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90 Cards in this Set
- Front
- Back
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What is a fee simple absolute?
Example? Can it be conveyed? How Duration? Correlative Future Interest in Grantor? In Third Party? |
Def: Best present possessory interest
Ex: "To A & his heirs" Conveyed: It can be sold divided, devised or inherited. Duration: Infinite duration Future Interests: None |
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Define Defeasible Fee.
What are the three types of Defeasible Fees? |
Fee Simple estates that CAN be terminated upon the happening of a stated event.
1. Fee Simple Determinable 2. Fee Simple Subject to Condition Subsequent 3. Fee Simple Subject to an Executory Interest. |
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What is a Fee Simple Determinable?
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A defeasible fee that terminates on the happening of a stated event and AUTOMATICALLY REVERTS to the GRANTOR.
Frank Sinatra Doesn't Prefer Orville Redenbacher Created: By using durational language like "for so long as" "while "during" or "until" Can be conveyed by grantee still takes subject to the estate's termination by the specified event. |
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How is a Fee Simple Determinable Created?
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By using DURATIONAL language like:
"for so long as" "while" "during" "until" Mere statements of motive or purpose do NOT create a determinable fee |
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Can a Fee Simple Determinable be conveyed?
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Yes. BUT the grantee takes subject to estate's termination by specified event.
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Is there a Future Interest in Fee Simple Determinable? If so, what is it and who holds it?
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Yes.
Possibility of Reverter. The Grantor AUTOMATICALLY retains a Possibility of reverter in the Property. |
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Can a Possibility of Reverter be conveyed?
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Yes. It is transferable, descendible and devisable.
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What is a Fee Simple Subject to Condition Subsequent?
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Estate where Grantor RESERVES THE RIGHT to terminate on the happening of a stated event.
ie if event happens, grantor must take some action to claim. |
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How is a Fee Simple Subject to Condition Subsequent created?
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Grantor must use CONDITIONAL words like:
"upon condition that" "provided that" "but if" "if it happens that" |
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What is the future interest held in a Fee Simple Subject to Condition Subsequent?
Who holds the future interest? |
Grantor holds a RIGHT OF ENTRY if it is a expressly reserved.
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Can a Right of Entry be conveyed? How?
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Yes. Some courts hold that rights of entry are not transferable inter vivos but most states say rights of entry are devisable and all say they are descendible.
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What is a Fee Simple Subject to an Executory Interest?
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When either a Fee Simple Determinable or a Fee Simple Subject to Condition Subsequent terminates and passes to a THIRD PARTY rather then the grantor.
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What is an Executory Interest?
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Future Interest a Third Party holds in either a Fee Simple Determinable or Subject to Condition Subsequent.
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What is a Fee Tail?
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An estate where inheritability is limited to lineal heirs.
Created by the words "to A and his heirs of his body" Most jurisdictions have abolished (not DE) and if created the interest reverts to fee simple. |
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What is a Life Estate?
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An estate measured by the life of one or more persons.
"To A for Life" |
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What happens when a life tenant (A) conveys their life estate to another (B) ?
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B has a life estate "pur autre vie" which ends when A dies.
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Are life estates defeasible?
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Not usually but they can but they can be either determinable, subject to condition subsequent or subject to executory interest.
Ex. "to A for life, but if A is divorced, then to B." |
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What are a life tenant's rights and duties on the land?
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A life tenant is entitled to any ORDINARY uses and profits of the land but cannot do anything to injure the interests of a remainderman or reversioner ie commit WASTE. If they do the future interest holder may sue for damages to enjoin the life tenants activities.
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What are the three types of waste?
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1. Affirmative (Voluntary) Waste
2. Permissive Waste 3. Ameliorative Waste |
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When may a life tenant exploit the natural resources on their life estate?
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1. When necessary for the repair or maintenance of the land.
2. When the land is suitable ONLY for such use. 3. Where expressly/impliedly permitted to by the grantor. |
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What is the open mines doctrine?
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If mining was done on the land prior to a life estate, the life tenant can continue mining BUT is limited to the mines ALREADY OPEN.
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What is Affirmative Waste?
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When a life tenant exploits the natural resources of their life estate UNLESS:
(i) its necessary for repair or maintenance of the land (ii) the land is suitable only for such use OR (iii) with the permission of the grantor. |
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What is Permissive Waste?
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When a life tenant fails to protect or preserve the land.
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What is a life tenant obligated to do to avoid a charge of permissive waste?
