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152 Cards in this Set
- Front
- Back
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Four types of freehold present possessory estates
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1. Fee Simple Absolute
2. Defeasible Fees 3. Fee Tail 4. Life Estate |
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O to John but if he ever tries to sell the property to a lawyer it goes to Martha
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This restraint on alienation of a fee simple is void
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Is a right of first refusal a restraint on alienation
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NO
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What is a defeasible fee
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A fee simple absoule that may terminate unnaturally
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What are the three types of defeasible fees
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1. Fee simple determinable
2. Fee simple subject to condition subsequent 3. Fee simple subject to an executory interest |
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What future interest goes with a fee simple determinable
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Possiblility of reverter in the grantor
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What future interest goes with a fee simple subject to a condition subsequent
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Right of entry or power of termination in the grantor
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What future interest goes with a fee simple subject to a condition subsequent
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Executory interest in a 3rd party that is not the grantor
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What is a fee simple determinable
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Present possessory fee simple that will terminate automatically upon the happening of an event
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O to Judy until she goes to law school.
What is this |
Fee simple determinable
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Words often used to create a fee simple determinable
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Until, so long as, while, during
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O to Sally so long as cigarettes are not sold on the property.
May Sally sell her fee simple determinable |
Yes but the transferee takes subject to the condition
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What is a fee simple subject to condition subsequent
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Present possessory fee simple in which the grantor has the right to terminate and retake the property upon the happening of a stated event.
The right must be exercised. |
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O to Polly but if Polly sells cigarettes on the property, O shall have the right to re-enter and take the property.
What is this |
Fee simple subject to condition subsequent
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May O waive the right to re-enter if he conveyed a fee simple subject to condition subsequent
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Yes but mere inaction will not be deemed a waiver unless there has been detrimental reliance by the grantee
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Suppose O transfers a building to UGA for the purpose of building a law school. Does this create a fee simple subject to condition subsequent
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No, right of entry not spelled out.
UGA has a fee simple |
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If O transfers a fee simple subject to condition subsequent may he give away his right of entry
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Majority: O cannot tranfer his right of entry during his lifetime
GA: Right of entry may be sold by O |
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What is a fee simple subject to an executory interest
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A present possessory fee simple which terminates upon the happening of an event and then passes to someone other than the grantor
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O to the American Legion but if cigarettes are ever sold on the property then to the American Cancer Society
What does each party have |
AL: fee simple subject to an executory interest
ACS: executory interest O: Nothing |
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All of the defeasible fees are:
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Alienable, descendible and devisable
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What is a fee tail
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An estate where inheritability is limited to teh bodily issues of the holder
To A and heirs of A's body Most states have abolished and treat as fee simple absolute |
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O to Alice for 200 years if she lives that long.
Is this a life estate? |
No, it is measured by years
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O to B after A dies.
What does A have? |
An implied life estate
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O to Melissa for life. Melissa conveys her LE to Nancy.
After the conveyance what does nancy have |
Life Estate pur autre vie
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May life estates be subject to restraints on alienation
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YES
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Life tenant is entitled to____________ but may do nothing to _______________ of the holder of the remainder or reversion
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All ordinary use and profit
Injure the interest |
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The owner of a remainder or reversion may sue the life tenant for:
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1. Damages
2. To enjoin any act of waste |
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What are the three types of waste
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1. Voluntary/Affirmative
2. Permissive 3. Ameliorative |
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What is voluntary waste
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Any exploitation of the natural resources on the land beyond the normal use unless it fits an exception
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Exceptions to voluntary waste
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1. Necessary for repair or maintenance
2. Life tenant is expressly granted the right 3. Land is suitable only for this use 4. Prior to teh grant the land was used that way |
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Open Mines Doctrine
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Life tenant may continue to extract minerals if mining began before teh life estate began but is limited to mines already open
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What is permissive waste
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Life tenant fails to protect and preserve the property
Repair,Interest on mtg., taxes, no obligation to pay for insurance, not liable for damage caused by 3rd party tortfeasor |
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Life Tenant's obligation for permissive waste limited to:
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1. Value of profits earned from teh land
2. If no profits are earned, the value of the use of the land |
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What is ameliorative waste
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Life tenant alters the land in a way that makes it better
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Modern approach to ameliorative waste
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Not actionable if the market value of the future interest is not diminished and the holders of the FI do not object OR it is reasonably justified by a substantial and permanent change in neighorbood conditions
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Does a future interest holder have a present interest?
