Prop 1: Present, Future And Concurrent Estates

Front 1

What are the four categories of freehold estates?

Back 1

the fee simple absolute (“FSA”); the fee tail; the defeasible fees (FSD, FSSCS, FSSEL); the life estate

Front 2

What does it mean for an estate to be “devisable”?

Back 2

Can be passed by will.

Front 3

What does it mean for an estate to be “descendible”?

Back 3

It will pass by statutes of intestacy if its holder dies intestate (without a will).

Front 4

What does it mean for an estate to be “alienable”?

Back 4

It is transferrable inter vivos, or during the holder’s lifetime.

Front 5

Sinead O'Connor rule of property

Back 5

A living person has no heirs

Front 6

Fee simple absolute - language to create

Back 6

"To A and his heirs" or "To A"

Front 7

Fee simple absolute - extent of ownership

Back 7

absolute ownership

Front 8

Fee simple absolute - duration

Back 8

potentially infinite duration

Front 9

Fee simple absolute - transferability

Back 9

Devisable, descendible, alienable

Front 10

Fee simple absolute - accompanying future interest

Back 10

None

Front 11

Fee tail - language to create

Back 11

"To A and the heirs of his body"

Front 12

Fee tail - extent of ownership

Back 12

passes directly to grantee’s lineal blood descendants no matter what

Front 13

Fee tail - duration

Back 13

Lasts only as long as there are lineal blood descendants of grantee

Front 14

Fee tail - transferability

Back 14

passes automatically to grantee's lineal descendants

Front 15

Fee tail - accompanying future interest

Back 15

Reversion (if in grantor) or remainder (if in someone other than O)

Front 16

Today, attempted creation of a fee tail creates instead ________.

Back 16

FSA

Front 17

Fee simple determinable - language to create

Back 17

"To A so long as...", "To A during ..." "To A until …" (grantor must use clear durational language)

Front 18

Fee simple determinable - duration

Back 18

(Potentially infinite?) If the stated condition is violated, forfeiture is automatic.

Front 19

Fee simple determinable - transferability

Back 19

devisable, descendible, and alienable, but always subject to the condition

Front 20

Fee simple determinable - accompanying future interest

Back 20

Possibility of reverter (in the grantor)

Front 21

Frank Sinatra Didn't?

Back 21

Prefer Orville Redenbacher (Fee simple determinable, possibility of reverter)

Front 22

Mick Jagger rule of property

Back 22

You can't convey more than you own

Front 23

Fee simple subject to condition subsequent - language to create

Back 23

"To A, but if X event occurs, grantor reserves the right to reenter and retake" (Grantor must use clear duration language AND carve out right of entry)

Front 24

Fee simple subject to condition subsequent - duration

Back 24

(Potentially infinite?) This estate is not automatically terminated, but it can be cut short at the grantor’s option, if the stated condition occurs.

Front 25

Fee simple subject to condition subsequent - transferability

Back 25

devisable, descendible, and alienable, but always subject to the condition

Front 26

Fee simple subject to condition subsequent - accompanying future interest

Back 26

Right of entry (aka power of termination) (grantor must exercise)

Front 27

Fee simple subject to an executory limitation - language to create

Back 27

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

Front 28

Fee simple subject to an executory limitation - duration

Back 28

(Potentially infinite?) The estate is just like the fee simple determinable, only now if the condition is broken, the estate is automatically forfeited in favor of someone other than grantor.

Front 29

Fee simple subject to an executory limitation - transferability

Back 29

devisable, descendible, and alienable, but always subject to the condition

Front 30

Fee simple subject to an executory limitation - accompanying future interest

Back 30

Shifting executory interest (3d party, automatic)

Front 31

Regarding defeasible fees, first of two important rules of construction: Words of mere desire, hope, or intention are …

Back 31

insufficient to create a defeasible fee. (courts disfavor restrictions on the free use of land, thus courts will not find a defeasible fee unless clear durational language is used)

Front 32

Regarding defeasible fees, second of two important rules of construction: Absolute restraints on alienation are …

Back 32

Void. (an absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to any reasonable time-limited purpose)

Front 33

Life estate - language to create

Back 33

"To A for life" or "To A for life of B"

Front 34

Life estate - duration

Back 34

measured in explicit lifetime terms, and NEVER in terms of years

Front 35

Life estate - transferability

Back 35

Devisable (if pur autre vie), descendible (if pur autre vie), and alienable

Front 36

Life estate - accompanying future interest

Back 36

If held by O, the grantor, it is called a reversion. If held by a third party, it is a remainder.

