, what is hostile?
Hostile means the occupation of the property infringes on the rights of the true owner
What is tacking?
Tacking is the legal doctrine in adverse possession that allows one adverse possessor to pass his/her time accrued onto a subsequent adverse possessor. This requires privity of estate or privity of contract
What is privity of estate?
Privity of estate allows that if an adverse possessor shares property with a subsequent party on the land, that tacking can be applied.
What is privity of contract?
Privity of contract allows that if an adverse possessor creates a contractual relationship related to the land, that the other party to the contract can tack their time onto the original adverse possessor
What is the effect of disability on adverse possession?
The time period required to gain title by adverse possession is tolled when the true owner of the real property suffers from (1) infancy, (2) imprisonment, or (3) incapacity if that disability was present when the adverse possession began
What are the four estates in land (feudal interests)?
- Fee Simple Absolute
- Fee Tail
- Defeasible Fees
- Life Estate
What is a fee simple absolute?
A fee simple absolute is the complete ownership in land of potentially infinite duration. It is alienable, devisable, and descendible.
What is a fee tail?
A conveyance that limits future conveyances to bloodline heirs (it cannot be sold)
“to A and the heirs of his body”
What is a reversion?
A future interest a grantor leaves himself after initially passing possessory interest in land to another for their life. This possessory interest reverts back to the grantor. (i.e., O to A for life. Creates reversion after A’s life)
What is a remainder?
When a person initially passes possessory interest in land to another for their life, and then leaves a remainder to someone else. Remainder means left over. (i.e., O to A for life, then to B. Remainder is left to B)
What is a life estate?
A life estate passes the possessory interest in land to another for their life, and then leaves a remainder to someone else or creates a reversion.
May lease or sell their interest, person leasing or buying the life estate must exercise the same responsibilities as a life tenant.
What are the responsibilities of life tenants?
Life tenants are liable for interest on mortgage (not principal), taxes, insurance, repairs, and maintenance. The must not commit waste
What are the three forms of waste?
- Affirmative waste
- Permissive waste
- Ameliorative waste
What is affirmative waste?
When life tenants commit intentional damage to the land (i.e., cutting down trees or knocking structures down)
What is permissive waste?
When life tenants cause damage to the property by negligence (i.e., life tenant failed to repair roof causing water damage)
What is ameliorative waste?
When life tenants make a substantial change in the property even if it increases the value. (i.e., tore out a seasonal strawberry patch to build a parking lot leased to Walmart which made millions)
What is a life estate pur autre vie?
A life estate for the tenure of the life of another person
What is a defeasible estate?
Defeasible means that the estate can be terminated based on a condition set in the conveyance
Are defeasible fees alienable, descendable, and deviseable?
YES
What is alienation?
The legal right to convey property (sell, trade, give away . . .)
What are the three types of defeasible estates?
- Fee simple determinable
- Fee simple subject to a condition subsequent
- Fee simple subject to an executory limitation
What is a fee simple determinable?
Type of defeasible fee created when an estate has been granted that may be indefinite but could be terminated upon the occurrence, or non-occurrence, of a specified event stated in the conveyance. If the specified event occurs, the estate will automatically revert back to the grantee under the “possibility of reverter”. Uses durational language such as: “so long as,” “during,” and “while”
What is a possibility of reverter?
A future interest a grantor leaves to her/himself when a fee simple determinable is conveyed. This future interest is automatic and immediate
What is a fee simple subject to a condition subsequent?
The conveyance grants the property to another but sets a condition, that if the condition occurs, returns the property to the grantor through a right of re-entry which much be enforced. Uses conditional language such as: “but if,” “on the condition that,” and “unless”
What is the right of re-entry?
A remedy used in a fee simple subject to condition subsequent which gives the grantor a right of re-entry which must be enforced. (also called right of entry or power of termination)
The conveyance will set a condition, which if the condition occurs, the right of re-entry is allowed.
What is a fee simple subject to executory limitation?
