Mbe Property 2014

Front 1

Fee Simple Absolute

1. Language creating

2. disinguishing characteristics

3. Accompanying future interest

Back 1

1. "To A" or "To A and his heirs"

2. Absolute ownership; devisable, descendible, alienable.

3. No future interest

Front 2

Fee Tail

1. Language creating

2. Distinguishing characteristics

3. Accompanying future interest

Back 2

1. "To A and the heirs of his body"

2. Virtually abolished today, never tested. Passes only to the grantee's lineal blood descendants.

*Today attempted creation of a fee tail creates a fee simple absolute

**IL distinction: attempted creation of a fee tail creates a life estate with a remainder in the grantee's heirs

3. Yes. In the O, a reversion. In a 3rd party, a remainder

Front 3

Fee Simple Determinable (Frank Sinatra Doesn't Prefer Orville Redenbacher)

1. Language creating

2. Distinguishing characteristics

3. Accompanying future interest

Back 3

1. "To A for so long as..." "To A during..." To A until..." (forfeiture is automatic)

2. devisable, descendible, alienable, but always subject to the condition.

3. Possibility of reverter in O (grantor)

Front 4

Fee Simple Subject to Condition Subsequent

1. Language creating

2. Distinguishing characteristics

3. Accompanying future interest

Back 4

1. "To A, but if X event occurs, grantor reserves the right to re-enter and retake"

2. The estate is not automatically ended, but can be cut short at the grantor's option.

3. Right of entry (power of termination)

Front 5

Fee Simple Subject to Executory Limitation

1. Language creating

2. Distinguishing characteristics

3. Accompanying future interest

Back 5

1. "To A, but if X event occurs, then to B"

2. If condition is broken, estate is automatically forfeited to a 3rd party (not O)

3. 3rd party has a shifting executory interest

Front 6

Absolute restraints on alienation

Back 6

VOID. Absolute bans on sale or transfer are void if not linked to a reasonable, time-limited purpose

Front 7

Life Estate

1. Language creating

2. Life estate pur autre vie

3. Life tenant's rights

Back 7

1. "To A for life", A is a life tenant, O has a reversion.

2. "To A for the life of B"

3. A has rights to all ordinary uses and profits from the land. A may not commit waste.

Front 8

Waste (3 kinds)

Back 8

1. Voluntary or affirmative waste: overt conduct that causes a drop in value.

2. Permisive waste, or neglect: land falls into disrepair. (LT is obligated to reasonably maintain the land, and pay all ordinary taxes)

3. Ameliorative waste: acts that enhance the properties value are forbidden unless, all future interest holders know and consent.

Front 9

Voluntary Waste and Natural Resources

1. General Rule

2. Exceptions (PURGE)

Back 9

1. LT must not consume or exploit natural resources, UNLESS

2.

PU: prior use, prior to the grant the land was used for exploitation. (Open Mines Doctrine: if mining was done on the land before the life estate began, LT can mine only the mines that were already open.)

R: repairs, LT may consume natural resource for the sake of repairs.

G: grants, LT may exploit if granted that right

E: exploitation, the land is only good for exploitation (Black Acre is a quarry)

Front 10

Future Interests capable of creation in the grantor (3)

Back 10

1. Possibility of reverter (accompanies fee simple determinable)

2. Right of entry (accompanies fee simple subject to condition subsequent)

3. Reversion (accompanies any transfer of less of the estate than O started with)

Front 11

Future Interests in Transferees (3)

Back 11

1. Vested Remainders,

2. Contingent Remainder, or

3. Executory Interest

Front 12

Remainder

Back 12

capable of becoming possessory only upon he expiration of a prior possessory estate

*never follows a defeasible fee!

Front 13

Vested remainder

Back 13

1. created in an ascertained person, AND

2. not subject to any condition precedent

Front 14

Contingent remainder

Back 14

1. Is created in an unascertained person, (To A for life, the to B's heirs) AND/OR

2. is subject to a condition precedent (To A for life, then, if B graduates from college, to B)

Front 15

The Rule of Destructibility of Contingent Remainders

1. CL

2. Modern

Back 15

1. At CL: a contingent remainder was destroyed if it was still contingent at the time the preceeding estate ended

2. Now: Rule abolished. if the condition precedent still hasn't been met when the preceeding estate ends, the estate reverts to O or O's heirs subject to B's springing executory interest. Once the condition is met, B takes.

