Property

Front 1

Four Categories of Freehold estates

Back 1

• Fee simple absolute,
• Fee tail,
• Defeasible fees, and
• Life estate.

Front 2

Fee Simple Absolute

Back 2

Absolute ownership of potentially infinite duration.

It is freely devisable, descendible, and alienable.

Front 3

Fee Simple Determinable

Back 3

Potentially infinite, so long as conditional event does not occur.

“To A for so long as…”

Divisible and alienable subject to condition.

Possibility of Reverter to Grantor

Front 4

Fee Simple Subject to Condition Subsequent:

Back 4

Estate is NOT automatically terminated, but it can be cut short at grantor’s option, if stated condition occurs.

“To A, but if X event occurs, grantor reserves right to reenter and retake”

Right of Re-entry in Grantor

Front 5

Fee Simple Subject to Executory Limitation

Back 5

Like fee simple determinable -- but if condition is broken, estate is automatically forfeited in favor of someone other than grantor

Shifting executory interest in NAMED 3rd PARTY

Front 6

Absolute restraints on alienation are ______.

Back 6

Void

Front 7

Life Estate

Back 7

Estate must be measured in explicit lifetime terms, and never in terms of years.

• Created By: O conveys: “To A for life.”
A has: Life estate and is known the he life tenant

O has: Reversion (at end of A’s life, estate reverts back to O or O’s heirs)

Front 8

Life Estate pur autre vie

Back 8

A life estate measured by a life other than the grantees.

Created By: O Conveys: “To A for the life of B”

A has: Life estate pur autre vie

O has: Reversion (when B dies, estate reverts to O or O’s heirs)

Front 9

Distinguishing characteristic of life tenancy

Back 9

Doctrine of Waste

Front 10

Three types of waste for life tenants

Back 10

1) Voluntary or affirmative
2) Permissive/Neglect
3) Ameliorated Waste

Front 11

Three types of future interest created IN THE GRANTOR

Back 11

1) Possibility of Reverter (fee simple determinable)
2) Right of Entry (aka Power of Termination) (fee simple subject to condition subsequent)
3) Reversion (usually a life estate)

Front 12

Types of future interests in 3rd Party transferees (3)

Back 12

1) Vested Remainder
2) Contingent Remainder
3) Executory Interest

Front 13

Vested Remainder

Back 13

1) Created in ascertainable person

AND

2) Not subject to condition precedent

Front 14

Contingent Remainder

Back 14

1) Created in an unascertained person

OR

2) Subject to Condition Precedent

EX:
To A for life, then to B’s first child” (A alive/B no kids) -- Unascertained person

“To A for life, then, if B graduates from college, to B.” (A is alive. B in high school) -- Contingent Precedent

Front 15

Executory Interest

Back 15

Future interest created in transferee, which is not remainder

Takes effect by either cutting short some interest in another person (“shifting”) or in grantor or his heirs (“springing”).

Front 16

Shifting Executory Interest

Back 16

Follows defeasible fee and cuts short one other than Grantor

Example:
“To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs.”

Front 17

Springing Executory Interest

Back 17

Cuts short the grantor

Example:
“To A, if and when he marries” (A is unmarried)
A has: Springing executory interest
O has: Fee simple subject to A’s springing executory interest

Front 18

Rule against Perpetuities

Back 18

Certain kinds of future interests are void if there is any possibility, however remote, that given interest may vest more than 21 years after death of a measuring life.

Front 19

Utah RAP --

Back 19

Wait up to 1000 years to vest.

Virtual repeal of RAP.

Front 20

Two types of Concurrent ownership estates

Back 20

1) Tenancy In Common
2) Joint Tenancy (w/ right of surviorship)

Front 21

Presumption when there is concurrent ownership

Back 21

Tenancy in Common is intended unless the grantor states it’s a Joint Tenancy

Front 22

Four "unities" needed for creation of a joint tenancy

Back 22

T-TIP

T-ime: At the same time
T-itle: By the same title
I-dentical: Identical, equal interests AND
P-ossess: Identical rights to possess whole

If all aren't present, it is a Tenancy in Common (regardless of grantors expressed intent)

Front 23

Three ways to sever Joint Tenancy?

