Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
44 Cards in this Set
- Front
- Back
|
What do
1) Devisable 2) Descendable 3)Alienable mean? |
1) it can pass by will
2) it can pass by laws of intestacy 3) it can be transfered, inter vivos (during holders lifetime |
|
|
What is a fee simple absolute?
1) Language 2) Duration 3) Transferability 4) Future Interest |
1) "To A" "To A and his heirs"
2) Infinite duration 3) Transferability - devisabl, descendable, alienable 4) No future interest |
|
|
What is a fee tail?
1) Language 2) Duration 3) Transferability 4) Future Interest |
rarely used.
1) "To A and the heirs of his body? 2) duration - lasts as long as blood line lasts 3) transfers automatically to lineal descendants 4) yes, in o the grantor, or remainder in someone else |
|
|
What does it mean to be a defeasible fee
|
All are
devisable descendable alienable |
|
|
what are the defeasible fees
|
1) fee simple determinable
2) fee simple subject to condition subsequent 3) fee simple subject to executory limitation |
|
|
What is a fee simple determinatble?
1) Language 2) Duration 3) Transferability 4) Future Interest |
1) "To A, until X happens"
2) potentially infinite, so long as event does not occur 3) devisable, descendable, alienable 4) yes, possibility of reverter |
|
|
What is a fee simple subject to condition subsequent? ("fee on condition" in NY)
1) Language 2) Duration 3) Transferability 4) Future Interest |
1) "to A, but if X happens, grantor reserves right to re-enter and take title"
*clear durational language *carve out right to reenter 2) potentially infinite, so long as condition is not breached; thereafter, until holder of right of reentry timely exercises power of termiation 3) devisable, descendable, alienable - but subject to condition 4) yes, Right of Reentry with power of termination |
|
|
What is a fee simple subject to executory limitation?
1) Language 2) Duration 3) Transferability 4) Future Interest |
1) "To A, but if X happens, then to B"
*A has fee simple subject to a shifting executory interst *B has shifting executory interest 2) Potentially infinite, so long as stated continency does not occur; if it does AUTOMATIC forfeiture 3) alienable, descendable, devisable - subjec to condition 4) yes, future interest - executory interest held by 3rd party (shifting executory interest) |
|
|
can words of hope, desire, intention create a defeasible fee?
|
no, must be clear durational language (otherwise court will assume a fee simple absolute b/c court disfavors restrictions on free, unfettered use of land)
|
|
|
Can absolute restraints be put on land - e.g. "To A, so long as she never sells"
|
No. absolute restraints on alienation are void. An absolute ban on the power to sell or transfer, not linked to any reasonable, time-limited purpose will be conversted to a FSA.
So, "To A so long as she does not sell until 2009 IS a valis FSD with POR |
|
|
What is a life estate"
1) Language 2) Duration 3) Transferability 4) Future Interest |
1) To A for life
2) measured by life of transferee, or some other life "par autre ve" 3) alienable, devisable and descendible IF pur autre vie and measuring life are still alive *can sell life estate 4) reversion if held by grantor; remainder if held by third party |
|
|
what are the entitlements of a life tenant?
|
rooted in doctrine of waste
|
|
|
what is the doctrine of waste
|
1) life tenant is entitled to all ordinary uses and profits of land
2) life tenant must not commit waste (harm future interest in land) |
|
|
what are the 3 species of waste
|
1)voluntary affirmative waste
2) permissive waste or neglect 3) ameliorative waste |
|
|
what is voluntary affirmative waste
|
1) overt conduct that causes a decrease in value
2) life tenant must not consumer or exploit natural resources on such property (timber, oil, minerals, etc) EXCEPT PURGE a)Prior Use (prior grant of land was used for exploitation -- limited to prior existing, open mines) b) Reasonable repairs- LT may make reasonable repairs and maintenance of premises c)Grant - LT may exploit if expressly granted right to do so d) exploitation - land is suitable only for exploit |
|
|
what is permissive neglect/waste
|
occurs when land is allowed ot fall into disrepair or KT fails to reasonably protect the land
1) obligation to repair - must maintain premises in reasonably good repair 2) ordinary taxes - must pay all ordinary taxes on land, to extent ther eis income/profits from fair rental value |
|
|
what is ameliorative waste
|
can't improve land to enhance property value unless all future intrest holders are known and consent (think sentimentl alue)
NY - life tenant may make reasonable improvements unless remainser man objects |
|
|
what are the six categories of future interests - classified by whether they are retained by the grantor or transferee
|
grantor
1) possibility of reverter 2) right of reentry 3) reversion transferee 1) vested remainders a)indefeasibly vested remainder b) vested remainder subject to complete defeasance c)vested remainder subject to open 2) contingent remainder 3) executory interest a) shifting executory interest b) springing executory interest |
|
|
Possibility of reverter?
|
Accompanies only a Fee simple determinable
FSD, POR |
|
|
Right of Reentry, Power of termination
|
accompanies only a fee simple subject to condition subsequent
|
|
|
what is a reversion?