This creates a defeasible much like a fee simple determinable, but there is no reversionary right in the grantor. Upon breach, this estate automatically passes to a third-party (executory interest). Uses conditional language such as: “but if,” “on the condition that,” and “unless.”
What are restraints on alienation?
Absolute restraints on alienation are void as a matter of law.
Partial restraints may be valid under the circumstances
What is a future interest?
A future interest is a presently owned interest in land in regard to which the right to possession is delayed until some time in the future
What are the six types of future interests?
- Reversion
- Possibility of Reverter
- Right of Re-entry
- Vested Remainder
- Contingent Remainder
- Executory Interest
What are the differences between the six future interests?
The first three, (reversion, possibility of reverter, and right of re-entry) are future interests in grantors.
The last three, (vested remainder, contingent remainder, and executory interest) are future interests in grantees
What are the three future interests that can only be created in the grantor?
These are considered reversionary interests.
Reversionary interests are always considered VESTED.
When does a remainder occur?
A remainder occurs after the natural expiration of the previous estate
What are the two types of remainders?
- Vested remainder
- Contingent remainder
What is a vested remainder?
A vested remainder is a remainder (1) in an ascertained person AND (2) there are no conditions to the taking by the remainderman
What is contingent remainder?
A contingent remainder occurs when (1) the beneficiary is unascertained, OR (2) there is a condition that must be met for the remainder interest to be conveyed
What is an executory interest?
An executory interest takes effect only if a previous estate was terminated. The holder of the executory interest divests the previous holder of the estate
What is a vested remainder subject to open?
A remainder is subject to open (or vested subject to partial divestment) if later-born children are entitled to share in the gift.
O conveys “to A for life, then to A’s children who shall reach 21.” A’s oldest child, B is 17. B subsequently reaches 21.
What are the two things that can happen with an executory interest?
- They can terminate a present interest holder’s estate;
- They can commence after the current estate’s natural termination
What is a shifting executory interest?
Will transfer ownership from a grantee to a third party. They “cut off” the grantee’s interest in the property.
O to A for life, but if A remarries, the property goes to B.
(This creates a shifting executory interest for B because otherwise the property would be A’s)
What is a springing executory interest?
Will transfer ownership from the grantor to a third party. They “cut off
the grantor’s own interest in the property. O to A for life, and then to B if she is at least 20 years old (This creates a springing executory interest for B because otherwise the property would be O’s)
What is the Rule Against Perpetuities (RAP)?
No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.
This only applies to contingent remainders because, if it is a vested interest at the time of the creation of the interest, there is no need to wait to consider.
Under RAP, what interests are affected?
- Contingent remainders
- Executory interests
- Class gifts
When does the RAP period begin to run?
At the creation of the interest.
1. Inter-vivos gift; right away
2. Testamentary gift; when the grantor dies
What are alternatives to RAP?
- Wait and See (wait until grantor dies, and see if it violates RAP
- Uniform Statutory RAP (90 years from the creation of the interest)
What interests are not subject to RAP?
Reversionary interests are NOT subject to RAP because they are considered vested immediately
What are destructibility of contingent remainders?
A remainder in land is destroyed if it does not vest at or before the termination of the preceding freehold estate
O to A for life then to B, if B is 21
(B dies before reaching 21 at A’s death; contingent remainder dies, O has a reversion)
What is the rule in shelley’s case?
Occurs when in a single instrument/conveyance, the grantor grants a life estate in another, and then grants the remainder to that person’s heirs
O to A for life and then to A’s heirs becomes O to A in fee simple
What is the doctrine of worthier title?
When there is an inter-vivos conveyance of land to a person, and then a remainder in O’s heirs. The remainder simply returns to O as a reversion
O to A for life then to O’s heirs becomes O to A for life
What is a doctrine of merger?
Merger occurs when two estates become held by the same person creating a fee simple
O to A for life, remainder to B and her heirs; if A conveys her life estate to B, the remainder merges giving B a fee simple
What are the three types of tenancies?
- Joint tenancy
- Tenancy in common
- Tenancy by entirety
What is a joint tenancy?
