Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/178

Click to flip

178 Cards in this Set

  • Front
  • Back
5 Servitudes
-easements
-licenses
-profit
-covenant
-equitable servitude
Easement
-grant of NON-POSSESSORY property interest
-holder is entitled to some form of use or enjoyment of the servient tenement
usually affirmative, sometimes negative
negative easements only in 4 areas
LASS
-Light
-Air
-Support
-Streaming water from artificial flow
[Minority of states accepts scenic view negative easement]
EASEMENTS:

2 types of easement
-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)
Transferability of easements appurtenant?
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.
Transferability of easement held in gross?
not transferable unless easement is for commercial purposes
4 ways to create an affirmative easement?
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)
creating affirmative easement by implication (aka easement implied from existing use)
requirements:
-previous use was apparent
-parties expect it to continue
-b/c it was reasonably necessary to dominant land's use and enjoyment.
Creating affirmative Easement by Necessity
Grantor O conveys part of his land to A, but A can ONLY get to her land by passing through O's land.
Creating Affirmative Easement by Prescription
COAH elements of adverse possession are satisfied: -Continuous, Open & notorious, Actual, Hostile

**Permission Defeats hostility element
How is the scope of an easement determined?
determined by terms or conditions that created it. Cannot be unilaterally expanded.
Easement Termination
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
easement termination by estoppel
-E gives assurances he will no longer use easement
-A relies on this and changes land materially
-easement no longer enforceable
termination of easement by Necessity
need that created easement ends (so long as it was not created by express grant)
Termination of Easement By Destruction of Servient Land
only if destruction is due to something other than willfull act by A, servient land holder
Termination of Easement by Condemnation
Servient tenement is condemned by imminent domain
Termination of Easement by Release
written release by E, dominant tenement holder, to A, servient tenement holder
Termination of Easement by Abandonment
E, easement holder demonstrates by physical action the intent to never use easement again.
-Mere non-use or mere word: not enough
Termination of Easement by merger
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
Termination of Easement by Prescription
servinet owner interferes with easement in accordance with lements of adverse possession (COAH)
-Continuous
-Open and notorious
-Actual
-Hostile
License: definition and characteristics
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.
What happens is you create an easement for more than 1yr orally, in violation of SoF?
you've created a freely revocable license
License revocation: estoppel
B relies on license continuation and invests SUBSTANTIAL $ or labor. A cannot freely revoke license anymore
Profit: definition and characteristics
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
Covenant. Definition
promise to do or not to something with your land ("I promise to paint our common fence")
How can you tell difference between covenant and equitable servitude?
π in covenant seeks $$ damages
π in equitable servitude seeks injunction
What are the two things you need to know in order to decide if a covenant runs with the land?
-Burden of A's promise runs with the land
-Benefit of A's promise run with conveyance of B's land
what is required for Burden of covenant to run with the land?
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
What is required for Benefit of covenant to run with dominant land? (from B to Bs)?
WIT-V
Writing, Intent, Touch&Concern, Vertical privity
Equitable Servitude
A promise that equity will enforce against successors (enforceable by injunctive relief)
Creation of Equitable Servitude
To bind successors to a promise, WIT-NES:
Writing, Intent, Touch&Concern; Notice (to successors),
results in Equitable Servitude
Implied equitable Servitude
1. common Scheme Doctrine (not recognized in Mass)
2. Record Notice
Common Scheme doctrine for implied equitable servitude
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.
Record notice for Implied Equitable Servitude created by Common Scheme Doctrine
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
Equitable defense to enforcement of equitable servitude?
Changed condition (really changed, not just pockets of change)
Adverse possession
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
Adverse Possession and Tacking
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
Disabilities and Adverse Possession
Statutory period for adverse possession will not run against true owner if she had a disability AT THE START of adverse possession
2 Steps in purchase and Sale and Real Estate
1. Land K. Endures until step 2. SoF requires: in writing and signed by parties
2. Closing: deed becomes operative document
What does SoF require of Land K?
-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
Creation of Equitable Servitude
To bind successors to a promise, WIT-NES:
Writing, Intent, Touch&Concern; Notice (to successors),
results in Equitable Servitude
Implied equitable Servitude
1. common Scheme Doctrine (not recognized in Mass)
2. Record Notice
