Law: Mbe Massachusetts Property

Front 1

5 Servitudes

Back 1

-easements
-licenses
-profit
-covenant
-equitable servitude

Front 2

Easement

Back 2

-grant of NON-POSSESSORY property interest
-holder is entitled to some form of use or enjoyment of the servient tenement
usually affirmative, sometimes negative

Front 3

negative easements only in 4 areas

Back 3

LASS
-Light
-Air
-Support
-Streaming water from artificial flow
[Minority of states accepts scenic view negative easement]

Front 4

EASEMENTS:

2 types of easement

Back 4

-Easement appurtenant (it takes 2 parcels: dominant and servient)
-Easement held in gross (holder gets pecuniary or personal advantage not tied to land. E.g.: rt to fish in your pond, rt to put a bill board in your property)

Front 5

Transferability of easements appurtenant?

Back 5

easement appurtenant: dominant tenement is conveyed and easement passes automatically even if not in conveyace
servient tenement is conveted: easement passes automatically with servient estate unless new owner is BFP with no notice.

Front 6

Transferability of easement held in gross?

Back 6

not transferable unless easement is for commercial purposes

Front 7

4 ways to create an affirmative easement?

Back 7

PING
-Prescription (COAH elements of adverse possession are fulfilled)
-Implication
-Necessity ( Mass requires strict necessity)
-Grant (SoF requires grant in writing if for more than 1yr)

Front 8

creating affirmative easement by implication (aka easement implied from existing use)

Back 8

requirements:
-previous use was apparent
-parties expect it to continue
-b/c it was reasonably necessary to dominant land's use and enjoyment.

Front 9

Creating affirmative Easement by Necessity

Back 9

Grantor O conveys part of his land to A, but A can ONLY get to her land by passing through O's land.

Front 10

Creating Affirmative Easement by Prescription

Back 10

COAH elements of adverse possession are satisfied: -Continuous, Open & notorious, Actual, Hostile

**Permission Defeats hostility element

Front 11

How is the scope of an easement determined?

Back 11

determined by terms or conditions that created it. Cannot be unilaterally expanded.

Front 12

Easement Termination

Back 12

END-CRAMP
-Estoppel (A relies on E's statement that he won't use easement and materially changes land)
-Necessity (need that created it ends)
-Destruction of servient land (through something other than willful A's actions)
-Condemnation of servient estate (eminent domain)
-Release (in writing by E to A)
-Abandonment (intent to never use demonstrated by physical action)
-Merger (both lands become vested in same person)
-Prescription: Servient owner interferes in accordance with COAH elements

Front 13

easement termination by estoppel

Back 13

-E gives assurances he will no longer use easement
-A relies on this and changes land materially
-easement no longer enforceable

Front 14

termination of easement by Necessity

Back 14

need that created easement ends (so long as it was not created by express grant)

Front 15

Termination of Easement By Destruction of Servient Land

Back 15

only if destruction is due to something other than willfull act by A, servient land holder

Front 16

Termination of Easement by Condemnation

Back 16

Servient tenement is condemned by imminent domain

Front 17

Termination of Easement by Release

Back 17

written release by E, dominant tenement holder, to A, servient tenement holder

Front 18

Termination of Easement by Abandonment

Back 18

E, easement holder demonstrates by physical action the intent to never use easement again.
-Mere non-use or mere word: not enough

Front 19

Termination of Easement by merger

Back 19

Easement and title to servient land become vested in the same person, the easement is terminated.
-later partition, sale, etc. does not revive the easement, it must be created from scratch again

Front 20

Termination of Easement by Prescription

Back 20

servinet owner interferes with easement in accordance with lements of adverse possession (COAH)
-Continuous
-Open and notorious
-Actual
-Hostile

Front 21

License: definition and characteristics

Back 21

privilege to enter A's land for some delineated purpose
-not subject to SoF
-revocable at will of licensor (unless estoppel applies)
-example: movie or theater tickets.

Front 22

What happens is you create an easement for more than 1yr orally, in violation of SoF?

Back 22

you've created a freely revocable license

Front 23

License revocation: estoppel

Back 23

B relies on license continuation and invests SUBSTANTIAL $ or labor. A cannot freely revoke license anymore

Front 24

Profit: definition and characteristics

Back 24

holder of a Profit is entitled to enter servient land and take from it (timber, oil, soil, substance of soil)
-same rules as easement to create, terminate, and as to scope

Front 25

Covenant. Definition

Back 25

promise to do or not to something with your land ("I promise to paint our common fence")

Front 26

How can you tell difference between covenant and equitable servitude?