Front 16

The Rule in Shelley's Case ("To A for life, the, on A's death, to A's heirs." A is alive)

1. at CL

2. Modern

Back 16

O conveys "To A for life, then, on A's death, to A's heirs" A is alive.

1. The interests merge. Giving A fee simple absolute.

2. Shelley's rule abolished. A has a life esetate. A's unknown heirs have a contingent remainder. O has a reversion. (IL rule)

Front 17

Doctrine of Worthier Title (rule against a remainder in grantor's heirs)

"To A for life, then to O's heirs" (O is alive)

Back 17

"To A for life, the to O's heirs" O is alive

Without the Doctrine: (IL rule)

A has a life estate

O heirs have a contingent remainder

With Doctrine: (rule in most states, not IL)

A has a life estate

O has a reversion

O's heirs have nothing

Front 18

3 Kinds of Vested Remainders

Back 18

1. Indefeasibly vested remainder

2. Vested remainder subject to complete defeasance

3. Vested remainder subject to open

Front 19

Indefeasibly vested remainder

Back 19

the holder of this remainder is certain to aqcuire with no strings attached.

"To A for life, remainder to B"

Front 20

Vested remainder subject to complete defeasance

Back 20

remainderman's taking is not subject to any condition precedent. But his right to possession could be cut short by a condition subsequent.

"To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C"

A: life estate

B: vested remainder subject to complete defeasance

C: shifting executory interest

O: reversion

Front 21

Vested remainder subject to open

Back 21

a remainder is vested in a group of takers, at least one of whom is qualified to take. But additional members can still join the group.

"To A for life, then to B's children" A is alive

Front 22

Common law rule of convenience

Back 22

a class closes whenever any member can demand possession

"To A for life, then to B's children" Class closes when A dies.

Front 23

Executory Interests

Back 23

Future interest created in a third party, not a remainder, takes effect by cutting short some interest in another person (shifting) or in the grantor (springing).

Front 24

shifting executory interest

Back 24

future interest in a 3rd party, cuts short someone other than O, the grantor.

Always follows a defeasible fee.

Front 25

springing executory interest

Back 25

cuts short O, the grantor.

"To A, if and when he marries"

A: springing executory interest

O: fee simple subject to A's springing executory interest

Front 26

Rule Against Perpetuities

Back 26

Future interests are void if there is any possibility that a given interest may vest more than 21 years after the death of a measuring life.

Front 27

RAP Problems: 4-step technique

Back 27

1. What future interest has been created. (only applies to contingent remainders, executory interests, and certain vested remainders subject to open)

2. Identify conditions precedent to vesting of the future interest.

3. Find a measuring life.

4. Will we know with certainty, within 21 years of the death of the measuring life, if our future interest holder can or cannot take?

Front 28

Fertile octodenarian rule

Back 28

assume a person is fertile no matter what age

not in IL, over age 65-->no babies!

Front 29

RAP and gifts to an open class

Back 29

A gift to an open class that is conditioned on members surviving beyond age 21 violates RAP

(IL courts will reduce age to 21)

Front 30

RAP and shifting executory interests

Back 30

Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP.

"To A and his heirs, so long as the land is used for farm purposees, and if the land ceases to be so used, to B and his heirs."

Front 31

RAP and charities

Back 31

Gifts from one charity to another do not violate the RAP

Front 32

Reform of RAP: wait and see doctrine

Back 32

the validity of a future interest is determined on the basis of the facts as they exist at the end of the measuring life.