Common Scheme doctrine for implied equitable servitude
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.
Record notice for Implied Equitable Servitude created by Common Scheme Doctrine
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
Equitable defense to enforcement of equitable servitude?
Changed condition (really changed, not just pockets of change)
Adverse possession
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
Adverse Possession and Tacking
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
Disabilities and Adverse Possession
Statutory period for adverse possession will not run against true owner if she had a disability AT THE START of adverse possession
2 Steps in purchase and Sale and Real Estate
1. Land K. Endures until step 2. SoF requires: in writing and signed by parties
2. Closing: deed becomes operative document
What does SoF require of Land K?
-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
Sale of Real Estate: at signinf of Land K, who bears risk of loss?
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
Sale of real estate:
2 implied promises in land K
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
what is "marketable title"
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
Sale of Real Estate:
Caveat Emptor doctrine
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
Sale of Real Estate:
CLOSING: for deed to pass legal title, you need
LEaD: Lawfully Exectued and Delivered Deed.
Lawfully Executed Deed
-in writing, signed by grantor
-(in Mass: must recide consideration to be recorded (generally no need).
-Must describe land adequately
Delivered Deed is:
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
Transfer of deed and Oral conditions
oral conditions are not provable. Delivery is done.
Means of delivery
-mail is OK
-escrow is OK
3 types of deed and the covenants for title in each of them
1. Quitclaim (Called Release Deed in Mass)
2. General Warranty
3. Statutory Special Warranty deed (called Quitclaim in Mass)
Quitclaim Deed and covenants for title
-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)
General Warranty Deed: and covenants for title
-Warrants all defents to title, even those due to grantor's predecessor. provides all 6 covenants:, 3 present and 3 future
General Warranty Deed: 3 present covenants
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")
General Warranty Deed: 3 future covenants
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)
Statutory Special Warranty Deed (aka "Quitclaim in Massachusetts")
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.
Recording system protects
Mortgagees and BFPs:
in a race-notice jurisdiction,
O sells land to A, then O sells same land to B and skips town, who owns land?
depends on who recorded properly first
in notice jurisdiction,
O sells land to A, then O sells land to B. who owns land?
If B was Bona Fide Purchaser, B wins
what is a Bona Fide Purchaser (BFP)
-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]
Under recording statutes, donee is doomed unless
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)
for purposes of BFP, what is notice?
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
What is a properly recorded deed?
-within the chain of title
-in grantor-grantee index
Shelter rule: what if B is BFP but sells to C, who has actual notice of A buying land before B?
-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
Wild deed
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.
Estopped by deed
-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
Mortgage: definition and characteristic
-A debt and a voluntary lien in debtor's land to secure debt
-legal mortgage is in writing, and has many names
who is the mortgagee and who is the mortgagor
mortgagee: bank
mortgagor: homeowner
Equitable Mortgage
-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
Rights of mortgagee and mortgagor when mortgage is created?
-Mortgagor has title and right to posses
-Mortgagee has a lien
is Mortgage transferable? if so, how?
Yes. Mortgage follows property transferred note: Mortgagee endorses note and delivers to transferee or executes separate document of assignment
what is a properly transferred mortgage note?
-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
if Mortgage is properly transferred to Transferee, then Transferee is
Holder in Due Course: he can foreclose despite personal defenses against original mortgage
Holder in Due Course of mortgage is subject to real defenses. what are they?
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
Recording Statutes protect Mortgagees: If Mortgage is properly recorded, then
buyer need not have actual notice, B has record notice.
same as rules for recording deed (notice jurisdiction and race-notice jurisdictions)
mortgaged property is sold by O to B, who is personally liable for mortgage?
-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.
Foreclosure steps:
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.
how to pay when foreclosed property is sold (who gets paid first)
-off the top: attorney's fees, expenses, interest.
-senior mortgage (first in time, first in right)
-junior mortgages/creditors
-surplus goes to debtor
Mortgage:
if senior creditor forecloses, what happens to interests junior to mortgagee
they are terminated--> can no longer look to Blackacre for satisfaction
What must foreclosure action include?
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
