Propert

Front 1

What does the statute of frauds require of all contracts for the sale of an interest in land?

Back 1

It must be in writing and signed by the party to be charged in order for it to be enforceable

Front 2

Statute of Frauds

5 elements of a writing

Back 2

1) Identification of the parties
2) Identification of land
3) Words indicating intention to sell or buy
4) Essential Terms and conditions
5) A signiture of the party to be charged -- both parties

Front 3

Identification of land

Back 3

1) does not require a formal metes and bounds description
2) A street address is acceptable if unambiguous
3) Without identification, the deed does not act as notice to bonafide purchaser for value

Front 4

Words indicating intention to sell

Back 4

1) Invitation in letter is not sufficient
2) Look to intent, not common law language requirements -- look to whole instrument and arrangement

Front 5

Essential Terms and Conditions

Back 5

1) Manner of payment
2) Price - if not agreed upon -- set reasonable price
3) Subject to financing clause

Front 6

Does the Statute of Frauds require a formal contract?

Back 6

No, it can be a memorandum or formal contract. It just has to be a writing

Front 7

Partial Performance Exception to the statute of frauds

Back 7

Part performance exception - allows a court of equity to specifically enforce an oral contract for sale of land when a party has in reliance of a contract asa evidenced by an act of unequivocal reference to a contract, and when injustice can be avoided by enforcement because of unavailability of other remedies

Front 8

Buyers actions which may allow him to receive the partial performance exception

Back 8

1) pay all or part of the purchase price
2) entering into possession
3) make improvements

Front 9

Exceptions to the Statute of Frauds

Back 9

1) Partial Performance
2) Equitable Estoppel

Front 10

Equitable Estoppel Exception to the Statute of Frauds

Back 10

can be used to prevent a party from raising the statute asa a defense when unconscionable injury would result from denying specific performance

Front 11

What does a person have to show to receive the Equitable Estoppel Exception

Back 11

1) that a definate oral contract exists
2) one acted as a result of and in justifiable reliance upon that contract, AND
3) that, in having so acted, one substantially altered his or her position, so that the other party's refusing to execute the contract amounts to such a fraud on the claimant that damages are an inadequate remedy

Front 12

Alternatives to Statute of Frauds

Back 12

1) Constructive Trust
2) Resulting trust

Front 13

Constructive trust

Back 13

trust applied by court to avoid unjust enrichment

Front 14

Resulting Trust

Back 14

1 party paying money but title vested in another party; trust benefits party that supplies consideration

Front 15

Present Estate

Back 15

an estate that carries with it a present right to exclusive possession of land

Front 16

Two Types of Present Estates

Back 16

1) Freehold
2) Nonfreehold

Front 17

Freehold Estates

Back 17

1) Fee Simple Absolute and defeasible
2) Fee tail
3) life estate

Front 18

NonFreehold Estates

Back 18

1) estate for years
2) periodic estate
3) estate at will
4) estate a sufferance

Front 19

Future Interest

Back 19

is an interest in land which may become possessory, but which is not now possessory, and is a segment of ownership measured in terms of duration

Front 20

5 Types of Future Interests

Back 20

1) possibility of reverter
2) right of entry
3) reversion
4) remainder
5) executory interest

Front 21

Fee Simple Absolute

Back 21

an estate in which the owner holds its interests for an undivided and unlimited time, therefore, there are no future interests following fee simple absolute

Front 22

Words that create Fee Simple Absolute

Back 22

"and his heirs" was needed at early common law, but today property is assumed to pass in fee simple in a will

Need term "for life" for life estate

Front 23

Fee Simple Absolute

Statute of Wills

Back 23

Made land devisable; After Statute Fee Simple had three characteristics
1) freely alienable during life
2) can be disposed of at death by will
3) If not disposed of by will, it will pass to woner's heirs

Front 24

Fee Simple Absolute

Inheritability

Back 24

if owner dies intestatae, fee simplee generally inherited by heirs
1) Through primogeniture, it would go to oldest son

Front 25

Fee Simple Defeasible

Back 25

and estate where the use of land is subject to a restriction

Front 26

Three types of Fee Simple Defeasible

Back 26

1) Fee Simple Determinable
2) Fee Simple Subject to a condition subsequent
3) Fee simple subject to an executory interest

Front 27

Fee Simple Determinable

Back 27

an estate which arises where the conveying instrument first creates a fee simple, but instead of making it absolute, it includes a condition or limitation that would terminate the fee simple if and when the condition occurs

Front 28

Example of Fee Simple Determinable

Back 28

O to A for so long as no alcoholic beverages are consumed on the premises

Front 29

When do future interests become vested in fee simple determinable

Back 29

Future interests that follow fee simple determinable become vested immediately upon the happening of the condition because it terminates automatically

Front 30

What is required by the transferor of the estate to create a fee simple determinable?