Back 26

π in covenant seeks $$ damages
π in equitable servitude seeks injunction

Front 27

What are the two things you need to know in order to decide if a covenant runs with the land?

Back 27

-Burden of A's promise runs with the land
-Benefit of A's promise run with conveyance of B's land

Front 28

what is required for Burden of covenant to run with the land?

Back 28

WIT-HVN:
-Writing (covenant was in writing)
-Intent (A + B Intended that Covenant run with the land
-Touches and Concerns parties relations as landowners (e.g. covenant not to compete d&n run with land. covenant to pay homeowner's association fees d/n run with the land)
H. Horizontal + Vertical privity (Horizontal: A+B are in privity of estate (mortgagor-ee, grantor-ee, etc). Vertical: non-hostile nexus between A&A1

Front 29

What is required for Benefit of covenant to run with dominant land? (from B to Bs)?

Back 29

WIT-V
Writing, Intent, Touch&Concern, Vertical privity

Front 30

Equitable Servitude

Back 30

A promise that equity will enforce against successors (enforceable by injunctive relief)

Front 31

Creation of Equitable Servitude

Back 31

To bind successors to a promise, WIT-NES:
Writing, Intent, Touch&Concern; Notice (to successors),
results in Equitable Servitude

Front 32

Implied equitable Servitude

Back 32

1. common Scheme Doctrine (not recognized in Mass)
2. Record Notice

Front 33

Common Scheme doctrine for implied equitable servitude

Back 33

1. Not recognized in mass
2. where recognized, common scheme existed and included B's lot and B had notice of promise contained in prior deeds.

Front 34

Record notice for Implied Equitable Servitude created by Common Scheme Doctrine

Back 34

Notice can be AIR: Actual, Inquiry or Record.
Split view:
-View 1 B is on record notice of contents of deeds transferred to others by common grantor
-View 2: B does not have record notice

Front 35

Equitable defense to enforcement of equitable servitude?

Back 35

Changed condition (really changed, not just pockets of change)

Front 36

Adverse possession

Back 36

1. Time defined by statute, usually 30 years. Mass: 20 yrs
2. Elements that must be fulfilled for statutory period to ripen to title: COAH
-Continuous (Mass takes this seriously: 3 week absence defeats the continuous element)
-Open & Notorious
-Actual
-Hostile

Front 37

Adverse Possession and Tacking

Back 37

Tacking is OK so long as Adverse Possessor 1 and Adv. Possessor 2 are in privity (non-hostile nexus: blood, deed, K, will, etc.). if AP2 ousted AP1, no tacking

Front 38

Disabilities and Adverse Possession

Back 38

Statutory period for adverse possession will not run against true owner if she had a disability AT THE START of adverse possession

Front 39

2 Steps in purchase and Sale and Real Estate

Back 39

1. Land K. Endures until step 2. SoF requires: in writing and signed by parties
2. Closing: deed becomes operative document

Front 40

What does SoF require of Land K?

Back 40

-K is in writing, signed by parties to be bound
-If land K recited more land than actual size of parcel, B gets specific performance with pro-rata reduction on purchase price
-SoF exception: Doctrine of Part performance if 2 of 3 are fulfilled:
1. B remits all or part of purchase price
2. B takes possession
3. b makes substantial improvements
MASS REQUIRES ALL 3

Front 41

Creation of Equitable Servitude

Back 41

To bind successors to a promise, WIT-NES:
Writing, Intent, Touch&Concern; Notice (to successors),
results in Equitable Servitude

Front 42

Implied equitable Servitude

Back 42

1. common Scheme Doctrine (not recognized in Mass)
2. Record Notice

Front 43

Common Scheme doctrine for implied equitable servitude

Back 43

1. Not recognized in mass
2. where recognized, common scheme existed and included B's lot and B had notice of promise contained in prior deeds.

Front 44

Record notice for Implied Equitable Servitude created by Common Scheme Doctrine

Back 44

Notice can be AIR: Actual, Inquiry or Record.
Split view:
-View 1 B is on record notice of contents of deeds transferred to others by common grantor
-View 2: B does not have record notice

Front 45

Equitable defense to enforcement of equitable servitude?