Front 33

Cy Pres doctrine

Back 33

interpretation rule: "as near as possible"

If a disposition violates the rule, the court may reform in a way that closesly matches the grantor's intent while complying with the RAP

Front 34

Joint tenancy

Back 34

2 or more own with the right of survivorship

Front 35

Tenancy by the entirety

Back 35

between married partners, with the right of survivorship (when one tenant dies, his share goes automatically to the surviving joint tenant)

*alienable, you can sell while you're alive

Front 36

Tenancy in common

Back 36

2 or more own, with no right of survivorship

Front 37

Joint tenancy

Creation (T-TIP)

Back 37

1. Four unities:

Time

Title

Interests

Possess the whole

Grantor must clearly express the right of survivorship

In IL, there is no need to use a strawman. An owner may convey to himself and another joint tenancy with the right of survivorship.

Front 38

Joint tenancy

Severance (SPAM)

Back 38

SPAM (Sale, Partition, And Mortgage)

1. Severance and Sale: can sell or transfer in her lifetime. Buyer is a tenant in common with no right of survivorship.

2. Severance and Partition: voluntary, partition in kind (court action, physically divides up estate), forced sale (sale proceeds divided proportionately)

3. Severance and Mortgage: One tentant's execution of a mortgage severs the encumbered share (title theory--minority). Majority (lien theory--IL): execution of a mortgage will not sever the joint tenancy.

Front 39

Tenancy by the Entirety

1. Creation

2. creditors

3. effect of unilateral transfer

Back 39

1. In any grant to married partners, arises presumptively unless stated otherwise

2. creditors of only one spouse, cannot touch this tenancy

3. neither tenant acting alone, can destroy the right of survivorship by transfer to a 3rd party

Front 40

Tenancy in Common

1. Rent from co-tenant in exclusive possession

2. Rent from 3rd parties

3. Adverse possession

4. Carrying costs

5. Repairs

6. Improvements

7. Waste

8. Partition

Back 40

1. absent ouster, a co-tenant in exclusive possesssion is not liable to the other for rent (one left volunarily)

2. if rented to a 3rd party, each co-tenant is entitled to a share of the rental income

3. a co-tenant cannot adversely posses because there is no hostility in their exclusive control

4. each co-tenant is responsible for carrying costs such as taxes and mortgage interest (their fair share)

5. each co-tenant must contribute to reasonable, necessary repairs (if given notice)

6. Not responsible for contributing to improvements (subjective). Improver will get a credit upon sale for increase in value caused.

7. Cannot commit waste

8. May bring an action for partition

Front 41

Tenancy for years

Back 41

lease for a fixed period of time (days, years)

no notice needed to terminate

if the term is longer than one year, it must be in writing.

Front 42

Periodic Tenancy

Back 42

continues for successive intervals until the landlord or tenant give proper notice to terminate

Front 43

Periodic tenancy by implication

1. No mention of duration

2. Oral term of years longer than one year

3. Holdover

Back 43

1. Payment at set intervals

2. Measured by how rent is tendered

3. If T stays past a lease, but send L rent regularly and L cashes the rent, an implied periodic tenancy exists

Front 44

Termination of a periodic tenancy

Back 44

At least equal to the period unless otherwise agreed (e.g., one week for week-to-week), EXCEPT

only 6 months notice needed for year-to-year (60 days IL rule)

Front 45

Tenancy at will

Back 45

Tenancy for no fixed duration

must be stated expressly (otherwise implied periodic tenancy)

can be terminated by either party at any time.

Front 46

T's liability to 3rd parties

Back 46

T responsible for keeping the premises in good repair.

T responsible for injuries sustained by 3rd parties T invited

Front 47

T's duty to repair

Back 47

When lease is silent:

T must maintain the premises

T must not commit waste

Front 48

Fixtures

Back 48

A once movable chattel, because of it's fixture realty objectively shows intent to permanently improve the realty (furnance, lighting, storm windows)

Fixtures pass with ownership of the land (T may not remove a fixture, even if she installed it)

Front 49

When can T remove a fixture that she installed?