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1. preserve the land and structures in a reasonable state of repair.
2. pay interest on mortgages (not principal) 3. pay ordinary taxes on the land 4. pay special assessments for public improvements of short duration (improvements of long duration are apportioned between the life tenant and future interest holder) |
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What is Ameliorative Waste?
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When a life tenant makes a change to the life estate that beneifts the property economically UNLESS:
1. The market value of the future interests is NOT dimished AND EITHER 2. The remaindermen do not object OR 3. A substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness. |
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What happens when a life tenant renounces his life estate?
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The future interest following the life estate gets possession immediately
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What is a Reversion?
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The vested (therefore not subject to RAP) interest left in a Grantor who conveys less than she owes.
Alienable, Devisable and Inheritable. |
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What is a Remainder?
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A future interest in a third person that can become possessory on the NATURAL EXPIRATION of the preceding estate. It can NOT divest a prior estate, and it can NOT follow a time gap.
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How do you create a Remainder?
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Express conveyance.
Ex. "To A for life, then to B and his heirs." B has a remainder. |
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What are the 4 types of Remainders?
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1. Indefeasibly Vested Remainder
2. Vested Remainder Subject to Open 3. Vested Remainder Subject to Total Divestment 4. Contingent Remainders |
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What is an Indefeasibly Vested Remainder?
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A future interest in an EXISTING AND ASCERTAINED person and is NOT SUBJECT TO A CONDITION PRECEDENT prior to taking or subject to divestment or dimunition after taking.
Ex. "To A for life, then to B" B has an indefeasibly vested remainder. |
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What is a Vested Remainder Subject to Open?
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A vested remainder created in a class of persons thhat is certain to become possessory BUT is subject to dimunition by additions to the class.
Ex. "To A for life, then to B's kids." A and B are living and B has 1 kid, C. C has a vested remainder subject to open. |
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What is a Vested Remainder Subject to Total Divestment?
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A vested remainder subject to condition subsequent.
Ex. "To A for life, then to B and his heirs, but if B does X, then to C and his heirs." B has a vested remainder subject to divestment by C's executory interest. |
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What is a Contingent Remainder?
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A Remainder created in an:
Unborn or Unascertained person(s) OR Subject to a condition precedent ie the condition must be satisfied BEFORE the remainderman has a right to possession |
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What is the Doctrine of Merger regarding Contingent Remainders?
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When one person acquires all of the present and future interests in land except a contingent remainder, under the common law, the contingent remainder is DESTROYED unless the life estate and the next vested interest were created by the same instrument then there is no merger (because would defeat grantor's intent)
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What is the Rule in Shelley's Case
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Abolished in most states
At common law, if the same instrument created a life estate in A and gave the remainder only to A's heirs then the remainder was not recognized and A took the life estate and the remainder. Ex. "To A for life, then to B for life, then to the heirs of A" |
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What is the Doctrine of Worthier Title?
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A remainder in the grantor's heirs is invalid and becomes a reversion in the grantor.
Rule of Construction therefore doesn't apply when grantor's intent is clearly manifested. |
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What is an Executory Interest?
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Future Interest in a third party (not vested so subject to RAP) that either:
Divest a transferee (shifting interest) Follow a gap in possesion OR Cut short a Grantor's estate (springing interest) |
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When does a class close such that no one born after that time may share in the gift?
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When any member of the class can call for distribution of his or her share.
Persons in gestation at the time the class closes are included. |
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What is a Trust?
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A fiduciary relationship w/ respect to specific property (res) wherein the trustee holds legal title to the property subject to enforceable equitable rights in a beneficiary.
Subject to RAP. |
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What are the 4 rules governing charitable trusts?
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1. Must have a charitable purpose
2. Must have indefinite beneficiaries 3. May be Perpetual (RAP doesn't apply) 4. Cy Pres Doctrine allows courts to select alternative charities when the purpose of the trust becomes impractical or impossible. |
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What is the Rule Against Perpetuities? (RAP)
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No interest in property is valid unless it must vest, if at all not later than 21 years after some life in being (measuring life) at the creation of the interest.
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What interests does the RAP apply to?
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contingent remainders
executory interests vested remainders subject to open options to purchase (not attached to a leasehold) rights of first refusal powers of appointment |
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When does the perpetuities period being to run? (for RAP)
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Interests granted by will: from the date of the testator's death.
Deeds: Date of Delivery Irrevocable Trusts: Date the trust is created. Revocable Trusts: Date it becomes Irrevocable. |
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What interests are exempt from RAP?
