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80 Cards in this Set

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  • Back
The present estates
- fee simple absolute
- fee tail
- defeasible fees (different types)
- life estate
language of "to A" creates


Future interest
fee simple absolute

Devisable, descendible, alienable

Language of "to A and the heirs of A's body" creates


Future interest
Fee tail

historically it would pass directly to descendants
Now - converted to fee simple absolute

If to O = reversion
If to 3rd party = remainder
Types of defeasible fees
Fee simple determinable

Fee simple subject to condition subsequent

Fee simple subject to executory limitation
language of "to A for so long as", "to A during", "to A until" creates


Future interest
Fee simple determinable
(must have clear durational language)

if stated condition is violated forfeiture is automatic
- subject to the condition this is devisable, descendible, alienable

FSDPOR - possibility of reverter
language of "To A, but if (event) occurs, grantor may reenter and retake" creates


Future interests
Fee simple subject to condition subsequent
(grantor must use clear durational language and carve out right to reenter)

requires action of the grantor and the conditions occurence to terminate

Right of entry - power of termination
language of “To A but if X event occurs then to B” creates


future interest
fee simple subject to executory limitation

if condition occurs estate is terminated automatically but does not go back to the grantor - but a 3rd party

executory interest
language of "to A for the purpose of..." creates


Future interest
Fee simple absolute (precatory language - not sufficient for fee simple determinable)
language of "O to A for life"


Future interest
life estate (never measured in term of years - this is a leasehold)

A is life tenant
- has right to all ordinary uses and profits of land
- life tenant cannot commit waste

O (or O's heirs) has a reversion or if held by third party then remainder
3 types of waste
Voluntary and affirmative waste - overt action of destructiveness
Ameliorative waste
Permissive waste (neglect)
Exceptions to restrictions on use or exploitation of natural resources of life estate holder on land
PU - prior usage - prior to life tenancy the land was used for exploitation (open mines doctrine)
R - Repairs - tenant can use resources for reasonable repairs and maintenance
G - Grant - expressly granted right to expoit from grantor
E - Exploitation - the only reasonble use of the property is for exploitation
Types of future interests
Future interest capable of creation in the grantor
1. possibility of reverter
2. right of entry (power of termination)
3. reversion

Future interests in transferees
4. Vested remainder
5. Contingent remainder
6. Executory interest
types of vested remainders
1. indefeasibly vested remainder
2. vested remainder subject to complete defeasance (a/k/a subject to total divestmeent)
3. vested remainder subject to open
A remainder is vested if it is...
created in an ascertainable person and not subject to a condition precedent
A remainder is contingent if it is...
created in an unascertainable person or subject to a condition precedent (or both)
rule of destructibility of contingent remainders
Common law - remainder is destroyed if still contingent at the time the preceeding estate ends

Modern view - the grantor (or the grantor’s heirs) hold the estate subject to a springing executory interest (completion of the condition)
rule in shelly’s case
Common law - the present and future interests merge - resulting in fee simple absolute for grantee

Modern view:
grantee has a life estate
grantee’s as yet unknown heirs have a contingent remainder
when ... O conveys “to A for life, then, on A’s death, to A’s heirs” – where A is alive ... what is implicated
The Rule in Shelley's case
What is applicable when O who is still alive, tries to create a future interest in his heirs whom are not yet ascertainable
"To A for life, then to my heirs"
doctrine of worthier title

Without doctrine... grantee has a life estate and grantor's heirs have contingent remainders because O is still alive and a living person has no heirs

