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82 Cards in this Set
- Front
- Back
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DEFINE DEVISABLE
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passable by will
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DEFINE DESCENDIBLE
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passable by intestacy if holder dies without will
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DEFINE ALIENABLE
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transferable inter vivos (during holder life)
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DEFINE TITLE
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right to ownership that court will enforce
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LIST ESTATES IN LAND
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Fee Simple Absolute
Fee Tail Fee Simple Determinable Fee Simple Subject to Condition Subsequent Fee Simple Subject to Executory Limitation Life Estate |
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DEFINE FEE SIMPLE ABSOLUTE
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Absolute ownership of potentially infinite duration
Devisable / descendible / alienable "to A" or "to A and his heirs" |
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DEFINE FEE TAIL
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Land passes through lineal blood
not used anymore |
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LIST DEFEASIBLE FEES
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Fee Simple Determinable
Fee Simple Subject to Condition Subsequent Fee Simple Subject to Executory Limitation |
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DEFINE FEE SIMPLE DETERMINABLE
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If stated condition is violated forfeiture is automatic
Devisable / descendible / alienable but always subject to condition "To A for so long as" or "To A During" or "To A until" |
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DEFINE FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT
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Condition but not automatic forfeiture
Devisable / descendible / alienable "To A but if X event occurs, grantor reserves right to reenter and retake" (must have clear language reserving right to enter/retake) |
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DEFINE FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION
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Just like fee simple determinable, but if condition is broken the estate is automatically forfeited and goes to someone OTHER THAN the grantor
"To A, but if X event occurs, then to B" |
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DEFINE LIFE ESTATE
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Applies whenever more than on entity has interest in property for lifetime term
"To A for life" or "To A for the life of B" (which is pur autre vie = measured by someone else's life) |
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LIST TYPES OF WASTE
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Permissive Waste
Ameliorative Waste |
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DEFINE PERMISSIVE WASTE
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When land is allowed to fall into disrepair or when life tenant fails to reasonably protect the land
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DEFINE AMELIORATIVE WASTE
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Life tenant must not engage in acts that will enhance property's value
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LIST FUTURE INTERESTS RETAINED BY GRANTOR
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Possibility of Reverter
Right of Entry Reversion |
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DEFINE POSSIBILITY OF REVERTER
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Fee Simple Determinative's FI
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DEFINE RIGHT OF ENTRY
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Fee Simple Subject to Condition Subsequent's FI
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DEFINE REVERSION
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Grantor transfers less than he has, other than defeasible fee
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LIST FUTURE INTERESTS IN TRANSFEREES
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Vested Remainders (Indefeasibly Vested Remainder, Vested Remainder Subject to Complete Defeasance, Vested Remainder Subject to Open)
Contingent Remainder |
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LIST VESTED REMAINDERS
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Indefeasibly Vested Remainder
Vested Remainder Subject to Complete Defeasance Vested Remainder Subject to Open |
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DEFINE INDEFEASIBLY VESTED REMAINDER
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Holder is certain to acquire estate in the future with no conditions attached
“To A for life, remainder to B” |
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DEFINE VESTED REMAINDER SUBJECT TO COMPLETE DEFEASANCE
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Holder is in existence and not subject to any condition precedent, however right to possession could be cut short because of a condition subsequent
“To A for life, remainder to B, provided however that if B dies under the age of 25, to C” (if A is alive and B is only 20; A has life estate, B has vested remainder subject to complete defeasance because of condition subsequent, C has shifting executory interest) |
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DEFINE VESTED REMAINDER SUBJECT TO OPEN
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Remainder is vested in a group of takers, at least one of whom is qualified to take possession of the property
“To A for life, then to B’s children” (if B has children, C and D, both have vested remainders subject to open because B could have more children and, as such, shares could decrease) |
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DEFINE CONTINGENT REMAINDER
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Created in ascertained person OR subject to condition precedent OR both
Ascertained person: “To A for life, then to B’s first child” when B has no child Condition precedent = prerequisite: “To A for life, and if B has reached the age of 21, to B” |
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DEFINE RULE OF DESTRUCTIBILITY OF CONTINGENT REMAINDER
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At common law, contingent remainder was destroyed IF it was still contingent at the time the preceding estate ended
i.e., To A for life, and if B has reached the age of 21, to B” (B is 19 at A’s death) ABOLISHED RULE |
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DEFINE DOCTRINE OF WORTHIER TITLE
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Applies to grantor who is still alive tries to create a future interest in his heirs
Grantor conveys to A for life estate, then to grantor’s heirs (A has a life estate and grantor has a reversion, heirs have nothing) |
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DEFINE EXECUTORY INTEREST
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Executory interest is future interest created in a transferee which is not a remainder and which takes effect by, either cutting short some interest in another person (shifting executory interest) or the grantor and his heirs (springing executory interest)
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LIST TYPES OF EXECUTORY INTERESTS