Back 45

Changed condition (really changed, not just pockets of change)

Front 46

Adverse possession

Back 46

1. Time defined by statute, usually 30 years. Mass: 20 yrs
2. Elements that must be fulfilled for statutory period to ripen to title: COAH
-Continuous (Mass takes this seriously: 3 week absence defeats the continuous element)
-Open & Notorious
-Actual
-Hostile

Front 47

Adverse Possession and Tacking

Back 47

Tacking is OK so long as Adverse Possessor 1 and Adv. Possessor 2 are in privity (non-hostile nexus: blood, deed, K, will, etc.). if AP2 ousted AP1, no tacking

Front 48

Disabilities and Adverse Possession

Back 48

Statutory period for adverse possession will not run against true owner if she had a disability AT THE START of adverse possession

Front 49

2 Steps in purchase and Sale and Real Estate

Back 49

1. Land K. Endures until step 2. SoF requires: in writing and signed by parties
2. Closing: deed becomes operative document

Front 50

What does SoF require of Land K?

Back 50

-K is in writing, signed by parties to be bound
-If land K recited more land than actual size of parcel, B gets specific performance with pro-rata reduction on purchase price
-SoF exception: Doctrine of Part performance if 2 of 3 are fulfilled:
1. B remits all or part of purchase price
2. B takes possession
3. b makes substantial improvements
MASS REQUIRES ALL 3

Front 51

Sale of Real Estate: at signinf of Land K, who bears risk of loss?

Back 51

Equitable conversion (treating what ought to happen as if had happened) dictates that Buyer owns land subject to condition that he pay at closing: risk is borne by B unless otherwise stated.
MASS: Party in possession bears risk of loss

Front 52

Sale of real estate:
2 implied promises in land K

Back 52

1. S promises to provide marketable title at closing
2. S promises not to make any false statements of material fact, including material omissions. Disclaimer ("sold as is") will not excuse seller

Front 53

what is "marketable title"

Back 53

title free from reasonable doubt, free from litigation and threat of lawsuits.
Examples of UNmarketable title:
-part of land rests on adverse possession
-encumbrances (unless buyer waives them)
zoning violations

Front 54

Sale of Real Estate:
Caveat Emptor doctrine

Back 54

land K contains no implied warranties of fitness or habitability.
-Exception: implied warranty of fitness and workmanlike conditions applies to sale of new home by builder-vendor

Front 55

Sale of Real Estate:
CLOSING: for deed to pass legal title, you need

Back 55

LEaD: Lawfully Exectued and Delivered Deed.

Front 56

Lawfully Executed Deed

Back 56

-in writing, signed by grantor
-(in Mass: must recide consideration to be recorded (generally no need).
-Must describe land adequately

Front 57

Delivered Deed is:

Back 57

Delivered:
-Mass: proper recording of deed= presumptive evidence of delivery
-Grantor transfers deed physically or
-grantor demonstrates the present intent to be immediately bound regardless of whether deed was literally handed over
-Delivery is defeated if recipient expressly rejects

Front 58

Transfer of deed and Oral conditions

Back 58

oral conditions are not provable. Delivery is done.

Front 59

Means of delivery

Back 59

-mail is OK
-escrow is OK

Front 60

3 types of deed and the covenants for title in each of them

Back 60

1. Quitclaim (Called Release Deed in Mass)
2. General Warranty
3. Statutory Special Warranty deed (called Quitclaim in Mass)

Front 61

Quitclaim Deed and covenants for title

Back 61

-Quitclaim is called "release deed" in Mass
-no covenants, not even a promise that grantor has title to convey
-only implicit promise: to provide good title at closing (problems arising after closing are B's problem)

Front 62

General Warranty Deed: and covenants for title

Back 62

-Warrants all defents to title, even those due to grantor's predecessor. provides all 6 covenants:, 3 present and 3 future

Front 63

General Warranty Deed: 3 present covenants

Back 63

Present covenants: breach happens at time of delivery
1. seisin ("I own this estate")
2. right to convey (i'm under no temporary restraint on alienation or legal disability)
3. against encumbrances ("there are no mortgages or servitudes")

Front 64

General Warranty Deed: 3 future covenants

Back 64

Future Covenants: Breach happens after delivery, when and if B is disturbed in possession
1. Covenant of quiet enjoyment ("S promises no third party with lawful claim of title will disturb B")
2. Warranty ("S will defend B against lawful claims of title brought by others.
3. Covwenant of further assurances (S will do whatever is reasonably needed in future to perfect title)

Front 65

Statutory Special Warranty Deed (aka "Quitclaim in Massachusetts")

Back 65

No promises re: predecessors in interest, but grantor promises -that he has not conveyed land to anyone other than Buyer
-promises that land is free from encumbrances made by Seller himself.

