Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Property I > V. Estates And Future Interests + VI. Concurrent Ownership and Marital Property > Flashcards

V. Estates And Future Interests + VI. Concurrent Ownership and Marital Property Flashcards

Modern Feehold Estates, Modern Future Interest, Concurrent ownerships, Severance, Partition, Co-tenant Rights and Duties, Marital Property

1
Q

Fee Simple Absolute

A

A Fee Simple Absolute is an interest in land where the land is owned completely, without any limitations or conditions.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Life Estate

A

A life estate is a present estate that lasts for the duration of the grantee’s life.
Life estate is freely transferrable during the life of the grantee, but the estate is not devisable or descendible.
Companies cannot hold life estates.
A Life Estate Pur Autre Vie is
O convey “to G for the life of H”
O conveys “to G for as long as H lives.”
O conveys “to G for the life of G’s only child H”
O conveys “to G for life” then G conveys her interest to H

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Fee Tail

A

To “A and the heirs of his body.”
An owner could keep land within the family for generations
Almost extinct in the United States (except DMMR States - Delaware, Maine, Massachusetts & Rhode Island)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Fee Simple Determinable

A

A Fee Simple Determinable is an estate that will automatically terminate when a certain event or condition occurs or fails to occur. It uses durational language like ‘so long as’, ‘while’ ‘until’ ‘during’.
It is freely alienable, devisable and descendible. The grantor retains a possibility of reverter.
For example: To A for as long as the property is used for a museum.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Fee Simple Subject to a Condition Subsequent

A

A Fee Simple Subject to a Condition Subsequent is a present possessory estate that may terminate upon the occurrence or nonoccurrence of a stated future event. The grantor retains a right to reenter and reclaim the property. It is freely alienable, devisable and descendible. Uses words like provided that, on the condition that, but if, however if, provided however that

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

In a transfer by deed, what is the transaction called?

A

A conveyance or a grant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Fee Simple Subject to an Executory Limitation

A

A Fee Simple Subject to an Executory Limitation is a present possessory estate that is followed by a future interest in a third party. The grantor does NOT retain a future interest, which is why the FSSEL is differentiated from the FSD and the FSSCS.
To April and her heirs as long as liquor is never sold on the premises, and if so, then to Ron and his heirs.
O conveys “to G and her heirs on the condition that Alaska does not secede from the United States, then to M and her heirs.”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

In a transfer by deed, who are the two parties?

A

Person who makes transfer: grantor

Recipient: grantee

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

In a transfer by will, what is the transaction called?

A

Devise

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

In a transfer by will, what is the verb?

A

Devise

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

In a transfer by will, who are the parties?

A

Person who wrote the will = testator

Person who receives the property = devisee

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

In a transfer by intestate succession (no will) what is the verb used to describe the transaction and what is the recipient called?

A

Descend;

Heir

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

If you have no will and no heirs, what happens to your property?

A

It escheats to the State.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Can a company hold a Fee Simple Absolute?

A

Yes. You can devise your land to a company. However, you cannot give a company a Life Estate, because companies have no lives.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are some examples of Life Estates Pur Aurtre Vie?

A

O convey “to G for the life of H”
O conveys “to G for as long as H lives.”
O conveys “to G for the life of G’s only child H”
O conveys “to G for life” then G conveys her interest to H

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Q
What are the three types of waste?

A

Voluntary waste
Permissive waste
Ameliorative waste

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is voluntary waste?

A

Voluntary waste occurs when there is an affirmative act that significantly reduces the value of the property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is permissive waste?

A

Permissive waste happens when there is a failure to take reasonable care to protect the estate.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is a restraint on alienation?

A

A restraint on alienation is any attempt to unreasonably prohibit the ability to transfer or sell property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What is a forfeiture restraint?

A

A forfeiture restraint is a restraint for which if the transferee attempts to transfer or sell the property they will forfeit their rights to the property. A court will invalidate any language that provides a forfeiture restraint.
O conveys “to B, but if B ever tries to sell the estate, then to D.”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is a disabling restraint?

A

A restraint that prevents the transferee from transferring her interest.
O conveys “to B, and any conveyance by B is void.”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is a promissory restraint?

A

A restraint that stipulates that the transferee promises not to transfer her interest.
O conveys “to B, and B promises that she will not sell the estate.”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is the duration of B’s estate? O conveys to A and his heirs. Then A conveys to B for 2 years. One year later A dies.

A

B’s estate is unaffected by A’s death. B has one more year of possession left.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

How can a landowner control the future of her property after she transfers her property?

A

Fee Simple Subject to a Condition Subsequent

Fee Simple Determinable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

How does an Absolute estate end?

A

Naturally

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

How does a Defeasible estate end?