Back 49

if removal won't cause substantial harm

Front 50

T's duty to pay rent (L remedies)

Back 50

If T is in possession, L may:

1. evict through the courts, or

2. sue for rent due

L may not engage in self-help

If T is not in possession (T skips town), L may:

1. surrender: T has given up the lease

2. Ignore the abandonement and hold T responsible for rent

3. Re-let the premises and hold T liable for any deficiency (IL rule/majority rule)

Front 51

L's duty to deliver possession

Back 51

L must put T in actual possession (majority rule)

IL Rule: L only give T legal possession (keys and a lease). If an old tenant is still in the apartment, that is the new tenant's problem.

Front 52

L's duty to provide quiet enjoyment

Back 52

T has a right to quiet use and enjoyment without interference from L. (In IL, only applies to residential leases)

Front 53

Breaches of right to quiet enjoyment

1. actual eviction

2. constructive eviction

Back 53

Actual

1. L wrongully evicts or excludes T

Constructive

2. three elements must be met: (SING)

a. Substantial Interference: could be permanent or chronic

b. Notice: L had notice of the problem

c. Goodbye: T must vacate after L's failure to fix problems

Front 54

Implied warranty of habitability

Back 54

1. premises must be fit for basic dwelling

2. only applies to residential leases

3. T's remedies:

a. Move out

b. Repair and deduct cost from future rent

c. reduce rent (must place rent in escrow account)

d. remain in possession and seek money damages

Front 55

Assignment

Back 55

T's transfer of her whole interest. New T is in privity of estate, not privity of contract with L

Front 56

Sub-lease

Back 56

T's transfer of part of her interest. New T is not in privity of contract OR privity of estate with L

Front 57

When can T create a sub-lease or assignment?

Back 57

L can prohibt T from assigniing or subletting without L's prior written approval

Front 58

T1 assigns the remainder of his lease to T2. Relationship between T2 and L?

Back 58

L and T2: privity of estate. NOT privity of contract. T2 assumes all covenants in the original lease that "run with the land" (e.g. promise to pay rent, paint the premises, repair)

Front 59

Relationship between T1 and L after an assignment?

Back 59

L and T1: privity of contract. NOT privity of estate L &T1 are secondarily liable to each other

Front 60

Relationship between T2 and L after sublease?

Back 60

T2 is liable to T1, and vice versa. Relationship between T1 and L is fully intact. No relationship between T2 and L

Front 61

Caveat Lesse

Back 61

L is under no duty to make premises safe

Front 62

Caveat Lesse exceptions (5--CLAPS)

Back 62

Common Areas: L must maintain all common areas. Latent Defects: L must warn of hidden defects that L knows or should know about (only a duty to warn). Assumption of repairs: L who voluntarily makes repairs negligently is liable. Public use rule: L who short-term leases a public space (convention hall) and who should know of the defect is liable for any defects. Short term lease of furnished dwelling: L is liable for defects.

Front 63

Easement

Back 63

the grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land (servient tenament)

Front 64

Affirmative easement

Back 64

gives holder the right to do something

Front 65

Negative easement

Back 65

entitles the holder to prevent the servient easement from doing something that would otherwise be permissible

Front 66

Types of negative easements (LASS)

Back 66

Light; Air; Support; Stream Water

Front 67

Creation of a negative easement

Back 67

ONLY created expressly by writing signed by the grantor

Front 68

Easement appurtenant

Back 68

benefits its holder in his physical use or enjoyment of his property dominant tenement--benefit. Servient tenement--bears burden (requires 2 parcels of land)

Front 69

Easement in gross

Back 69

confers holder only some personal or pecuniary advantage, not related to his use or enjoyment of land.

Front 70

Easement appurtenant and transfer

Back 70

Passes automatically with the dominant tenement (whether or not it is mentioned in the conveyance). Easement passes automaticallly with conveyance of the burdened parcel also, unless purchaser is a BFP

Front 71

Easement in gross and transfer

Back 71

Does not transfer unless it is for commercial use

Front 72

Creation of an affirmative easement (PING)

Back 72

Prescription; Implication; Necessity; Grant

Front 73

Creation of an easement by grant

Back 73

Must be in writing if it endures for longer than one year.