Front 66

Recording system protects

Back 66

Mortgagees and BFPs:

Front 67

in a race-notice jurisdiction,
O sells land to A, then O sells same land to B and skips town, who owns land?

Back 67

depends on who recorded properly first

Front 68

in notice jurisdiction,
O sells land to A, then O sells land to B. who owns land?

Back 68

If B was Bona Fide Purchaser, B wins

Front 69

what is a Bona Fide Purchaser (BFP)

Back 69

-purchased X for value (OK to get a bargain)
-without notice that someone else got there first
[so if A had recorded immediately, B could not possibly be a BFP. Problem arises when A doesn't record and B purchases as a BFP]

Front 70

Under recording statutes, donee is doomed unless

Back 70

recording statute does not protect donee, unless Shelter rule applies (ie.e if BFP B transferred to donee/devisee/heir, donee gets to step in B's shoes. if B would have won, donee does too)

Front 71

for purposes of BFP, what is notice?

Back 71

AIR
-Actual
-Inquiry: Inspection of property or, if recorded instrument refers to unrecorded doc, follow up would have revealed. Not recognized in Mass!
-Record: A's deed was recorded properly

Front 72

What is a properly recorded deed?

Back 72

-within the chain of title
-in grantor-grantee index

Front 73

Shelter rule: what if B is BFP but sells to C, who has actual notice of A buying land before B?

Back 73

-O sells to A, A doesn't record
-O sells to B, b is a BFP, B records
-B sells to C who has Actual notice of A sale
Shelter rule says: C gets to step in B's shoes, who would have won, therefore C wins

Front 74

Wild deed

Back 74

O to A, A doesn't record
A to B, B records
because O to A not recorded, B's deed is a wild deed. It is a nullity. if O then sells to C, C wins.

Front 75

Estopped by deed

Back 75

-1950: O doesn't own X; sells X to A. A records in 1950
-1960: O actually gets title to X
-1970: O sells to B, who is a BFP and records.
1960-1970, A owns X because O is estopped from claiming invalidity of sale.
1970 on: B owns land unless A re-recorded after O actually acquired title. Why? 1950-1960 A's title was a wild deed, therefore a nullity

Front 76

Mortgage: definition and characteristic

Back 76

-A debt and a voluntary lien in debtor's land to secure debt
-legal mortgage is in writing, and has many names

Front 77

who is the mortgagee and who is the mortgagor

Back 77

mortgagee: bank
mortgagor: homeowner

Front 78

Equitable Mortgage

Back 78

-O hands Bank deed to land instead of executing mortgage.
-Parol evidence admissible to show parties' intent
--if Bank sells land to C, C owns land, O can only sue Bank for fraud and sale of proceeds

Front 79

Rights of mortgagee and mortgagor when mortgage is created?

Back 79

-Mortgagor has title and right to posses
-Mortgagee has a lien

Front 80

is Mortgage transferable? if so, how?

Back 80

Yes. Mortgage follows property transferred note: Mortgagee endorses note and delivers to transferee or executes separate document of assignment

Front 81

what is a properly transferred mortgage note?

Back 81

-Note is negotiable: made payable to original endorsee
-Transferee receives original note, endorsed and delivered (no photocopies!)
-transferee takes in good faith and without notice of any illegality
-Transferee pays value for note

Front 82

if Mortgage is properly transferred to Transferee, then Transferee is

Back 82

Holder in Due Course: he can foreclose despite personal defenses against original mortgage

Front 83

Holder in Due Course of mortgage is subject to real defenses. what are they?

