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76 Cards in this Set
- Front
- Back
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What are the present freehold estates?
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(1) Fee simple absolute
(2) Fee tail (3) Fee Simple Determinable (4) Fee Simple Subject to Condition Subsequent (5) Fee Simple Subject to an Executor Limitation (6) Life Estate |
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Fee Simple Absolute (LDTF)
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To A
Absolute ownership DDA (Devisable, Descendible, Alienable) NO FUTURE INTEREST (Could last forever) |
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Fee Tail (LDTF)
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To A and heirs of A's body (all but gone, interpret as FSA)
As long as lineal blood exists Passes automatically Reversion (Grantor); Remainder (Third Party) |
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What are the defeasible fees?
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Fee Simple Det.
Fee Sub. Cond. Sub. Fee Simple Sub. Exec. Limitation |
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Fee Simple Determinable (LDTF)
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To A so long as/until/while
Potentially infinite (if condition never occurs) DDA but subject to condition Possibility of Reverter |
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Fee Simple Subject to Condition Subsequent (LDTF)
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To A, but if x event, Grantor can reenter and retake
Potentially infinite, even if condition happens (as long as grantor doesn't exercise right to come and take) DDA but sub. to condition Right of Reentry / Power of Termination (Held by grantor) |
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Fee Simple Subject to an Executor Limitation (LDTF)
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To A, but if x event, then to B
Potentially infinite as long as contingency doesn't occur DDA but sub. to contingency Executory Interest (Held by 3rd party) |
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Life Estate (LDTF)
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To A for life / To A for life of B
Measured by life of transferee or other person DDA for length of measuring life Reversion (if held by grantor) / Remainder (if held by 3P) |
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What is the policy on restraints on alienation?
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Absolute restraint NOT ALLOWED
If there is a REASONABLE TIME-LIMITED purpose for the restraint, it's ok Right of first refusal restraints and restrictions on subleases and assignments of leaseholds are OK |
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Life estates are subject to the doctrine of ...
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WASTE
Life tenant can use land for ALL ORDINARY uses and profits |
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What can life estate do with land's natural resources?
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PURGE
-Prior Usage -Repairs and maintenance -Grant given for use -Exploitation (if that's the only purpose of the land, think quarry) |
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Types of Waste
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Voluntary/Affirmative - Conduct that drops value
Permissive/Neglect - You PERMIT the land to go to crap (reasonably good repair/pay taxes) Ameliorative - Conduct that raises value (get permission from all future interests first) |
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What future interests can be created in the grantor?
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(1) Possibility of Reverter (FSD)
(2) Right of Reentry / Power of Termination (FSCS) (3) Reversion - when grantor gives less than he has other than FSD or FSCS |
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What are the future interests in transferees?
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(1) Indefeasibly Vested Remainder
(2) Vested Remainder Subject to Total Divestment (3) Vested Remainder Subject to Open (4) Contingent Remainder (5) Shifting Executory Interest (6) Springing Executory Interest |
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Indefeasibly Vested Remainder
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Remainder created in an EXISTING and ASCERRTAINED person NOT subject to a CONDITION PRECEDENT
Remainderman has right to immediate possession upon normal termination of the preceding estate |
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Vested Remainder Subject to Total Divestment
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Vested remainder subject to a condition SUBSEQUENT
Comma Rule: When conditional language in a transfer FOLLOWS language that taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent |
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Vested Remainder Subject to Open
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Vested remainder created in a CLASS of persons that is CERTAIN to become possessory
Subject to diminution by addition of class members |
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Contingent Remainder
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Remainder created in UNBORN or UNASCERTAINED persons OR subject to a condition PRECEDENT
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Can contingent remainders be destructed?
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At C/L, yes - If the remainder didn't vest before or at termination of the preceding freehold estate
Most states have abolished it / Now the contingent remainder becomes an executory interest for when the condition occurs |
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What is the Rule in Shelley's case?
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"To A for life, then to A's heirs" was converted into "To A"
Been abolished in most places |
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What is the Doctrine of Worthier Title?
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Remainder in GRANTOR'S heirs is replaced with just a reversion to grantor
Only applies to inter vivos / NO application to wills Look at grantor's intent, if she really wanted the remainder in her heirs, we'll keep it. |
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When does a class close?
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When a member of the class can take
Womb rule: fetus at grantor's death is in the class |
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What is a shifting executory interest?
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An interest that always
(1) follows a defeasible fee and (2) cuts short the interest of someone OTHER than grantor Ex. To A, but if B returns from Canada within the next year, to B and his heirs. B has a shifting executory interest because it can cut short A (not the grantor) |
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What is a springing executory interest?