With the doctrine... the contingent remainder in O's heirs is void - thus A has a life estate and O has a reversion
Types of vested remainders
indefeasibly vested - remainderman will definitely get interest

vested remainder subject to complete defeasance (known as vested remainder subject to total divestment) - remainderman exists and can take now- but his right could be cut short b/c of a condition subsequent
condition precedent creates...
contingent remainder
condition subsequent creates...
vested remainder subject to complete defeasance
shifting executory interest
future interest created in transferee that takes effect by cutting short some interest in another person - always follows a defeasible fee
springing executory interest
future interest created in transferee that takes effect by cutting short some interest in grantor or grantor's heirs
4 steps to RAP problems
- Identify which future interests have been created
- Identify conditions precedent to the vesting of suspect future interest
- find a measuring life (LIB)
(must be someone that is relevant to the occurence of the condition)
- Ask the question "Will we know with certainty, within 21 years of the death of the LIBs if our future interest holder can or cant take
If so conveyance is good
If not (if there is any possibility, however remote, that the condition precedent could or could not occur more than 21 years after the death of the LIB) the interest is void
Future interests that RAP applies to
contingent remainders
executory interests
certain vested remainders subject to open
Future interests that RAP does not apply to
any future interest in O, the grantor
indefeasibly vested remainders
or vested remainders subject to complete defeasance
Joint tenancy
Automatic surviorship

alienable, but not devisable or descendible

4 unities
right of survivorship must be stated with clarity
4 unities
- Time - joint tenants must take at the same time
- Title - joint tenants must take with the same title
- Interests - joint tenants must have equal interests
- Possess - joint tenants must have identical rights to posses the whole
Severance of a joint tenancy
SPaM -
Sale - disrupts joint tenancy as to sellers interest (equitable conversion)

Partition -
a. agreement
b. in kind
c. by sale

Mortgage -
- under title theory (minority) - mortgage on one part of property will sever J/T of that part
- under lien theory (majority) - mortgage does not sever
Formation of periodic tenancy

By implication
- where lease does not mention duration but rent is due in successive intervals
- where tenancy for years is violative of SOF (measured by how rent is tendered)
- holdover tenant (residential) (measured by tender of rent)
T's tort liability to 3rd parties
T is obligated to keep the premises in reasonably good repair
- will be liable for any injuries to 3rd party (T invited) on premises even if L promised to repair(but T may be able seek indemnity)
T's duty to repair
T must maintain property and repair it and cant commit waste (cant screw with fixtures)
Where T has expressly covenanted in the lease to maintain the property in good condition
Common law - he is responsible for any natural damage to the property (ie. earthquake)

Modern - now T has right to terminate the lease if property is destroyed by natural occurence with no fault of T
L's remedies when T breaches and is no longer in possession
- Surrender - T gives up the lease (SOF if > 1 year)
- Ignore - continue to charge rent (minority)
- Relet - Majority remedy; must try to re-let and sue T for deficiency
L's duties to T
L must put T in possession (majority/English rule); Amercian rule - L just needs to give up legal possession

Implied Covenant of quiet enjoyment - (applies to residential/commercial)- cant exclude T from premises usually via constuctive eviction or nuisance of other T's that L permits

Warranty of habitability (residential only) - non-waivable - premises fit for basic human habitation

No retaliatory evictions - for report of housing violations
elements of Constructive eviction (required to recover for breach of implied covenant of quiet title)
- Substantial interference - attributable to L's actions or failure to act; chronic condition
- Notice to L of condition
- Get out - T actually leaves the premises b/c of condition within reasonable time
T's entitlements when there is a breach of implied warranty of habitability
M & 3R's

Repair (and deduct costs from rent)
Reduce or withhold(reduce rent by amount of dimunition in value due to breach) - keep rent in escrow
Remain & sue for damages
relationship of L and T2 when there has been an assignment
privity of estate
- liable to each other for covenants that run with the land

(L and T1 are still in privity of contract) - so are secondarily liable to one another
Liability on a sublease
T2 is liable to T1
T1 is liable to L
Tort liability of landlord
Generally no liability (let T beware)

- common areas
- latent defects - L has duty to warn
- assumption of repair - has a duty to do repairs assumed with reasonable care
- Public use - short term lease where tenant is not expected to maintain
- short term lease of furnished dwelling
categories of negative easements
- Light
- Air
- Streamwater from an artificial flow