Back 83

MAD FIFIIII
-Material Alteration
-Duress
-Fraud in Factum (a lie about the instrument. e.g. you are told you are signing an application for credit, but you are signing the deed away)
Incapacity
Illegality
Infancy
Insolvency

Front 84

Recording Statutes protect Mortgagees: If Mortgage is properly recorded, then

Back 84

buyer need not have actual notice, B has record notice.
same as rules for recording deed (notice jurisdiction and race-notice jurisdictions)

Front 85

mortgaged property is sold by O to B, who is personally liable for mortgage?

Back 85

-If B assumes the mortgage, B is primarily liable. O is secondarily liable
-If B did not assume the mortgage, B took land "subject to mortgage": O is personally liable but Mortgage runs with land. if O doesn't pay, Bank forecloses.

Front 86

Foreclosure steps:

Back 86

1. judicial action, Bank sells prpoerty
-if proceeds are less than Mortgage owed, Bank brings deficiency action against debtor
-if proceeds > Mortgage owed, junior creditors are paid in order of priority.

Front 87

how to pay when foreclosed property is sold (who gets paid first)

Back 87

-off the top: attorney's fees, expenses, interest.
-senior mortgage (first in time, first in right)
-junior mortgages/creditors
-surplus goes to debtor

Front 88

Mortgage:
if senior creditor forecloses, what happens to interests junior to mortgagee

Back 88

they are terminated--> can no longer look to Blackacre for satisfaction

Front 89

What must foreclosure action include?

Back 89

party who brings foreclosure action must include necessary parties (i.e. those with interests subordinate to party).
-if you fail to include them, their mortgage remains in the land

Front 90

what about Mortgagees who are senior to foreclosing Mortgagee?

Back 90

Buyer takes land subject to senior Mortgagees' mortgage. in this case, the property should go for:
[fair market value] - [amount owed to senior mortgagees]

Front 91

How is seniority determined in mortgages?

Back 91

first in time, first in right.
BUT: IF THERE IS A PURCHASE MONEY MORTGAGE, it is the senior mortgage

Front 92

what is a purchase money mortgage

Back 92

mortgagee provided $ to finance O's purchase of Blackacre and records properly

Front 93

Redemption (in context of foreclosure)

Back 93

Debtor can try to redeem land up to date of sale (i.e. until valid foreclosure has taken place"

Front 94

Foreclosure:
How does redemption happen?
what if there is an acceleration Clause

Back 94

-O pays missed payments plus interests and costs unless there is an acceleration clause
-if there is an acceleration clause, O must pay full balance plus costs and a crude interest to redeem

Front 95

Is right of redemption waivable

Back 95

NO!
no "clogging the equity of redemption"!

Front 96

Statutory redemption
(Not Recognized in Mass)

Back 96

-up to 6 months after foreclosure sale
-debtor may redeem property by paying foreclosure sale price instead of original debt

Front 97

Lateral Support

Back 97

If A excavates and B's adjacent land collapses, Strict Liability only if land would have collapsed even in its natural state (i.e. A's improvement didn't contribute to subsidence)

Front 98

Lateral Support: what if no proof that land would have subsided even without improvements?

Back 98

then only negligence standard; no strict liability

Front 99

Water Rights: riparian doctrine

Back 99

Riparian Doctrine: water belongs to those who own land bordering watercourse
-Riparians share right of reasonable use of water
Riparian A is liable if her use unreasonably interferes with others' use

Front 100

Water Rights:
Prior appropriation doctrine

Back 100

water belongs to state, but right to divert and use it can be acquired by individual
-need not be riparian owner
-priority of beneficial use (includes agriculture): first in time, first in right

Front 101

Groundwater

Back 101

surface owner can make reasonable use and not be wasteful

Front 102

Surface Water

Back 102

is the "Common Enemy":
-almost anything goes to combat surface water flow
-no unnecessary harm to others' land!

Front 103

Possessor's Rights

Back 103

-No Trespass: invasion by tangible object): trespassers will be ejected by judicial action
-No Private Nuisance: only is substantial, unreasoanble interference with another's use and enjoyment of land (no hypersensitive πs)

Front 104

Eminent Domain

Back 104

Government has a 5A power to take property for public use in exchange for just compensation

Front 105

Eminent domain: Explicit takings

Back 105

land is condemned and the taking is explicit

Front 106

implicit/regulatory takings

Back 106

government regulation that has the same effect as a taking (because it operates an economic wipeout of your investment)

