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65 Cards in this Set

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fee simple absolute
Largest estate permitted by law. holder of the fe has full possesssory rts, now & future. Indefinite, pot infinite duration.
defeasible fees
Fee simple estates of potentially infinite duration that can be termianted by the happening of a specified event.
precatory language
language declaring the grantor's purpose or motive for making the grant
fee simple determinable (and possibility of reverter)
estate that automiatically terminates on the happening of a stated event and goes back to the grantor ("for so long as" "while" "during" "until" language)

- does not need to be expressly retained
- gen can be transferred inter vivos or devised by will, and descends if intestate
3 big interests in land
1. estates (giving possession)
2. easements (giving right of use)
3. restrictive covenants (restricting someone else's use of their land)
how to get, keep, and transfer interests (4 ways)
- adverse possession
- conveyance
- recording
- security interests
fee simple subject to cond'n subsequent (and right of entry)
grantor retains the power to terminate the estate of the grantee upon the happening of a specified event. Upon event, estate of grantee *cont until the grantor exercises her power of termination* (right of entry) by bringing suit or making reentry. ("Upon cond'n that" "provided that" "but if" "if it happens that" language).

- must expressly reserve the rt
- gen not devisable inter vivos
fee simple subject to an executory interest
Upon the happening of a stated event, the interest is automatically divested in favor of a third person rather than the grantor
fee tail
Limits inheritance to lineal discendants of the grantee. Typically created by the words, "to B and heirs of his body"

- abolished in most states
life estate
an estate that is not terminable at any fixed or computable period of time, but can't last longer than th elife or lives of one or more persons.

- can arise by law or by K
life estates by marital right (aka legal life estates)
dower (interests of wife) and curtesy (interest of husband). at common law, each spouse rec'd a certain amt if the other died (i.e., surviving wife's dower right gets her life estate in 1/3 of her husband's lands)
conventional life estate
measured by the life of the grantee, called "a life estate".

- defeasible or indefeasible (determinable, subj to a cond'n subsequent, subj to an executory interest)
rights and duties of life tenant
all ordinary uses and profits of the land, but can't lawfully injure the interests of the person who owns the remainder or the reversion. remedy - the future int holder may sue for dmgs and/or to enjoin such acts
affirmative (voluntary) waste
consuming or exploiting natural resources on the property

exceptions:
- in reas amts where nec for repair and maintenance of the land
- LT expressly given the rt to exploit
- when prior to the grant, land was used in exploitation of such natural resources
- land is suitable only for such exploitation
permissive waste
when LT allows the land to fall into disrepair, or LT doesn't take reas measures to protect the land

obligation to:
- preserve land in reas state of repair
- pay interest on any encumbrances on land to extent of income or profits to the land
- pay all ordinary taxes on the land
- pay special assessment, if improvement is shorter than life estate (if longer, then apportioned between LT and future interest holders)
- NO obligation to insure premises, NO liab for 3rd pty torts
ameliorative waste
acts that economically benefit the proerty - use of the prop is subs chgd, but the change increases the value of the prop

MT: an LT can subs alter bldgs if:
1. mkt value of future int is not diminished, AND EITHER
a) the remaindermen don't object
b) subs and perm chg in the area cond'ns has deprived the property in its current form of reas prod or usefulness
reversion
residue left in the grantor, which arises by operation of law, after creating and transfering a lesser estate (in the durational sense, like "to A for life" or "until...")

- vested interest, b/c certain. not subj to RAP
- transferable
- devisable by will
- descindible by inheritance
remainders
a future interest created in a transferee that is capable of becoming a present interest upon the tatural term of the preceding estates created in the same disposition.