A

Unnaturally

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is the consequence of the distinction here?
Suppose O grants a defeasible fee simple in Orangeacre, an orange grove, to D, and the triggering event is D’s consumption of alcohol. D first drinks alcohol in 2017, but remains in possession until O brings suit in 2020.

A

If D’s estate was an FSD, it ended in 2017, and D owes rent to O for three years. However, if the estate was a FSSCS, D owes no rent until O retakes the premises.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Courts will generally construe an estate as a fee simple subject to a condition subsequent. Why?

A

To avoid forfeiture!

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is a term of years?

A

An estate of fixed duration. A present possessory interest of fixed duration. Grantor retains a reversion.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Estate begins

A

And estate ends

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

What is a reversion?

A

A reversion is a future interest in the transferor which can become possessory upon the expiration of a life estate, term of years or contingent remainder. A reversion generally follows a contingent remainder because someone must hold seisin in the estate at all times (someone must be in possession).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What does a possibility of reverter do?

A

A possibility of reverter is a future interest which automatically divests the grantee of her possessory interest upon the end of fee simple determinable estate.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

If there is ambiguity in the conveyance’s language, which estate do courts prefer?

A

A fee simple subject to a condition subsequent, because there are no automatic forfeitures. This presumption is more in favor of the transferee and more in favor of the modern marketplace.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Which present possessory interest do we apply the doctrine of waste to?

A

Life estate.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What is a future interest?

A

An existing, nonpossessory property right that may become possessory in the future.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What are the three types of future interests for a grantor?

A

A reversion; A possibility of reverter; A right to reenter and reclaim the property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

What are the two main types of future possessory interests for a grantee?

A

Remainder (indefeasible or contingent)
- Executory interest (springing or shifting)

38
Q

What are the three types of vested remainders?

A
  1. Indefeasible
  2. Subject to divestment
  3. Subject to open
39
Q

What future interest is there when an owner conveys a fee simple absolute?

A

None.

40
Q

What is a remainder?

A

A future interests that “waits patiently” until the termination of the preceding possessory estate. Possession is not guaranteed, it cannot divest any interest in a prior transferee.

41
Q

What is an indefeasibly vested remainder?

A

A future possessory interest in which the interest is conveyed to an ascertainable person and is not subject to a condition precedent

42
Q

Who counts as an ascertainable person?

A
  • People alive and ascertainable
  • NOT heirs
  • NOT kids in womb
43
Q

What is a contingent remainder?

What is a contingent remainder subject to a condition precedent?

A

A contingent remainder is a future interest in an unascertainable person OR a future interest that is subject to a condition precedent
O conveys Greenacre “to B for life, then to the heirs of D.”
Subject to a condition precedent (stated event must occur before)

Condition precedent = something that must happen before the remainder can become possessory (not natural expiration)

44
Q

What is a condition precedent?

A

Something that must happen before the remainder can become possessory (not natural expiration)

45
Q

What is a vested remainder subject to divestment?

A

A future possessory interest that is vested but it can be lost. “It’s yours, but you’ll lose if it so and so occurs”
Example: O conveys “to B for life, then to D, but if D smokes marijuana during B’s lifetime, then to E.”

46
Q

What is a Vested remainder subject to open?

A

A vested remainder held by one or more living members of a group orclassthat may be enlarged in the future.
Example: O conveys Greenacre “to B for life, then to D’s children.” At the time, D has two living children, E and F.

47
Q

How does a class close (in a vested remainder subject to open)?

A

Natural Closing – an event that prevents further creation of members (i.e. death)To Jorge for life, then to the children of Pepe. Class will close at Pepe’s death.
OR
Rule of Convenience – class closes the time designated in the conveyance for distribution
To Jorge for life, then to the children of Pepe. Class will close at Jorge’s death.

48
Q

Remember living cannot be a contigency

A
  1. O conveys “to D for life, then to B, but if B does not survive D, then to E.”
  2. D – Life estate
  3. B – Vested remainder subject to divestment
  4. E – Shifting executory interest
49
Q

What does a kid in the womb have ONLY AFTER it is born?

O to A for life, then to A’s children. (A’s wife is pregnant with their first child.)

A

A vested remainder subject to open.

50
Q

What does O have

O to A for life, then to B, but if B ever opens a restaurant in San Diego, then to O.

A

Shifting executory interest

51
Q

Can there be more than one condition precedent/conditions in a contingent remainder?

A

Yes. O conveys “to G for life, then if M marries, to M’s oldest son.”M has no children.”
Two conditions: If M Marries, on condition that M has a son.

52
Q

What is an alternative contingent remainder?

A

Alternative Contingent Remainders occur when each transferee waits patiently for possession, but only one gets it. Their conditions precedent are opposite of one another. One vesting precludes the other from vesting. Even though alternative contingent remainders are mutually exclusive and will exhaust all possibilities, the transferor still carries a reversion because at common law, contingent remainders were destructible.
Example: O to A for life, then to B if B has graduated from law school, but if B has not graduated from law school, then to C.