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Yes, but it doesn't become possessory until the future
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Is a reversion subject to RAP?
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No, no future interest retainted by a grantor is subject to the rule
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What is a remainder
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An interest created in a grantee that will take possession upon the natural termination of the preceding estate
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A remainder never follows a:
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Fee simple whether absolute or defeasible
A time gap |
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A remainder is vested if it is in favor of:
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An ascertained and existing person and there is no condition that would prevent it from coming into existence
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What are the three types of vested remainders
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1. Indefeasibly vested
2. Vested subject to open 3. Vested subject to divestment |
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What is an indefeasibly vested remainder
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One that is not subject to divestment or diminution
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What is a remainder subject to open
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A remainder that is in a class of persons and the class is not yet closed
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What is a remainder vested subject to divestment
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A remainder that may be defeated by the happening of a condition subsequent
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What is a contingent remainder
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A remainder in an unascertained or non-existing person OR one that will not vest until a certain condition precedent is met
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Are remaindes alienable?
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At CL future interests could not be sold
Modern and GA: all remainders are alienable |
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May holders of a remainder sue the holder of the preceding estate for waste
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Holders of a vested remainder may sue but holders of a contingent remainder may not
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Doctrine of Destructibility of Contingent Remaindes
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At common law, a CR was destroyed if the contingency was not met by the time the preceding estate terminated.
Modern: Remainderman has an executory interest and property reverts to the grantor until the contingency is met. |
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Doctrine of Merger
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If one person acquires all of the interests in property except an intervening contingent remainder, that person's interests are merged and the contingent remainder is destroyed.
No law on this in GA, buy in most jurisdictions, no longr applicable |
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Rule in Shelly's case
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If O conveys land to A for life, then to be for life, and then to the heirs of A, in the same instrument, teh RUle would give A a vested remainder.
Most states have abolished and give A a contingent remainder (contingent upon someone surviving a to become an heir) |
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Doctrine of Worthier Title
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If O conveys land to A for life then to my heirs, the Doctrine would call this a revesion in O rather tahn a remainder in Os heirs.
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Acceleration of Remainders
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O conveys land to A for life then to B. A disclaims her life interst. The common law rule is that absent a contrary intentthe remainder in B is accelerated into present possession.
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What are executory interests
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Interests in a grantee that artificially cut short the preceding estate.
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Rule against Perpetuities
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No interest is good unless it must vest, if at all, not later than 21 years from some life in being at the time of the creation of the interest
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What future interests does RAP apply to
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Never those retained by a grantor
Vested remainders subject to open Contingent remainders Executory interests Opeions or righs of first refusal that are not created in a lease |
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When is an interest created fro RAP purposes
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1. Will--when T dies
2. Revocable trust--when it becomes irrevocable 3. Irrevocable trust--when created 4. Deed--when delivered to the grantee |
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What happens when RAP is violated
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The violating interest is void from the outset and is stricken
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Rule of Convenience
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A class will close when any class member is entitled to take.
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Common pitfalls to the RAP:
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1. Fertile octagenarian
2. Unborn Widow 3. Administrative contingency rule |
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What is the administrative contingency rule
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Assumes that it may take any number of years to complete administrative contingency
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Cy Pres
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Courts modify a gift or bequest so it doesn't violate RAP.