Front 74

Creation of an easement by implication

Back 74

An easement may be implied if: previous use was apparent; parties would expect it to continue because it is reasonably necessary to dominant land's use

Front 75

Creation of an easement by necessity

Back 75

Landlocked setting. Easement implied by necessity if grantor conveys a portion of his land with no way out, except over part of grantor's remaining land

Front 76

Creation of an easement by prescription (COAH)

Back 76

Satisfies the elements of adverse possession: Continusous use for statutory period (20 years in IL); Open and notorious use; Actual use; Hostile use (without servient owner's consent)

Front 77

Scope of an easement

Back 77

Determined by the terms that created it. Unilateral expansion is not allowed.

Front 78

termination of an easement (END CRAMP)

Back 78

Estoppel; Necessity; Destruction; Condemnation; Releasel Abandonment; Merger; Prescription

Front 79

Termination of an easement by estoppel

Back 79

Estoppel: servient owner materiallly changes his or her position in reasonable reliance on the easement holder's assurances that the easement will not be enforced.

Front 80

Termination of an easement from necessity

Back 80

Easements created by necessity end when the need ends.

Front 81

Termination of an easement by destruction of the servient land

Back 81

Must be other than through the willful conduct of the servient owner

Front 82

Termination of an easement by condemnation of the servient estate

Back 82

eminent domain ends the easement

Front 83

Termination of an easement by release

Back 83

A written release, given by easement holder to the servient owner

Front 84

Termination of an easement by abandonment

Back 84

easement holder must: demonstrate by physical action; intent to never use easement again (non use, or words are insufficient to terminate by abandonment)

Front 85

Merger doctrine (termination of an easement)

Back 85

easement is extinguished when title to easement and title to servient land become vested in one person (easement is not revived if someone else later purchases one parcel)

Front 86

Termination of an easement by prescription (COAH)

Back 86

The servient owner may end the easement by interfering with it in accordance with the elements of adverse possession. Continuous interference; Open and notorious; Actual, Hostile to easement hold

Front 87

License

Back 87

A privilege to enter another's land for a delineated purpose

Front 88

Creation of a license

Back 88

not subject to statute of frauds, don't need to be in writing

Front 89

Termination of a license

Back 89

freely revocable, at the will of the licensor, unless estoppel applies

Front 90

Examples of licenses

Back 90

tickets (phantom of the opera), neighbors talking by the fence (an oral easement creates a freely revocable license)

Front 91

Licenses and estoppel

Back 91

Revocation of a license will be estopped if the licensee has invested substantial $, labor, or both in reasonable reliance on the license's continuation

Front 92

Profit

Back 92

entitles its holder to enter the servient land and take soil or some substance from the soil

Front 93

Covenant

Back 93

a promise to do or not do something related to land. It is a contract.

Front 94

Negative covenant

Back 94

promise not to do something (e.g., paint house pink)

Front 95

Affirmative covenant

Back 95

promise to do something (e.g., maintain common driveway)

Front 96

Equitable servitude v. Covenant

Back 96

Equitable servitude: Plaintiff seeks injunctive relief. Covenant: Plaintiff seeks money damages

Front 97

Equitable servitude

Back 97

a promise that equity will enforce against successors, accompanied by injunctive relief.

Front 98

Creation of an equitable servitude (WITNES)

Back 98

Writing: generally original promise is in writing; Intent: parties intended to bind successors; Touch & concern: promise effects the parties as landowners; Notice: successors of burdened land had notice. (privity is not required to bind successors)

Front 99

Implied equitable servitude (Common scheme doctrine)

Back 99

One land subdivided into many lots. Some with restrive covenants, others with no restrive covenant. A court can find an implied reciprocal negative servitude to hold an unrestricted lot holder to a restrictive covenant if:

1. when sales began, the subdivider had a general scheme of residential development, including D's lot; and

2. the D lotholder had notice of the promise contained in the prior deeds

Front 100

Implied equitable servitude, NOTICE imputed to D lotholder (AIR)

Back 100

Actual notice (D knew of common promise);

Inquiry notice (neighborhood conforms to promise); OR

Record notice (on the basis of public documents)

*later buyer does NOT have record notice of the contents of prior deeds transferred previously by the common grantor

Front 101

Changed conditions

Back 101

if circumstances have changed so pervasively that the entire area has changed, enforcement of an equitable servitude may be terminated. (Mere pockets of limited change are not enough.)