- must be expressly created in the instrument creating the intermediate possessory estate
- rule of thumb - *remainders ALWAYS follow life estates* & can NEVER follow a fee simple
indefeasibly vested remainder
a remainder that:
1. created in & held by an ascertained person or persons in being
2. certain to become possessory on term of prior estates
3. must not be subj to being defeated or divested
4. must not be subj to being diminished in size
vested remainder subject to open
remainder created in a class of persons (children, bros & sisters) that is certain to take on the termination fo the preceding estates, but is *subject to dimunition* by reason of other persons becoming entitled to share in the remainder

- where there are outstanding interests in the unborn kids, the vested remainderman and LT can't convey good title
vested remainder subject to total divestment
arises when the remainderman is in existence and ascertained and his interest is not sujb to any con'dn precendent, but his rt to poss and enjoymt is subj to being defeated by the happening of some cond'n subsequent

e.g. - To X for life, rem to A and his heirs; but if A dies w/ no kids, then to B and his heirs. A has a vested rem subj to total divestment
contingent remainder
can be created:
1. subj to a cond'n precedent (contingent as to event)
2. in favor of unborn or unascertained persons (contingent as to person)
doctrine of merger
whenever the sam person acquires all of the existing interests in land, present and future, a merger occurs
executory interests
one of two future interests that can be created in a transferee (other is remainder).

*if it is not a remainder b/c the preceding est is not a life est, then it must be an exec interest*

- shifting & springing
- follows a fee
shifting executory interest
divests the interests of another transferree, i.e., it cuts short a prior estate created by the same conveyance

- e.g., to A and her heirs, but if B returns from Canada, to B and her heirs
springing executory interest
follows a gap, or divests athe estate of the transferor.

- e.g., to A when and if A marries B.
executory interests v. remainders
EIs:
- not destrictible
- not considered vested
- rule in shelley's case DNA
- are transferable inter vivos, usu dev & desc

Rs:
- cont remainders are dest in some juris
- can become vested
- shelley's case applies to rem ltd to the heirs of the grantee for life
- vested R's are transferable, devisable, descendible
- cont R's are transferable inter vivos, usu dev & desc
class gift
a gift to a grp of persons sharing a common char. the share of each member of the class is det by the # of persons in the class
rule of convenience
with a class gift, common law, applies in absence of an expression of intent to incl all persons who meet the class descrip. regardless of when born.

presumed that the ordinary transferor intends to incl all members of the class, whenever born, provided that this owuld not cause any undue inconvenience.

1. outright gift: class closes at time gift is made. no class members alive at testator's death: class stays open
2. postponed gift: class closes at time fixed for dist
3. disp subj to cond'n of reaching given age - class closes when preceding estate terms, and the first class member reaches the spec age.


- policy - incl as many people as possible, while permitting dist of prop at first opp w/out the necessity of a future rebate
- rule of construction only
survival - rule
all future int can pass at death by will or inheritace (descendible and devisable). trule unless the interest's taking is subj to an express or implied contingency of survival
express trust
holds the title to property by a trustee, who has an equitable fid duty to deal with it for the benefit of other persons
settlor
person who creates the trust
trustee
holds legal title to the property, but must act under the ins of the settlor who created the trust. fid duty to use highest care and skill for beneficiaries
beneficiaries
persons for whose benefit the trust is created and held
res
the property that is the subj of the trust.
ways to create a trust
1. inter vivos trust
2. inter vivos declaration (must be written if for real property)
3. testamentary conveyance
4. pour-over into existing trust
4 ways
charitable trust characteristics
1. indefinite group of beneficiaries
2. RAP does not apply
3. cy pres may be used
cy pres doctrine
if the purposes of a char trust are impossible to fulfill are illegal, or have been completely fulfilled, a ct may redirect the trust to a diff purpose that is "as near as may be"
RAP (rule against perpetuities)
an interest is void if there is any possibility, however remote, that the interest may vest more than 21 years after some life in being at the creation of the interest. at time interests created, the "lives in being plus 21 years" begins to run.

applies to:
1. cont R's
2. executory interests
3. class gifts
4. potions and rts of first refusal
5. pwrs of apptmt
"wait and see" rule
some states suspend judgment as to whether the interest in Q is good or void, even until the end of the perpetuities period.
"if at all" - RAP rule analysis
- the interest does not have to vest w/in the perp period in order to be valid
"lives in being" - RAP rule analysis
RAP allows any lives to be used to show the validity or invalidity of an interest, but no lives are of any help unless they are somehow connected w/ the vesting of an interest
interests exempt from RAP
- gift over to second charity
- vested interests (except for vested R's in a class)
- reversionary interests (except for executory interests, ie those in transferees)
rule against restraints on alienation
any restriction on the transferability of a legal (as opposed to equitable) interest in property is void: violates this common law rule.

