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152 Cards in this Set

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  • Back
Four types of freehold present possessory estates
1. Fee Simple Absolute
2. Defeasible Fees
3. Fee Tail
4. Life Estate
O to John but if he ever tries to sell the property to a lawyer it goes to Martha
This restraint on alienation of a fee simple is void
Is a right of first refusal a restraint on alienation
What is a defeasible fee
A fee simple absoule that may terminate unnaturally
What are the three types of defeasible fees
1. Fee simple determinable
2. Fee simple subject to condition subsequent
3. Fee simple subject to an executory interest
What future interest goes with a fee simple determinable
Possiblility of reverter in the grantor
What future interest goes with a fee simple subject to a condition subsequent
Right of entry or power of termination in the grantor
What future interest goes with a fee simple subject to a condition subsequent
Executory interest in a 3rd party that is not the grantor
What is a fee simple determinable
Present possessory fee simple that will terminate automatically upon the happening of an event
O to Judy until she goes to law school.

What is this
Fee simple determinable
Words often used to create a fee simple determinable
Until, so long as, while, during
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
What is a fee simple subject to condition subsequent
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.
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
May O waive the right to re-enter if he conveyed a fee simple subject to condition subsequent
Yes but mere inaction will not be deemed a waiver unless there has been detrimental reliance by the grantee
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
No, right of entry not spelled out.
UGA has a fee simple
If O transfers a fee simple subject to condition subsequent may he give away his right of entry
Majority: O cannot tranfer his right of entry during his lifetime

GA: Right of entry may be sold by O
What is a fee simple subject to an executory interest
A present possessory fee simple which terminates upon the happening of an event and then passes to someone other than the grantor
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
All of the defeasible fees are:
Alienable, descendible and devisable
What is a fee tail
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
O to Alice for 200 years if she lives that long.
Is this a life estate?
No, it is measured by years
O to B after A dies.

What does A have?
An implied life estate
O to Melissa for life. Melissa conveys her LE to Nancy.
After the conveyance what does nancy have
Life Estate pur autre vie
May life estates be subject to restraints on alienation
Life tenant is entitled to____________ but may do nothing to _______________ of the holder of the remainder or reversion
All ordinary use and profit

Injure the interest
The owner of a remainder or reversion may sue the life tenant for:
1. Damages
2. To enjoin any act of waste
What are the three types of waste
1. Voluntary/Affirmative
2. Permissive
3. Ameliorative
What is voluntary waste
Any exploitation of the natural resources on the land beyond the normal use unless it fits an exception
Exceptions to voluntary waste
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
Open Mines Doctrine
Life tenant may continue to extract minerals if mining began before teh life estate began but is limited to mines already open
What is permissive waste
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
Life Tenant's obligation for permissive waste limited to:
1. Value of profits earned from teh land
2. If no profits are earned, the value of the use of the land
What is ameliorative waste
Life tenant alters the land in a way that makes it better
Modern approach to ameliorative waste
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
Does a future interest holder have a present interest?
Yes, but it doesn't become possessory until the future
Is a reversion subject to RAP?
No, no future interest retainted by a grantor is subject to the rule
What is a remainder
An interest created in a grantee that will take possession upon the natural termination of the preceding estate
A remainder never follows a:
Fee simple whether absolute or defeasible
A time gap
A remainder is vested if it is in favor of:
An ascertained and existing person and there is no condition that would prevent it from coming into existence
What are the three types of vested remainders
1. Indefeasibly vested
2. Vested subject to open
3. Vested subject to divestment
What is an indefeasibly vested remainder
One that is not subject to divestment or diminution
What is a remainder subject to open
A remainder that is in a class of persons and the class is not yet closed
What is a remainder vested subject to divestment
A remainder that may be defeated by the happening of a condition subsequent
What is a contingent remainder
A remainder in an unascertained or non-existing person OR one that will not vest until a certain condition precedent is met
Are remaindes alienable?
At CL future interests could not be sold
Modern and GA: all remainders are alienable
May holders of a remainder sue the holder of the preceding estate for waste
Holders of a vested remainder may sue but holders of a contingent remainder may not
Doctrine of Destructibility of Contingent Remaindes
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.
Doctrine of Merger
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
Rule in Shelly's case
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)
Doctrine of Worthier Title
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.
Acceleration of Remainders
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.
What are executory interests
Interests in a grantee that artificially cut short the preceding estate.
Rule against Perpetuities
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
What future interests does RAP apply to
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
When is an interest created fro RAP purposes
1. Will--when T dies
2. Revocable trust--when it becomes irrevocable
3. Irrevocable trust--when created
4. Deed--when delivered to the grantee
What happens when RAP is violated
The violating interest is void from the outset and is stricken
Rule of Convenience
A class will close when any class member is entitled to take.
Common pitfalls to the RAP:
1. Fertile octagenarian
2. Unborn Widow
3. Administrative contingency rule
What is the administrative contingency rule
Assumes that it may take any number of years to complete administrative contingency
Cy Pres
Courts modify a gift or bequest so it doesn't violate RAP.