+ (minority rule) scenic view
- Structural support
Creation of an affirmative easement
- Prescription - COAH
- Implicaton - easement implied from existing usage
- Necessity
- Grant - if > 1 year = deed of easement
Creation of an affirmative easement by prescription
- Continuous usage of the land - for statutory period
- Open and notorius usage
- Actual usage
- Hostility (without the servient owners consent)
Formation of an Affirmative easement by implication
results from previous use and then division of property
- previous use must be apparent
- parties must expect that the use would survive division because it is reasonably necessary to the dominant lands use and enjoyment
Termination of an easement
- Estoppel
- Necessity (cessation of necessity)
- Destruction of servient property
- Condemnation of servient estate via eminent domain
- Release
- Abandonment (physical conduct, more than mere non-use)
- Merger
- Prescription - interference with COAH requirements
Elements necessary for burden to run
- Writing - original promise from A to B (horizontal) must be in writing
- Intent - must have intended the covenant to run with the land
- Covenant must Touch and concern land (must be related to interest in land)
- Horizontal and Vertical privity
- Horizontal - A and B's relationship must have been - grantor - grantee; mortgagor - mortgagee; lessor - lessee
- vertical - A1 must have taken from A via contract, descent, or devise (no AP)
- Notice - A1 must have notice of burden
Elements necessary for the benefit to run
- Writing – original promise from A to B must be in writing
- Intent - original parties intended that the benefit would run
- Touch and concern land - promise affects the parties as landowners
- Vertical privity (as long as not taken by AP) - requires non-hostile nexus between B and B1
Requirements for equitable servitude to run
- Writing - original promise must be in writing
- Intent - parties must have intended promise to go to successors
- Touch and concent - must relate to parties position as landowners
- Notice - new party must have had notice of the promise to be bound by it
- Equitable Servitude - no privity required; implied equitable servitued (common scheme doctrine)
ELements of the common scheme doctrine (reciprocal negative servitude)
When the sales began the subdivider had a common scheme for the development AND
Buyer had notice of the common scheme
3 forms of notice required for application of reciprocal negative servitude
- Actual notice
- Constructive notice
- inquiry notice - where it Should have occurred to D that he was purchasing into a restricted neighborhood
- record notice - notice just because it was in prior deeds (split as to whether this is sufficient)
Equitable defenses to reciprocal negative servitude
Changed conditions - changed conditions must be so pervasive that the entire area has changed
What occurs if mortgagee transfers interest in property to a holder in due course transferee
Transferee (if HIDC) takes free of personal defenses:
- fraud in the inducement
- lack of consideration
- unconscionability
- waiver and estoppel
What can a holder in due course of property transfered from mortgagee do
Foreclose free from personal defenses (not free from real defenses)
Real defenses
MA - Material Alteration
D - Duress
FIF - Fraud in the factum
I - Infancy
I - Incapacity
I - Illegality
I - Insolvency
Requirements of a holder in due course
Note must be negotiable and name the original mortgagee
Original Note must be indorsed by the original mortgagee
Original note must be delivered to the transferee
Transferee must take in good faith without notice of illegality (claims or defenses)
Must take for value (must be real value, not nominal)
Methods for mortgagee to transfer interest
Indorsing and delivering the note to transferee


Or execute a separate document of assignment
When Mortgagor sells property under mortgage who is liable on mortgage
If B has assumed the mortgage:
- Both O and B are personally liable
- B is primarily liable
- O is secondarily liable

