Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/64

Click to flip

64 Cards in this Set

  • Front
  • Back
Remainder indefeasibly vested
a remainder that is certain to become possessory
ex. To A for life, and on A's death to B. A has a life estate; B has a indefeasibly vested remainder
Remainder subject to open
(Class Gift)
a vested remainder to a group for which others may qualify for membership after the transferring document becomes effective
Exampmle: Remainder subject to open
“To A for life, then to A’s sons.” A has one son. The son has a vested remainder subject to open, because A can have more sons.
Is a Remainder subject to open subject to the rule against perpetuities?
yes
What if a remainder subject to open fails because of the RAP
if it fails because of the rule, and one other than the transferor or its successors will take, then that third party's interest is a contingent remainder
Two types of Class Gifts
1) open
2) closed - when it is not possible for others to enter the class
Class Closing Rule
the class closes whenever any member of the class is entitled to immediate possession or enjoyment of the interest, if it has not already closed physiologically and there is no expression to the contrary
Vested Remainder Subject to total divestment
a vested remainder which the remainder persons might loose their right to immediate possesson due to the happening of a condition that might occur after the remainder is created and has become vested in interest
1) condition subsequent
2) executory interest cuts off remainder
3) right of entry
Example: Vested remainder subject to total divestment
“To A for life, then to B for life.” A has a life estate; B has a vested remainder in a life estate subject to total divestment. If B dies before A then his vested remainder will be totally divested
contingent remainder
a remainder in which the remainderperson does not havae a right to immediate possession upon the termination of the preceding estate, unless a condition stated in the transferring document occurs first
A remainder is contingent if:
1) it is created in favor of unborn or unidentifiable person and/or
2) subject to a condition precedent other than the expiration of all prior interests created by the same transfer
condition precedent
is an express condition in the instrument other than the termination of the preceding estate, which must occur before the remainder becomes possessory
Are contingent remainders alienable?
not at common law

yes, in some states today
How to determine if a remainder is contingent or vested?
1) look to the intent of the transferor

2) where does the conditional language occur
contingent/vested remainders
Intent of transferor
Look to the intent of the transferor to determine:
1) If remaindermand was to have vested interest subject to its being taken away by the happening of a stated event, or
2) if he intended that the interest would not be vested until the stated event occurred
distinguishing between vested/contingent remainders
Where does the conditional language occur
1) conditional language after language that, if considered alone, would have created vested remainder makes it a vested remainder subject to divestment
2) Conditional language before the language that created the remainder, or, it is placed so that it is part of the description of remainder person --condition subsequent + contingent remainder
What about a remainder which is found to be in favor of an unborn person, or unascertainable person
it will be considered contingent
Vested/contingent remainders

what if language is ambiguous?
law favors vested remainders
Doctrine of Worthier Title
one cannot, either by conveyance or will, give a remainder to his own heirs
What is the reason for having the Doctrine of Worthier title?
so we don't create fee tails
Doctrine of Worthier Title

Rule of construction
when a remainder is expressly given to the grantor's heirs, it should be presumed that the grantor did not intend to create a reaminader unless there is additional evidence of his intent to do so -- raises rebuttable presumption that no remainder was created
When does the doctrine of worthier title apply?
only to inter vivos transfers when the words "heirs", "next of kin", or other equivalent is used
Example: Doctrine of Worthier title
O deeds property “to A for life, and on A’s death to my heir’s at law.” In most states, A has a life estate and O has a reversion in fee simple. In a state that has abolished the doctrine, the state of title is: life estate in A; contingent remainder in O’s heirs; reversion in O.
Executory Interest
a future interest created by the transferring instrument. It is in someone other than the original transferor or its successors. It never waits until the natural expiration of all prior estates as remainders will. Rather, an executory interest divests present estates created in favor of someone other than the executory interest holder or vested future interests created in fovor of someone other than the executory interest holder