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Shifting and Springing
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DEFINE SHIFTING EXECUTORY INTEREST
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Always follows a defeasible fee and cuts short someone other than the grantor
“To A & his heirs; if B returns from Canada sometime next year, to B and his heirs” |
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DEFINE SPRINGING EXECUTORY INTEREST
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Cuts short interest in grantor and his heirs
“To A if and when he marries” (if A is unmarried) |
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LIST CONCURRENT ESTATES
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Joint Tenancy
Tenancy by the Entirety Tenancy in Common |
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DEFINE JOINT TENANCY
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Two or more own with the right of survivorship
Alienable, but NOT devisable or descendible Need all four unities |
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LIST THE FOUR UNITIES
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Same Time
Same Title Equal Interest Identical Rights to Possess |
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LIST TYPES OF PARTITION
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Voluntary Partition
Partition in Kind Forced Sale Partition |
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DEFINE VOLUNTARY PARTITION
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Parties agree to partition property as they want
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DEFINE PARTITION IN KIND
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Judicial action, court divides property if in best interest of all
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DEFINE FORCED SALE PARTITION
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Judicial action, if in best interest of all, court sells the property
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DEFINE TENANCY BY THE ENTIRETY
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Protected marital interest between husband and wife with right of survivorship
Neither tenants, acting alone, can defeat the right of survivorship by unilateral conveyance to a third party |
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DEFINE TENANCY IN COMMON
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Two or more own with no right of survivorship
Presumption favors the tenancy in common; law falls on tenancy in common over joint tenancy (unless all criteria for joint tenancy is met) |
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LIST LEASEHOLD ESTATES
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Tenancy for Years
Periodic Tenancy Tenancy at Will Tenancy at Sufferance |
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DEFINE TENANCY FOR YEARS
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Presumption favors the tenancy in common; law falls on tenancy in common over joint tenancy (unless all criteria for joint tenancy is met)
(When you know the termination date from the start, it’s a tenancy for years) |
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DEFINE PERIODIC TENANCY
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Successive/continuous intervals until landlord/tenant give proper notice of termination
Notice must be given to terminate a periodic tenancy |
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DEFINE TENANCY AT WILL
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No fixed period of duration (i.e., as long as either party desires)
May be terminated by either party at any time |
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DEFINE TENANCY AT SUFFERANCE
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Created when tenant has wrongfully held over, past expiration of the lease
Short lived; just allows landlord to continue to collect rent from tenant before eviction or landlord elects to hold tenant to a new term |
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LIST TENANT DUTIES
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Duty to Repair
Duty to Pay Rent |
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DEFINE DUTY TO REPAIR
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Tenant Duty
Tenant is responsible for keeping premises in reasonably good repair and must not commit waste |
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DEFINE DUTY TO PAY RENT
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If tenant is in possession but not paying rent, landlord can evict through the courts and sue for rent owed OR continue the relationship, and sue for rent owed
If tenant is not in possession and not paying rent, landlord can surrender, ignore, or relet and mitigate damages |
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LIST LANDLORD DUTIES
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Duty to Deliver Possession
Implied Covenant of Quiet Enjoyment Implied Warranty of Habitability |
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DEFINE DUTY TO DELIVER POSSESSION
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Landlord must put tenant in actual, physical possession of the premises
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DEFINE IMPLIED COVENANT OF QUIET ENJOYMENT
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Represents a fundamental, implicit promise by landlord that tenant has a right to quiet use and enjoyment of the leased premises without interference from landlord
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DEFINE IMPLIED WARRANTY OF HABITABILITY
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Premises must be fit for basic human habitation to satisfy implied warranty
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DEFINE ASSIGNMENTS (AND DUTIES)
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Unless lease says otherwise, law allows tenant to transfer interest in property
When assigned, landlord and original tenant are no longer in privity of estate but are in privity of contract because of original promises (always in privity in contract until second tenant expressly assumes original promises) |
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DEFINE SUBLEASE (AND DUTIES)
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Landlord and sublessee are not in privity of estate or privity of contract in a sublease
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DEFINE AFFIRMATIVE EASEMENTS
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The right to go onto and do some thing on servient land (i.e., right of way)
1) Prescription: analogize to adverse possession; easement may be acquired by satisfying elements of AP 2) Implication: easement implied from existing use; previous use must be apparent and parties expected that the use would survive devision because it is reasonably necessary to the dominant land’s use and enjoyment 3) Necessity: landlocked setting; easement of right of way, for example, will be implied of necessity if grantor conveys a portion of land with no access/way out 4) Grant: easement to endure for more than one year must be in a writing (SoF) that complies with the formal element of a deed (deed of easement) |
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DEFINE NEGATIVE EASEMENT
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Entitles holder to compel servient owner to refrain from doing something that would otherwise be a permissible activity; four categories of negative easements
Light, Air, Support, Stream |
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DEFINE EASEMENT APPURTENANT
