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141 Cards in this Set

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  • Back
How do you create a fee simple?
To A and his heirs; or
To A.
A fee simple absolute creates _____ _____, which is freely ________, ______, and ________.
What future interest does it create?
devisable, descendable, and alienable

To A and his heirs...
A is alive...who are his heirs?
A has NO heirs! Not while A is alive, even if he has a billion kids.
The fee tail is created by...
To A and the heirs of his body...
blood descendents only

Today, if you attempt to create a fee tail you have created a fee simple absolute.
Historically, for the fee tail, what is the accompanying future interest?q
In O the grantor, it is called a REVERSION and if in someone other than O, it was called a remainder.
What are the 3 defeasible fees?q
The fee simple determinable: To A so long as...To A during..., to A until...
The fee simple subject to the condition subsequent:
To A, BUT IF...and right to reenter and take
The fee simple subject to an executry Limitation:
To A, but if X event occurs, THEN TO B.
To create a fee simple Determinable, the grantor must _____________.
Use clear durational language

If the condition is violated, the forfeiture is AUTOMATIC.
The fee simple determinable (To A so long as or during or until) is _______,_____, ____.
devisable, descendable and alienable.
You can't always get what you want.
What is the accompanying future interest for a fee simple determinable?
the possibility of reverter.

Frank Sinatra Didn't prefer oriville redenbacher
Fee simple determinable possibility of reverter
In a FS subject to a condition precedent, the grantor must use ___________, and __________
clear durational language and must carve out the right to re-enter.
"To a, but if X event occurs, grantor reserves the right to reenter and take."
What is the accompanying future interest of a FS subject to a condition subsequent?
right of reentry, synonymous with a power of termination.
How to create a FS subject to an executory limitation?
To A, but if X event occurs, then to B.
It creates the FS subject to exec limitation in A and a shifting executory interest in B.
If the FS subject to a executory limitation condition is broken, _________
the estate is AUTOMATICALLY forfeited.
What two rules to remember in defeasible fees?
1. words of mere desire, hope or intention wont do it
"for the purpsoe of" "hope that" "expectation"
2. absolute restraints on alienation are void.
A restraint on alienation is void
eg: to a so long as she never attempts to sell.
What do A and O have?
A: FS absolute
A life estate must be ______.
in life terms and not in terms of years.
The future interest of a life estate?
a REVERSION. NOT a reverter (thats for FS determinables)
If a conveyance uses YEARS its a __________.
leasehold interest.
A life estate measured by a life other than the grantee is a ______.
life estate pur autre vie

It is accompanied also by reversion.
What must a life tenant NOT do?