** if it is not a remainder because the preceding estate is not a life estate, then it must be an executory interest
Executory interest might become a possessory estate by
1) upon the expiration of a fee simple determinable (automatically)
2) upon the expiration of a fee simple subject to an executory limitation (automatically)
3) Upon termination of a fee simple subject to a consition subsequent (automaticall)
4) Upon exercise of the power of termination (re-entry, reverter)
5) premature termination of a determinable life estate
6) upon divestment of a vested remainder subject to divestment
Executory Interests restrictions before the statute of uses
No springing interests - freehold could not be created to commence in future
springing executory interest
on that follows a gap in possession or divests the estate of the transferor...transferee -to- transferor -to- new transferee
Example of Springing executory Interest
Ex: O conveys property “to A when and if A marries B.” O has a fee simple subject to an executory interest in O; springing executory interest in fee simple in A. Since it divests the estate of a transferor, it is a springing executory interest
shifting executory interest
on that divests the interest of another transferee
transferee -to- someone else

can not give estate that would cut another estate short
Example: Shifting Executory Interest
“To A and her heirs; but if B returns from Canada, then and in that event to B and his heirs.” A has a fee simple subject to a shifting executory interest. If B returns, it will divest A’s fee simple and title will shift to B.
Rule Against Perpetuities
No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest
Analysis of When to Apply "Rule Against Perpetuities"
1. Determine whether there is an interest that applies
2. When did the instrument creating the interest become effective?
3. Who were the lives in being when the instrument became effective
4. If we were back in time when the instrument became effective, when would 21 years after the last life in being be and is it at all possible it might take more than that time for the interest to vest or become impossible of vesting?
5. What most likely will happen to this interest which is not "good" under the RAP
To what interests does the Rule against perpetuities apply?
1) executory interests
2) contingent remainders
3) vested remainder in a class subject to partial divestment
4) powers of appointment
5) option contracts
6) pre-emptive rights of first approval
Exceptions to applying the Rule Against Perpetuities in Options Contracts
1) Tenant's option to renew an existing lease
2) Tenant's option to purchase a part or all of the leased premises
3) An easement or profit owner's option to extend the scope of its easement or profit
What interests does the rule against perpetuities NOT apply to
1) present possessory interests
2) possibilities of reverter
3) powers of termination/rights of entry
4) reversions
5) absolutely vested remainders
6) vested remainders in individuals subject to divestment
3 Types of instruments which can create an interest subject to the RAP
1) Deeds
2) Wills
3) Contracts
How to determine when a Deed creating the interest becomes effective
1) when written so as to include essential terms
2) executed by the grantor
3) delivered by the grantor with the present intent to divest itself of the right to control how title is to pass under the deed
4) AND accepted by the grantee
How to determine when a Will creating the interest becomes effective
1) When the testator executes valid will
2) and the Testator passes away
How to determien when a Contract creating the interest becomes effective
(options, rights of refusal, and preemptive rights)
- when the parties intend them to become effective
Determine who were the lives in being at the time the interest was created
Life in Being
- Human being + alive at time interest was created
AND
- Be named as a life in being
OR
- Have at least some potential interest in the property
OR
- Be named as a transferee of a prior interest
OR
- Be able to influence or affect who might take
Determine when would 21 years after the last life in being be and is it at all possible that it might take more than that time for thhe interest to vest or become impossible of vesting
The measuring life is the relevant life that enables you to prove that interest is valid
** the interest will be valid under the rule if it will vest or fail
1) during the lifetime of a relavant life
2) at the death of a relevant life
3) within 21 years of the relevant life

** If there is more than one measuring life then the interest must vest or fail withing 21 years after death of survivor of persons named
Determine what will most likely happen to the interest which is not "good" under the RAP
1) for the most part, courts merely strike from the instrument an interest that is invalid under the RAP
2) If the transfer is by grant, the grantor retains its reversionsary interest and is free to transfer it to another or retain it for ther grantor's benefit
3) If the transfer is by devise, and, if, because a third party's interest is invalid under the rule, the invalid future interest results in some reversionary interest in the testator
4) what role the invalid interest played in the transfer under the will
1. If the invalid interest
a. is so material to the will's distribution scheme so as to invalidate the entire devise, and
b. is not a part of the residuary clause,
the testator's reversionary interest typically passes as the residuary clause directs
2. if the invalid interest is so material to the will's distribution scheme so as to invalidate the entire devise, or if the invalid interest is a part of the residuary clause, the testator's reversionary interest passes as the intestacy statues direct
Modern Trends in RAP
1. Wait and See Doctrine