EX: Children who reach 30 changed to children who reach 21 |
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Wait and See reform
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Some states will wait and see if an interst violates the RAP rather than striking from the beginning
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Uniform Statutory rule against perpetuities
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Allows courts to wait and see if the interest vests within 90 years
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Charity to Charity Exception to RAP
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If both recipients are charities, no violation of RAP
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How is JTWROS created
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Four unities (TTIP)
Time--all interests must be created at same time Title--all created by same instrument Interest--all intersts are the same quantum and duration Possession--all have equal rights to possess all of the property Instrument must expressly say right of survivorship |
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How is a JTWROS severed
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1. Any JT may sue for partition
2. Any many make an inter vivos transfer 3. Any JT may enter a k to sell her interest and joint tenancy severed day k is signed 4. In title theory states a mtg. is a transfer of title so it severs JT 5. If on JTs creditors place a lien on that JTs interest, no severance until the lien is enforced by a foreclosure |
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What is a tenancy by the entireties
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JTWROS between husband and wife
Don't have this in GA |
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How is a TBE severed
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1. Not severable by involuntary partition (one spouse can't partition or mtg.)
2 Divorce severs and makes the parties tenants in common 3. H and W may sever by mutual agreement 4. May be severed by execution by a joint creditor |
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What is a tenancy in common
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No right of survivorship. Each tenant is entitled to occupy all portions of the property but they may own unequal interests
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How is a TIC created
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Any grant to mutliple persons that is not a JTWROS ro a TBE
If two people inherit property they take as TIC |
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How is TIC severed
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TICs are freely alienable, descindible and devisable
--Can sell your interest and buyer becomes TIC --Can ask for judicial partition in kind or with a sale and division of the proceeds |
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What are the 4 types of non-freehold estates
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1. Tenancy for years
2. Periodic tenancy 3. Tenancy at will 4. Tenancy at sufferance |
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What is a tenancy for years
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Tenancy for a fixed duration usually created by a lease that terminates automatically at teh end of teh lease period
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What is a usufruct
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In Ga, a tenancy for years is presumed to exist only if the lease is for 5 years or more, anything less is presumed to be a usufruct
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What is a periodic tenancy
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Tenancy for a fixed period that renews for succeeding periods unles terminated after notice
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How is a periodic tenancy created
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1. Experss agreement
2. Implication (accepting rent) 3. Operation of law (T remains in possession after lease expires and L treats as a periodic tenancy) |
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How is a periodic tenancy terminated
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By notice and in writing by T or L at least equal to the time peiod of the tenancy.
NOTE: Only 6 months is required to terminate a year to year |
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What is a tenancy at will
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Either party can terminate at any time without notice
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Besides notice how can a tenancy at will be terminated
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1. Death of either party
2. Waste by teh tenant 3. Tenant attempts to assign his interest 4. Landlord transfers the property 5. Landlort executes a term lease with another person GA: Notice required, L must give 60 days T must give 30 |
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What is a tenancy at sufferance
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Arises when a T wrongfully remains in possession after the expiration of a lawful tenancy.
T remains liable for rent and the tenancy lasts only until L evicts the T. |
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What can L do if a T continues in possession after the term of the lease is over?
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1. Evict
2. Impose a new periodic tenancy on T the terms of which are governed by the expired lease |
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If a new periodic tenancy is imposed on a holdover T can L charge higher rent?
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Yes provided teh increase is reasonable
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Holdover Doctrine does not apply if:
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1. T retains possession for only a few hours
2. Delay is not Ts fault 3. If it is only a seasonal lease |
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If L leases to a new T and the old T holds over, what can the new T do?