Front 107

Remedy for implicit/regulatory taking

Back 107

-compensate owner
-terminate regulation and pay owner damages incurred while regulation was in effect

Front 108

Zoning: why can the government create zoning laws

Back 108

government may enact statutes to reasonably control land use

Front 109

Zoning: variance:

Back 109

proponent of variance must show (1) undue hardship
(2) variance will not bring down neighborhood property prices

Front 110

Zoning: nonconforming use

Back 110

-once lawful use is now non-conforming
-it cannot be eliminated all at once, otherwise it's a taking

Front 111

unconstitutional exactions

Back 111

Government exacts promises (e.g. You can develop, but you have to put street lights in the entire neighborhood)
-Not reasonably related in nature and scope to the impact of proposed development

Front 112

4 freehold estates

Back 112

-FSA
-Fee Tail
-Defeasible Fee (3):
(1) FSDeterminable
(2) FSSCS
(3) FSSEL
-Life Estate

Front 113

FSD language

Back 113

-"To A, so lon as/during/until X"

Front 114

FSD transferability

Back 114

Alienable, devisable, descendible, but with condition

Front 115

FSD present and future interests

Back 115

present interest: FSD
future interes: POR (possibility of Reverter)
AUTOMATIC!

Front 116

FSSCS language

Back 116

"To A, but if X ever happens, then O reserves the right to re-enter and re-take"

Front 117

FSSCS present and future interests

Back 117

Present: A has FSSCS
Future: O has Right of reentry/power of termination.
It is NOT automatic, it's O's prerrogative

Front 118

FSSCS transferability

Back 118

devisable, descendible, alienable.
Subject to condition.

Front 119

FSSEL language

Back 119

"to A, but if X ever occurs, then to B"

Front 120

FSSEL present and future interests

Back 120

Present interest: A has FS subject to B's shifting executory interest
B has a Shifting Executory interest

Front 121

FSSEL transferability

Back 121

devisable, descendible, alienable, subject to condition

Front 122

Limitations and Restrictions (on Freehold estates) that are VOID:

Back 122

-absolute prohibition on alienation: void, and estate becomes a FSA
-FSD without clear, durational language: void: becomes FSA

Front 123

Life Estate/Life Estate pur autre vie: Language

Back 123

"To A for life": A has life Estate (always must use lifetime terms, not terms of years)
-"To A for the life of B": Life Estate pur Autre Vie

Front 124

A has life Estate
A sells to B
What does B have?

Back 124

B has life estate pur autre vie: he holds the estate for as long as A is alive

Front 125

Life Estate Holder obligations

Back 125

NO WASTE!
-No Voluntary Waste: (including obligation not to consume/exploit natural resources)
-No permissive waste (obligation to maintain)
-No Ameliorative waste (requires all future interest holders' consent)

Front 126

3 types of Waste

Back 126

1. voluntary waste
2. permissive waste
3. ameliorative waste

Front 127

Voluntary waste of natural resources: Exceptions

Back 127

PU-RGE:
-Prior Use (but open mines doctrine applies!)
-Reasonable Repairs: use natural resources for reasonable repairs and maintenance
-Grant: O grants right to use/exploit
-Exploitation: land is good only for exploitation (it's a quarry, for example)

Front 128

No permissive Waste: What obligations does this rule create?

Back 128

Obligation to maintain
>Obligation to pay all taxes on income from land
>if no income, pay taxes to extent of fair rental value

Front 129

What does Life Tenant (LT) need if she wants to commit Ameliorative Waste?

Back 129

All future interest holders must be known and must consent

Front 130

Freehold Estates:
3 Future interests in grantor O

Back 130

-POR (Possibility of Reverter) (accompanies FSD)
-Right of Entry (After FSSCS)
-Reversion

Front 131

Freehold Estates: 3 future interests in Third party, B (i.e. "transferee")

Back 131

-Vested Remainder (3)
(1) Indefeasibly vested remainder
(2) Vested Remainder Subject to complete defeasance
(3) Vested remainter subject to open
-Contingent Remainder
-Executory Interest

Front 132

defeasible Fee

Back 132

FS Determinable (future interest: POR)
FSSCS: future interest: O has right of Entry
FSSEL: future interest: B has executory interest

Front 133

If future interest of Defeasible fee is not O, but B, what does B hold?

Back 133

Executory Interest

Front 134

Remainders usually accompany what estates?