Back 23

SPAM

1) Sale
2) Partition (either by agreement or court)
3) Mortgage

Front 24

Four tenancy estates in Landlord Tenant Law

Back 24

1) Fixed Term
2) Periodic Tenancy
3) Tenancy at-will
4) Tenancy of Sufferance

Front 25

Fixed Term Tenancy

Back 25

Lease for fixed period of time (could be days or years).

If termination date is known from start, it is fixed term

No notice needed to terminate.

Front 26

Periodic Tenancy

Back 26

Lease continues for successive intervals until L or T give proper termination notice

Front 27

How is a Periodic Tenancy Created?

Back 27

Express Creation:
Stated in the lease agreement.

Implied Creation:
No mention of duration -- Implied if lease provides for paymt. at set intervals.

Oral Term of years -- Violates SOF -- creates implied PT measured by rent intervals

Holdover -- T stays after lease ends -- L doesn't object -- PT based on rent intervals

Front 28

How to terminate a PT

Back 28

Written notice --

Equal to given period unless otherwise stated:

Month-to-month periodic tenancy: One month’s notice
Week-to-week periodic tenancy: One week’s notice

Utah -- Notice At least 15 DAYS PRIOR TO THE END OF THE APPLICABLE MONTH OR OTHER PERIOD

Front 29

Tenancy at-will

Back 29

No Fixed duration.

May be terminated by any party at any time.

Reasonable demand to vacate is usually required.

Utah -- 5 days.

Front 30

Tenancy at Sufference

Back 30

Created when T has wrongfully held-over past expiration of lease.

We give this wrongdoer leasehold estate (tenancy at sufferance), to permit L to recover rent.

Lasts only until L either evicts T or elects to hold T to new tenancy.

Front 31

Landlord liability for Personal Injury

Back 31

Presumption: No liability.

Exceptions (CLAP)
C-ommon Areas:
L-atent Defects: (duty to inform, not to repair)
A-ssumption of Repairs: (L who voluntarily makes repairs is liable if negligent).
P-ublic Use Rule: Applies to L who leases public space (E.g., museums)

Front 32

Landlord Liability in Utah

Back 32

L is liable for negligence.

Front 33

Two implied requirements of Landlords

Back 33

1) Implied covenant of quiet enjoyment
2) Implied warranty of habitability

Front 34

Implied Covenant of Quiet Enjoyment

Back 34

 T has right to quiet enjoyment and use of premises without interference from L.
• (Applies to both residentially and commercially).

Front 35

Constructive Eviction -- 3 Elements

Back 35

1) Substantial Interference with quiet enjoyment -- Chronic, makes occupancy intolerable

2) Notice to L of condition and L's failure to act

3) T must vacate w/reasonable time after L fails to fix problem

Front 36

Implied Warranty of Habitability

Back 36

General Rule:
Premises must be fit for basic, human habitation. Bare living requirements must be met.

Standards usually set by Housing Code.

Utah -- MUST BE A VIOLATION THAT AFFECTS HEALTH OR SAFETY

Front 37

T's options after breach of implied warranty of habitability

Back 37

MR3

M-ove out and terminate lease
R-epair and deduct, allowable by statute in growing number of states. T may make reasonable repairs and deduct costs from future rent.
R-educe rent or withhold all rent until court determines fair rental value. T must place withheld rent in escrow to show good faith
R-emain on premises, pay rent and affirmatively seek damages

Front 38

Assignment vs. Sublease

Back 38

Assignment:
Transfer in whole. T1 typically remains in privity of contract w/L and remains secondarily liable.

Sublease:
Transfer in part L and T2 are not in privity of contract OR estate
T1 responsible to L and T2 responsible to T1.