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Bring an eviction action
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What are Ts duties
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1. Pay rent
2. Duty not to commit waste 3. Duty to repair--if lease says T must repair and maintain the duty is higher than that implied by law prohibiting waste 4. Duty not to use the property for illegal purposes |
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T specifically covenants to repair and maintain the property. Lightening hits the house and it burns to the ground. T must________
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Rebuild the house
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What is Ls duty if T fails to pay rent
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Sue for damages adn evict
GA: 7 day grace period to pay rent |
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What are Ls remedies if T abandons the leasehold
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1. Treat the abandonment as an offer of surrender and accept the offer by retaking possession
2. Re-lease the premises and hold T liable for any deficiency |
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What are Ls duties
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1. Duty to deliver possession of the premises
2. Implied warranty of habitability for residential leases 3. Implied covenant of quiet enjoyment 4. Duty to repair |
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What may T do if L breaches the Implied warranty of habitability
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1. Move out and terminate the lease OR
2. Stay and make repairs and offset the cost against teh rent |
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How can L breach the covenant of quiet enjoyment
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1. Actual eviction which terminates lease and Ts obligation to pay rent
2. Partial eviction which does not terminate the lease and T an stay and pay no rent 3. Constructive eviction which is conduct or neglect by L that makes premises uninhabitable |
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In order for T to terminate the lease under a breach of covenant of quiet enjoyment, what three requirements must be met?
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1. Action must be by the (not neighbors)
2. Premises must have become uninhabitable 3. Premises must be vacated by T within a reasonable time |
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What is Ls duty to repair in Georgia
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No duty to repair unless it is a usufruct (less than 5 years)
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What is an assignment
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T transfers everything that T has, holding no time back
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What is the effect of assignment
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T remains liable on Ts contract obligations (privity of k). Assignee and L are in privity of estate and thus liable to each other for all covenants that run with the land
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If there is an assignment, who is liable for rent
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Assignee is liable for the time he is in possession, if a term of the k T is also liable
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If L sells to L2 can T sue L for a breach of a covenant?
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If it is a k covenant, yes. If the covenant runs with the land then no (privity of estate is with L2)
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What is a sublease
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T transfers less than all of her leasehold interest to sublessee
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What is the effect of a sublease
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Sublessee is not liable to L b/c there is no privity of estate. However check to see if sublessee has assumed any covenants or obligations of T by the terms of the sublease.
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Clauses prohibiting subleasing or assignment
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1. Valid
2. Strictly construed against L (must say assignment and sublease if you want both restricted) 3. If T violates, transfer not void but L can terminate the lease and sue for damages 4. Violation may be ratified or waived by L. Once waived can't prohibit future transfers unless L expressly reserved the right to do so |
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If state takes part of a leasehold by eminent domain:
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T is not released from the obligation to pay full rent, but may share in the condemnation award for the taking
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If state takes full leasehold property:
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Lease is extinguished, Ts liability to pay rent is extinguished, and T may share in teh condemnation award but only to the extend that the fair rental value exceeds the rent due
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Waht is Ls duty with regard to latent defects
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L has a duty to disclose if L knew or should have known of a condition that T could not discover upon reasonable inspection
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What is Ls duty with regard to a Short-term lease of a furnished dwelling
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Short term lease (three months or less): L is liable for defects even if L neither know nor should have known
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What is Ls duty regarding common areas under Ls control
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L is liable if he failed to exercise reasonable care
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What is Ls liability with regard to repairs
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If L undertakes repairs, L is liable to tenants and maybe even to visitors for breach of a covenant to repair
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What is Ls liability with regard to Public use exception
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L is liable for injury to members of the general public if:
1. L knew or should have known of the dangerous condition (reasonable inspection) 2. L knew or should have known that T would admit the public to the premises 3. L knew or should have known that T woudl not have repaired the condition |
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What is Ts Tort Liability
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T may also be liable for injuries to third parties on the premises, regardless of whether L may also be contractually liable
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What is an easement
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Non-possessory interest in land that typically involves the right to use. Owner still hs right to possess and enjoy the land but may not interfere with the special use created in the holder
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What is an appurtenant easement
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1. Involves 2 tracts of land
2. Dominant tenemant 3. Servient tenement |
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Do the burden and benefit of an appurtenant easement run with the land?