Back 134

-Life Estate
-Term of Years
NEVER follows a defeasible fee

Front 135

What is a vested remainder?

Back 135

It is both
-created in an ascertained person and
-Not subject to any condition precedent

Front 136

What is a contingent remainder?

Back 136

-Created in an unascertained person

and/or

-subject to condition precedent

Front 137

Contingent remainder Language
re: unascertained person

Back 137

"to A for life, then to B's first child" (B has no children) or
"to A for life, then to B's heirs" (B is alive)

Front 138

Contingent Remainder Language (because of condition precedent)

Back 138

"To A for life, then, if B graduates from college, to B) (A is alive, B is in high school)

Front 139

Destructibility rule
(Historically and Today)

Back 139

Historically: A dies and b's interest is still contingent, O or O's heirs take FSA (B's contingent interest is destroyed)
Today: O or O's heirs hold the estate subject to B's springing executory interest

Front 140

Shelley's Case

Back 140

"To A for life, then to A's heirs."
Historically: A has FSA even if grantor had contrary intent
Today: A has life Estate, A's heirs have Contingent remainder. O has reversion

Front 141

Doctrine of Worthier Title

Back 141

Rule of construction only:
"to A for life, then to O's heirs" (O is still alive). >>A has Life Estate; O has remainder
-In MASS: A has Life Estate, O's heirs have contingent remainder

Front 142

3 types of vested remainders

Back 142

-Indefeasibly vested remainder
-Vested remainder subject to Complete Defeasance
-Vested remainder subject to Open

Front 143

Indefeasibly vested remainder

Back 143

IVR holder, B
-is Certain to acquire estate in the future
-with NO conditions attached

Front 144

indefeasibly vested remainder (IVR) language:

Back 144

"To A for life, remainder to B"
A is alive: A has Life Estate
B is alive, B has Indefeasibly Vested REmainder
B dies before A: B's heirs have indefeasibly vested remainder

Front 145

"To A for life, remainder to B": Indefeasibly Vested Remainder in B.
What if B dies before A?

Back 145

B's heirs get B's Indefeasibly Vested Remainder

Front 146

Vested Remainder Subject to Complete Defeasance: definition

Back 146

B's future interest could be cut short subject to condition subsequent

Front 147

Vested REmainder Subject to Complete Defeasance: Language

Back 147

"to A for life, remainder to B, but if B dies before the age of 25, then to C".
A has Life Estate
B has VR subject to complete defeasance
C has shifting executory interest
O has reversion

Front 148

Vested Remainder Subject to Open: Definition

Back 148

-Vested in group of takers
-at least 1 member is qualified to take
-but additional members could join

Front 149

Vested REmainder Subject to Open (VRSOp): Language

Back 149

"To A for Life, then to B's Children" B is alive and has 2 kids, C&D
A has Life Estate
B has nothing
C&D have VRSOp

Front 150

VRSOp: class closes when

Back 150

class closes when
-any member of the class takes
"To A for life then to B's children" A dies, B is alive, has one child, C, and could have more children, but when A dies, the class closes and only C takes

Front 151

VRSOp in B's children. B has 2 children C & D. B dies, what result?

then C & D die. what result?

Back 151

B dies: Class is closed

C&D die: C&D's heirs or devisees get their shares of VRSOp

Front 152

2 types of Executory Interest

Back 152

Springing Executory Interest
Shifting Executory Interest

Front 153

Springing Executory Interest:
Definition
Language
RAP limitations

Back 153

-future interest against grantor O
-"to A, when and if he marries"
-A has springing executory interest
-O has Fee simple subject to A's springing executory interest
RAP: no because we'll know by the end of A's life if condition is met or not

Front 154

Shifting Exec Interest

-Future Interest for what present interest?

Back 154

it is a future interest for FSSEL

Front 155

Shifting Executory Interest:
Definition
Language
RAP?

Back 155

against holder of FSSEL
"to A, but if X occurs over the next 20 years, then to B"
RAP: time limit on B's power means there is no RAP violation

-A has FS Subject to B's shifting Executory Interest
-B has shifting executory interest

Front 156

RAP voids future interests if...