Front 37

Rule 1 of life estates: Life tenant is entitled to

Back 37

ordinary uses and profits from the land

Front 38

Rule 2 of life estates: Life tenant must not

Back 38

commit waste

Front 39

Types of waste (3)

Back 39

Voluntary or affirmative, permissive or neglect, ameliorative

Front 40

General rule regarding voluntary waste and natural resources?

Back 40

Life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals), unless 1 of 4 exceptions applies.

Front 41

Voluntary waste - exceptions (4)

Back 41

PURGE: Prior Use (meaning that prior to the grant, the land was used for exploitation), Reasonable repairs (the life tenant may consume natural resources for repairs and maintenance), Grant (the life tenant may exploit if granted that right), Exploitation (meaning the land is suitable to exploit)

Front 42

With respect to prior use, what is the Open Mines Doctrine?

Back 42

If mining was done on the land before the life estate began: the life tenant may continue to mine but is limited to mines already opened. Thus the life tenant must not open any new mines.

Front 43

What is permissive waste, or neglect?

Back 43

This occurs when land is allowed to fall into disrepair.

Front 44

Obligations to avoid permissive waste (2)

Back 44

The life tenant (1) must maintain the premises in reasonably good repair, and (2) is obligated to pay all ordinary taxes on the land, to the extent of income or profits from the land—if there is no income or profit, the life tenant must pay all ordinary taxes to the extent of the premise’s fair rental value.

Front 45

Ameliorative waste: the life tenant must …

Back 45

not engage in acts that will enhance the property’s value, unless all the future interest holders are known and consent.

Front 46

The three future interests capable of creation in a grantor …

Back 46

Possibility of Reverter (accompanies only the FSD); Right of Entry, aka the Power of Termination (accompanies only the FSSCS); Reversion (which is the future interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a FSD or FSSCS, e.g., “To A for life,” O has a reversion)

Front 47

Future interests in transferees have to be either (3)

Back 47

vested remainder (3 species, the indefeasible vested remainder, the vested remainder subject to complete defeasance aka vested remainder subject to total divestment, and the vested remainder subject to open), contingent remainder, executory interest (2 species, the shifting executor interest, and the springing executory interest)

Front 48

What is a remainder?

Back 48

A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created

Front 49

Remainderman cannot/never

Back 49

cannot cut short or divest a prior transferee, and never follows a defeasible fee

Front 50

A remainder is vested if it is both

Back 50

created in an ascertained person, and is not subject to any condition precedent

Front 51

A remainder is contingent if it is (2)

Back 51

created in as yet unborn or unascertained person, or subject to a condition precedent, or both. E.g., “To A for life, then to B’s first child.”; B, as yet, has no children. “To A for life, then to B’s heirs.”; a living person has no heirs.

Front 52

What is a condition precedent?

Back 52

A condition that appears before the language creating the remainder or is woven into the grant to remainderman. E.g., “To A for life, then, if B graduates from college, to B.” If B graduates from college during A’s lifetime: B’s contingent remainder is transformed automatically into an indefeasibly vested remainder.

Front 53

Rule of destructibility of contingent remainders - at common law

Back 53

Contingent remainder was destroyed if it was still contingent at the time the preceding estate ended (gap).

Front 54

Rule of destructibility of contingent remainders - modern

Back 54

Abolished

Front 55

Rule in Shelley's Case - common law - "To A, then to A's heirs" if A is alive

Back 55

A receives a fee simple absolute. Applied despite contrary grantor intent.

Front 56

Rule in Shelley's Case - modern - "To A, then to A's heirs" if A is alive

Back 56

Rule has been virtually abolished … A: Life estate; A's unborn heirs: Contingent remainder; O: reversion, since A could die without heirs.

Front 57

Doctrine of Worthier Title - common law

Back 57

Contingent remainder in O's heirs is void (but grantor's intent controls)

Front 58

Doctrine of Worthier Title - modern

Back 58

Doctrine still viable in most states today

Front 59

Vested remainders - 3 types

Back 59

indefeasibly vested remainder, vested remainder subject to complete defeasance, vested remainder subject to open

Front 60

Indefeasibly vested remainder

Back 60

The holder of this remainder is certain to acquire an estate in the future, with no conditions attached

Front 61

Vested remainder subject to complete defeasance (total divestment)

Back 61

Here, remainderman exists. His taking is not subject to any condition precedent. But his right to possession could be cut short because of a condition subsequent.

Front 62

What is the “Comma Rule” for distinguishing between a condition precedent, which creates a contingent remainder, and a condition subsequent, which creates a vested remainder subject to complete defeasance?

Back 62

When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent, and you have a vested remainder subject to complete defeasance. E.g., O conveys, “To A for life, remainder to B, but if B dies under the age of 25, to C.” A is alive; B is 20 years old. Cf., condition precedent, O conveys, “To A for life, and if B has reached the age of 25, to B.”