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The benefit does so it is transferred with a conveyance regardless of whether or not ist is mentioned.
Burden only passes if the purchaser had notice. (expected to inspect) |
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What is an easement in gross
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1. One tract of land
2. No dominant tenement 3. Passes totally separate from any transfer of the land and is generally tansferrable only if it is commercial Ex: Granting power company an easement to run power lines across your lnd (transferrable by the power company) Granting neighbor right to use your lake is personal and likely not transferrable |
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What is an affirmative easement
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Entiltes the holder to make affirmative use of the land in a way that would otherwise be a trespass
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What is a negative easement
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Entitles teh holder to compel the owner of the servient tenement to refrain from engaging in certain activities.
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Negative easements generally relate to:
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1. Light
2. Air 3. Lateral or subjacent support 4. Flow of an artificial stream On bar exam if a restriction relates to anything other than these treat it as a covenant |
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How do you expressly create or reserve an easement
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Must comply with SOF and all deed formalities--in writing and signed by party to be bound
Can reserve an easement but only in yourself |
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How do you get an easement by implication
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Previous use by common owner.
1. Prior to division of the land there was a use that was apparent and continuous 2. The use is reasonbly necessary to enjoyment of the property 3. Arises by operation of law so no need for a writing |
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How do you get an easement by necessity
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Exists for property that is totally land locked. (No requirement of prior use)
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How do you get an easement by proscription
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Use must be:
1. Open and notorious (duty to inspect) 2. Adverse or hostile (any permission destroys) 3. Continuous and uninterrupted (seasonal use OK) 4. For the statutory period (GA-20 yrs for wild land, 7 for improved land) |
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How do you determine the scope of use of an easement
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1. Look to the writing first
2. If writing is silent --easement presumed no broader than necessary --The use presumed is the use that would have been reasonably expected by the original parties --if owner exeeds reasonable use he easement is surcharged --servient owners remedy is to enjoin teh excessive use |
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Who is allowed to repair an easement
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1. Holder of the easement is obligated to keep the asement in repair unless the instrument says otherwise
2. Holder of the easement may come onto the servient estate for purpose of repairing |
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What terminates an easement
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1. Natural termination by terms of instrument
2. Merger 3. Relaeae by owner in a writing 4. Abandonment--must show intent to abandon by physical action (non use insufficient) 5. Termination by estoppel--representation by holder and reliance by owner of property 6. By prescription--owner of the servient tenement must so obviously interfere that no member of teh public would still think an easement exists 7. End of the necessity 8. Condemnation of the servient estate (holder entitled to compensation) 9. If the easement is in a structure, involuntary destruction (fire) destroys the easement but voluntary destruction does not |
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What is a license
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A privilege to enter upon the land of another
Ex: A ticket to a concert Personal to licensee, so not alienable |
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How may a license become irrevocable
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1. Estoppel--licensee invests substantial $ in reliance of what he thought was an easement (Easement fails due to SOF)
2. License coupled with an interest (ex: buy wine and store it at warehouse, license to come pick up is irrevocable) |
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What is a profit a pendre
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Gives the holder a right to enter the land of another and remove part of the land or a product of the land
Almost always deemed in gross (do not run with land) |
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What is a covenant running with the land
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A hybrid between an easement and a k, it is a covenant whose burdens or benefits pass to teh succeeding holders of the interests
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What is an equitable servitude
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Similar to a negative easement, it is a restriction on the owner's use of the land. Plaintiff is seeking relief in a court of equity for an injunction
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Requirements for an equitable servitude to run
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1. Intent that it be enforceable against succesor in interest
2. Notice to subsequent purchaser 3. Must touch and concern the land 4. No privity of estate is required |
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Equitable defenses to enforcement of servitudes
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1. Unclean Hands--person seeking enforcement is doing the same thing
2. Acquiesence--let another neighbor get away with it 3. Laches--person didn't complain until after the D had completed putting up the structure 4. Estoppel--person said he didn't mind |
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How is an equitable servitude terminated
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1. My release or merger of ownership
2. Chandged conditions in the neighborhood. "all or nothing" (ex: Whole neighborhood has gone commercial) |
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Requirements for adverse possession
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1. Adverse and hostile (any permission destroys)
2. Actual and exclusive 3. Open and notorious 4. Continuous and uninterupted Onwer does not have to actually know Possessor does not need to think he has title |
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Color of Title
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Possessor has bad title. In GA SOL to get title is 7 years.