Back 156

future interest is void if there is ANY possibility that the interest may vest more than 21 years after the death of a measuring life

Front 157

RAP does not apply to

Back 157

-Any future interest in O, grantor
-indefeasibly vested remainders
-vested remainders subject to complete defeasance

Plus, there's a charity-to-charity exception

Front 158

If RAP applies

Back 158

portions of language that violate RAP are void
>may result in FSA, Life Estate with O's reversion or FSD/POR,
depending on language

Front 159

USRAP

Back 159

-alternative 90 year vesting period
-cy pres doctrine

Front 160

RAP in Massachusetts

Back 160

"wait and see approach"
look at state of affairs at the end of the measuring life

Front 161

JT and Mortgage

Back 161

-In Mass and Minority of states: Mortgage severs JT
-Majority rule: A mortgages her share of JT; her share not has a lien, but JT is not severed.

Front 162

Concurrent estates (3 types)

Back 162

-Joint Tenancy (JT)
-Tenancy by the Entirety
-Tenancy in Common (TiC)

Front 163

Joint Tenancy:
Characteristics and Creation

Back 163

Characteristics:
-2+ own with right of survivorship
-alienable, not devisable or descendible
-disfavored. if no clear language re: right of survivorship, it's a TiC
Creation: clear language re: rt of survivorship plus 4 UNITIES: T-TIP
Time, Title, Identical shares, Possession (right to posses the whole)

Front 164

Joint Tenancy Severance:

Back 164

-if JT1 sells her share to B, B has TiC. JT2, Jt3, etc. are JTs with respect to each other, but TiCs with respect to B
-Severance/partition:
*voluntary
*partition in kind
*forced sale

Front 165

Equitable Conversion
-Define it
-relate it to JT

Back 165

Common law treats what outght to happen as if it had happened
-If A contracts to sell her share of JT, JT is dissolved as of date of K, not as of date of later sale.

Front 166

Tenancy in Common (TiC) and Joint Tenancy (JT): Partition

Back 166

A co-tenant or a JT can bring an action for partition

Front 167

TiC: "Waste"

Back 167

TiC must not commit waste
-other TiCs may bring action for Waste During the life of the Tenancy in Common

Front 168

TiC: "improvements"
1. during the life of the tenancy in common
2. at partition

Back 168

1. improver co-tenant not entitled to contribution from other co-tenants
2. at partition, improver co-tenant gets credit for increase in value that improvements resulted in or is liable for decrease in value due to improvements

Front 169

TiC:
Repairs?

Back 169

co-tenant who makes necessary repairs is entitled to proportional contribution from other co-tenants iff she told other co-tenants of the need for repair

Front 170

TiC:
carrying costs?

Back 170

Taxes, mortgage interests, etc.
Each co-tenant is responsible based on her share

Front 171

TiC:
Acn A (co-tenant) acquire B's share by adverse possession

Back 171

No. Hostility element is absent because she is entitled to possess the whole.
A would first need to oust B and A is in exclusive possession

Front 172

TiC:
co-tenant A rents to third parties. Rights of A and B?

Back 172

A owns 10%, B owns 90%,
each gets proportional rent

Front 173

TiC:
A owns 10% B owns 90%. B has exclusive possession and A is traveling. Does A get
rent for B's exclusive possession absent ouster?

Back 173

NO
no rent to A for B's exclusive possession absent ouster

Front 174

TiC:
Right to possess the whole

Back 174

No co-tenant can exclude other co-tenants from the whole or part of the property. otherwise, it's wrongful ouster

Front 175

TiC:
Characteristics

Back 175

-each co-tenant owns an independent part, but has right to possess the whole
-descendible, devisable, alienable
-no survivorship rights!
presumption favors tic (over JT)

Front 176

Tenancy by the entirety:
-creation
-where recognized?

Back 176

-created b/w married partners who share right of survivorship
-presmptive in any conveyance to married partners unless otherwise stated
-21 states, including mass, recognized tenancy by the entirety

Front 177

Tenancy by the Entirety:
Protections

Back 177

Against creditors: creditor of spouse 1 can't touch this tenancy
[MASS: creditor can encumber Spouse 1's share but this doesn't defeat right of survivorship and doesn't touch spouse 2's share]
-against unilateral conveyance: Neither Sp1 nor Sp2 can defeat right of survivorship by unilateral transfer to 3d party

Front 178

LEASEHOLD ESTATES AND LANDLORD-TENANT RELATIONS

Back 178

IN PAPER FLASH CARDS!!