what about Mortgagees who are senior to foreclosing Mortgagee?
Buyer takes land subject to senior Mortgagees' mortgage. in this case, the property should go for:
[fair market value] - [amount owed to senior mortgagees]
How is seniority determined in mortgages?
first in time, first in right.
BUT: IF THERE IS A PURCHASE MONEY MORTGAGE, it is the senior mortgage
what is a purchase money mortgage
mortgagee provided $ to finance O's purchase of Blackacre and records properly
Redemption (in context of foreclosure)
Debtor can try to redeem land up to date of sale (i.e. until valid foreclosure has taken place"
Foreclosure:
How does redemption happen?
what if there is an acceleration Clause
-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
Is right of redemption waivable
NO!
no "clogging the equity of redemption"!
Statutory redemption
(Not Recognized in Mass)
-up to 6 months after foreclosure sale
-debtor may redeem property by paying foreclosure sale price instead of original debt
Lateral Support
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)
Lateral Support: what if no proof that land would have subsided even without improvements?
then only negligence standard; no strict liability
Water Rights: riparian doctrine
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
Water Rights:
Prior appropriation doctrine
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
Groundwater
surface owner can make reasonable use and not be wasteful
Surface Water
is the "Common Enemy":
-almost anything goes to combat surface water flow
-no unnecessary harm to others' land!
Possessor's Rights
-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)
Eminent Domain
Government has a 5A power to take property for public use in exchange for just compensation
Eminent domain: Explicit takings
land is condemned and the taking is explicit
implicit/regulatory takings
government regulation that has the same effect as a taking (because it operates an economic wipeout of your investment)
Remedy for implicit/regulatory taking
-compensate owner
-terminate regulation and pay owner damages incurred while regulation was in effect
Zoning: why can the government create zoning laws
government may enact statutes to reasonably control land use
Zoning: variance:
proponent of variance must show (1) undue hardship
(2) variance will not bring down neighborhood property prices
Zoning: nonconforming use
-once lawful use is now non-conforming
-it cannot be eliminated all at once, otherwise it's a taking
unconstitutional exactions
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
4 freehold estates
-FSA
-Fee Tail
-Defeasible Fee (3):
(1) FSDeterminable
(2) FSSCS
(3) FSSEL
-Life Estate
FSD language
-"To A, so lon as/during/until X"
FSD transferability
Alienable, devisable, descendible, but with condition
FSD present and future interests
present interest: FSD
future interes: POR (possibility of Reverter)
AUTOMATIC!
FSSCS language
"To A, but if X ever happens, then O reserves the right to re-enter and re-take"
FSSCS present and future interests
Present: A has FSSCS
Future: O has Right of reentry/power of termination.
It is NOT automatic, it's O's prerrogative
FSSCS transferability
devisable, descendible, alienable.
Subject to condition.
FSSEL language
"to A, but if X ever occurs, then to B"
FSSEL present and future interests
Present interest: A has FS subject to B's shifting executory interest
B has a Shifting Executory interest
FSSEL transferability
devisable, descendible, alienable, subject to condition
Limitations and Restrictions (on Freehold estates) that are VOID:
-absolute prohibition on alienation: void, and estate becomes a FSA
-FSD without clear, durational language: void: becomes FSA
Life Estate/Life Estate pur autre vie: Language
"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
A has life Estate
A sells to B
What does B have?
B has life estate pur autre vie: he holds the estate for as long as A is alive
Life Estate Holder obligations
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)
3 types of Waste
1. voluntary waste
2. permissive waste
3. ameliorative waste
Voluntary waste of natural resources: Exceptions
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)
No permissive Waste: What obligations does this rule create?
Obligation to maintain
>Obligation to pay all taxes on income from land
>if no income, pay taxes to extent of fair rental value
What does Life Tenant (LT) need if she wants to commit Ameliorative Waste?
All future interest holders must be known and must consent
Freehold Estates:
3 Future interests in grantor O
-POR (Possibility of Reverter) (accompanies FSD)
-Right of Entry (After FSSCS)
-Reversion
Freehold Estates: 3 future interests in Third party, B (i.e. "transferee")
-Vested Remainder (3)
(1) Indefeasibly vested remainder
(2) Vested Remainder Subject to complete defeasance
(3) Vested remainter subject to open
-Contingent Remainder
-Executory Interest
defeasible Fee
FS Determinable (future interest: POR)
FSSCS: future interest: O has right of Entry
FSSEL: future interest: B has executory interest
If future interest of Defeasible fee is not O, but B, what does B hold?
Executory Interest
Remainders usually accompany what estates?
-Life Estate
-Term of Years
NEVER follows a defeasible fee
What is a vested remainder?
It is both
-created in an ascertained person and
-Not subject to any condition precedent
What is a contingent remainder?
-Created in an unascertained person