May not need to be in actual possession of all of the land you think you own if the part you possess is integrally related to the whole |
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Running of SOL for adverse possession
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SOL does not start to run if owner is under a disability to sue when action first accrued.
(GA--SOL tolled during a disability even if it is not existing whan the possession began) |
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Running of SOL for holder of future interest
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SOL does not begin to run until the owner is in present possession of the property
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Tacking for adverse possession
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ONe person's period of adverse possession can e added to another persons's so long as there is privity of estate
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Contract for Sale must include
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1. Sufficient description of the property
2. Identification of the parties 3. Price and manner of payment |
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Part Performance Doctrine
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Even is a writing is lacking a sales k may be enforced:
1. Oral contract is express and unambiguous 2. Acts of of performance unequivocally establish the existence of a k --payment of all or part of purchase price --possession of land --erecting substantial improvements Different rule for GA |
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GA rule on part performance
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A. Payment of all the purchase price
B. Part payment and possession C. Possession and substantial improvements |
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Equitable Conversion
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Once the k is signed, equity regards the purchaser as the owner fo the property
Risk of loss is on the purchaser for damage or destruction |
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Death of a party before closing
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If seller dies, seller's successor's in interest must follow through with the sale and proceeds are personal property
If buyer dies takers of real property close with the seller but payment comes from personal property |
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Marketable Title
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Free of Liens and encumbrances
--zoning restriction not an encumbrance unless seller violates Good record title (adverse possessor must sue to quiet title) Valid legal title on the day of the closing or in a reasonable time thereafter |
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If a seller does not have marketable title within a reasoanble time of the closing what may buyer do
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1. Rescind the k
2. Sue for damages 3. Get specific performance with an abatement of the purchase price to cover the defect in title |
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Remedies for breach of sales contract
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1. Damages--difference btwn k price and value of land on day of breach
2 Earnest money--will be liquidated damages if not over 10% 3. Speicific performance available for buyer and seller (land is always deemed unique) |
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Defects on Property
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1. Warranty of fitness or quality on new construction only
2. Caveat emptor in all other cases unless builder hides the defect GA--not even a warranty on new property unless builder conceals the defect |
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Legal effect of a deed
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Once the deed is accepted, the k merges into the deed and all k provisions are lost unless included in the deed
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Execution of a deed
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Seller must sign, most states require attestation by Ws (Ga need 1 official 1 unofficial)
Property must be unambiguously defined (legal description) Parties must be reasonably identified Must contain operative words of conveyance |
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Delivery of teh deed
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1. Need not be actual, look to transferor's intent
2. If grantor dies and still has deed, presumption of no delivery 3. Recording raises rebuttable presumption of delivery even if grantee never saw the deed 4. Mere holding of the deed by a 3rd party does not show lack of delivery |
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Conditional Delivery
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1. Condition in a deed is presumed to be a valid delivery of a future interest
2. Oral condition--majority ignore, minority enforce 3. Delivery conditional on payment of price is a sufficient condition if grantor delivers deed to 3rd party to hold in escrow until price paid |
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What does a quit claim deed convey
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Contains no warranties about hte condition of title and conveys merely what teh grantor owns
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What does statutory or grand deed convey
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contains limited warranties
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What is in a warranty deed
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contains the usual covenants for title
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Shelter Rule
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A person who taks from a subsequent BFP can know of the first conveyance and still win.
Protects anyone who takes from BFP including a donee |