53
Q

What is an executory interest?

A

A future interest that can only take effect by divesting (cutting off) another’s interest
Note: When you see a third-party sneaking into the conveyance, there is going to be an executory interest

54
Q

What is the definition of the Rule Against Perpetuities (RAP)?

A

No interest is good unless it must vest, if at all, no later than twenty-one years after some life in being at the creation of the interests.

55
Q

What three types of future interests are subject to the Rule Against Perpetuities?

A

Contingent remainders, executory interests, and vested remainders subject to open.

56
Q

Label the interests

O conveys “to D for life, then to B, but if B does not survive D, then to E.”

A

i. D – Life estate
ii. B – Vested remainder subject to divestment
iii. E – Shifting executory interest

56
Q

Who are the “lives in being” in a Rule Against Perpetuities analysis?

A

Must be persons who are alive at the time the instrument becomes effective (a child in gestation is considered if later born alive)

56
Q

Q
If you see a Fee Simple Determinable followed by a Condition Subsequent what do you do?
Example: O to A and the heirs of her body SO LONG AS the land is farmed, BUT IF the land ceases to be farmed, then back to O.

A

The property market prefers a Fee Simple Subject to a Condition Subsequent, so choose this over a Fee Simple Determinable.

56
Q

Label the interests

T devises “to A for life, then to T’s children.” T is 80 and has no children.

A

a. A – LE
b. T’s children – Contingent Remainder
c. T - reversion

56
Q

O conveys “to A for life, then to B for life if B learns how to play the piano, then to C for life if C learns how to play the trombone. What is C’s interests?

A

B and C - contingent remainders in life estate

57
Q

O to A for life, then to B and his heirs, then to C and his heirs.
Who has what?

A
  1. A – LE
  2. B – IVR
  3. C- nothing
    Note - no one can have anything after it goes to someone and their HEIRS
58
Q

Name the interest Google has

O conveys “to F for life.” F then conveys her interest “to Google, Inc.”

A

Life estate pur autrie vie

59
Q

Name the interest.

To April for life, but if she moves to New York, then I may take my estate back

A

Life Estate Subject to a Condition Subsequent

60
Q

What are the interests?
a. O to A for life, then to B, but if B ever owns an insurance agency, then to O.
b. O to A for life, then to B; however, if B divorces after A dies, then to O.

A

i. A has a life estate (present possessory interest/estate)
ii. B has a vested remainder subject to divestment (future interest. Will vest when A dies. We can point to B and there is no condition precedent, so it is a vested remainder. However, B can be divested at some point in time—if he ever owns an insurance agency or if he divorces—so it’s a vested remainder subject to divestment)
iii. O has a right to rentry. It’s going to O, not to a 3rd party (in which case there would be an executory interest). To make it real, fast forward, and say A dies. B then has a fee simple subject to condition subsequent (FSSCS), and in a FSSCS, the grantor retains the right to reenter.

61
Q

Name the interests.

O devises “to G for life, then to H, but if H does not survive G, then to I.”

A

a. G – LE
b. H and I – are ACR
c. O has nothing – the interest either goes to H and his heirs or to I and his heirs

62
Q

Name the interests.

Bob for life, then to Dan and his heirs, but if Dan does not survive Bob, to Marshall and her heirs.

A

Alternative contingent remainders

63
Q

Name the interest.

O devises “to my grandchildren WHO reach age 21.”

A

A
The grandchildren have a contingent remainder, some of them may be 21 at the time the instrument is effective; some may not be 21. Note that the interests vest at the time the instrument is effective; not 10 years later. It is contingent because they are not yet ascertainable. They have to be 21 at the time the instrument is effective.
If this said “WHEN” they reach - then they are cutting off, and it’s an executory interes

64
Q

O conveys “to F for life, and then to G for life.”

A

O has a reversion.

a. F has a life estate
b. G has an indefeasibly vested remainder in life estate

65
Q

O to A for life, then to B’s heirs, but if B has no heirs, then to C’s heirs.

A

Alternative contingent remainders

66
Q

What is the ONLY language that can trigger joint tenancy with right of survivorship rules?

A

“joint tenants with right of survivorship”

Have to see word “survivorship”

67
Q

What is a tenancy in common?

A
  • Undivided, fractional interest in the property

-Each has the right to use and possess the whole parcel

  • Proceeds of sales are proportionate shares
  • Freely alienable, transferable, and devisable
  • If an owner dies, ownership is transferred to the person named in their will.
68
Q

Here is an example of a tenancy in common.

A

A & B are “tenants in common” in fee simple absolute in Greenacre, a 100-acre farm. A holds a 75% undivided interest and B holds the remaining 25%. B is entitled to possession of all 100 acres, as is A. However, upon sale of Greenacre, the proceeds will be divided in proportion to the fractional shares.