|
reversion is a future interest that arises in a grantor who transfers an estate of lesser quantum that she started with (other than a FSD or a FSSCS
|
|
|
What future interests are capable of creation in transferees
|
1) vested remainders
2) conteingent remainders 3) executory interests |
|
|
what is a remainder
|
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
*always accompanies a preceding estate of known, fixed duration (life estate, estate of years) *never follows a defeasible fee (waits for preceding estate to run its course, doesn't cut short or divest) |
|
|
what is the difference b/w a vested remainder and a contingent remainder
|
vested -
1) if it is both created in an ascertained person and 2) is not subject to a condition precedent contingent 1) if it is created in an unscertained person or 2) is subject to a condition precedent |
|
|
what creates a contingent remainder?
|
1) remainder created in an as yet unborn or unascertained person
a) To A for life, then to B's first kid - B has no kids left b) To a for life, then whatever kids of B that survive A - don't know hwo that is yet 2) Remainder that is contingent b/c subject to condition precedent -- condition appears *before* language creating remainder or is woven into grant to remaindermen *if contingent condition occurs, contingent remainder automatically transfers (indefeasibly vested remainder) |
|
|
How do contingent remainders interact with
THE RULE OF DESTRUCTABILITY |
1) At CL, if contingent remainder was still contingent at time preceding estate ended, it was destroyed.
NOW - rule is abolished. If B still contingent, O or O's heirs hold estate subject to B's springing executory interest |
|
|
How do contingent remainders interact with
SHELLEY'S CASE |
"To A for life, then on A's death, to A's heirs"
CL - future and present interests merged, giving FSA NOW - virtually abolished. A has a life estate, A's heirs have contingent remainders, O has reversion interest since A could die without heirs |
|
|
How do contingent remainders interact with
DOCTRINE OF WORTHIER TITLE |
Applies when O (alive) tries to create a future interest in his heirs
"To A for life, then to O's heirs" If doctrine of worthier title didn't apply, A has life estate, O's heirs have contingent remainder BUT b/c of worthier title -- contingent remainder is void. A has life estate, O has reversion. NOTE - rule of construction, not law, grantor's intent conrols and can contract around this NY - abolished doctrine of worthier title with regard to transfers after 9-1-67 |
|
|
What are three types of vested remainders (only remainders that can vest)
|
1. indefeasibly vested remainder
2. vested remainder subject to complete defeasance 3. vested remainder subject to open |
|
|
indefeasibly vested remainder
|
holder is certain to acquire an estate in teh future, with no strings attached or conditions
To A for life, then to B |
|
|
vested remainder subject to complete defeasance
|
remainderman exists and his taking is not subject to any condition precedent, but can be cut short by condition subsequent.
|
|
|
vested remainder subject to open
|
remainder is vested in a group of takers, at least one of whom is qualified to take possession. each class members share is subject to partial diminution b/c asdditional takers, not yet ascertained can still qualify as class members
|
|
|
closed v. open class
|
closed = maximum membership has been set (people born thereafter are shut out)
open=possible for others to enter |
|
|
what is an executory interest
|
future interest created in a transferee (a third party) which is not a remainder and which takes effect only by cutting short some interest in another person (shifting) or int eh grantor or his heirs (sprining)
|
|
|
shifting executory interest
|
follows a defeasible fee and cuts short someone other than grantor
|
|
|
springing executory interest
|
cuts short o, the grantor
|
|
|
wha tis ny's rule on executory and contingent remainders
|
ny has abolished distinction.
calls all "remainders subject to condition precedent" |
|
|
what is the rule against perpetuities
|
certain kind of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after death of measuring life
*determined by end of life of someone, + 21 years |
|
|
how do you assess potential rap problems
|
1) determine which future interests have been determined by conveyance
*RAP may apply to contingent remainders, executory interests, and certain vested remainders subject to open *RAP does not apply to any future interest in the grantor, indefeasibly vested remainders, vested remainders subject to complete defeasance 2. identify condition precedent to vesting of suspect future interest 3. find a measuring life (look to person alive at death of conveyance and ask wehther that persons life is relevant to the conditions occurrence) 4. ask whether, with certainty, will we know within 21 years of death of measuring life, if our future interst holders can or cannot take. If so, conveyance is good; if not, future intrest is void. NOTE - RAP assumes worst and octogonerian rule assumes person is fertile no matter what age |
|
|
2 bright line rules of RAP
|
1) a gift to an open class tha tis conditioned on the members surviving to the age greater than 21 violates the RAP (so revertes back to O)
2. many shifting executory intereests violate the RAP. Executory intersts with no time limit on them within which it must vest violate RAP. *If violates RAP, strike offensive part - A gets FSD, O possibility of reverter/ or A has FSA BUT charity-to-charity exception (a gift from one charity to another does not violate RAP) |
|
|
REforms of RAP - what is the wait and see/second look doctrine?
|
majority reform effort - validity of any suspect future interest is determined on the basis of facts as they NOW EXIST at conclusion of measuring life - eliminates "what if"
inquiry |
|
|
REforms of RAP -USRAP
|
codifies CL RAP, but adds 90 year vesting period
|
|
|
REforms of RAP -Cy Pres Doctrine
|
if given disposition violates RAP, court may reform it in way most closely matches grantors intent, while still complying with rap
|
|
|
what is ny's approach to these reformations?
|
app
|