Front 102

Adverse possession (COAH)

Back 102

possession for a statutorily prescribed period of time can, ripen into title. Continuous (20 years in IL); Open and notorious (the type of possession usually exercised by an owner); Actual (entry must be literal); Hostile (without owner's consent)

Front 103

Adverse possession Tacking

Back 103

One adverse possessor may tack his time with his predecessor's as long as there is privity (blood, contract, deed, will). There must not be ouster

Front 104

Adverse possession Disabilities

Back 104

the statute of limitation will not run against a true owner who is afflicted by disability (insanity, infancy, imprisonment) at the start of the adverse possession.

Front 105

Conveyance of land (2-step process)

Back 105

1. the land contract; 2. the closing (where deed becomes operative)

Front 106

Land contract

Back 106

must be in writing, signed by the parties to be bound, must describe the land, must state some consideration

Front 107

doctine of part performance (no need for a written contract)

Back 107

if two of the following three exist, there is specific performance of an oral contract for the sale of land: 1. B takes possession; 3. B pays all or part of the purchase price; and/or 3. B makes substantial improvments

Front 108

Destruction

Back 108

If between the contract signing and the closing, Black Acre is destroyed through no fault of either party, B bears the risk of loss unless otherwise contracted. (In IL, the seller bears the risk of loss until the closing)

Front 109

Implied marketable title

Back 109

At closing, title must be free from lawsuits and threats of litigation

Front 110

Three circumstances rendering property unmarketable

Back 110

1. Adverse possesion (even partial); 2. Ecumberances (property must be unencumbered by servitudes and mortgages); 3. Zoning violations (unmarketable when property violates a zoning ordinance)

Front 111

False statements of material fact

Back 111

Seller will be liable for failing to disclose latent material defects, lying, and material omissions

Front 112

Implied warranty of fitness or habitability

Back 112

Buyer beware: none. EXCEPT when the home is new and the seller is also the builder

Front 113

Deed

Back 113

passes legal title from seller to buyer at the closing. Must be lawfully executed and delivered (LEAD).

Front 114

Lawful execution of a deed

Back 114

deed must be in writing, signed by the grantor, unambiguous description of the land ("all" of my land is fine, "some" of my land--> not OK)(does not need to recite consideration)

Front 115

Delivery of a deed

Back 115

l

Front 116

Does a covenant run with the land?

(Burdened side--WITHN)

Back 116

A<----->B

| |

A1 B1

WITHN

Writing: promise between A & B must have been in writing

Intent: A & B intended that the covenant would run (courts are generous)

Touch and concern the land: prmosie must effect legal relations as land owners

Horizontal and Vertical Privity: Are both needed

Notice: A1 must have known of the promise when the took

Front 117

Horizontal privity

Back 117

Between A & B (original parties) requires that they be in succession of estate: grantor/grantee; landlord/tenant; or mortgagor/mortgagee

(this is the hardest element to establish)

Front 118

Vertical privity

Back 118

Between A & A1, only requires a non-hostile nexus. Contract, devise, descent.

The only time vertical privity is not present is if A1 acquired her interest through adverse possesion.

Front 119

Does the covenant run with the land?

(Benefit side WITV)

Back 119

Writing: original promise in writing

Intent: A & B intended the benefit would run

Touch and Concern: promise effects both parties as landowners

Vertical Privity: Horizontal privity not required

Front 120

Equitable servitude

Back 120

A promise that equity will enforce against successors. It is accompanied by injunctive relief.

Front 121

To create a servitude that will bind successors (WITNES)

Back 121

Writing: generally, promise in writing

Intent: parties intended to bind successors

Touch and concern: promise effects the parties as landowners

Notice: successors of burdened land had notice

no privity needed