But they are entitled to all ordinary profits from the land.
When may a life tenant commit voluntary waste?
Prior use
To make reasonable repairs
When expressly Granted the right to do so
When the land is suitable only for exploitation.
What is permissive waste?
The life tenant must simply keep the premises in good repair.
If the life tenant fails to reasonably protect the land, that is neglect, permissive waste
A life tenant must pay all ordinary taxes on income or profit from the land, but if there is no profit then oridnary taxes to the extent of ___________.
fair rental value (?)
What is ameliorative waste?
Acts which enhance the property value. Its not OK unless all the future interest holders are KNOWN and CONSENT.
What are the three future interests capable of creation in the grantor?
1. possibility of reverter (FS determinable)
2. right of entry (FS subject to a condition subsequent "but if..grantor reserves the right..."
3. Reversion..
What is a reversion?
A future interest which is the result of grantor's tranfer of an estate of lesser quantum than their own. LE for eg.
What are the future interests in TRANSFEREES?
1. vested remainder:indefeasibly, subject to complete defeasance, subject to open
2. contingent remainder
3. executory interest: shifting and springing
Executory interests are ______.
Sinister. apparently
What is a remainder?
A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the SAME CONVEYANCE in which the remainder is created.
The remainderman always accompanies a preceding estate of ______, usually a ______, or ______.
Known fixed duration,
Life estate,
term of years.
When is a remainder vested?
when it is both created in an ascertained person and not subject to any condition precedent.
When is a remainder contingent?
When it is created in an unascertained person, OR is subject to a condition precedent or both
To A for life, then to B's heirs. B is alive. What do B's kids have?
B is alive and so a living person can have no heirs.
To A for life and then to B if B graduates from College. B graduates, A is still alive...B has...
An indefeasibly vested remainder.
When, at common law was a contingent remainder destroyed?
When it remained contingent when the preceding estate ended. Instead, there would be reversion.
Today the Destructibility Rule of contingent remainders has been ...
abolished. The reversioner (grantor) would hold the estate until the condition is met and the springing executory interest had sprung.
What the hell is the Rule in Shelley's case?
the merging of present and future interests when creating a conveyance "to A for life, then to A's heirs."
Since the rule in Shelley's case is abolished, what result in modern times of
To A for life and then to A's heirs?
A: life estate
A's heirs: contingent remainder
O: reversion
The doctrine of worthier title is:
To A for life, then to O's heirs --> the O's heirs part is VOID and A has a life estate with a reversion in O.
Doctrine of Worthier Title is a rule of construction, not a rule of law...SO, grantor's INTENT controls...if the grantor clearly intends to create a contingent remainder in his heirs, that is controlling.
An indefeasibly vested remainder is one...
with no strings attached. (conditions)
To A for life and then to B.
B has an indefeasibly vested remainder. What if B dies before A...
B's future interest passes to his heirs by intestacy or will.
When is a vested remainder subject to complete defeasance or total divestment?
When it is subject to a condition SUBSEQUENT.
Remember the ridiculously tricky comma rule to tell condition precedents apart from condition subsequents
A condition precedent creates a :
A condition subsequent creates a:
1. cntingent remainder
2. vested remainder subject to complete defeasance. (comma rule)
What is the comma rule:
That language set off by commas, if taken alone would create a vested remainder, FOLLOWED by conditional language...creates a vested remainder subject to compete defeasance.
What is a vested remainder subject to open?
where there is a group of takers at least one of whom is qualified to take possession,whose exact limits are not known.
When can a CLASS close under the law applying vested remainders subject to open?
When any member cna demand possession.
To A for life then to B's children...
B has two kids...
What is the state of the future interests and when does the class close?
1. vested remainder subject to open
2. On B's death (no more kids)
3. ON A's death, one kid can now demand possession which closes the class.
If D is in the womb when the class closes, is D in the class?
What is an executory interest?
A future interest in a 3rd party which isnot a remainder but which cuts short some interest in another person (shifting) or inthe grantor or his heirs (springing)...
A shifting executory interest always follows a _________ and cuts short someone other than the ________ or his _______
defeasible fee (fee simple determinable, FS subject CP or FS subject to an Exec Limitation)
To what does the Rule Against Poopituites apply?
ONLY to contingent remainders. If you see one, think RAP
What is the RAP?
A Rule against holding land indefinately which says that if there is a possibility that the interest might not vest within 21 years of a measuring life, the conveyance is invalid.
Since the rule in Shelley's case is abolished, what result in modern times of
To A for life and then to A's heirs?
A: life estate
A's heirs: contingent remainder
O: reversion
The doctrine of worthier title is:
To A for life, then to O's heirs --> the O's heirs part is VOID and A has a life estate with a reversion in O.
Doctrine of Worthier Title is a rule of construction, not a rule of law...SO, grantor's INTENT controls...if the grantor clearly intends to create a contingent remainder in his heirs, that is controlling.
An indefeasibly vested remainder is one...
with no strings attached. (conditions)
To A for life and then to B.
B has an indefeasibly vested remainder. What if B dies before A...
B's future interest passes to his heirs by intestacy or will.
When is a vested remainder subject to complete defeasance or total divestment?
When it is subject to a condition SUBSEQUENT.
Remember the ridiculously tricky comma rule to tell condition precedents apart from condition subsequents
What is the USRAP?
It is a statute codifying the RAP and providing an alternative 90 year period to vest
What does the RAP do?
It voids any conveyance language which creates a future interest that is not capable of being vesting within 21 years after the completion of a measuring life.
If the language doesn't make sense after the strking the bad language (like "but if..." and then nothing...) then the condition goes away comletely and there is a fee simple absolute.
To A for life and then to such of A's kids that reach 30. A has two kids, C and D who are 33. A is 80.
violates RAP b/c A can have another kid, die and that interest won't vest in 21 years. Bad as to one, bad as to all.
What NEVER violates the RAP?
A gift from one charity to another.
As tenants in common entitled to possess and enjoy the whole, regardless of the amount each paid?
NO. To attempt to do so is wrongful ouster.
Can a cotenant in exclusive possession as tenants in common be charged rent by the non habitating cotenant?
NO. Not in tenancy in common. Absent ouster the cotenants are not liable to the others for rent.
If a cotenant leases the basement to a thrid party---?
They must account to his cotenant for the cotenants fair portion...
This might be 10% or 50% or whatever, it might depend on the SHARE, where equal possession and enjoyment does not.
Can a cotenant adversely posses another cotenant lands while their gone? hostility element because there was never any ouster.
Are co-tenants equally responsible for carrying costs?
NO, the costs are divided according to their fair share of the property.
(carrying costs are mortgages and taxes)
They are paid according to the undvidied share that each owns (90%, 10%)
Cotenant must make a repair must the other cotenant contribute?
Yes...they have a right to contribution for reasonable and necessary repairs provided that she has notified the others of the need for the repairs.