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An interest that
cuts short the GRANTOR Ex. To A, if and when he marries. |
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What is the RAP?
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Rule: No interest in property is valid unless it MUST VEST, if at all, NO LATER than 21 YEARS after SOME life in being at the creation of the interest dies.
Clock starts at (1) death for a will; (2) delivery for a deed; (3) creation for irrevocable trust; or date of irrevocability for a revocable trust. |
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What are the concurrent estates?
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Joint Tenancy
Tenancy by the Entirety Tenancy in Common |
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Joint Tenancy
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Def: Each tenant has UNDIVIDED INTEREST IN THE WHOLE / Surviving tenant has right of survivorship
Need 4 Unities: T-TIP - same TIME and TITLE, identical INTERESTS and right to POSSESS the whole Severed by SPAM - Sale Partition And Mortgage No permission needed to sell or transfer interest, buyer becomes a tenant in common Partition Methods: 1-Peaceful 2-In Kind 3-Forced Sale |
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Tenancy by the Entirety
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Married Couple + Right of Survivorship
Creditors CAN'T TOUCH THIS - don't touch my wife!! Neither tenant can transfer unilaterally - any attempt is a nullity |
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Tenancy in Common
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Three Primary Features
(1) Each co-tenant owns INDIVIDUAL PART and has a right to POSSESS THE WHOLE (2) Each interest is DDA / No survivorship (3) Presumption favors this tenancy |
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What are the rights and duties of co-tenants?
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(1) Possession - right to possess the whole / Attempt to limit that counts as WRONGFUL OUSTER
(2) Can't collect rent from exclusive possessor (3) Can collect rent from 3rd party (Proportionally) (4) Adv. Poss. impossible absent ouster (No hostility) (5) Pay fair share of carrying costs (taxes, etc.) (6) Can collect for repairs from others (by proportion) (7) No right to collect on improvements (until sale, increase/decrease) (8) Co-tenant cannot waste (3 types) (9) Co-tenant can bring action for partition (same 3 ways) |
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What are the leasehold/nonfreehold estates?
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Tenancy for Years
Periodic Tenancy Tenancy at Will Tenancy at Sufferance |
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Tell me about a tenancy for years.
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ANY fixed period of time
>1 Year = Need a writing No notice needed to terminate |
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Characteristics of a periodic tenancy.
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Lease that continues for SUCCESSIVE INTERVALS until L or T give PROPER NOTICE to terminate (X to X)
Expressly made (self-explanatory) By Implication: (1) Lease w/ no mention of duration but payment set at intervals (2) Oral term of years against SOF becomes a periodic tenancy (measured in the way rent is tendered) (3) Holdover / wrongful staying on after expiration (measured by way rent is tendered) Termination: Written notice given equal to period itself (whatever the nature, month to month, etc.) / Year-to-year or greater = 6-month notice |
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How does a tenancy at will work?
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Tenancy for NO FIXED DURATION ('as long as either party wants) - rare
Unless the agreement is expressed for T@Will, it's an implied periodic tenancy Termination: whenever, but nowadays, give reasonable notice. |
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Tenancy at sufferance?
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Created when tenant wrongfully HOLDS OVER
Give the wrongdoer a leasehold estate so landlord can collect rent Lasts until (1) L evicts T or (2) L elects to hold T to a new tenancy |
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What are a tenant's general duties?
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(1) Liability to third parties (tort)
-Keep place in good repair -Liable for 3P injuries even if L says he'll fix stuff (2) Duty to repair -Silent lease = maintain premises and don't WASTE -Fixtures pass with ownership of land -Lease not silent (T takes responsibility): Before-Responsible for destruction by nature / Today-no liability if not T's fault (3) Pay rent -No pay = evict but NO SELF HELP / now a tenant at sufferance -No pay and No T = SIR - Surrender / Ignore and keep track of rent to collect / Re-let and collect deficiency |
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What are a landlord's general duties?
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(1) Deliver Possession
-Majority rule = Physical possession (min. - Legal poss.) (2) Implied Covenant of QUIET ENJOYMENT -Constructive eviction = tenant has to SING -Substantial Interference / Notice / Goodbye -NOT liable for other tenants / BUT can't allow NUISANCE onsite and must control COMMON AREAS (3) Implied Warranty of HABITABILITY -Only residential leases -Non-waivable -Basic Human Dwelling requirements -Breach = MR3 -MOVE out / REPAIR and deduct / REDUCE rent / REMAIN in possession and get damages (4) NO retaliatory eviction |
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When can a tenant assign/subleas
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(1) When lease is SILENT
(2) When L CONSENTS to one transfer (waiver) |
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What are the characteristics of an assignment?