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Benefits its holder in his physical use or enjoyment of HIS property
2 parcels of land must be involved: dominant tenement derives the benefit and servient tenement bears the burden |
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DEFINE EASEMENT HELD IN GROSS
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Gives holder only personal or commercial gain that isn’t related to his use or the enjoyment of HIS property
Servient land is burdened, but there is no dominant tenement (like appurtenant) |
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DEFINE LICENSE
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Mere privilege to enter another’s land for some delineated purpose
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DEFINE PROFITS
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Entitles its holder to enter servient land and take from it the soil or some substance of soil
Shares all rules with easements |
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LIST TYPES OF COVENANTS
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Affirmative and Restrictive
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DEFINE AFFIRMATIVE COVENANT
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Promise to do something related to the land
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DEFINE RESTRICTIVE/NEGATIVE COVENANT
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Promise to refrain from doing something related to land
Restrictive covenants, unlike restrictive easements, are endless and limitless |
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JUDGMENT DIFFERENCE BETWEEN COVENANT AND EQUITABLE SERVITUDE
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Covenant is money damages, equitable servitude is accompanied by injunctive relief
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DEFINE WHEN COVENANT RUNS WITH THE LAND
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when it is capable of binding successors of the land
Need a writing, intent to have covenant run, promise must touch/concern the land (affect party's legal relation as land owner), have notice of promise, and have horizontal and vertical privity |
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DEFINE HORIZONTAL PRIVITY
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Requires A and B be in succession of estate (in grantor/grantee relationship or landlord/tenant or debtor/creditor relationship or shared some servitude other than covenant at issue)
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DEFINE VERTICAL PRIVITY
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Requires some non-hostile nexus between A and A1 (the new holder) such as contract, devise, descend
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DEFINE WHEN A BENEFIT CAN RUN
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Need writing, intent, touch and concern, and vertical privity
No horizontal privity needed |
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DEFINE EQUITABLE SERVITUDE
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Promise that equity will enforce against successors
Need writing, intent, touch and concern, and notice Privity is not required to bind successors |
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LIST ADVERSE POSSESSION ELEMENTS
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Actual Use, Hostile Use, Open/Notorious Use, Continuous Use
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DEFINE HOSTILE USE
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Possessor does not have the owner's permission to be there (majority jurisdictions use objective, Oregon uses good faith, and Maine Doctrine allows for bad faith)
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DEFINE TACKING
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one adverse possessor may tack on his time on the land with his predecessor’s time
Need privity between two with non-hostile link Not allowed when there has been an ouster |
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DEFINE TOLLING
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Under some circumstances, limitations period may be “tolled” for minority/mental incapacity (and sometimes imprisonment) of the owner
Two types of statutes: Removal of disability + ___ years (use normal limitations period) or Later of Two Dates (Date AP began + ___ years (use normal limitations period) or Removal of disability + ___ years (use special limitations period)) |
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DEFINE DOCTRINE OF PART PERFORMANCE
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Writing not required in land contract if B takes possession of the land, B remits all or part of the purchase price, B makes substantial improvements to the premises
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LIST TWO IMPLIED PROMISES IN EVERY LAND CONTRACT
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Marketable Title
No False Statements of Material Fact |
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DEFINE MARKETABLE TITLE
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Title free from reasonable doubt, lawsuits and threat of litigation
Unmarketable if 1) adverse possession (seller must provide good record title to all portions), 2) encumbrances (servitudes and mortgages render title unmarketable), 3) zoning violations (can’t violate zoning ordinance) |
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LIST TYPES OF DEEDS
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Quitclaim
General Warranty Deed Statutory Special Warranty Deed |
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DEFINE QUITCLAIM DEED
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Contains no covenants; grantor isn’t even promising title to convey
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DEFINE GENERAL WARRANTY DEED
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Makes a series of promises on behalf of grantor AND grantor’s predecessor’s
Present covenants: Covenant of seisin (grantor promises ownership of estate claims to convey), Covenant of the right to convey (grantor promises power to make conveyance; no restraints on grantor’s power to sell), Covenant against encumbrances: there are no servitudes or mortgages Covenant for quiet enjoyment (grantor promises grantee will not be disturbed in grantee’s possession of the property by third party lawful claim of title), Covenant of warranty (grantor promises to defend grantee should there be any lawful claims of title asserted by others), Covenant for further assurances (grantor promises to perform whatever future acts are reasonably necessary to perfect grantee’s title if it later turns out to be an imperfect title) |
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LIST TYPES OF NOTICE
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Actual notice: literal notice
Inquiry notice: i.e., neighborhood seems to conform to common restrictions (lay of the land) Record notice: grantee is on record notice if, at the time of taking, he knows that the grantor’s deed is recorded properly within chain of title |
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DEFINE BONAFIDE PURCHASER
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Bonafide purchaser is 1) one who purchases a property for value and 2) without notice that anyone else got there first
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LIST SERVITUDES
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Easements (affirmative, negative) nl1 Licenses nl1 Profits nl1 Covenants nl1 Equitable Servitude
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