The right to contribute is based on the individual share...Marcia 90% and Greg 10%.
the "improvement" must be reasonable, not just anything.
What happens if a cotenant commits waste?
A cotenant can bring an action for waste during the life of the cotenancy ...don't have to wait for partition.
Who can bring an action for partition?
Any of the cotenants at any time.
Describe the tenancy for years...
A leasehold for a fixed period of time...
could be a day or many years.
Do you need notice to termiate a leasehold of tenancy of years?
NO. A term of years you will know the termination date from the start.
What must a tenancy of years leasehold be?
IN WRITING, b/c of the SOF.
What is a periodic tenancy?
One which continues for successive periods...

It continues until L or T give proper notice of termination.

To T from month to month, week to week, etc. this is periodic tenancy created expressly.
How is a periodic tenancy created impliedly?
when the examiners say "rent is due at set intervals, or the tenant pay rent each month.
2. ORAL terms of years in violation of the statute of frauds measured by the way RENT is tendered.
3.The holdover: If L elects to holdover a T who has overstayed an implied periodic way of rent is NOW tendered. (cashed your rent check for eg)
How do you terminate a periodic tenancy?
Notice, usually written must be given.
The notice must be at least equal to the length of the period itself UNLESS otherwise agreed...UNLESS the period is a year or MORE and then only six months.
When MUST a periodic tenancy end? (date)
At the conclusion of a natural lease period. For eg, if its month to month, it cant end on the 15th of a month.
The tenancy at will is for ______.
no fixed period of duration.
To T for as long as L or T desires.
Unless the parties expressly agree to a tenancy at will, the payment of rent will cause a court to treat the tenancy as ______.
an implied periodic tenancy.
When can a tenancy at will be terminated and how?
By any party at any time...but remember that a reasonable time period to vacate is required.
A tenancy at sufferance is created when...
when T has wrongfully held over. It lasts until L either evicts or holds T to a new tenancy.
When is a T liable to 3rd parties?
When third parties are invited and get injured for an unreasonable disrepair.
EVEN if the L has expressly agreed to do all repairs! T will be liable and lose a suit! The L could and should seek indemnification from L, but nevertheless...
When the lease is silent as to who repairs, __________
T must maintain the premises and make ordinary repairs and NOT commit waste.
What is the law of fixtures?
Tenants cannot remove fixtures (movable chattel that by virture of annexatoin to realty ...OBJECTIVELY show the intent to permanently improve the realty) EVEN if she installed it. Fixtures: heating system, storm windows, furnace, certain lighting...
How can you tell if an installation is a fixture?
1. Express agreement controls
binds T and L on the matter.
2. absent an express agreement, T may remove a chattel she has installed so long as removal doesn't cause substantial harm to the premises.
If removal will cause substantial damage in OBJECTIVE judgment, T has shown intent to install a fixture. It stays.
T and L expressly agree that T will maintain the premises for the duration. A hurricane rips the roof off. Who liable at common law? Today in majority?
Common law: T
Majority: T is off the hook, T may terminate if the premises are destroyed w/o T's fault.
T doesn't pay rent? L's options?
Evict throught the courts (still get rent), or continue the relationship and sue for rents due.
What is self help on an L's viewpoint?
To change the locks or remove the T or his property. Not paying rent for eg...

Its punishable BOTH civilly and criminally!!
What if T wrongfully vacates on a term of YEARS lease? What are L's options?
S: surrender -- treat T's abandonment as implicit offer of surrender which L accepts.
I: Ignore the abandonment and hold T responsible for unpaid rent as T were still there. MINORITY
R: relet and hold T liable for deficiency MUST TRY to relet and mitigate.
If a T desires to SURRENDER a term greater than one year...
What should you think?
SOF --> must be in writing.
What is the L's duty to deliver possession under the majority or English rule?
L put T in actual physical possession of the premises. If a prior holdover is there, BREACH and T is entitled to damages?
What is the implied covenant of quiet enjoyment and when does it arise?
right to quiet use and enjoyment of the premises
by wrongful eviction or when the L has excluded the tenatn from the premises.