Front 63

Vested remainder is subject to open

Back 63

Remainder is vested in a group of takers, at least one of whom is qualified to take, but each class member’s share is subject to partial diminution because additional takers can still join in

Front 64

A class is either open or closed. A class is open if ________. A class is closed when ________.

Back 64

it is possible for others to join … its maximum membership has been set

Front 65

How will you known when the given class has closed? Rule of convenience

Back 65

A class closes when any member can demand possession

Front 66

O conveys, “To A for life, then to B’s children.” A is alive. B has two children, C and D. What if C or D predeceases A?

Back 66

Their share goes to their devisees or heirs.

Front 67

Womb rule

Back 67

“To A for life, then to B’s children.” Once A dies, a child of B born or conceived thereafter will not share in the gift. Exception, the womb rule: A child of B in the womb at A’s death will share in the class gift.

Front 68

What is an executory interest?

Back 68

It is a future interest created in a transferee (a third party), which is not a remainder and which takes effect by either cutting short some interest in another person (“shifting”) or in the grantor or his heirs (“springing”).

Front 69

Shifting executory interest cuts short

Back 69

someone other than the grantor (“To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs.” B has a shifting executory interest. A has a FS subject to B’s shifting executory interest.)

Front 70

Shifting executory interest always follows

Back 70

a defeasible fee

Front 71

Springing executory interest cuts short

Back 71

the grantor (“To A, if and when he marries.” A has a springing executory interest. O has FS subject to A’s springing executory interest.)

Front 72

Rule against perpetuities

Back 72

Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.

Front 73

Rule against perpetuities – Four-step technique

Back 73

(1) Determine which future interests have been created by the conveyance, (2) identify the conditions precedent to vesting of the suspect future interest, (3) find a measuring life, (4) ask: will we will know, with certainty, within 21 years of the death of our measuring life, if our future interest holder(s) can or cannot take? If so, the conveyance is good. If not, the future interest is void.

Front 74

Interests subject to the rule against perpetuities (4)

Back 74

contingent remainders, executory interests, certain vested remainders subject to open, and rights of first refusal.

Front 75

Interests NOT subject to the rule against perpetuities (3)

Back 75

any future interest in O, indefeasibly vested remainders, vested remainders subject to complete defeasance

Front 76

“To A for life, then to the first of her children to reach the age of 30.” A is 70. Her only child, B, is 29 years old.” Can B be a measuring life?

Back 76

No, because the conveyance is not B specific.

Front 77

First of Two Bright line rules for RAP

Back 77

A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP, and “bad as to one, bad as to all,” i.e., to be valid, it must be shown that the condition precedent to every class member’s taking will occur within the perpetuities period-otherwise the entire class gift is void.

Front 78

Second of Two Bright line rules for RAP

Back 78

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

Front 79

“To A and his heirs so long as the land cease to be sued for farm purposes, and if the land cease to be so used, to B and his heirs.” What result?

Back 79

Once the offensive future interest is stricken, we are left with “To A and his heirs so long as the land is used for farming purposes.” Thus, A has FSD, and O has Possibility of Reverter. No RAP problem, because the future interest is in O (arbitrary).

Front 80

“To A and his heirs, but if the land cease to be used for farm purposes, to B and his heirs.” What result?

Back 80

Once the offensive future interest is stricken (“to B and his heirs”), the conveyance is no longer grammatically intact. Thus, the entire conditional clause is stricken. A now has FSA, and O has nothing.

Front 81

Charity-to-charity exception

Back 81

A gift from one charity to another will not violate RAP

Front 82

"Wait and see" or "second look" doctrine

Back 82

Majority reform effort; validity of suspect future interest is determined on the basis of the facts as they now exist, at the end of the measuring life. This eliminates the “what if” or “anything is possible” line of inquiry.

Front 83

USRAP alternative

Back 83

Codifies the common law RAP and, in addition, provides for an alternative 90-year vesting period

Front 84

Both the “wait and see” and USRAP reforms embrace ________ doctrine, and _______.

Back 84

The cy pres: "as near as possible" - if a given disposition violates the rule, a court may reform it in a way that most closely matches grantor's intent, while still complying with the RAP … the reduction of any offensive age contingency to 21 years.

Front 85

There are three forms of concurrent estates/ownership …

Back 85

joint tenancy, tenancy by the entirety, and tenancy in common

Front 86

Joint tenancy - traits (2)

Back 86

Two or more own, with right of survivorship

Front 87

What is right of survivorship? (2 characteristics)

Back 87

When one joint tenant dies, his share goes automatically to the surviving joint tenants, and joint tenant’s interest is alienable, but is not devisable or descendible.