EX: Children who reach 30 changed to children who reach 21
Wait and See reform
Some states will wait and see if an interst violates the RAP rather than striking from the beginning
Uniform Statutory rule against perpetuities
Allows courts to wait and see if the interest vests within 90 years
Charity to Charity Exception to RAP
If both recipients are charities, no violation of RAP
How is JTWROS created
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
How is a JTWROS severed
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
What is a tenancy by the entireties
JTWROS between husband and wife

Don't have this in GA
How is a TBE severed
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
What is a tenancy in common
No right of survivorship. Each tenant is entitled to occupy all portions of the property but they may own unequal interests
How is a TIC created
Any grant to mutliple persons that is not a JTWROS ro a TBE

If two people inherit property they take as TIC
How is TIC severed
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
What are the 4 types of non-freehold estates
1. Tenancy for years
2. Periodic tenancy
3. Tenancy at will
4. Tenancy at sufferance
What is a tenancy for years
Tenancy for a fixed duration usually created by a lease that terminates automatically at teh end of teh lease period
What is a usufruct
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
What is a periodic tenancy
Tenancy for a fixed period that renews for succeeding periods unles terminated after notice
How is a periodic tenancy created
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)
How is a periodic tenancy terminated
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
What is a tenancy at will
Either party can terminate at any time without notice
Besides notice how can a tenancy at will be terminated
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
What is a tenancy at sufferance
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.
What can L do if a T continues in possession after the term of the lease is over?
1. Evict
2. Impose a new periodic tenancy on T the terms of which are governed by the expired lease
If a new periodic tenancy is imposed on a holdover T can L charge higher rent?
Yes provided teh increase is reasonable
Holdover Doctrine does not apply if:
1. T retains possession for only a few hours
2. Delay is not Ts fault
3. If it is only a seasonal lease
If L leases to a new T and the old T holds over, what can the new T do?
Bring an eviction action
What are Ts duties
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
T specifically covenants to repair and maintain the property. Lightening hits the house and it burns to the ground. T must________
Rebuild the house
What is Ls duty if T fails to pay rent
Sue for damages adn evict