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all vested remainders (except for vested remainders subject to open)
Grantor's interests: Reversions, Possibilities of Reverter, Rights of Entry Any disposition from charity to charity options to purchase held by a current tenant |
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What happens when the RAP is violated?
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offensive interest is stricken.
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What are the 3 common statutory modifications to RAP?
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1. "Wait and See" statutes determine the interest's validity upon the termination of the preceding life estate. If the interest actually vests or fails w/in the perpetuities period its good, if it doesn't its void
2. Alternate 90 year vesting period 3. Cy Pres - statutes that allow courts to reform the invalid interests to carry out the donor's general interest. |
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What is the Rule Against Restraints on Alienation?
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Generally, any restriction on the transferability of a legal (as opposed to equitable) interest is void.
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What are the three types of restraints on alienation?
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1. Disabling restraints - attempted transfers are ineffective. (Void on any time of legal interest.)
2. Forfeiture restraints - where an attempted transfer forfeits the interest 3. Promissory restraints - where an attempted transfer breaches a covenant. |
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When are restraints on fee simple estates allowed?
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Absolute restraints are void but restraints on fee simple estates for a LIMITED TIME or a REASONABLE PURPOSE will likely be upheld.
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What is a joint tenancy?
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A concurrent right to land b/w 2 or more persons w/ RIGHT OF SURVIVORSHIP.
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How is a joint tenancy created?
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4 Unities:
T-TIP Time Title Interest Possession Interests must be EQUAL in every way. |
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How is a joint tenancy severed? (so that a tenancy in common results)
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1. Inter vivos conveyance by a joint tenant of her undivided interest.
2. Contractual conveyance by a joint tenant of her undivided interest |
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Is a joint tenancy severed when one joint tenant obtains a judgment lien against the property?
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No unless the property is actually sold at a foreclosure sale.
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Is a joint tenancy severed when one joint tenant obtains a mortgage on the property?
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Depends on whether the state follows the title theory or the lien theory.
Title theory: Getting a mortgage severs Lien theory: no severage unless the mortgage is foreclosed and the property is sold. |
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What is a tenancy by the entirety?
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A Joint Tenancy with right of survivorship between a marital couple.
Arises presumptively in any conveyance to a married couple. |
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How is a tenancy by entirety severed?
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Death
Divorce Mutual Agreement Execution by a joint creditor of both H&W. An individual spouse cannot convey or encumber the property and a deed or mortgage executed by one spouse is ineffective |
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What is a tenancy in common?
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Concurrent estate with no right of survivorship.
Tenants can hold different interest in the property but each is entitled to possession of the whole. Interests are alienable, devisable and inheritable. |
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What are co-tenants' rights of possession?
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Each co-tenant has the right to possess all portions of the proeprty but has not right to exclusive possion of any part.
A co-tenant out of possession cannot bring a possessory action unless she is ousted |
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What are co-tenants' rights to rents and profits?
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A co-tenant in possession has the right to retain (ie not share) profits from her own use of the property. However, she must share net rents from third parties and net profits gained from exploitations of the land.
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What happens when one co-tenant encumbers the property?
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Co-tenant may encumber her interest but not the interests of other co-tenants ie a mortgagee can only foreclose on the interest of the mortgagor.
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What are co-tenants' rights to partition the property?
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Any co-tenant has a right to judicial partition at any time, either in kind (physical division) or by sale and division of proceeds.
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How is a joint tenancy severed? (so that a tenancy in common results)
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1. Inter vivos conveyance by a joint tenant of her undivided interest.
2. Contractual conveyance by a joint tenant of her undivided interest |
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Is a joint tenancy severed when one joint tenant obtains a judgment lien against the property?
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No unless the property is actually sold at a foreclosure sale.
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Is a joint tenancy severed when one joint tenant obtains a mortgage on the property?
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Depends on whether the state follows the title theory or the lien theory.
Title theory: Getting a mortgage severs Lien theory: no severage unless the mortgage is foreclosed and the property is sold. |
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What is a tenancy by the entirety?
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A Joint Tenancy with right of survivorship between a marital couple.
Arises presumptively in any conveyance to a married couple. |
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How is a tenancy by entirety severed?
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Death
Divorce Mutual Agreement Execution by a joint creditor of both H&W. An individual spouse cannot convey or encumber the property and a deed or mortgage executed by one spouse is ineffective |
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What is a tenancy in common?