Front 88

Joint tenancy - creation (4, 1)

Back 88

T-TIP: at the same TIME, by the same TITLE (meaning in the same instrument), with identical INTERESTS, with the right to POSSESS the whole; grantor must clearly express the right of survivorship (because joint tenancies are disfavored)

Front 89

Tenancy by the entirety - traits (2)

Back 89

Marital interest between married partners with right of survivorship

Front 90

Tenancy in common - traits (2)

Back 90

Two or more owned, with NO right to survivorship

Front 91

Use a straw. What is a straw?

Back 91

Middleman to aid in creation of joint tenancy

Front 92

Joint tenancy - severance (3)

Back 92

SPAM: SALE, PARTITION AND MERGER

Front 93

What is the effect of severance by sale?

Back 93

One joint tenant’s sale severs the joint tenancy as to the seller’s interest because it disrupts the four unities. Thus, buyer is tenant in common. If we started with more than two joint tenants, joint tenancy remains intact as between the other, non-transferring joint tenants.

Front 94

Joint tenancy - severance and sale (2 key points)

Back 94

(1) A joint tenant may sell or transfer her interest during her lifetime, even secretly without the other’s knowledge or consent; (2) in equity, a joint tenant’s mere act of entering into a contract for the sale of her share will sever the joint tenancy as to the contracting party’s interest (done because of the doctrine of equitable conversion)

Front 95

What is the meaning/effect of equitable conversion?

Back 95

“Equity regards as done that which ought to be done” - applies after the contract is signed but before closing. At the time of contract, the buyer is considered the owner, so joint tenancy severed.

Front 96

Joint tenancy - severance and partition (3 variations)

Back 96

(1) voluntary agreement, (2) partition in kind (a court action if in the best interest of all for physical division of blackacre, e.g., if blackacre is sprawling acreage), (3) forced sale (a court action if in the best interest of all, blackacre is sold and the proceeds divided proportionately)

Front 97

Joint tenancy - severance and mortgage - title theory

Back 97

Minority view: One joint tenant's execution of a mortgage or lien on his or her share will sever the joint tenancy as to that now encumbered share

Front 98

Joint tenancy - severance and mortgage - lien theory

Back 98

Majority view - Joint tenant's execution of mortgage on his or her interest will NOT sever the joint tenancy

Front 99

Tenancy by the entirety - creation

Back 99

Arises presumptively in any conveyance to married partners, unless stated otherwise, if a state recognizes TIE (21 states recognize)

Front 100

Tenancy by the entirety - "can't touch this" (2)

Back 100

Creditors of only one spouse can't touch TIE, and neither tenant alone can defeat the right of survivorship by unilateral transfer to a third party

Front 101

Tenancy in common - features (3)

Back 101

(1) each co-tenant owns an individual part, and each has a right to the whole; (2) each interest is descendible, devisable, and alienable - there are no survivorship rights between tenants in common; (3) the presumption favors tenancy in common

Front 102

Rights and duties of cotenants (6)

Back 102

(1) Possession/enjoyment of the whole (even if one contributes only 10% of the purchase price); (2) entitled to proportionate share of rent from 3d parties; (3) responsible for fair share of carrying costs (e.g., tax and mortgage interest payments); (4) repairs - repairing co-tenant has right to proportionate contribution for necessary and reasonable repairs provided that she has told the others of the need; (5) no waste (voluntary, permissive, nor ameliorative); (6) joint tenant or tenant in common has right to bring an action for partition

Front 103

NOT rights or duties of co-tenants (3)

Back 103

(1) Not entitled to rent from co-tenants in exclusive possession; (2) No adverse possession for co-tenant in exclusive possession for the statutory period, unless ousted the other co-tenants; (3) No right to contribution for “improvements” (but at partition, the improving co-tenant is entitle to a credit equal to any increase in value caused by her efforts, and bears full liability for any drop in value caused by her efforts)

Front 104

If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed ________.

Back 104

wrongful ouster

Front 105

Joint tenancy - effect of severance

Back 105

If two co-tenants, a tenancy in common between the two; and if more, a tenancy in common between the remaining joint tenants and owner of severed share

Front 106

Tenancy by the entirety - termination (4)

Back 106

Death of a spouse, divorce, mutual agreement, execution by a joint creditor of both spouses

Front 107

Tenancy by the entirety - mortgage requirement

Back 107

both spouses must join

Front 108

Can a deed violate the RAP if it provides the right of first refusal to buy property when offered for sale?

Back 108

Yes, because it could vest more than 21 years 21 years after the death of a measuring life.

Front 109

Who must pay the taxes on a property?

Back 109

Holder of present possessory interest

Front 110

What if taxes aren't paid on a property?

Back 110

Property will be sold at a tax sale and future interest holders will lose their interests