Front 39

Definition of an Easement

Back 39

Grant of nonpossessory property interest that entitles holder to some form of use or enjoyment of another’s land called “servient tenement”

Front 40

Easement Appurtenant:

Back 40

Benefits holder in physical use or enjoyment of his property.

It takes two parcels of land:
Dominant land -- which is benefitted by the easement
Servient land -- which is burdened by the easement

Front 41

Easement in gross

Back 41

Confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his own land.
Only one parcel of land involved: Servient land.

Examples:
Right to fish or swim in another’s pond;
Utility company’s right to lay power lines on another’s land

Front 42

Transferability of Easements:

Back 42

Appurtenant Easement:
Passes automatically w/dominant tenement, regardless of whether it is even mentioned in conveyance.

Exception: New owner is without notice of easement

Easement in Gross:
Not transferable unless it is commercial purposes.

Front 43

Four methods of creating an affirmative easement

Back 43

PING
Prescription
Implication
Necessity
Grant

Front 44

Prescriptive Easement

Back 44

4 Elements (COAH)
C-ontinuous use for given statutory period (20 years in UT)
O-pen and notorious use
A-ctual use
H-ostile use (without servient owner’s consent)
Note: Permission defeats acquisition of easement by prescription.

Front 45

Implied Easements

Back 45

Court may imply easement from prior use if:
(1) Common ownership before lots were split
(2) Continuous quasi-easement before lots were split
(3) Use is obvious and apparent
(4) reasonably necessary to use and enjoyment of dominant land

Front 46

Easement by Necessity

Back 46

Right of way will be implied by necessity if:
1) Common ownership of both parcels
2) dominant land is inaccessible w/o easement

Front 47

Express Grant of Easement

Back 47

If easement for more than one year, must be in writing that complies with formal elements of deed (SOF).

Called “Deed of Easement”

Front 48

Scope of Easements

Back 48

Determined by terms of grant of easement or conditions that created it.

Same basic use
Reasonability is the dominant factor

Front 49

Licenses

Back 49

Privilege to enter another’s land for some delineated purpose.

No SOF.

Freely Revocable

Front 50

Elements of Adverse Possession

Back 50

OCEAN

O-pen and notorious use
C-ontinuous use for given statutory period (UTAH: 7 year period)
E-xclusive
A-ctual use
N-on-permissive

UTAH – MUST ALSO HAVE PAID TAXES ON PROPERTY FOR ENTIRE AP PERIOD (7 YEARS)

Front 51

Adverse possession against disabled owner

Back 51

SOL will NOT run against true owner w/disability at inception of adverse possession

Common disabilities:
Insanity,
infancy, and
imprisonment

UTAH -- ONLY INSANITY AND INFANCY ARE RECOGNIZED DISABILITIES

Front 52

Standard for Real-Estate sales contracts

Back 52

SOF Applies:

Land contract must be IN WRITING and SIGNED by party to be bound.

It must DESCRIBE land and state some CONSIDERATION (NOT nominal)

Front 53

Real Estate Sales Contracts -- Doctrine of Partial Performance

Back 53

Two of following three facts satisfy doctrine and court will order special performance of oral contract for sale of land:
• B takes possession of land
• B remits all or part of purchase price and/or
• B makes substantial improvements to premises

Front 54

Real Estate Sales Contracts -- Risk of Loss

Back 54

Doctrine of Equitable Conversion:

Once sales contract is signed, Buyer is the legal owner of the land. If, in the interim, land is damaged or destroyed, B bears risk of loss -- unless contract provides otherwise.

Front 55

Two implied promises of every Real Estate sales contract

Back 55

1) Seller promises to provide marketable title at date of closing.

2) Seller promises to make no false statement of material fact.

Front 56

Definition of Marketable title:

Back 56

Title is free reasonable doubt, lawsuits (or threats of)

Front 57

Four Circumstances will render title unmarketable:

Back 57

1) Gaps in title
2) Portions of title in Adverse possession
3) Encumbrances (servitudes, mortgages etc.)
4) Zoning violations