2) Cy Pres Doctrine

3) USRAP
Wait and See Doctrine
Validity of interests judged by actual events as they happen, and not by possible events that might happen. Wait and see what actually happens instead of determining at time interests is created
Cy Pres Doctrine
1. Determine whether interest violates RAP
a. if not, no further RAP analysis
b. If so, determine whether transferor's general intent wasa to violate common law rule
i. if so, do not modify interest's contingency
ii. if not, determine whether contingency can be modified so to comply with RAP and stisfy transferor's general intent
1. if so, apply modification and follow instrument's directives with modification rather than original contingency
2. if not, deal with interest as invalid under RAP
USRAP
provides an alternative 90-year vesting period and takes a "wait and see" approach in determining whether an interest actually vests within 90 years
What does the USRAP apply to
1) nonvested, donative, interfamily gifts of land, or to institutions
USRAP Exception
1. a nonvested property interest or a power of appointment arising out of (i) a premarital or postmarital agreement, (ii) a separation or divorce settlement , (iii) a spouse's election, (iv) a similar arrangement arising out do a prospective, existing, or previous marital relationship between the parties, (v) a contract to make or not to revoke a will or trust, (vi) a contract to exercise or not to exercise a power of appointment, (vii) a transfer in satisfaction of a duty to support, or (viii) a reciprocal transfer;
Direct Restraints on alienation
restraint intends to be a restraint
Disabling restraints
(generally unenforceable) prevents conveyance of property in some way for some time. If holder of restrained property conveys in a way contrarty to restraint, conveyance is annulled and set aside
When is a disabling restraint invalid and unenforceable?
if the restraint would make it impossible for any period of time from date of transfer to transfer restrained interest
Do disabling restraints have a reversionary interest?
no
When is limited disabling allowed?
when freedom of alienation does not apply
Forfeiture restraints
If attempting to convey property contradictory to restraint, property will be taken away and given to other party (movement of title)
Forfeiture restraints are more harsh then disabling because property can be taken away
Is a forfeiture restraint on life estate for amount of time beginning with transfer good?
yes
Promissory restraint
interest holder promises not to transfer property
indirect restraint
transferrability is hindered by attempt to achieve completely unrelated objective
concurrent estates
when two or more parties own interests in the same property at the same time
tenancy in common
(this is the presumption) a type of concurrent ownership where each cotenant is the owner of a separate and undivided share of the property and there is not right of survivorship
Characteristics of Tenancy in Common
1) Absent intent to convey unequal interests, presume that interests are equal
2) No right to survivorship means that when cotenant dies interests passes to heirs, not surviving tenant
3) estates can be different (i.e. life estate for one, and remainder for other)
why is modern common law "tenants in common" rather than "joint tenancy"
1) inequitable to give all property to surviving joint tenant and leave decedeant's survivor's without any interest
2) Joint tenant can convert interest to tenants in common with conveyance to third party without knowledge of other joint tenants
Joint Tenancy
a form of concurrent ownership where each cotenant wons an equal, undivided interest in property with rights of survivorship
4 Unities Required for Joint Tenancy
1) Unity of Time - interests must be taken at the same time
2) Unity of Interests - equal and identical interest in the property
3) Unity of Title - interest must be taken from same source (deed, will, or intestate)
4) Unity of Possession - all must have possessory interest in whole
Can Joint Tenancy be converted into tenancy in common?
yes, by two ways
1) unilateral act
- when tenant coveys interest to another
- Common law - lease severs
- NOW - lease does not sever
2) Mutual Agreement