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Transfer of ENTIRE remaining lease
Puts landlord and new tenant in PRIVITY OF ESTATE (NOT privity of K unless assumed all promises in original lease) Landlord and first tenant remain in PRIVITY OF K / secondarily liable to each other |
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What are the characteristics of a sublease?
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Transfer of PORTION of the lease
NO NEXUS between new tenant and landlord (No privities) T2 liable to T1 and vice versa |
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Rules of landlord's tort liability
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C/L - Caveat Lessee
Exceptions: CLAPS C-ommon areas L-atent defects rule (warn of hidden defects) A-ssumption of repairs P-ublic use rule S-hort term lease of furnished place |
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How can affirmative easements be created? Who is bound?
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PING
P-rescription (COAH) I-mplication (implied from prior use) N-ecessity (landlocked) G-rant (writing signed by grantor, reservation) Easement appurtenant = 2 parties (dominant/servient) - transfers automatically with dominant tenement (need not be mentioned in the deed). Easement in gross = one party / commercial purposes |
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How is an Easement created by Implication?
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(i) Prior to division of a single tract (ii) apparent and continuous use exists on servient part (iii) that is reasonably necessary for the enjoyment of the dominant part, and (iv) the court determines that the parties INTENDED the use to continue after division.
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How is an easement acquired through PRESCRIPTION?
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(i) Open and notorious use that is (ii) adverse (ii) continuous and uninterrupted (iv) for a statutory period.
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Easement in Gross
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A right to use the servient tenement independent of his possession of another tract of land.
- Personal pleasure: not transferable - Commercial interest: is transferable |
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What are the negative easements? How can negative easements be created?
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LASS
L-ight A-ir S-upport S-eawater Can only be granted in writing by grantor |
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Real Covenants (How created / Who is bound / What is the remedy)
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A promise to do or not do something on the land. Created by a writing signed by grantor
BURDEN runs if WITHN Writing (original promise is in writing) - Intent (original parties intended covenant would run) - Touches & concerns - Horizontal & vertical privity - Notice BENEFIT runs if WITV Writing - Intent - Touch & concern - Vertical privity Remedy: Damages |
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How are equitable servitudes created? Who is bound? What are the damages?
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Writing signed by grantor
WITNes Writing - Intent - Touch & concern - Notice Injunction |
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What is a general scheme? How does it work?
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Residential restriction contained in PRIOR deed conveyed by COMMON grantor will bind SUBSEQUENT grantees if
(1) grantor had common scheme (2) unrestricted lot holders had notice (notice implied from common scheme) |
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What is a license?
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A privilege to enter someone's land for a limited purpose
Oral ok / Revocable (unless estopped b/c of substantial resources on reliance of license) Neighbors at the fence / tickets to a concert |
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What is a profit?
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Shares the rules of easements
Allows holder to enter land and take soil or substance from soil |
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What is needed for adverse possession?
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COAH
C-ontinuous uninterrupted possession for stat. period O-pen and notorious A-ctual (no symbolic entry) H-ostile (Consent by owner stops Adv. Pos.) |
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How is timing for adverse possession tacked?
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One adverse possessor can tack on his time to the time 'earned' by predecessor if there's PRIVITY (blood, K, deed, will)
Can't tack when the first adverse possessor was caught and ousted |
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What is the effect of an owner's disability on adverse possession?
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Statute of limitations won't run if owner has a disability at the START of the adverse possession
Disability attained after the start doesn't have any effect |
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What is the two-step process of conveying land?
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(1) Land K (endures until...)
(2) The closing (deed becomes operative) |
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Characteristics of the Land Contract
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(1) Must be in writing, signed by bound party, describe land, state consideration (SOF requirements)
-No writing when part performance applies (possession, improvements, remits price of land) -Size is different than described-get specific performance (2) Risk of Loss -Equitable conversion=once K signed, Buyer owns land/bears risk (3) Promises implied in every land K -Marketable title (no suit or threats) -No false statements made by seller |
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What will make a title unmarketable?
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Defects in record chain of title.
Adverse possession (even a part) Encumbrances (servitudes and mortgages) Zoning VIOLATIONS |
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How does a deed pass from seller to buyer?
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LEAD
Legally executed (in writing, signed by grantor, identify land and parties) and delivered Actual or constructive delivery works Recipient rejection of deed defeats delivery (conveyance by donative gift requires donative intent, delivery, and acceptance). |
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What are the three types of deeds? What are their characteristics?