GA: 7 day grace period to pay rent
What are Ls remedies if T abandons the leasehold
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
What are Ls duties
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
What may T do if L breaches the Implied warranty of habitability
1. Move out and terminate the lease OR
2. Stay and make repairs and offset the cost against teh rent
How can L breach the covenant of quiet enjoyment
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
In order for T to terminate the lease under a breach of covenant of quiet enjoyment, what three requirements must be met?
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
What is Ls duty to repair in Georgia
No duty to repair unless it is a usufruct (less than 5 years)
What is an assignment
T transfers everything that T has, holding no time back
What is the effect of assignment
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
If there is an assignment, who is liable for rent
Assignee is liable for the time he is in possession, if a term of the k T is also liable
If L sells to L2 can T sue L for a breach of a covenant?
If it is a k covenant, yes. If the covenant runs with the land then no (privity of estate is with L2)
What is a sublease
T transfers less than all of her leasehold interest to sublessee
What is the effect of a sublease
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.
Clauses prohibiting subleasing or assignment
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
If state takes part of a leasehold by eminent domain:
T is not released from the obligation to pay full rent, but may share in the condemnation award for the taking
If state takes full leasehold property:
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
Waht is Ls duty with regard to latent defects
L has a duty to disclose if L knew or should have known of a condition that T could not discover upon reasonable inspection
What is Ls duty with regard to a Short-term lease of a furnished dwelling
Short term lease (three months or less): L is liable for defects even if L neither know nor should have known
What is Ls duty regarding common areas under Ls control
L is liable if he failed to exercise reasonable care
What is Ls liability with regard to repairs
If L undertakes repairs, L is liable to tenants and maybe even to visitors for breach of a covenant to repair
What is Ls liability with regard to Public use exception
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
What is Ts Tort Liability
T may also be liable for injuries to third parties on the premises, regardless of whether L may also be contractually liable
What is an easement
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
What is an appurtenant easement
1. Involves 2 tracts of land
2. Dominant tenemant
3. Servient tenement
Do the burden and benefit of an appurtenant easement run with the land?
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)
What is an easement in gross
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
What is an affirmative easement
Entiltes the holder to make affirmative use of the land in a way that would otherwise be a trespass
What is a negative easement
Entitles teh holder to compel the owner of the servient tenement to refrain from engaging in certain activities.
Negative easements generally relate to:
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
How do you expressly create or reserve an easement
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
How do you get an easement by implication
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
How do you get an easement by necessity
Exists for property that is totally land locked. (No requirement of prior use)
How do you get an easement by proscription
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)
How do you determine the scope of use of an easement
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
Who is allowed to repair an easement
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
What terminates an easement
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
What is a license
A privilege to enter upon the land of another
Ex: A ticket to a concert

Personal to licensee, so not alienable
How may a license become irrevocable
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)
What is a profit a pendre
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)
What is a covenant running with the land
A hybrid between an easement and a k, it is a covenant whose burdens or benefits pass to teh succeeding holders of the interests
What is an equitable servitude
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
Requirements for an equitable servitude to run
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
Equitable defenses to enforcement of servitudes
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
How is an equitable servitude terminated
1. My release or merger of ownership
2. Chandged conditions in the neighborhood. "all or nothing" (ex: Whole neighborhood has gone commercial)
Requirements for adverse possession
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
Color of Title
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
Running of SOL for adverse possession
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)
Running of SOL for holder of future interest
SOL does not begin to run until the owner is in present possession of the property
Tacking for adverse possession
ONe person's period of adverse possession can e added to another persons's so long as there is privity of estate
Contract for Sale must include
1. Sufficient description of the property
2. Identification of the parties
3. Price and manner of payment
Part Performance Doctrine
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
GA rule on part performance
A. Payment of all the purchase price
B. Part payment and possession
C. Possession and substantial improvements
Equitable Conversion
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
Death of a party before closing
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
Marketable Title
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
If a seller does not have marketable title within a reasoanble time of the closing what may buyer do
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
Remedies for breach of sales contract
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)
Defects on Property
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
Legal effect of a deed
Once the deed is accepted, the k merges into the deed and all k provisions are lost unless included in the deed
Execution of a deed
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
Delivery of teh deed
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
Conditional Delivery
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
What does a quit claim deed convey
Contains no warranties about hte condition of title and conveys merely what teh grantor owns
What does statutory or grand deed convey
contains limited warranties
What is in a warranty deed
contains the usual covenants for title
Shelter Rule
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