and/or

-subject to condition precedent
Contingent remainder Language
re: unascertained person
"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)
Contingent Remainder Language (because of condition precedent)
"To A for life, then, if B graduates from college, to B) (A is alive, B is in high school)
Destructibility rule
(Historically and Today)
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
Shelley's Case
"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
Doctrine of Worthier Title
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
3 types of vested remainders
-Indefeasibly vested remainder
-Vested remainder subject to Complete Defeasance
-Vested remainder subject to Open
Indefeasibly vested remainder
IVR holder, B
-is Certain to acquire estate in the future
-with NO conditions attached
indefeasibly vested remainder (IVR) language:
"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
"To A for life, remainder to B": Indefeasibly Vested Remainder in B.
What if B dies before A?
B's heirs get B's Indefeasibly Vested Remainder
Vested Remainder Subject to Complete Defeasance: definition
B's future interest could be cut short subject to condition subsequent
Vested REmainder Subject to Complete Defeasance: Language
"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
Vested Remainder Subject to Open: Definition
-Vested in group of takers
-at least 1 member is qualified to take
-but additional members could join
Vested REmainder Subject to Open (VRSOp): Language
"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
VRSOp: class closes when
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
VRSOp in B's children. B has 2 children C & D. B dies, what result?

then C & D die. what result?
B dies: Class is closed

C&D die: C&D's heirs or devisees get their shares of VRSOp
2 types of Executory Interest
Springing Executory Interest
Shifting Executory Interest
Springing Executory Interest:
Definition
Language
RAP limitations
-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
Shifting Exec Interest

-Future Interest for what present interest?
it is a future interest for FSSEL
Shifting Executory Interest:
Definition
Language
RAP?
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
RAP voids future interests if...
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
RAP does not apply to
-Any future interest in O, grantor
-indefeasibly vested remainders
-vested remainders subject to complete defeasance

Plus, there's a charity-to-charity exception
If RAP applies
portions of language that violate RAP are void
>may result in FSA, Life Estate with O's reversion or FSD/POR,
depending on language
USRAP
-alternative 90 year vesting period
-cy pres doctrine
RAP in Massachusetts
"wait and see approach"
look at state of affairs at the end of the measuring life
JT and Mortgage
-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.
Concurrent estates (3 types)
-Joint Tenancy (JT)
-Tenancy by the Entirety
-Tenancy in Common (TiC)
Joint Tenancy:
Characteristics and Creation
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)
Joint Tenancy Severance:
-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
Equitable Conversion
-Define it
-relate it to JT
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.
Tenancy in Common (TiC) and Joint Tenancy (JT): Partition
A co-tenant or a JT can bring an action for partition
TiC: "Waste"
TiC must not commit waste
-other TiCs may bring action for Waste During the life of the Tenancy in Common
TiC: "improvements"
1. during the life of the tenancy in common
2. at partition
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
TiC:
Repairs?
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
TiC:
carrying costs?
Taxes, mortgage interests, etc.
Each co-tenant is responsible based on her share
TiC:
Acn A (co-tenant) acquire B's share by adverse possession
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
TiC:
co-tenant A rents to third parties. Rights of A and B?
A owns 10%, B owns 90%,
each gets proportional rent
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?
NO
no rent to A for B's exclusive possession absent ouster
TiC:
Right to possess the whole
No co-tenant can exclude other co-tenants from the whole or part of the property. otherwise, it's wrongful ouster
TiC:
Characteristics
-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)
Tenancy by the entirety:
-creation
-where recognized?
-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
Tenancy by the Entirety:
Protections
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
LEASEHOLD ESTATES AND LANDLORD-TENANT RELATIONS
IN PAPER FLASH CARDS!!