3 types of restraints:
1. disabling restraints
2. forfeiture restraints
3. promissory restraints
3 types, and rule
valid restraints on alienation
1. forefeture and promissory restraints on life estates
2. forfeiture rest on the transferability of a future interest
3. gen, those that arise in the context of a commercial transaction, b/c it is bargained for by both parties in the K
4. right of first refusal
5. restrictions on transferability of leaseholds
6. spendthrift clauses
concurrent estates - 3 chief types
1. JT
2. tenancy by the entirety
3. tenancy in common
joint tenancy
1. right of survivorship.
2. to create, must have 4 unities (TTIP)
3. must be clearly expressed; disfavored by modern law. if K entered into by 2 people, will created TIC
severance of a JT
1. suit for partition
2. intervivos conveyane by one JT: judgmt leins, mortgage (in min of states, destroys unity of title), leases (in some states)
3. K to convey by one JT

note -testamentary disp by one JT has no effect
tenancy by the entirety
marital estate, akin to JT bet husband and wife. carries rt of surv. cannot be terminated by invol partition, can only be termed by death,divorce, mutual agmt, or exectution by a joint creditor of both husband and wife
tenancy in common
concurrent estate with no rt of survivorship. each owner has a distinct undivided interest in the property. freely alientable by inter vivos and test transfer, is inheritable, and is sub to claims of tenant's creditors.
leasehold
estate in land - T has a present possessory interest in the leased premises, and landlord has a future interests (reversion)
types of leasehold estates
- tenancies for yhears
- periodic tenancies
- tenancies at will
- tenancies at sufferance
tenancies for years
fixed period fo time
created by written leases. ends automatically on its term date.

- most Ls reserve the rt to term if the tenant breaches any of the leasehold covenants (rt of entry).
- many juris, failure to pay rent gives L the rt to term even in absence of a reserved rt of entry
periodic tenancies
continues from year to year, month to month, etc. until termed by proper notice by either party. created by express agmt, implication, or op of law (hold over T, invalid lease)

- begin date must be certain! term date is always uncertain until notice given. must end at end of "natural" lease period. six mos if yr to yr tenancy.
tenancies at will
term at will of either L or T, without notice, but reas dem to quit premises is req'd.

terms at op of law if:
- either party dies
- T commits waste
- T attempts to assign his tenancy
- L transfers his int in property
- L executes a term lease to a 3rd person
tenancies at sufferance
"occupancy at sufferance" - T wrongfully remains in possession after the exp of a lawful tenancy. T is wrongdoer and is liable for rent. No notice req to end tenancy.
hold-over doctrine
when a T stays after rt of poss terms, the L can:
1. evict under an unlawful det statute. note forcible entry statutes.
2. create a periodic tenancy
lease
K containing the promises of the parties, governs the rel between the L and T. generally, one party's perf of his promise does not depend on th eother party's perf of his promise. thus, if one party breaches a covenant, the other party can recover dmgs, but must still perform his promises and cannot term the L-T rel
T's duty to repair
T can't dmg (commit waste on) the leased premises. Like life estate rules.
T's liability for covenants to repair
cond'n of premises at the beg and end of the tenancy must be compared in order to det whether there has been a breach.
- ordinary wear and tear (if T agress to repair premises, he has duty to repair even ord wear and tear and reconstruction)
- T liable under K for all other defects regardless of their cause (common law)
-
T's duties
1. repair
2. not to use premises for illegal purpose
3. pay rent
L remedies for T breach of duties
failure to pay rent - evict or sue for rent

abandon - do nothing (then T remains liable) or repossess (T not liable if surrender)
for failure to pay rent, or abandonment
L's duties
1. duty to deliver possession of premises
2. quiet enjoyment
3. implied warranty of habitability
4.
eviction (actual, partial actual)
actual: T excluded from entire leased premises. Terms T's oblig. to pay rent.

partial actual: T excl from only part of leased premises. if PAE by L, no oblig. to pay rent. if PAE by 3rd pty, rent apportioned.
constructive eviction
when L does an act or fails to provide some service that he has a legal duty to provide, making the property uninhabitable, T may term the lease and seek dmgs.

- inj must be by L (or persons acting for him)
- resulting cond'ns must be very bad, premises uninhabitable
- T must move out w/in reas time