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Concurrent estate with no right of survivorship.
Tenants can hold different interest in the property but each is entitled to possession of the whole. Interests are alienable, devisable and inheritable. |
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What are co-tenants' rights of possession?
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Each co-tenant has the right to possess all portions of the proeprty but has not right to exclusive possion of any part.
A co-tenant out of possession cannot bring a possessory action unless she is ousted |
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What are co-tenants' rights to rents and profits?
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A co-tenant in possession has the right to retain (ie not share) profits from her own use of the property. However, she must share net rents from third parties and net profits gained from exploitations of the land.
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What happens when one co-tenant encumbers the property?
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Co-tenant may encumber her interest but not the interests of other co-tenants ie a mortgagee can only foreclose on the interest of the mortgagor.
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What are co-tenants' rights to partition the property?
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Any co-tenant has a right to judicial partition at any time, either in kind (physical division) or by sale and division of proceeds.
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When is a co-tenant entitled to contribution from the other co-tenant(s)
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1. Repairs: If a co-tenant NOTIFIES her co-tenant(s) of NECESSARY repairs, she can receive contribution for the amount she pays over her pro rata share.
2. Improvements: No right of contribution unlesss there is a partition 3. Taxes and Mortgages paid on the entire property. However, reimbursement to a co-tenant in sole possession is limited to the extent that expenditures exceed the rental value of her usage. |
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What is a leasehold?
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An estate in land under which the tenant has a present possessory interest in the leased premises and the landlord has a future interest (reversion).
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What are the 4 types of leasehold?
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1. Tenancy by Years
2. Periodic Tenancy 3. Tenancy at Will 4. Tenancy at Sufferance |
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What is a Tenancy by Years?
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A tenancy that continues for a FIXED period of time (does not have to be years)
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How is a tenancy by years created?
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Usually by written lease (the Statute of Frauds requires a writing if the lease is for more than one year)
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How is a tenancy by years terminated?
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1. Automatically at is stated termination date.
OR it can be terminated early if: 1. The tenant breaches a lease covenant OR 2. Tenant surrenders the property and the landlord accepts (if unexpired term exceeds 1 year, surrender must be in writing) |
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What is a periodic tenancy?
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A tenancy that continues indefinately for successive periods until terminated by notice from either party.
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What are the 3 ways a periodic tenancy can be created?
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1. Express Agreement
2. Implication 3. Operation of Law |
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How is a periodic tenancy terminated?
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By Notice which must be given one full period in advance and timed to terminate at a natural end period (ex. 30th or 31st of the month)
For a year-to-year lease, 6 months notice is required. |
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What is a tenancy at will?
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A tenancy terminable at the will of either the landlord or the tenant.
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How is a tenancy at will created?
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By an express agreement that the lease can be terminated at any time.
If the lease gives only the landlord the right to terminate a similiar right to terminate will be implied for the tenant but not vice versa |
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What is a tenancy at sufferance?
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Occurs when a tenant WRONGFULLY remains in possession after the expiration of a lawful tenancy.
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How is a tenancy at sufferance terminated?
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When the landlord takes steps to evict the tenant. No notice is needed.
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What is the Hold-Over Doctrine?
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If a tenant continues in ppossession after his right to possession has ended, the landlord may:
(1) evict him (2) bind him to a new periodic tenancy. |
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If a tenant holds-over what terms and condition govern the new lease?
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the terms and conditions of the expired lease UNLESS the landlord notifies the tenant before the lease expired that the rent will be increased
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What are the exceptions to the hold-over doctrine? ie situations where the landlord cannot bind the tenant to a new tenancy.
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1. the tenant remains in possession on a few hours or leaves a few articles of personal property.
2. Delay is not the tenant's fault (ie severe illness) 3. Seasonal lease. |
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What are a tenant's duties?
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Duty to Repair: a tenant cannot damage (ie committe waste)
Duty not to use premises for illegal purpose Duty to pay Rent |
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Describe the three types of waste as they are applied to the landlord/tenant relationship.
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Voluntary (Affirmative) waste: when the tenant intentionally or negligently damages the premises or exploits minerals on the property.
Permissive Waste - when tenant fails to protect property from the elements, or make ordinary repairs (unless the duty is shifted to landlord then tenant has duty to report problems to landlord) Ameliorative Waste: when the tenant alters the leased property, increasing its value. The tenant is liable for the cost of restoration unless he is a long-term tenant and the change reflects changes in the neighborhood. |