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Quitclaim
-Contains NO covenants -Not even that promise that grantor has right to convey General Warranty (6 covenants) -Present Covenants: (1) Seisin (ownership); (2) Right to Convey (no alienation restraints); (3) No encumbrances (servitudes or liens) -Future Covenants: (4) Quiet enjoyment; (5) Warranty (defend against claims of title); (6) Further assurances Special Warranty -Two promises: (1) Grantor hasn't conveyed to anyone else; (2) No encumbrances made by GRANTOR |
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What is a NOTICE jurisdiction? Who takes?
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On exam, language will end with 'unless the conveyance is recorded.'
If B is a BFP (takes for value, has no actual notice, or constructive notice [A hasn't recorded]) B WINS. |
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What is a RACE NOTICE jurisdiction? Who takes?
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On exam, language will end with 'whose conveyance is first recorded.'
If B is a BFP (takes for value and A hasn't recorded) B will win if she records first. A subsequent BPF is protected only if she takes without notice AND records before the prior grantee. |
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What is a bona fide purchaser?
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Someone who
(1) Pays value for the land (2) Has no notice of earlier conveyances (AIR) -A-ctual -I-nquiry -R-ecord |
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How does the shelter rule work in a recording question?
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One who takes from a BFP will prevail against anyone that the BFP would have prevailed against.
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What is a wild deed? What is its effect?
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A deed that is unconnected to the chain of title (ex. O sells to A (no record), A sells to B, B records the A-B deed - unconnected to O)
Wild deed CANNOT give notice / Holder of wild deed loses |
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What is the rule regarding estoppel by deed?
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One who conveys realty in which he has no interest (Gordy sells me real his in-laws land in Florida) ...
is estopped from denying the validity of that conveyance if he LATER acquires that previously transferred interest (Gordy later gets the land in FL and says, "Mine." Nope, it's mine.) |
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What is a mortgage?
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(1) A debt
coupled with (2) a voluntary lien in debtor's land to secure the debt |
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How can parties to a mortgage transfer their interests?
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Creditor - Can endorse the note and delivery it to transferee (could be HDC if meets requirements - then subject only to real defenses - FAIDS)
Debtor - Can sell the land / Lien remains on the land so long as mortgage was properly recorded (Recording statutes apply) |
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How does a foreclosure work? Effects when there are various interests?
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Mortgage is foreclosed on by judicial action
Foreclosure terminates interests JUNIOR to the mortgage being foreclosed, does not affect SENIOR interests Failure to INCLUDE a necessary party results in the preservation of that party's claim - mortgage REMAINS on the land Any interest still on the land after foreclosure (senior interest, party not included) can later foreclose on land to pay debt |
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How is priority determined for foreclosures?
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Must record
First in time, first in right Between after acquired property clause holder and a Purchase Money Mortgage that is properly recorded, the PMM will win |
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What is redemption? How does it work?
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Redemption in Equity - Allowed everywhere / borrower can try to pay of debt (entire debt if acceleration clause) up to day of sale
Statutory Redemption - Half the states / right of debtor to redeem for fixed time period after foreclosure / usually the foreclosure price |
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What is the standard for a claim against an adjacent landowner whose excavation causes other landowners improved property to cave in?
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Negligence
SL will apply if plaintiff can show that BECAUSE of D's actions, P's land would have collapsed even in natural state (???) |
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What are the rules regarding streams, rivers, and lakes?
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Riparian Doctrine: water belongs to those who own the land bordering the watercourse (reasonable use, natural wins over artificial.
Prior Appropriation Doctrine: Individuals acquire rights by use. |
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What are the rules regarding groundwater (percolating water)?
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Absolute Ownership: whoever owns land, owns water, can do whatever they want with it.
Reasonable Use Doctrine: May export only if it does not harm other owners who have rights in the same aquifer. Correlative Rights Doctrine: Owners of land own aquifer as joint tenants, reasonable amount for own use. Appropriative Rights Doctrine: Priority of use is determinative. Restatement: reasonable use. |
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What are the rules regarding surface waters?
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Landowner can use surface water for any purpose.
Natural Flow Theory: Can't alter natural drainage patters. Common Enemy Theory: Take any protective measures to get rid of water. Reasonable Use: Balance utility against gravity of harm. |
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What is required for eminent domain?
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(1) A government taking for PUBLIC USE
-Actual taking -Implicit/Regulatory = must be economic wipeout (100%) of land investment (2) Just Compensation |
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What is an exaction?
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You want permission to build a development, gov't wants you to provide new streetlights and a small park.
Constitutional ONLY IF the exaction is reasonably related to the nature and scope of the proposed development |