It is applicable to BOTH residential and commercial leases...
UNLIKE implied warranty of habitability.
What is constructive eviction and what are the three elements that must be met?
S: Substantial Interference attributable to L's actions or failure to act..ever time it rains gets in bed
N: Notice -- T tells L and L fails to respond meaningfully.
G: Goodbye or Get out. T must vacate w/in a reasonable time after L fails to fix the problem.
Is a landlord liable for the acts of other tenants?
NO, but L has a duty not to permit a nuisance on the premises AND L must control all common areas.
What is the implied warranty of habitability? ON MBE..
It applies only to RESDENTIAL leases. It is non-waivable.
The standard is the premises must be fit for basic human habitation...BARE LIVING REQUIREMENT must be met. the standard may be met by local housing code OR legal judicial conclusion...
What are some violations of the implied warranty of habitability?
Lack of heat in winter, lack of running water, lack of plumbing...
What are a T's entitlements when the implied warranty of habitability is breached?
MR 3:
M: Move out and terminate the lease.
R: repair and deduct costs from future rent.
R: Reduce rent or withold rent until the court determines fair rental value...MUST typically put the rent into an escrow account.
R: remain in possession, pay rent and seek money damges.
What are some differences in T's entitlements b/w a breach of implied covenant of quiet enjoyment and an implied warranty of habitability?
Habitability (M R 3) the T could vacate, but doesnt HAVE TO. Unlike quiet enjoyment (SING)
If T whistle blows on L, L cannot evict, harrass, raise the rent, etc... what is this doctrine called?
The doctrine of retaliatory eviction.
What is the diff b/w an assignment and sublease?
An assignment is a transfer of interest in WHOLE and sublease is an assigment of interest IN PART.
Can L prohibit T from assignment or sublease? How?
Yes by prior WRITTEN approval.
If L consents to ONE transfer by T (assignment or sublease) L waives the right to object to future transfers by THAT T, unless __________.
L expressly reserves the right.
If there has been AN ASSIGNMENT, from T1 to T2, L and T2 are in __________. L and T1 are not in _________.
privity of estate; privity of estate.
if there has been an assignment from t1 to t2, L and t2 are/are not liable to each other for all of the covenants in the original lease which __________.
they ARE liable for all covenants which run with the land...such as to pay rent, to make repairs, to paint, etc. Most promises run with the land.
If there has been an assignment from t1 to t2 are L and t2 in privity of contract?
NO. UNLESS t2 EXPRESSLY assumed all promises in the original lease.
If there has been an assignment from t1 to t2, what is the state of liability b/w L and T1?
There are secondarilly liable to each other?

What does this mean? It means if T2 or t3 skips town or is insolvent, t1 is accountable.
If t1 assigns to t2, and t2 to t3 who fucks up the joint, can L proceed against t2?
NO. there is no privity of estate once t2 successfully assigned to t3 and there was NEVER privity of K here unless t2 had expressly assumed all promises int he original lease.
L leases to t1 who then subleases to t2. What is the relationship b/w L and t2?
NOTHING. they share no nexus. T2 is responsible to t1 and vice versa.
What is the common law approach to L liability?
Caveat Lessee: let the t beware:
There are six exceptions remembered by CLAPS.
What are the six exceptions to the harsh common law caveat lessee?
C: L must maintain Common areas
L: L must warn T of Latent defects which L knows or has reason to know about (not fix, just warn
A: Assumption of Repairs; no duty to make repairs, but if L does, he must do so w/ reasonable care and not negligently
P:Public Use Rule (rember the convention hall w/ the short term lease and serious defect
S: Short term lease of furnished dwelling: ski chalet
What is an easement?
A grant of a nonpossessory interest that entitles its holder to some form of use or enjoyment of another's land...which is called the servient tenement.
When is an easement affirmative?
When there is a right to go onto and do something on servient land.
When is an easement negative?
When its holder prevents the servient landowner from doing something that would otherwise be OK
There are generally 4 categories: Light, Air, Support, and Streamwater from an artificial flow
What is the ONLY way a negative easement may be created?
EXPRESSLY, by WRITING signed by the grantor!!
When is an easement appurtenant?
When is it in gross?
Appurtenant: there are TWO parcels of benefits its holder in his physical use of the land
In gross: ONLY servient land is burdened. NO other parcel. the advantage is pecuniary or personal. Fishing or swimming in pond, placing a billboard, lay power lines.
How does an appurtenant easement pass?
Automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance.
When does the burden of an easement appurtenant not pass with the servient estate?
When the new owner is a BFP and has no notice of the easement.
When is an easement in gross transferable?
When the easement is for commercial purposes. Otherwise, it IS NOT transferrable.
How do you CREATE an affirmative easement?
If an easement is created by grant, what should you remember to look for?
A writing...its a SOF issue. Deed of easement
How is an easement by implication created?
It is implied from existing use...
1. the previous use had been apparent
2. the parties expected the use would survive division b/c it is reasonably necessary to the dominant land's use and enjoyment.
How is an easement by prescription created?
By adverse possession basically.
continuous open and notorious actual use, hostile.