A joint tenancy with right of survivorship (JTROS) is created when two or more parties take title in joint tenancy by satisfying the “four unities” (time, title, interest, and possession)
What happens to a joint tenancy when one or more unities are violated?
Any later violation of these can change the interest into what is called a tenancy in common (TIC)
What occurs when a party in a joint tenancy conveys their interest?
Either party that conveys all of their interest in any way converts the JT into a TIC
However, partial conveyances do not destroy the entire JT, just the part conveyed
This can be done without notice to the other joint tenants
Can a joint tenancy be devised or descended?
No joint tenant can devise their portion of the joint tenancy because the micro-second that they died, the property goes to the other joint tenant, so there is nothing to give in a will
What is a tenancy in common?
Tenants in common have equal right to both possession and use of the whole property. They are owners of land and have separate but undivided interests in the property. Each individual’s interest is alienable, devisable, and descendable (A,D,D)
How can a tenancy in common end?
Through partition or merger
Under tenancy in common, what is a partition?
A legal separation of the party’s interest. Can be by sale, or in kind
What is partition by sale?
The property is sold and the proceeds from the sale is split between the parties
What is a partition by kind?
The property line is split in proportion to what the parties own
Under tenancy in common, what is merger?
Merger occurs when one party gains all of the other parties’ interest and the property becomes a fee simple
What are tenants in common responsible for?
The taxes, costs, maintenance, and repairs relative to their fractional interest
What is ouster?
Ouster occurs when an occupying co-tenant restricts access of another co-tenant
If ouster is complete, the ousting co-tenant still owes rents and profits to the other TIC
(A co-tenant in possession isn’t liable to a co-tenant not in possession for rent unless there has been an ouster)
What is a tenancy by the entirety?
A joint tenancy for married couples. This has to have the four unities + marriage. (TTIP + M). Effectively the same as a JT but cannot be severed by conveyance by one party alone. Divorce converts this to a TIC.
Term of Years
Is a leasehold that runs for a fixed period of time with a specific defined end date, not necessarily by years. Some statutes require it but at common law, no notice to terminate is required since it automatically expires
Periodic Tenancy
Lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination. The required notice for termination is the length of one period, but many states impose a limit such as one month (6 month notice for 1 year or more tenancy)
Tenancy at Will
A tenancy of no fixed period that endures so long as both landlord and tenant desire. At common law, no specific notice period to terminate is required by modernly, notice is required based on the time between rental payments. In terms of enforcement, the court will find periodic tenancy when a tenancy at will tenant has been making such payment by term
Tenancy at Sufferance
A tenancy arising when a person who has been in lawful possession of property wrongfully remains as a holdover after his or her interest as expired. Common law gives a landlord two options: (1) eviction and sue for damage; or (2) consent (implied or express) to the creation of a new tenancy
Holdover Tenant
A tenant who is rightfully in possession but wrongfully remains after termination
Sublease
Occurs when an existing tenant (lessee) turns over possession of a rented property without the sublessee being added to the lease agreement. Subleases do not transfer the lessee’s entire interest. Subleases do not relieve the original lessee of his obligations in terms of rental payments or care for the unit. Landlord and tenant retain both privity of estate and privity of contract
Assignment
Occurs when a lessee transfers to another all of interest that they held in the possessory interest in the rented property. The landlord and original tenant maintain privity of contract and landlord and new tenant have privity of estate
Fixtures
A fixture is a once movable chattel that by virtue of its attachment to realty, objectively shows the intent to permanently improve the realty. Fixtures pass with the ownership of land and removing it is voluntary waste
Constructive Eviction
Occurs when the leased property, due to defects that are subject to the landlord’s duties, render a property uninhabitable for its leased purpose. The tenant may leave the premises and is not required to pay further rents, and the lease is effectively void
Implied Covenant of Quiet Eviction
Every landlord makes the promise that Tenant has a right to quiet use and enjoyment of the premises without interference from landlord. Breach requires (1) wrongful act or failure to act by landlord; (2) substantial interference with the tenants use of enjoyment of the property; (3) notice and opportunity to cure; and (4) tenant vacates the premises