Back 30

the transferor must intend for the fee simple to terminate automatically for a fee simple determinable to be created

Front 31

When will a court find that a fee simple determinable exists?

Back 31

A court will only find that a fee simple determinable exists if there are words that raise the presumption of automatic termination or a combination of words clearly indicating the transferor's intent to terminate the estate automatically

Front 32

Key words that create a Fee Simple Determinable

Back 32

while, during, until, for so long as

Front 33

What are the possible future interests associated with Fee Simple Determinable

Back 33

1) possibility of reverter owned by transferor
2) Executory interests owned by third party

Front 34

Fee Simple Subject to a Condition Subsequent

Back 34

an estate which araises when the transferring instrument has created a fee simple but also includes a condition thata either the transferor (or its successor in interest) or a a third party will have a right to enter or a power to terminate the fee simple when the stated condition occurs

Front 35

Example of Fee Simple Subject to a Condition Subsequent

Back 35

A, owning Blackacre in fee simple, conveys it to “B and his heirs, on the express condition that the premises are never to be used by B for the sale of liquor and in the event that they are so used, then A or her heirs may enter and terminate the estate hereby conveyed.” B has a fee simple subject to a condition subsequent.

Front 36

If the condition of a Fee Simple Subject to Condition Subsequent occurs, when will the fee simple terminate?

Back 36

it will not terminate until the holder of the power to terminate exercises thata power
* there is no need for actual re-entry, starting action is enough

Front 37

Future Interests Associated with Fee Simple subject to a condition Subsequent

Back 37

1) Right of Re-Entry owned by the transferor
2) Executory interest owned by third party who has been transferred the power of termination in the same instrument creating the subject fee estate

Front 38

Fee Simple subject to condition subsequent

whether the holder of a future interest does actually have the power to terminate depends on?

Back 38

the intend of the transferor

Front 39

What are words that indicate the transferor of a fee simplee intended to make in a fee simple subject to condition subsequent?

Back 39

1) provided
2) however
3) but it
4) on condition that
5) if however
** Must have a re-entry clause to create power of termination

Front 40

Fee Simple Subject to Condition Subsequent

Is there a need to have an express prvision for power to terminate?

Back 40

yes....there is a need to have an express provision for power to terminate because courts prefer not to find defeasible estates

Front 41

In distinguishing between a Fee simple determinable and a condition subsequent courts look at

Back 41

1. Ambiguous language

2. terminating event

Front 42

If the language is ambiguous what are the construction rules courts use to determine whether it is determinable or condition subsequent?

Back 42

1) A fee simple subject to condition subsequent is preferred because courts abhor forfeiture
2) If the purpose is to compel compliance with condition with penalty of forfeiture they will view as determinable
3. If intent is to give land for stated use, and estate will cease when use ended, they will view as condition subsequent
4) If there is an inter vivos conveyance, then they will contrue ambiguity in favor of grantee

Front 43

In distinguishing between a fee simple determinable and condition subsequent, the terminating event must be clearly established

Back 43

1) If there is a minor deviation then ther eis not forfeiture
2) If grantor does not terminate condition fee within reasonable time after breach, he may be held to waive his right to do so. The grantee could claim waiver or estoppel
3. there is no forfeiture if the purpose of the special limitation is still substantially achieved
4) the court may grant equitable relief against forfeiture if the grantor may be made whole otherwise by awarding damages or injunction

Front 44

Executory Interest

Back 44

a fee simple estate which may terminate automatically and pass to one other than the original transferor (or its successors in interest) upon a designated contingency's occurring

Front 45

When do Executory Interests Terminate?

Back 45

Terminates automatically upon the occurance of the condition, like determinable
Unlike determinable, it passes to a third party rather than the grantor