Permission by landowner DEFEATS prescription
What is the scope of the easement and how is it determined?
by the terms of the grant or the conditions creating it.
How do you terminate an easement?
END CRAMP: estoppel, Necessity, destruction of servient land condemnation of servient estate, written Release, Abandonment, Merger doctine (easement and title to servient land vested in same peson...its gone and must be recreated if later separation of lands), prescription
What is a LICENSE?
A privilege to enter a person's land for some delineated purpose.
They are not subject to the SOF and ARE FREELY REVOCABLE, unless ESTOPPEL applies.
TICKETS are licenses and can be revoked...
Neighbors talking by the fence...
nothing good can come of it. An oral agreement creates a freely recovable license.
When will estoppel apply to bar recovation of a license?
when substantial money, labor or both have been invested in reasonable reliance on the license's continuation.
What's a profit?
An agreement that allows the holder to enter servient land and take (minerals, timber, oil)
The profit shares all the rules of easements.
What is the difference b/w a covenant and an easement?
A covenant is not a property interest but a contractual interest. It is a contractual limitation of a promise regarding land.
What is an example of a negative or restrictive covenant?
Not to build for commercial purposes., paint the shutters brown, just about anything.
What are examples of an affirmative covenant?
Maintain a common fence, water common garden, repave shared drive (DO something as opposed to forbear from doing something)
How do tell the differece between a covenant and an equitable servitude?
Look to see what relief the P is seeking...if its injunctive, its an equitable servitude, if its monetary, its a covenant.
What is the first Q to ask in answering when a covenant will run with the land?
1. Does the BURDEN run? (its harder)
How do you answer the Q does the burden of a covenant run with the land?
WITHN: Writing, Intent, Touch and concern the land, Horizontal and vertical privity, and NOTICE.
When answering whether a burden runs with the land, what is horizontal and vertical privity?
H: refers to the relationship b/w the originally promising parties, A and B. They must be 1) in succession of estate (grantee, grantor OR landlord/tenant OR mortgagee/mortgagor)
V: A non-hostile nexus between A and NOT adverse possession.
For a covenant's burden to run w/ the land, must there be a writing? Notice?
YES and YES.
What acronym to remember when the benefit of a covenant runs with the land?
WITV: Writing, Intent, Touch and concern the land, Vertical privity.
What is an implied equitable servitude and how is it created?
Think of the many residentail lots with a covenant against business use that was left out of one...It involves the general or common scheme doctrine which has two elements: 1) subdivider had a general scheme of residential development which included D's lot and 2) D had NOTICE of the promise contained in the prior deeds.
What kinds of notice are sufficient to satisfy the second prong of the general or common scheme doctrine?
1. Actual notice: A had literal knowledge of the promises in the prior deeds.
2. Inquiry notice: "the lay of the land" conforms to the common restriction
3. R: record notice, SOMETIMES the notice is imputed on the basis of publicly recorded documents (but this may be too burdensome on the title searcher of the buyer).
What is an equitable servitude?
A promise that equity will enforce against successors. It is accompanied by injunctive relief.
How do create an equitable servitude that will bind successors?
Remember WITNES:
Writing (generally but not alwasy)
Intent (parties intended that the promise would be enforceable against successors)
Touch and concern the land (afffects parties as land owners)

What are the equitable defenses to enforcement of an equitable servitude?
Changed conditions: The changed conditions alleged by the party seeking to be released from an equitable servitude must be so pervasive, that the entire area has changed.
MERE POCKETS of change is never good enough.