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469 Cards in this Set

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Pierson
In order to obtain title to a feræ naturæ, a person must take it or mortally wound it so that its capture is certain.
Popov
Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property, and the failure to continue the effort is due to the unlawful acts of others, the actor has a pre-possessory interest in the property. Two or more people can, when their rights to the property are legitimate, have an equal and undivided interest in the property
Favorite
A trespassing finder does not have a right to possession of found property, provided that the trespass is neither technical nor trivial. Property other than treasure trove that is buried in the earth is the property of the owner of the locus in quo
Benjamin
Mislaid property belongs rightfully to the owner of the locus in quo.
White
Right of publicity extends beyond name and likeness to any appropriation of a person’s “identity,” i.e. anything that evokes her personality.
Davis
Where there is dispute over the disposition of pre-embryos produced by in vitro fertilization, the preferences of the progenitors should be looked to. If their wishes cannot be ascertained, their prior agreement should control. If this does not exist, the interests of the parties should be weighed, with the interest of the party who does not desire parenthood ordinarily winning out. It may be more complicated if the other party has no means, other than the pre-embryos in dispute, of achieving pregnancy, and desires this pregnancy.
Lost property
Personal property whose possession has been parted with casually, involuntarily, or unconsciously.
The finder of lost property acquires title in it as against all but the true owner.
Mislaid property
Personal property which has been intentionally placed somewhere and then unintentionally left or forgotten.
The owner of the locus in quo has title in mislaid property as against all but the true owner.
Abandoned property
Consists of property that is no longer in the possession of the prior possessor who has intentionally relinquished, given up, or released the property.
The finder of abandoned property has not only rights to possession but ownership against all others.
Treasure trove
Coin or money concealed in the earth or another private place, with the owner presently unknown.
Treasure trove is treated as lost property.
Bailment
Rightful possession of goods by one who is not the true owner. The goods cannot be fungible. The bailor is the giver, the bailee the receiver of the bailment.
Elements of a gift:
1) Intent of the donor,
2) delivery to the donee, and
3) acceptance by the donee.
Delivery of a gift must be the...
best delivery under the circumstances.
Types of delivery of a gift
1) Actual (physical delivery of a gifted ring),
2) constructive (delivery of key to a drawer, the contents of which are the gift), or
3) symbolic (delivery of a book to represent the giving of a library of rare books).
Acceptance by the donee is not usually an issue because
acceptance is assumed.
Gruen
The giving of an inter vivo gift requires intent, delivery and acceptance. Delivery may be constructive, physical or symbolic.
Why is a gift like an offer?
As in contracts, a giver of a gift has the right to revoke it up until the gift is accepted.
Albinger
An engagement ring is considered a complete and irrevocable gift once the elements of intent to give, [delivery] and acceptance of the gift are met.
Tennessee Division of the United Daughters of the Confederacy v. Vanderbilt University
A giver of a conditional gift is entitled to the continued honoring of the condition of that gift or the return of it.
When fulfilling the condition of a conditional gift becomes illegal
When a gift is given to a charity that is subject to a condition, and fulfilling the condition subsequently becomes illegal, impractical or impossible to carry out, both under the common law rules of cy pres, or under the Uniform Management of Institutional Funds Act, the terms of the deal can be reformed to carry out the donor’s intent as closely as possible to what the donor intended.
Two reasons why the common law and statutory rules about illegal gifts did not come into play in the TN UDE case:
1) The donor was around, and
2) it not only would not have been impractical to honor the condition, it would have been impractical not to.
Foster v. Reiss
A gift causa mortis will be invalid unless actual delivery of the gift has taken place.
Causa mortis gift:
A gift made in contemplation of the donor’s imminent death. It is revocable at any point before the donor dies and is automatically revoked if the donor does not die from the anticipated peril.
Alcor Life Extension Foundation v. Richardson
Under the RUAGA, a person’s plans for the donation of his remains, even if for some reasonable compensation, control over that person’s family’s wishes for that person’s remains.
Under the 2006 AGA...
The family of a donor cannot revoke his gift of his organ on his death.

Also under this Act, one may refuse to be an organ donor.
Porter v. Wertz
An owner can be estopped from arguing that a vendor lacks good title as against a bona fide purchase for value, where the owner has given the vendor possession and has provided other indicators of having possession for the purpose of making a sale.
Common law estoppel...
...can be invoked even if the person who sold the good is not a dealer in goods of the kind. Can apply if the seller had lulled the buyer by some kind of communication into a false sense of belief that he was able to acquire a good title to the painting.
Statutory estoppel (UCC § 2-403)
UCC § 2-403 Power to transfer; Good faith purchase of goods; "entrusting".
(1) 1. A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though
(a) the transferor was deceived as to the identity of the purchaser, or
(b) the delivery was in exchange for a check which is later dishonored, or
(c) it was agreed that the transaction was to be a “cash sale”, or
(d) the delivery was procured through fraud punishable as larcenous under the criminal law.
(2) Any entrusting of possession of goods to a merchant who deals with goods of that kind gives him the power to transfer all rights of the entruster to a buyer in the ordinary course of business.
(3) “Entrusting” includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law . . . .
A forged document of title will not...
...allow for estoppel.
The bailment is for the sole benefit of the bailor:
The bailee is liable only for gross negligence, responsible for slight care.
The bailment is for the sole benefit of the bailee:
The bailee is liable for even slight negligence, responsible for great care over bailed goods.
The bailment is for the mutual benefit of the bailor and bailee:
The bailee is liable for ordinary negligence, responsible only for ordinary care over bailed goods.
Unless negligent, the bailee is not liable for...
Fire, storm, shipwreck, act of God, or theft.
In involuntary bailments...
There is no strict liability.
Ordinarily, the ______ is responsible for disclosing the value of the bailed goods.
Bailor.
In the event of misdelivery:
1) π must establish prima facie case.
2) ∆ must establish that misdelivery was due to fire, shipwreck, &c.
3) π must then show that it was nonetheless due to ∆'s negligence.
Establishing a prima facie case for conversion in the misdelivery of a bailed good:
π must show 1) prior possesion, 2) delivery and bailment and 3) failure to return.
MN rule for ∆ in lost bailment (misdelivery or conversion) cases
∆ must show lack of negligence. Most states do not follow—too hard to prove a negative.
In a parking lot or garage, when is a bailment almost certain?
When the car owner gives his keys with the car.
Difference between bailment and lease:
In bailment, presumption of negligence against ∆ in failure to deliver.
In many jurisdictions, waiver of liability for bailed good...
...is not considered legitimate, or the waiver is limited to a certain amount.
Ellish v. Airport Parking Company of America, Inc.:
Where a customer purchases a parking place and does not hand over the keys to their car to the owner or operator of the garage or an agent of such an owner or operator, the owner of the car may be found to have leased a parking spot, and not to have delivered their car as a bailed good.
An executor administers...
The estate of someone with a will.
An administer administers...
The estate of someone without a will.
For an ejectment action, π must prove...
A relatively better title.
For a quiet title action, π must prove...
A title good in itself.
To acquire title in real property by adverse possession, the possession during the statutory period must be [AP elements]:
i. actual;
ii. open, visible and notorious (meaning not secret and clandestine but occupying as an owner would for all the world to see) (possessors are expected to know their property);
iii. continuous and peaceable (with unbroken continuity of possession for the statutory period); and
iv. exclusive (meaning sole physical occupancy or occupancy by another with permission of the party claiming title by adverse possession);
v. hostile or under claim of right (some courts require color of title) (In some jurisdictions, bad faith is necessary (knowledge that this is property that you don’t own); in some, good faith (belief that this is your property).)
[AP] If π entered territory under authority of ∆...
π has already recognized that ∆ has a better claim; this is like estoppel.
Adverse possession is “title by _______.”
Inertia
Two common types of adverse possession cases:
i. Open lands cases (many in 19th century. These still exist, though, especially in Alaska.)
ii. Mistaken boundary lines cases (in cities)(more common).
Tapscott v. Cobbs
A peaceful possessor of property who has color of title, but perhaps not perfect title, is entitled to the property over a trespasser with no pretense of title who came onto the land and took possession.
In cotenancy cases, a cotenant who wants to adversely possess...
must make very clear this intent.
1066
“The Norman arrow, shot perhaps at random, that pierced the eye socket of Harold, the Saxon king, decided not only the Battle of Hastings but affected the course of development of English law for centuries.”
English states compressed...
into large Norman estates.
At common law, a lord owed __________ to tenant, tenant _______ to the lord.
Protection and service
The free tenures at common law:
1) Tenure by knight service (military)
2) Serjeantry tenure (personal)
3) Frankalmoin tenure (religious)
4) Free and common socage (agricultural work; rent)
At common law, unfree tenure:
Villeins worked the lord's lands
Incidents of free tenure
1. Homage and fealty: homage was military, feature of knight service. Fealty was the oath sworn by the tenant to be faithful to his lord.
2. Relief and primer seisin: relief was a sort of inheritance tax. King entitled to first seisin of a deceased tenant-in-chief.
3. Wardship and marriage: wardship for knight service left much discretion to the guardian. Wardship of socage was more humane. Profits from marriage went to lord.
4. Aids: Financial contributions to the lord by tenant in times of emergency (e.g. ransom).
5. Fines for alienation: 1290 Quia Emptores granted to freemen the right to alienate w/o paying a fine.
6. Escheat: on death of a tenant without heirs the land returned or escheated to the lord. Moreover, felony conviction of the tenant led to escheat.
At common law, land always had to be a person ______ of land.
Seised
Development of ______ __ _________ made obsolete many actions on seisin.
action of ejectment
1833 Dower act:
allowed that a woman could have dower even if her husband was not seised.
1833 Inheritance act:
land does not need to be traced from the last person seised.
1837: right of entry by a dissesee was made _________; 1845 made _____________ by ____.
devisable;
transferrable by deed.
Duration of a fee simple estate:
infinite.
At common law, words necessary to create a fee simple estate:

Now:
"to B and his heirs."

"to B" is good enough.
Words of purchase indicate:

Words of limitation indicate:
the person who takes; the nature of the interest taken.
After Statute of Wills, if B devised Blackacre "To C," C took...
A fee simple absolute.
Modern rule: presumption that testator intended the donee to take...
in fee simple.
Attempted restraints by a testator on alienation of a fee simple are...
generally invalid. Obviously you can have practical restraints: if you can't build a bar on Blackacre, a person who wants to build a bar is effectively prevented from buying Blackacre. But you can't say: "so long as you don't alienate the property" in a will.
Alby v. Banc One Financial:
reasonable restraints on alienation are valid if justified by the legitimate interests of the parties involved. This is the minority view.
Fee simple determinable:
subject to a limitation. On the happening of the event, the estate automatically ends.

"to B and his heirs so long as Blackacre is used for residential purposes."
Fee simple subject to condition subsequent:
like the determinable but on the occurrence or nonoccurrence of the condition the grantor has the option to have the land revert to him or not.
When statutes run in fee simples subject to condition subsequent:
"Ought to be" the demand that the grantee leave.

Case law: when the condition occurs, the statute begins to run.
Fee simple subject to an executory interest:
Like fee simple on condition subsequent, but on the happening of the condition the estate passes to someone other than the grantor.
Fee simple conditional:
"To A and the heirs of his body."

Would become alienable as fee simple on the birth of issue alive. A could then convey away a fee simple, and have a fee simple conveyed back to him.

Fee simple conditional still exists in IA and SC.
Fee tail:
"to A and the heirs of his body."
As long as A had heirs, the estate stayed with them. Once line was extinguished, back to O or O's heirs.
What act abolished the conditional and created the fee tail?
De Donis Conditionalibus (1285)

if O d A and the heirs of his body, A could no longer convey away a fee simple absolute at the birth of issue alive.
Fee tail male, female, and special:
The first two are what they sound like.

The last: O d B and the heirs of his body with C. When C dies, B has fee tail special with possibility of issue extinct.
Modern American approaches to fee tail:
1) turned into fee simple.
2) life estate in the donee, fee simple in heirs.
3) "fee tail for life" in the donee and fee simple in heirs. Here, donee could convey away fee simple, have it conveyed back as such.
4) IA: words that at common law would create a fee tail create fee simple conditional. On birth of living issue, land becomes alienable, descendible and devisable.
5) Kurtz: doesn't exist today.
Life estate:
an estate measured by the life of a person.
Characteristics of a life estate:
tenant for life his right to undisturbed possession of land and income and profits thereof. He cannot waste. If the life estate is terminated for some reason other than tenant's own act or default, he is entitled to emblements (cultivation of crops previously planted) and estovers (cutting timber reasonable necessary for repairs to fences and structures and as fuel for fires).
O d B with power to sell or mortgage if B finds necessary.
B gets life estate.
Life estates created by the operation of law:
1) Life estate pur autre vie

2) Tenancy in fee tail after possibility of issue extinct

3) Estate by the marital right
Estate by the marital right:
at common law, husband had life estate in the lands of his wife. Could be terminated by divorce. Abolished by Married Women's Property Acts in 19th century.
Tenancy by the curtesy:
On the birth of issue that could inherit the land, husband had life estate in all wife's property. This differed from marital right tenancy in that it was not extinguished by wife's death.
Dower at common law:
On the death of the husband, widow had the right to 1/3rd of all land of which he was seised at any time during marriage. Did not attach to non-freehold estates or personalty.
Modern dower:
Some states have elevated it "statutory dower." In this, if a man dies intestate his wife gets 100% of lands of which husband was seised at any time during the marriage, unless she released her rights. (Works for men or women.)
Wife takes free and clear of all encumbrances.
Wife also takes 100% of personal property and 100% of exempt personal property.
Modern dower if a husband has children from a previous marriage:
Widow only gets 50%.
Statutory dower: man dies intestate, wife dislikes provisions of will:
Wife can elect to take against the will in elective or forced share. Varies from 30%-50%.
Community property for married couples:
each spouse has a half interest in the property earned or acquired during the marriage. Usually excludes property acquired by gift from a third party, and all property brought into the marriage.
At death, spouse has 1/2 of property because she has had it all along.
Marital and separate property in common law states:
marital treated much like community property. Extremely strong presumption that marital property will be split half and half.
Can the value of a degree be split in a divorce?
Yes.
Rehabilitative alimony:
W works to put H through medical school. On graduation, H ditches W. H may be forced to pay for W's education to increase her earning potential.
LGBT couples and property:
even conservative states have respected the contracts regarding property between homosexual couples.
Waste:
A person who causes the property to lose value may be liable for the damage to someone with a future interest.
Waste in the US:
concern is with what the life tenant did that impaired the value of the property, not with improvements.
Death without issue:

O d B and his heirs unless B dies without issue, in which case Blackacre should go to C and his heirs."

Two approaches:
Indefinite failure of issue construction (English): B has fee tail and C has remainder in fee simple. B and his line will keep the estate until there is no line of B, then to C and his heirs in fee simple.

Definite failure of issue construction (American): C will take only in the event that B has no lineal descendant surviving him AT DEATH. If B has a child B1, and B dies, leaving the estate to B1, C has no more interest even though B1 should die immediately thereafter.
Rule in Wild's Case:

O d to B and his children.
English, first rule: B takes fee tail.
Second: B and his children take concurrent estates as joint tenants for life.

US: B takes a life estate, his children the remainder.

Today: they would usually take as tenants in common in fee simple.
What is a future interest?
A present right in relation to the land by virtue of which possession will be had, or may be had, in the future; most classifications applicable hereto are applicable to future interests created in trust.
All future interests are capable of...
changing color.
Reversion:
The residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him.
Possibility of reverter:
The interest left in a transferor who creates a fee simple determinable.
Right of entry for condition broken:
A future interest retained by a transferor who conveys an estate on condition subsequent.
Characteristics of a right of entry for condition broken:
1) At common law, one actually had to enter to reclaim.

2) Inaction may constitute a waiver of the right to terminate; duration of this right of entry sometimes limited by statute.

3) Alienability: passes with transfer of reversion in most states by statute.

4) Modern: alienable, descendible, devisable.
Unless an estate is explicitly stated to expire automatically on the happening of a stated condition, it is...
a fee simple with condition subsequent.
Remainder definition:
future interests, created in a transferee, which may become possessory immediately upon the termination of the prior freehold estate.
What is the future interest following a fee simple determinable?
Executory interest.
A remainder arises only in favor of a third person and only if...
created simultaneously with the created of the present estate.
O has a reversion. O transfers his reversion to C. What does C have?
Reversion.
A remainder does not...
cut short a previous estate.
O d B for life, and one year after B's death to C and his heirs. What does C have? Why?
Springing executory interest.
A remainder must take place immediately after the expiration of the prior interest simultaneously created.
The definition of remainder contemplates...
that it may not become possessory at the end of the life estate.
Vested remainder:
not subject to a condition; immediate on termination of previous estate.
Remainder indefeasibly vested:
there is no imaginable circumstance in which this remainder will not become possessory.
Remainder vested subject to partial divestment (subject to open):
1) limited in favor of a group of persons where at least one remainderman is ascertained and alive, and

2) not subject to the happening of any condition precedent.
T d to B for life, then to children of B and their heirs. At the time of T's death, B has only one child, C. What does C have?
Vested remainder subject to open.
What are the two ways a class can close?
1) Physiologically, or

2) by the Rule of Convenience
Physiological closing of a class:
Death; vasectomy; tuboligation.
A's child in ventre se mere...
was considered a member of class "A's children."
Re open classes, at common law, there was a presumption of...
fertility.
Closing of a class by the Rule of Convenience:
When there are no outstanding present possessory estates and there is at least one member of the class who can demand his share because there are no conditions precedent, the class closes.
O d A for life, remainder to A's children who reach the age of 21. A dies survived by a child age 21.
What is the status of the class "A's children"?
Closed.
O d A for life, remainder to B's children who reach the age of 21. A dies survived by B and B's child age 17.
What is the status of the class "B's children"?
Open.
T d B for life, then to the children of C and their heirs.
Supposing C and two of his children survive, once B dies, what is the status of the class "children of C"?
Closed.
Remainders vested subject to complete divestment (and criteria):
may become possessory or not depending on the happening of a condition subsequent.

1) the remainderman is in existence and ascertained, and

2) the remainderman's interest is not subject to a condition precedent, but

3) the remainderman's right to possession on the expiration of the prior interests is subject to termination by reason of the happening of a condition subsequent followed by an executory interest, or by the exercise of a power of appointment or a right of entry for condition broken.
Condition precedent:
one which must occur for the future interest to take effect in possession.
Condition subsequent:
one which must occur for the future interest not to take effect in possession.
Right eye test:
Only effective where there are two transferees and a future interest.

Put your right eye on the name of the first taker of a future interest, where it occurs as a word of purchase. If before it there is a condition, that is a condition precedent. If after, condition subsequent.

If the first taker has a contingent remainder, the second does too. If the first taker has a vested interest subject to divestment, the second has a shifting executory interest.
O d B for life, then to C and his heirs but it C dies leaving no surviving children then to D and his heirs. What does C have? D?
C has a vested remainder subject to complete divestment. D has a shifting executory interest.
Contingent remainder:
subject to the happening of a condition precedent on the preceding estate. Either
1) created in favor of an ascertained person but subject to a condition precedent; or
2) created in favor of an unborn person (where an implied condition is being born); or
3) created in favor of an existing but unascertained person (where the implied condition is ascertainment).
Remainders subject to a condition precedent:
Remainderman has no right to immediate possession if the preceding estate should come to an end so long as the condition precedent remains unsatisfied.
Remainders to unascertained persons:
Nemo est haeres viventis.
Rule of destructibility:
if a contingent remainder is not ready to become possessory when the preceding estate terminates (i.e. the life estate) it is forever destroyed and the property reverts back to the grantor. (Common law and in AR and FL.)
Rule of destructibility and class gifts:
So long as one member of the class satisfies the condition, class gift is not destroyed. Thus
O d A and his children who reach 21. So long as one is 21, not destroyed.
At common law:
O d B for life, and then to the heirs of C. B dies while C is still alive. The heirs are unascertained.
What result?
Seisin reverts to O and contingent remainder in C is destroyed.
At common law:
O d B for life, then to C's heirs. B tries to convey a fee simple absolute to X.
What result?
B's life estate is forfeited and the property reverts to O. C's remainder is destroyed.
At common law:
O d B for life, then to B and his heirs.
B has a fee simple absolute.
At common law:
O d B for life, then to C for life if C marries, but before C marries O conveys his reversion to B.
C's contingent remainder is destroyed, B has fee simple absolute.
O d B for life, then to C for life if C marries, then to B and his heirs.
Is C's remainder still valid?
Yes.
Destructibility of contingent remainders in the US:
Most states have abolished. Restatement says that they should be indestructible.
Per stirpes distribution:
persons in a more remote generation can take only if their ancestor who would otherwise be in the class is deceased.
Per capita distribution:
Grandchildren can take even when children live.
Are vested remainders alienable?
Yes.
Are contingent remainders alienable?
Yes, subject to whatever condition is on the remainder.
O d A for life, then to B, but if A stops growing corn, then to C.
What does B have? C?
Vested remainder subject to divestment.
C has a shifting executory interest.
Rule in Shelley's Case (definition):
If a freehold estate is conveyed by deed or bequeathed by will to a person and in the same conveyance or will a remainder is limited to the heirs or to the heirs of the body of that person, that person takes both the freehold estate and the remainder.

(This rule applies to grantees; worthier title applies to grantors)
Requirements:
1) there must be a freehold estate given to the ancestor;

2) by the same instrument, a remainder must be limited to the heirs of the body of the ancestor;

3) the freehold and the remainder must be of the same quality (bot legal or both equitable).
American courts:
O d B for life, remainder to C. C would be B's heir at the time of B's death.
What result?
By Rule in Shelley's Case, B gets fee simple. This is because C would have been B's heir (the heir of the life tenant) at the time of B's death.
Doctrine of worthier title (definition):
A grantor cannot limit a fee simple to his own heirs by conveyance or devise.
Testamentary branch of the doctrine of worthier title:
Under devise, the heir would take by descent what he would by the devise take by purchase.
Inter vivos branch of the doctrine of worthier title:
Was used to prevent a creditor from getting at an estate left in remainder to the grantee.
Created a rebuttable presumption that when a conveyor limits a remainder to his own heirs, in the case of realty, or to his next of kin, in the case of personalty, he intends to retain an indefeasible reversion and not to create a remainder in the heirs or next of kin.
Different historical modes of conveyancing:
1) actual delivery of feoffment and livery of seisin

2) conveyance by fine

3) common recovery
Two modern recording systems:
1) Grantor-grantee index
2) tract index
O d B's heirs.
B is dead. What result?
A conveyance to the heirs of a dead person was read as if it had said "O d B's heir and his heirs."
O d A for 10 years, then to B and his heirs.
This is a springing executory interest. But there was an exception. Term of years followed by what on the face of it would be a vested remainder is a fee simple subject to a term of years or a term of years followed by a vested remainder.
Since @ common law, no mortgages. B wants to buy Blackacre, goes to A, makes deal: B will give A all of the crops from Blackacre for ten years, by which time the loan will be repaid.
O d X Church so long as premises used for church business, and if not, then to B and his heirs.
This was classified as a shifting executory interest, but it should have been a vested remainder.
Statute of Uses
1535. Equitable or use estates converted into corresponding legal estates. Uses were depriving the king of money.
Statute of Enrollments:
No conveyance of an estate of inheritance or freehold by means of bargain and sale unless that bargain and sale was
1) in writing,
2) under seal, and
3) enrolled in public offices.
Conveyance by lease and release:
Loophole in SoE. To convey w/o recording, O could create a non-freehold estate, such as a term of years, in B, then make a release to B.
Shifting executory interest:
divests a prior estate in someone other than the conveyor on the happening of a condition.
Springing executory interest:
divests a prior estate in the conveyor on the happening of a condition.
If there is a future interest that is conditioned on a contingency that is incapable of happening within the life-tenant's life, the future interest cannot be a _________, it must be a ________ _________ ________.
remainder;
shifting executory interest.
White v. Brown
When the terms of a will are ambiguous, said will shall be determined to have passed a fee simple absolute.
Requirements for a will under the UPC:
signed, witnessed by two witnesses (or a notary).
Rule against perpetuities:
a nonvested interest is good if it is absolutely certain to vest, or fail to vest, not later than twenty-one years after the death of some life in being at the creation of the interest.
For the purposes of the rule against perpetuities, what are nonvested interests limited to?
Limited to:
1) contingent remainders
2) executory interests, and
3) remainders limited in favor of a class of persons (if the class is open at the time of its creation).
When does a vested remainder subject to open become vested for the purposes of the rule against perpetuities?
When the class closes and all conditions precedent for each and every member of the class has occurred.
All or nothing rule:
if a gift is bad to one member of a class under the rule against perpetuities, it is bad to all.
O d A for life, then to A's children who reach the age of 25. A's living children, B and C, are 10 and 25 each. A has a third child, D, and then dies.
What do B, C and D have under the all or nothing rule?
Nothing. Since the gift is invalid to D, it is invalid to the whole class.
O d X Church so long as premises are used for church purposes and if not so used then to B and his heirs.
Under the rule against perpetuities, what does B have?
Nothing.
"Wait-and-see" rule:
if a nonvested interest actually vests or fails to vest in a timely manner, then it is good enough even though there was the possibility, at the time of conveyance, that it could not satisfy the rule against perpetuities.
Cy pres doctrine:
if the terms of a non-vested interest can be reformed to assure a timely vesting of the interest, a court can reform the terms to validate the gift.
The "90-year rule" and Statutory USRAP:
if an interest that would otherwise be invalid under the rule against perpetuities actually vests within 90 years of its creation, it is valid.
Third restatement approach to the rule against perpetuities:
Perpetuity period ends on the death of the creator of the interest and beneficiaries of the disposition who are either related to the transferor but not more than two generations younger, or if not related, would not be the equivalent of more than two generations younger.
Asset protection dynasty trusts are shielded against the ____ _______ ____________ and _________.
rule against perpetuities and creditors.
Three kinds of unexecuted use:
1) a use raised on a term of years or other chattel interest
2) a use on a use
3) active uses
Use on a use:
The second use was not executed by the SoU. Became known as a trust and is so known today.
Active use:
Where the feoffee to uses actively collects the rents and profits and pays them over to the cestui que uses. After SoU, not executed.
Statute of Uses in the US:
in force "in a great majority of the states." SoE never took, so neither did lease and release.
Joint tenancy:
the identical interest in a property in more than one person. A concurrent ownership was presumed to be a joint tenancy at common law.
Characteristics of joint tenancies:
they are alienable and have a right of survivorship.
The four unities of a joint tenancy:
1) Time: A and B have to acquire title at the same time.
2) Title: A and B must take interest under the same instrument.
3) Interest: % interest in property cannot be different than number of cotenants. Must have equal interest.
4) Possession: right to concurrent possession.
Exception to four unities requirement for joint tenancies:
A has title, conveys to himself and his wife as joint tenants.
Any co-tenant can demand...
that the property be sold.
In joint tenancy, ______ costs are shared. ___________ costs are not.
repair; improvement
Most common way to sever a joint tenancy:
convey your undivided percentage interest.
A contracts to sell his undivided half interest in Blackacre to X, but dies before the conveyance. What result?
The joint tenancy is severed.
(In a lien theory state) A is a joint tenant. He currently lives in the property. He mortgages the property. What result?
Mortgagor only has a lien on the property, so the joint tenancy is not severed.
(In a title theory state) A is a joint tenant. He currently possesses Blackacre. He mortgages the property. What result?
Joint tenancy is severed. In a title theory state, the bank has a fee simple subject to a shifting executory interest in A's former in Blackacre. A has a shifting executory interest.
(At common law) A is a joint tenant. A leases the property. Is the joint tenancy severed?
Yes.
(In the US) A is a joint tenant. A leases the property. What are the two possible results?
Either a) not a severance, or b) only a severance if the landlord dies during the term of the lease.
Tenancy in common:
distinct and separate interests but mutual rights to enjoyment.
One joint tenant kills the other. What result?
In some states, killer deemed to have predeceased killed.
In others, tenancy in common created.
Tenancy by the entirety:
Resembles joint tenancy. Only between married people. Rights in the man. Neither alone could create a severance.
Treated as tenancy in common in some states. "Surely" severed by divorce.
Litigation on joint bank accounts is typically between...
children where the bank account was made in the name of the parent and one child.
Gift theory of joint bank accounts:
parent puts money in bank account creating joint tenancy with right of survivorship in child, with delivery requirement satisfied by treating the bank as trustee for the child. Nature of gift depends on intent of parent.
Possible intents of the parent in the gift theory of joint bank accounts:
1) the parent wanted to avoid the probate system and give to one child.
2) the parent wanted the convenience of both parties being able to manage the account. In this case, it may be argued that the parent did not intend the child to take all.
Contract theory of joint bank accounts:
when the parent puts money into the bank, the child is the third party beneficiary of a contract between the bank and the depositor parent.
Totten trust:
when A sets up a bank account in trust for B, A can make withdrawals, &c., w/ no accountability to B. At A's death, the money in the account will go to B. Called "poor man's will." Avoided probate system.
POD account:
WWI. A can buy a bond POD to B.
Power of attorney:
Child has the power to write checks from the account of the parent during the parent's life, and on behalf of that parent. At parent's death, account goes through probate system.
Uniform Simultaneous Death Act:
If a father and his son seem to die simultaneously, the son is assumed to have predeceased the father.
Things that are death:
absence of heartbeat; absence of brainwave activity.
Three most valuable things people have when they die:
1) Property
2) Pension
3) Bank accounts
1285:
De Donis Conditionalibus: fee simple conditional abolished, fee tail created.
1290:
Quia Emptores: allows free alienation. The transferee holds under the transferor's lord.
1535:
Statute of Uses: converted equitable or use estates into corresponding legal estates. The estate of the feoffee was vested in the cestui que use.
1540:
Statute of Wills: allowed for a limited power to devise lands by will in writing. Could be in futuro, and could be in defeasance of a prior estate.
1620:
executory interests are held to be indestructible (unlike contingent remainders). If a limitation could be a contingent remainder, it was so treated.
1660:
Tenures Abolition Act: converted knight service tenure to tenure in free and common socage. Abolished many incidents.
1833:
Dower Act: woman could have dower even if her husband was not seised.
Inheritance Act: changed the rule that the land must be traced from the last person seised.
1837:
Right of entry by a disseisee made devisable.
1845:
Right of entry by a disseisee made transferrable by deed.
Executory period:
time between the agreement and the exchange of deed for money. 4-10 weeks.
Escrow:
1. A legal document or property delivered by a promisor to a third party to be held by the third party for a given amount of time or until the occurrence of a condition, at which time the third party is to hand over the document or property to the promisee.
Points of comparison between different parcels of land:
1) Square footage
2) Number of bathrooms & bedrooms
3) Heat & AC
4) Acreage (size of yard)
When would a broker not earn a commission after a seller finds a buyer?
When the seller has made an agreement with the broker that if the seller sell to any of a specified group of people, the seller will not have to pay commission.
At common law, brokers only needed
to find a ready, willing and able buyer.
A seller is required to pay commission to a real estate broker when...
the sale is completed, or the sale fails due to the fault of the seller.
A real estate agent does not have a duty to...
inspect a home for defects beyond asking a seller if such defects exist.
It is unethical for a real estate lawyer to represent both sides, unless...
both parties expressly consent after full disclosure, and the parties obtain separate counsel while negotiating the sales contract.
Those engaged in the unauthorized practice of law...
are subject to the same professional standards as attorneys themselves.
What must a real estate sales option define with certainty in order to satisfy the Statute of Frauds?
The price of the property.
Things needed for a RE K:
1) buyer and seller identified
2) subject matter (descriptions of property)
3) consideration/price: either a price amount or an easy formula.
Two ways to describe a property being sold:
1) Street address
2) Legal description
Liquidated damages in an RE K will be enforced...
as long as they are a reasonable estimate of the damages that may occur on breach.
What distinguishes nonfreehold estates is...
...what type of notice is required to terminate them.
To terminate a term for years...
...no notice is required. T already knows when it's going to end. Fixed beginning and ending.
Term for years can be of fixed or __________ duration.
Computable
Requirement for duration for a term for years can be satisfied if there is a certain ending date even if...
...the beginning is conditional on some happening.
As long is there is a fixed ending date, a term for years can be ended by...
...the happening of a condition subsequent (e.g. failure to pay rent).
After 1677, any lease exceeding three years from the making of the agreement had to be...

Why?
...in writing.

Statute of Frauds.
In modern law, leases don't need to be in writing, even if...
...they start some time after the making of the agreement.
A lease may be enforced in equity even if...
...it fails under the Statute of Frauds.
Under the URLTA, accepting rent from T...
...may create a lease for one year.
Under the English rule, L must deliver...
...legal and actual possession.
Justifications for the English rule:
L is in better position to know what T will do.
L has experience with ejecting Ts or should.
Burdening T with risk might result in T needing to sign two leases.
If, in English rule jurisdiction, T is delayed in getting to leased property, and on a date before T arrives but after the lease begins, X, a trespasser, enters possession...
...L is not obligated to get rid of X.
The American rule of delivering possession:
L need only deliver legal right to possession.
The same instrument could arguably in some cases create a _____, a _______, or an ________.
Lease, license or easement.
A license is..
...a revocable privilege to do something on another's land.
An easement is...
...an irrevocable interest in the land of another to limited use thereof.
A buyer is on inquiry notice as to visible _________.
easements.
A periodic tenancy is one that...

Notice of termination must be...
(But at common law...
...recurs for successive periods.

...equivalent to the period.
...no more than six months' notice was necessary.)
Tenancy at will is terminable...
...by T or L, with no notice.
Where the duration of a tenancy is not expressed, but the tenant pays on a periodic basis...
...most states will infer a periodic tenancy.
In most states, tenancies at will...
...have been abrogated or converted to periodic month-to-month.
Tenancy at sufferance is where...

For notice, L can...
...T holds over in possession wrongfully

...treat T as a periodic tenant or a trespasser (where suing is notice).
In a tenancy at sufferance, the T is not liable for trespass...
...until after entry by L.
In a statutory tenancy...
...T can leave at will, L must follow procedures of notice, and in some cases cannot terminate.
Eviction results in one of two things:
1) the T not being required to pay, or 2) the T having a right of action.
If a commercial tenant waits until after the first day of the lease to take possession, there might be problems for several reasons:
1) foot traffic may be important;
2) the rent may be tied to a percentage of sales;
3) vacant premises are at a much higher risk of vandalism and things like water and electrical damage.
A commercial tenant's delaying moving in by a few days will probably...
...not be unreasonable.
Implied warranty of suitability is...

Where there is a breach of this warranty...
...basically an implied warranty of habitability, but for commercial tenants.

...commercial tenants, as residents, don't need to move out.
At common law, if L leased T property to use as a bar, and then sale of alcohol became illegal, T could get out of lease...
...if he could not use the premises for anything else. If he could, he could not get out of lease.
At common law, if a rental property was destroyed by some casualty...
...T could not get out of paying rent. Was seen as a conveyance of land; even if structure destroyed by fire, T still had the land.
In modern law, if a rental property is destroyed by some casualty...
...T can get out of paying rent.
At common law, if L leased to T a plot of land to be used for construction, and it turned out the land was boggy and unusable for that purpose...
...T was still stuck with the land.
At common law, if T stopped paying rent...
...L could not evict. These were seen as independent covenants.
Contours of the covenant of quiet enjoyment:
neither L nor anyone with title superior to or derivative from L will interfere with T's use and enjoyment of property.
Under the covenant of quiet enjoyment, T cannot get out of lease K simply because...
...there is someone with a superior title that that person could exercise. T can only get out if someone does exercise that right.
If L changes locks and T cannot enter apt, this is both...
...a breach of the covenant of quiet enjoyment and an actual eviction.
If L accidentally destroys a part of T's leased property, this is a breach...
...of the covenant of quiet enjoyment.
A provision against animals in property is trumped...
...by ADA.
There may be a provision in lease terms regarding rules...
...imposed after the signing of the lease. These can be valid.
What is the difference between an assignment and a sublet?
An assignment is T's conveyance of his entire interest. A sublet is a conveyance of less than T's entire interest.
(L = landlord; T = tenant; A = assignee) In an assignment, _ has right to rent.
L
(L = landlord; T = tenant; A = assignee) In an assignment, _ can sue _ or _ for rent.
L, A or T
(L = landlord; T = tenant; A = assignee) If L sues T for rent, later...
...T can sue A for rent. Also T can bring A into original suit.
(L = landlord; T = tenant; A = assignee) In assignment, _ should have obligation to pay rent, as he has benefit of possession.
A
(L = landlord; T = tenant; A = assignee) In an assignment, _ has a primary obligation to pay rent, _ has a secondary obligation. _ is surety or guarantor of _.
1) A
2) T
3) T
4) A
(L = original landlord; T = tenant; L1 = new landlord) Where L has sold property to L1, _ and _ are in privity of estate, but not privity of K.
1) L1
2) T
(L = original landlord; T = tenant; L1 = new landlord) Where L has sold property to L1, _ and _ are in privity of K.
1) L
2) T
(L = original landlord; T = tenant; L1 = new landlord) Where L has sold property to L1, and the lease provides that L must make repairs, _ can sue _ for repairs. If promise runs with the land, _ can sue _ for repairs.
1) T
2) L
3) T
4) L1
(L = original landlord; T = tenant; L1 = new landlord) Where L has sold property to L1, under the URLTA...
...L and T are not in privity of K.
(L = original landlord; T = tenant; L1 = new landlord; A = assignee) Where L has sold property to L1, _ and _ are in privity of estate.
1) L1
2) A
In assigning, sometimes T must get...
...L's consent.
In a sublet, T has...
...a reversion.
Two methods of actual eviction:
1) Common law ejectment.

2) Summary proceedings, forceful entry and detainer acts.
Common law ejectment could take...
...up to four years; probably not less than 9 months.
Summary proceedings, forceful entry and detainer acts are...
...an alternative to common law ejectment, purpose of which is to provide L with expedited procedure for evicting T.
Summary proceedings, forceful entry and detainer acts are sometimes only available...
...for nonpayment of rent, other times for wrongful possession. Depends on local statute.
Under some statutes only _ can use summary proceedings, not a _ whose place is wrongfully occupied.
1) L

2) T
In constructive eviction, L either...
...does something he is not supposed to do, or does not do something he is supposed to do.
Four elements of constructive eviction defense:
1) L must wrongfully perform some duty that he was supposed to perform

2) As a result of L's action, there has to be a substantial interference with T's use and enjoyment of the premises (factual issue)

3) T must notify L of problem, and give L reasonable opportunity to correct it

4) If after such notice L fails to remedy, T must vacate within a reasonable time.
Where within a certain time, sometimes set by statute, after T has, for example, made a valid complaint against L...
...T can use retaliatory eviction defense against L's attempt to evict T.
Actions for which L might be found to be retaliating:
T winning a suit for nonpayment of rent because of housing code violations; T making threats to report such violations.
Retaliatory actions other than attempted actual eviction that are also defended against by retaliatory eviction defense:
1) Wrongful increase in rent

2) Interference with utilities
Three ways L might avoid retaliatory eviction defense:
1) Bring building up to code

2) Wait out statutory period

3) Split company into multiple corps, have one manage profitable RE, others not, so L can claim insolvency.
If L breaches implied warranty of habitability, he will not be able to...
...sue successfully for nonpayment of rent.
If L breaches implied warranty of habitability, T does not need...
...to move out, as in a constructive eviction defense, to defend against L's suit for nonpayment of rent.
If L breaches implied warranty of habitability, he might be able to bring a suit for...
...the FRV of the property.
The elements of implied warranty of habitability defense are the same as...
except for...
...those for constructive eviction;
...the fourth element—that T must move out.
Four possibilities for remedies re nonfreehold estates (DDRRSW: Dominic Deasy reads Rasmussen in a spider web):
1) Damages
2) % diminution in value
3) Repair & deduct
4) Rent sequestration
5) Specific performance
6) Withholding rent
(L-T) Damages are not always a good remedy because...
...they are highly conjectural, and expert testimony is expensive.
(L-T) Usual calculation of damages:
PR - FRV
(L-T) IA calculation of damages:
If the tenant stays: AW - AI.

If T moves out: AW - PR.
(L-T) % diminution in value damages:

1) Inaccessibility of entire apt.:

2) Inaccessibility of bedroom:
1) 100% diminution in value.

2) Maybe 30-50% diminution in value.
(L-T) In repair and deduct damages, there is a maximum...
...amount T can spend on repairs, prob. capped @ 1 month's rent.
(L-T) Repair and deduct damages are often not...
...a viable remedy. Think broken furnace in Chicago apt.
(L-T) Repair & deduct:

L might be concerned...

T must give L...
...that T might not complete work in workmanlike manner.

...reasonable notice.
(L-T) Rent sequestration:
Ts deposit rent into an account against which courts order L to repair.
A tenant who leaves before the end of the lease is in...
...abandonment.
Accepting surrender:
When L accepts T's abandonment of apartment.
At common law, does L have a duty to mitigate after abandonment?
No, because covenants were independent.
Modern law: does L have a duty to mitigate after abandonment?
Increasingly yes.
In the URLTA, L will be treated as if he had...
mitigated.
In a state where there is no duty to mitigate, L runs the risk...
...of being treated as if he had accepted surrender by mitigating.
Re-letting for less than T's rent is not...
...acceptance of surrender.
Methods of abandonment:
1) Failing to pay rent and leaving stuff behind;

2) Giving notice to L that you're leaving;

3) Not paying rent and mailing keys to L.
At common law, if you leave something in your apartment and return to get it...
...you are trespassing.
What might be a reasonable time to store stuff in an apartment for a tenant who has forgotten that stuff?
5 days.
Common law remedies against holdovers:
L could treat as trespasser and sue for ejectment; alternatively, could treat as periodic or year-to-year T, with terms of tenancy being that of previous tenancy.
Modern remedies against holdovers:
in a number of states, can still treat as trespasser, and can treat as month-to-month tenant.
Default rules against holdovers can be changed by...
...lease agreement.
T might be allowed to hold over if...
...not doing so would result in someone's death (sick family member).
(AP) Acts of dominion or control should correspond to...
...how a reasonable owner of similar land might use the property.
An adverse possessor has title as against all the world but...
...the rightful owner.
Typical times for a SOL for AP:
5, 10, 15, or 20 years.
COA for AP typically begins to run...
...at the entry of the AdvP.
After the SOL runs, AdvP's title...
...is as good as one conveyed by deed.
An AdvP's title is not public record until...
....a court's judgment is entered on public records.
Once title by the AdvP is acquired, TO cannot sue for...
...damages to the land starting at time of entry by AdvP.
Standard of proof for AP:
preponderance of the evidence (or "clear and positive evidence")
AdvP of surface does not acquire...
...sub-surface rights.
(AP) A reversioner or remainderman does not have...
...COA vs. AdvP.
(AP) Disability must be present...
...at the time the COA against AP accrues.
(AP) AdvP's right is not affected by a ___________ or ___________ disability.
1) intervening

2) superseding
(AP) If the owner has 2+ disabilities, he may...
...take advantage of the longest lasting (for tolling).
(AP) Three examples of disabilities:
1) minority

2) legal incompetence

3) imprisonment
(AP) After death of the person with disability, personal representative of estate is granted...
...a fixed period of time to bring the COA.
(AP) (Rightful possession): If possessor openly disclaims or repudiates title or rights of other parties and either 1) they know of it, or 2) such is implied by law...
...the title vests after the statutory period.
Period of AP can be tacked from one AdvP to another if...
...they are in privity with one another.
(AP) Period of COA can be tacked from one TO to another TO if possessors are...
...in privity with each other.
Privity is possession passed by _____, ____, _______, written or oral _, mere ____ _______, or __________.
1) deed
2) will
3) descent
4) written or oral K
5) mere oral consent
6) permission
_____ ________ is insufficient for tacking periods of constructive AP where color of title is required.
Parol transfer.
(AP) Open, visible and notorious (two things):
1) not secret or clandestine;

2) standard: as an owner would occupy for all the world to see.
(AP) Exclusive:
Sole physical occupancy or physical occupancy by another with AP's permission.
(AP) Continuous and peaceable (three things):
1) unbroken continuity of possession for the statutory period;

2) without abatement, abandonment, or suspension in occupancy;

3) without interruption by physical eviction or court action.
Doctrine of annexation:
improvements made to RE by wrongdoer belong to RE owner.
Doctrine of expansion:
if improvements were made under mistaken belief of ownership, RE owner may have to pay for improvements.
(AP) A thief generally cannot acquire or transfer...

...even to a...
...title to stolen property...

...BFP.
Title to personal property can be lost by...
....adverse possession.
Statute for COA for title to personal property usually runs...
...2-6 years.
Modern rule for COA for AP of personalty:
begins to run when TO discovers or should discover their whereabouts.
Common law rule for COA for AP of personalty:
begins to run when five elements are met, not when goods are stolen or TO discovers their location.
"and his heirs"
FSA
"so long as...while...during"
FSD
"provided that...on condition...but if"
FSCSub
"and the heirs of his body"
FT
"for life"
LE
"for ____ years/months/&c."
Term for years
"at will"
Tenancy at will
"month to month"
Periodic tenancy
______ governs, in construction of a document.
Intent
Four-corners doctrine:
every aspect of a document should be given meaning.
Contra proferentum
Doc. construed against drafter.
Where could be FSA or FSD...
...preference for FSA.
Three legs of the stool:
1) alienability;

2) descendibility;

3) devisability.
FSCSub
FS estate, can be terminated by happening of Csub.
Like FSD, but does not automatically terminate.
Before birth of issue, FSC terminates...
...at grantee's death.
Is a conveyance to B for the lives of B, C, D and E a valid conveyance?
Yes.
At common law, if a conveyance identified the grantee but failed to describe the estate...
...grantee took a LE.
At common law, was a right of entry for condition broken alienable?
No, not at common law.
O d B for life, and if C pays B $100 before B's death, then to C and his heirs. What does O have?
Reversion subject to complete divestment.
O d B for life, and two years after B's death, to C and his heirs. What does O have?
Reversion subject to complete divestment.
O retains a reversion when he conveys...
...an LE, FT or non-freehold estate.
Prior to 1285, if O conveyed away an FSC, O retained...
...possibility of reverter.
(i) O d B and his heirs while the buildings are kept in good order and repair. What does O have? B?
(i)
1) POR

2) FSD
(ii) O d X Corporation so long as BA is used for school purposes. What does O have? X Corp.?
(ii)
1) POR

2) FSD
(iii) O d B and his heirs so long as BA is used for courthouse purposes. What does O have? B?
(iii)
1) POR

2) FSD
O d B for life during the time B personally lives on the property. What does O have?
1) Reversion, with POR "as an incident."
(i) O d B for 20 years so long as B continues to support me with food and shelter. What does O have?
(i)
Reversion and POR.
(ii) O has a 10 yr estate. Conveys B for life or until liquors sold on the premises. What does O have?
(ii)
Reversion and POR.
Is a POR subject to RAP?
No.
At common law, for a POT, grantor had to...

Now...
...actually enter.

...a court action suffices.
At common law, a POT alone without reversion was not...
...alienable or transferrable by deed.
At common law, a POT standing alone was...
...descendible.
Is a POT subject to RAP? Why?
No. Viewed as vested from moment of creation.
O d B and his heirs, but if liquor is served on the premises, O reserves right to enter and terminate the estate. What do O and B have?
B has a FSCSub;
O has POT.
(ii) O d B for life, provided that if liquor is served on the premises then I or my heirs may have the right to reenter. What does O have?
O has reversion and POT.
O d B for 10 years, on the express condition that if liquor is sold on the premises or B does not pay rent, O may take back the premises. What does O have?
O has reversion with POT, which can be exercised in case of breach of either of two conditions.
Are vested remainder subject to the RAP?
No.
Alienability of a contingent remainder at common law:
not alienable.
Is a contingent remainder subject to RAP?
Yes.
O d B for life, then to C and her heirs. C's interest.
C has an indefeasibly vested remainder.
O d B and the heirs of his body, remainder to D and her heirs. D's interest.
D has an indefeasibly vested remainder.
For a vested remainder subject to open, there must be at least...
...one living member, not subject to a condition precedent.
1500: O enfeoff B and his heirs to the use of C and his heirs three years after this feoffment. What do B and C have.
B: FSA subject to C's equitable LE.
C: equitable LE which equity would enforce in 3 yrs.
1500: O enfeoff B and his heirs to the use of C for life but if C becomes bankrupt, to the use of D for life.
C has equitable LE subject to a shifting use which equity would enforce in D's favor if C became bankrupt.
Executory interests are all _________, ___________ and _________.
1) alienable
2) descendible
3) devisable
O d B and his heirs three years from now. What do O and B have?
O has a FS subject to springing executory interest;
B has a springing executory interest.
O d B for life and one year after B's death, to C for life.
What does O have?
Reversion in fee simple subject to springing executory interest.
(Common law and majority of jurisdictions) A contingent remainder conditioned on an event other than survivorship is not...
...impliedly conditioned on survivorship.
If LE prematurely terminates, vested remainder can...
...accelerate.
Are vested and contingent remainders inheritable?
Yes, in most jx, unless the contingency is such that the interest terminates at the death of the remainderman.
At common law, neither vested remainders no executory interests were...
...destructible.
(Shelley) O d A for life, remainder to A's heirs.
A takes FSA
O to T in active trust for B for B's life and thereafter in active trust for B's heirs.
Shelley's case: B has equitable FS.
An intervening LE between an LE and remainder in B does not prevent...

But does mean that...
Shelley's case from operating.

DOM does not apply.
Rule in Shelley's case in modern US:
Abolished.
Exception to DOWT:
If "heirs" is used to mean "children."

For this to apply, heirs must take at grantor's death.
Modern conception of DOWT in most jx:
Rule of construction.
(Modern) Presumption in rules of construction that favors this doctrine.
DOWT
CL: O d B for life, then to the heirs of O.
B has LE, O reversion. O's heirs nothing.
Charitable trusts are not subject to...
...RAP.
If contingent remainder could fail to vest within the RAP period...
...it is valid. Does not need to be certain to vest.
RAP period is 21 and...
...a period of gestation.
Words to create JT:
"to A & B and their heirs as joint tenants with the right of survivorship and not as tenants in common."
A co-tenant can ________ but not ______ his interest.
1) alienate

2) devise
When a JT is severed, it becomes...
...a TIC.
Words to create a tenancy by the entirety (TBE):
"to H and W and their heirs."
The 5th unity of TBE:
Marriage.
In TBE, each spouse owns...
...the whole estate, not a fractional part.
In TBE, the interest of a spouse is not...
...reachable by the other's creditors.
In TBE, neither spouse...
...has the right to partition or unilaterally destroy.
In a minority of jurisdictions, the husband in a TBE...

W has no...

H can convey his interest subject to W predeceasing him, but W...
...has sole right to possession during joint lives

...present estate

...cannot convey the same.
After divorce, TBE converts...
...to TIC. In some states, to joint tenancy.
Tenancy in common is _________, ___________, and _________.
1) alienable,

2) descendible,

3) devisable.
In TIC, neither tenant owns...
...the whole.
License differs from lease in that in the former...
...possession remains in L, and licensee merely has privilege of being on land.
In a term for years, the tenant's interest is ___________ on death.
inheritable.
"A to B as long as A wishes."
Tenancy at will.
Dangerous conditions on leased premises at common law:
L not liable.
Modern trend is to view lease as a _ and not as a __________.
K

conveyance
For breach of imp. warranty of habitability, defect...
...must render premises unsafe, unsanitary or unfit.
Generally, L has no duty to protect T from...
...intentional torts, criminal activity.
With security deposit, L may be required not to...
...commingle funds.
Between L and T, there is always...
...privity of estate.
Three elements for a covenant running with the land:
1) covenant
2) intention that it run with the land
3) covenant touches and concerns the land.
An assignee of a covenant running with the land is liable only for...
...breaches that occur while she owns the estate in the land.
In a minority of jx, if T holds over, L can...
...double his rent.
A marketable title is one that...
...is not likely to result in litigation.
The deed supersedes...
...the contract.
Delivery of deed to one grantee is...
...delivery to all.
The closing date is not...
...an essential term of the K.
The closing date is assumed to be...
...a reasonable time, if not specified.
Two types of problems that can come up at closing:
1) title problem

2) quality problem.
Nondisclosure of a condition that materially impairs the value and is unlikely to be discovered by a prudent purchaser...
...is a basis for rescission.
Even with a quitclaim deed, the title...
...must be marketable.
O, who does not own Blackacre, conveys it to A and his heirs by deed. Two years later, O1, TO of Blackacre, deeds to O and his heirs.
Deed shoots through to A.
Contrary to title insurance co.'s, abstract co.'s are not...
large companies.
Marketable Title Acts:
root of the title is moved back 30 years from the date of closing.
(Marketable Title Acts) If anyone more than 30 years back wants to make sure their claim is not extinguished...
...they should rerecord that claim.
Six covenants of a full warranty deed (Solomon Poses EQuations With Francis):
1) Covenant of Seisin
2) Power to convey
3) Covenant against encumbrances
4) Covenant of quiet enjoyment
5) Covenant of warranty
6) Covenant of further assurances
Covenant of seisin:
a warrant or covenant that the seller has the interest that the seller is purporting to convey to the buyer.
(Covenant) Power to convey:
here the grantor warrants that the grantor has a legal right to convey that which is being conveyed by the deed.
Covenant against encumbrances:
grantor warrants that the property being conveyed is not subject to encumbrances other than those set forth in the deed. Must be an encumbrance in existence on the date of delivery of the deed.
Covenant of warranty
Essentially the same as covenant of quiet enjoyment.
Covenant of further assurances
grantor warrants that the grantor going forward will execute any documents in the future necessary to perfect title.
Deed can be delivered to the grantee's...
lawyer.
Merger "rule":
all promises made in K relating to title of property are merged into the deed and the deed's acceptance is the acknowledgement that the covenant has been met.
Merger rule applies only to covenants...
...regarding title and not quality.
In an ___________ _____ ________, seller will agree to take purchase price over an extended period of time. Meanwhile S keeps the deed.
installment sales contract.
Two most important documents for the bank in a mortgage:
Note and mortgage.
In a _____ ____ ________, the interest rate never changes.
Fixed rate mortgage.
In a ________ ____ ________, a rate for a number of years is given, and then it changes to a different rate for a different number of years.
Variable rate mortgage.
A bridge loan is one secured by...

in addition to...
...a mortgage on the house B currently owns.

...a mortgage on the house he's buying.
Who bears the risk of destruction of the property in the executory period at common law?
Buyer.
Who bears the risk of destruction of the property in the executory period at modern law?
Risk on S, +jx.
If seller fails to deliver a good title without cause, buyer...
...may be awarded loss of bargain damages.
"Pure" race jurisdiction:
No conveyance or instrument is valid as against third parties until it has been recorded.

Race to the courthouse.
Race-notice jx:
An unrecorded conveyance or other instrument is invalid as against a subsequent BFP, creditor or mortgagee for value with notice who first records.
Notice jurisdiction:
An unrecorded conveyance or other instrument is invalid as against a subsequent BFP without notice of the conveyance.
(Notice) O d A and his heirs. A records. O d B and his heirs.
Who owns?
A.
(Notice) O d A and his heirs. No one records. O d B and his heirs and B is BFP.
Property goes to B.
Record notice:
Everyone has notice of what is on public land records.
Inquiry notice:
anything that you should have known had you asked.
Actual notice:
is what it sounds like.