If B takes subject to:
- B is not liable but O remains liable
- BUT, if the mortgage is recorded it remains with the land and Mortgagee can still foreclose if O does not pay
If mortgagee forecloses and the sale proceeds do not cover the underlying debt - what result
mortgagee seeks defeciency judgment against debtor
If mortgagee forecloses and the sale proceeds exceed the underlying debt - what result
FIrst deduct: attorney fees, expenses of foreclosure, and interest on foreclosing lienholders mortgage
- proceeds go to satisfy the junior debt (in order of priority)
- then the rest goes to debtor
Necessary parties to foreclosure action
- Holders with interests subordinate to foreclosing holder
- Mortgagor (debtor)
Failure to join necessary subordinate lienholder - results in
preservation of lienholders claim - morgage remains on the land
Is the right of equitable redemption waivable by the mortgagor
NO - this is clogging the equity of redemption
Amount to be paid under statutory redemption for mortgagor to redeem and retake property
Amount property is sold for in the foreclosure sale
if land is improved by buildings and an adjacent landowners excavation causes this improved land to cave in the excavator will be liable
Only if negligent = this is lateral support

Or - if P can show that the land would still have still collapsed if he had not even made improvements to it
prior appropriation doctrine
i. water belongs to the state initially – but an individual can acquire the right to divert it and use it even if not a reparian owner
- rights are determined by priority of beneficial use (whoever uses the water in a beneficial way will have rights to use)
Common enemy rule
Landowner can change drainage or make any other changes on his land to combat the flow of surface water (and even waste it - contrary to rights dealing with groundwater)

Many courts have modified the common enemy rule to prevent unnecessary harm to others’ land
For a variance to be proper - Proponent must show
- that compliance with the zoning scheme would work a hardship on the owner
And - that a variance would be detrimental to property values of adjacent owners
Unconstitutional exactions
Exactions are amenities that government seeks in exchange for granting permission to build - must be reasonably related to the proposed government development
Adverse possession
i. Continuous – uninterrupted for the statutory period
ii. Open and Notorious – kind of possession that a usual owner would make under the circumstances
iii. Actual – entry must be actual, cant be hypothetical or fictious
iv. Hostile – possessor does not have consent of owner
Requirements of the land contract
(Only effective until closing - then deed is effective)
1. Must be in writing signed by the party to be bound(SOF)
2. Must state consideration
3. Must describe land
When the amount of land in contract recited is more than the actual size of the parcel - what is the Buyers remedy
specific performance with pro rata reduction in purchase price
part performance
Need 2 out of 3:
- B takes possession
- B makes improvements on land
- B pays part of purchase price
Implied promises in land contract
Seller promises to deliver Marketable title - title is free from reasonable doubt
Seller promises not to make any false statements of material fact - no failure to make disclosures of latent material defects on the property
Circumstances that result in unmarketable title
- Adverse possession
- Encumbrances
- Zoning violations
Requirements of a deed
- LE - Lawful execution
- consideration not required
- description must be included - only required to give a lead so that research would find right property
- A - And
- Delivered - where grantor physically delivers deed to grantee; does not have to be physical (tested by intent); delivery by escrow will suffice
Quitclaim deed
deed lacks covenants - doesnt even warrant that the grantor has title to the property; but does promise that they will deliver marketable title at closing
General warranty deed
best deed for buyer
6 covenants

Present covenants - breached, if ever, at the time of delivery
- covenant of seisen - promise that grantor owns the property
- covenant of right to convey - promise that grantor has the power to convey the property (no temporary restraints on power)
- covenant against encumbrances - title is free from liens/servitudes

Future covenants - will only be breached after conveyance (where grantees possession is disturbed)
1. covenant for quiet enjoyment - that grantee wont be disturbed in possession by a 3rd parties lawful claim of title
2. covenant of warranty - grantor promises to defend grantee against any claims against title
3. covenant for future assurances - that grantor promises to do whatever is necessary to perfect title in the future if it turns out to be imperfect
Statutory special warranty deed
Contains only 2 covenants from grantor
a. grantor promises that he has not conveyed this estate to anyone other than the grantee
b. estate is free from encumbrances made by the grantor
BFP is one who...
purchased property for value


without notice of someone elses current interest