69
Q

Here are other examples of a tenancy in common.

A
  • O conveys Greenacre “to A and B”
  • O conveys Greenacre “to A and B as tenants in common”
  • O dies intestate, leaving to children A and B as her only surviving relatives.
70
Q

What is a joint tenancy with a right of survivorship?

A

Joint tenancy with a right of survivorship is a type of property ownership giving co-owners survivorship rights upon another co-owner’s death. It is neither devisable or descendible, and the joint tenants have an undivided right to use and possess property. A creation of a joint tenancy requires the four unities, and a transfer of interest severs the joint tenancy. If interest is transferred, the new owner has a tenancy in common with the others.
If an owner dies, ownership is transferred to the remaining owner.
PITT
Possession - the right to possession.
Interest - must hold equal type of interest (FSA) - not equal shares of interest
Title - must receive interest via same instrument.
Time - ownership must be received at the same time.

71
Q

What is an example of violating the unities?

A

Violating the unity of time - receiving the interest at the same time.
Let’s say that O conveys a “one half undivided share of Greenacre as a joint tenant” to E on Monday and then conveys a similar interest to F on Tuesday. E and F are NOT joint tenants because the unities of time and title are missing. Instead, they are tenants in common.

72
Q

What language do we need for a joint tenancy with right of survivorship?

A

Joint tenancy with right of survivorship.

73
Q

What is a tenancy by entirety?

A
  • O conveys Greenacre “to A and B as tenants by the entirety.”
  • Must be a married couple
  • Undivided right to use and possess the whole property and right of survivorship
  • Ended by death, divorce or the agreement of both spouses
74
Q

What are the three types of concurrent ownership?

A
  • Tenancy in common
  • Joint tenancy with right of survivorship
  • Tenancy by the entirety
75
Q

How can a joint tenancy with right of survivorship be severed and how does a mortgage or lease impact a joint tenancy with right of survivorship?

A
  • A joint tenancy is severed if one cotenant transfers her interest during her lifetime
  • The majority of jurisdictions state a lease does NOT sever the joint tenancy
  • Depending on jurisdiction, mortgage may sever the joint tenancy
  • In a Title Theory jurisdiction, a mortgage is seen as the conveyance of title to the mortgagee.
  • In a Lien Theory Jurisdiction, a mortgage is viewed as a lien to secure repayment of the debt.
76
Q

What is a partition?

A

An action to end the co-tenancy and distribute the assets.

77
Q

What is a partition in kind?

A

Occurs when the property is PHYSICALLY divided, equitably and fairly, between the multiple owners.

78
Q

What is a partition by sale?

A

Courts may order a sale of the entire property and the proceeds from the sale will be divided up among the co-owners.

79
Q

What are the three factors a court looks to balance when determining whether to conduct a partition by sale?

A
  1. First, the property cannot be conveniently partitioned in kind
  2. Second, the interests of one or more of the parties will be promoted by the sale
  3. Third, the interests of the other parties will not be prejudiced by the sale
80
Q

What are the two rights and duties of cotenants?

A
  • Each cotenant has the right to use and enjoy all of the property.
  • Each cotenant has the right to use and enjoy all of the property.
  • Each cotenant is responsible for payment of his pro-rata share of operating expenses
81
Q

Do the cotenants in possession of the property have to pay rent to the person who is not using the property?

A
  • The majority rule is that no rent is owed by cotenants in possession to co-tenants not in possession, UNLESS there is an ouster
  • Minority rule is that rent is owed
82
Q

What is an ouster?

A
  • Anousteroccurs when a cotenant in possession refuses to allow another cotenant to occupy the property.
  • The individual committing the ouster is liable for the pro rata share of the rental value of the individual’s occupancy to the ousted.
83
Q

What are the two main ways waste factors into concurrent ownership?

A

One concurrent owner may bring an action in waste against another concurrent owner of property (voluntary waste)
Concurrent owners do not have to contribute to improvements made to property by other concurrent owners (ameliorative waste)

84
Q

What is a partition action?

A

Cotenant seeks to both partition the property and have the court settle the financial affairs of the cotenants.

85
Q

What is a contribution action?

A

Cotenant seeks reimbursement from other cotenants for certain expenses she has paid for the operation of the property (the mortgage, taxes and insurance)

86
Q

What is an accounting action?

A

Cotenant seeks to obtain her share of the rents or profits that the property has generated. In a majority of jurisdictions, improvements and repairs are covered here.

87
Q

How is an accounting action based on fractional interests?

A

If one of four tenants in common rents commonly owned property, all four tenants in common are entitled to share in the revenue. If the rent equals $100, then, unless the grant to the four tenants in common specifies unequal ownership percentages, each owner is entitled to $25.

Property I (5 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions