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120 Cards in this Set

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How is a fee simple defeasible not like a fee simple absolute?
You have all the same interests (hold, convey, possess, etc) but it is subject to a restriction
What are the three categories of fee simple defeasibles?
(1) fee simple DETERMINABLE which lapses automatically if impermissible event occurs; (2) fee simple SUBJECT TO A CONDITION SUBSEQUENT, which gives grantor right to reenter and terminate; (3) fee simple SUBJECT TO AN EXECUTORY LIMITATION, which provides for transfer of the property to a third person if impermissible even occurs
Define fee simple determinable
A type of fee simple defeasible. "A fee simple determinable is a fee simple which AUTOMATICALLY comes to an end when a stated even occures (or fails to occur)"
What is "to A and his heirs as long as it is not used to sell cars, and if they are sold, then the premises shall revert to O"
This is a fee simple determinable
Besides granting interests in the grantee, what other interest does a fee simple determinable create?
The possibility of reverter
Discuss fee simple determinable and rule against perpetuities
It does not apply, so even if you grant land with there would be no limitation for how long the condition stays in effect under the Rule. However, many states have adopted statutes of limitations here because it makes the land less marketable.
What words are needed to create a fee simple determinable?
Ones that make it clear that the estate is to end automatically. So: "Until....", "so long as...", or "during..." will probably do it. ALSO, if you have a clause that makes it clear the property is to revert, this might be a sign too.
Define fee simple subject to condition subsequent
Unlike the fee simple determinable, this fee simple does not automatically end. "The grantor has the right to take back the property, but nothing happens until he affirmatively exercises that right."
What words are needed to create a fee simple subject to condition subsequent?
Two categories: (1) words of condition, "upon condition that", "upon express condition", "provided that" and (2) the grantor has the right of re-entry to terminate the estate
What is "to A and his heirs as long as it is not used to sell cars, and if they are sold, then grantor or his heirs may re-entry the property and terminate the estate.
This is a fee simple subject to condition subsequent. That is, the estate doesn't automatically enter. The grantor and his heirs have the "power of termination"
What if a fee simple subject to condition subequent is missing its reentry clause?
Most courts will not treat it as a condition subsequent and just a covenant on the part of the grantee to obey the restriction. If he does not, all the grantor can get is money damages.
Discuss fee simple subject to condition subsequent and the rule against perpetuities
Like the fee simple determinable, this estate is not subject to the Rule. However, it too is often subject to statutory limitations
Distinguish fee simple subject to condition subsequent from fee simple determinable
It might make a big deal which one it is. In the determinable, the estate automatically reverts but in the condition subsequent, the grantor much affirmatively exercise his power of termination (by re-entering or bringing suit).
What are two cases from the outline distinguishing fee simple subject to condition subsequent and fee simple determinable?
1) The Oldfield v. Stoeco Homes (the Ocean City case where the company couldn't get the land prepared in time) and 2) The school case (Mahrenholz)
What is Oldfield v. Stoeco Homes and what proposition does it stand for in the context of fee simple determinable vs subject to condition subsequent?
It appears from the grant that there are terms that look like a fee simple determinable ("a failure to comply...will automatically cause title to ... Revert to the city of Ocean City") but in fact the court felt it was a fee simple subject to condition subsequent because 1) reservation of the city to make changes and 2) the purpose of the city was to get the land converted, not to revert THEREFORE, the city has the power to waive power of termination.
What is Mahrenholz v. County Board of School Trustees and what proposition does it stand for in the context of fee simple determinable vs subject to condition subsequent?
In this case, land was granted "to be used for school purposes only; otherwise to revert to Grantors herein". D's stop using land for school. The heir of original grantor sells reverter interest to P and he sues for land. The fee simple determinable is upheld here.
What position do courts take on fee simple determinable vs fee simple subject to condition subsequent?
Courts dislike foreiture and especially automatic forfeiture so if there is doubt about which on it is, the court will usually interpret it as subject to condition subsequent. It will reach this conclusion sometimes even if the words are traditionally associated with fee simple determinable (see Oldfield v. Stoeco) for this one.
Standard for whether the event for defeasible interests is triggered
Because courts or generally hostile to forfeiture, the terminating event must be clearly established. A minor deviation will not usually trigger it.
How long do people have to exercise their power of termination under fee simple subject to condition subsequent?
If the grantor (or his heirs) don't terminate within a reasonable time, then the court will believe he has waived his right to do so.
What is the difference between a fee simple subject to executory limitation and the other two fee simple defeasibles?
The fee simple determinable and the fee simple subject to condition subsequent exists only when it reverts to grantor. But an executory limitation allows the estate to pass to a third person.
What is "to A and his heirs, but if the property is used to sell liquor, then to B and his heirs"?
This is a fee simple subject to executory limitation.
What is the difference between a definite failure of issue and an indefinite failure of issue?
A definite one is where someone specific dies without survivors, an indefinite one is where somewhere down the line of descendants, someone dies without survivors
Interpret this: "to A and his heirs, but if A dies without issue, then to B and his heirs"
This is a fee simple subject to executory limitation because most courts today will see this as a definite failure of issue (i.e., A dying without survivors). If the court interpreted it the other way, it would be a fee tail, not a fee simple subject to executory limitation.
Are fee simples the only estates that could be defeasible?
NO. For example, a life estate could be defeasible.
What is future interest created by a fee simple determinable?
Possibility of reverter
What other phrase does Henke use for fee simple determinable?
"Fee simple subject to special limitation"
What future intest is created by a fee simple subject to condition subseqent?
Right of reentry or power of termination
What future interest is created by a fee simple subject to executory limitation?
An executory interest
Interpret this: "to the Zion church so long as the property is used for religious purposes."
This is a fee simple determinable
Interpret this: "to the Zion chuch for religious purposes, but if not used for religious purposes grantor may terminate and reenter the premises."
This is a fee simple subject to condition subsequent.
Interpret this: "to the Zion church for regilious purposes, but if not used for relgious purposes then to Sally"
This is a fee simple subject to an executory limitation
Are fee simple subject to exectutory limitations subject ot the Rule Against Perpetuities?
YES
What is the fee tail?
"to A and the heirs of his body" so that the property could not be conveyed outside the family
What words are needed to create a fee tail?
Words that indicate the estate is to pass only to the issue of each tenant in tail, the most common being "to A and the heirs of his body"
Who is eligible to receive estates in a fee tail?
Only the issue of the tenants in tail, not collateral heirs like brothers and sisters, nephews, uncles, etc)
What happens if there is a failure of issue in a fee tail?
The estate will revert to the grantor
What is "to A and the heirs of his body"
A fee tail
This won't be on the test. What is the first rule in Wild's Case?
Kind of like fee tail except "to A and his children" The old english courts read this as a fee tail because "to his children" were words of limitation not words of purchase
What are words of limitation?
It describes and estate (like the size and shape of the interests in it)
What are words of purchase?
Words that grant or provide and interest
Does the first rule in Wild's case apply in American courts?
NO. We say that "to A and his children" is a fee tail which we reject (except for a few states). So we create a life estate in A and a remainder in A's children
What is the modern American treatment of the fee tail?
It is dead. However, there is quite a bit of difference in American states in how it is treated
How does South Carolina treat a fee tail?
It creates a fee conditional (not fee absolute), so if you have children you can convey it away but if you don't, then you cannot
How do the four states of Delaware, Maine, Mass., and RI treat fee tails?
The have a "disentailable fee tail"
How do Ohio and Connecticut treat the fee tail?
They provide a fee tail for one generation (no disentailing conveyance) and the heirs get a fee simple absolute
How do the eight states such as FL, IL, MO, GA... Treat the fee tail?
They consider this a life estate in the grantee followed by a fee simple absolute
How do the majority (27) of states treat the fee tail?
They convert it to a fee simple absolute
What is "restraint on alienation"?
A restriction on a grantee's ability to sell or transfer real property even after an interest becomes vested
What is a remainder?
A remainder is a future interest which can become possessory only upon the expiration of a prior possessory interest, created by the same insturment.
What are Henke's 4 conditions of a remainder
(1) possessory immediately upon termination of a preceding estate; (2) preceding estate and remainder must have been created by the same conveyance; (3) estate preceding the remainder must be certain to end; (4) it is created in a third person/not a reversion to the grantor
Interpret: "to A for life, remainder to B and his heirs"
B has a remainder and A has a life estate
Interpret: "to A for 10 years, then to B and his heirs"
A has an estate in a term of years and B has a remainder (but at old common law, B would not be a remainder, it would have been a freehold because sesin would have passed to B and A would basically be leasing.
What are the two kinds of remainders?
Vested and contingent
What is the definition of a vested remainder?
There isn't really one. You know it if you have (1) no condition precedent; and (2) the person holding the vested remainder is already born and his identied ascertained.
How do you know if an estate is a contingent one?
Mostly, if it isn't vested. You know a vested estate if you have (1) no condition precedent; and (2) the person holding the vested remainder is already born and his identied ascertained.
What are the two necessary conditions that identify a vested remainder?
You know it if you have (1) no condition precedent; and (2) the person holding the vested remainder is already born and his identied ascertained.
"To A for life, remainder to B and his heirs", what kind of remainder interest does B have?
An indefeasibly vested remainder because there isn't a condition precedent (ok, death of A but this ins't considered a "condition precedent") and he is alive and ascertainable.
What are the three subclasses of vested remainders?
(1) Remainders indefeasibly vested; (2) remainders subject to open; (3) remainders vested subject to complete defeasance
What is a remainder indefeasibly vested?
It is a remainder that is certain to become possessory at some future time (even if the remainderman never possesses it but his heirs or devisees do).
Interpret: "to A for life, then to B for life"
These are successive life estates but B's interest could be called a vested remainder subject to defeasance because if B dies before A, B and his heirs get nothing at all.
Interpret: "to A, then upon A's death to B and his heirs"
This conveyance is another way of saying that A has a life estate and B has an indefeasibly vested remainder.
What is a vested remainder subject to open?
This exists when it is possible to point to one or more people saying that they (or their heirs or devisees) are certain to have a possessory interest someday, but it is possible that more will share the interest.
What is another term for a vested remainder subject to open?
A vested remainder subject to partial divestment
Interpret: "to A for life, remainder to B's children and their heirs"
B's children have a vested remainder subject to open. The openness will end at the time of A's death (then only children born will receive a share of the estate) or B dies and can have no more children.
What is a vested remainder subject to complete defeasance?
This is a vested remainder but it is possible that it may never become possessory
What are the two main conditions in which a vested remainder subject to complete defeasance would fail to become possessory?
(a) Expiration before becoming possessory and (b) divestment
Discuss the possibility of reverter in light of a vested remainder subject to complete defeasance that expires before becoming possessory.
If a vested remainder fails to become possessory then it will likely revert to the grantor. Example: "to A for life, then to B and his heirs so long as the premises are used for residental purposes." B could be said to have a vested remainder subject ot complete defeasance by natural expiration. SO, O has a possibility of reverter.
What is divestment in the context of vested remainders subject to complete defeasance? (and 3 types)
The vested remainder subject to complete defeasance can fail to be possessory if it is divsted prior to termination. 1) executory interests, 2) right of entry, and 3) power of appointment
Interpret: "to A for life, then to B and his heirs, but if B dies without issue, then to C and his heirs"
B has a remainder vested subject to divestment (a type of complete defeasance). B is possessory immediately at A's death, so it IS vested. BUT if B dies without issue then C cuts short B's vested interest.
What is a vested remainder subject to defesance through right of entry?
If the grantor retains a right of entry if the remainderman doesn't meet a condition, the remainder is vested subject to divestment
Interpret: "to A for life, then to B and his heirs, upon a condition that the premises always be used as a park; if not so used then O or his heirs shall have right to re-enter" from the perspective of the remainder interests
B's interest is vested, BUT it is vested subject to complete defeasance if B fails to use it for a park. If he does, he divests himself of the vested remainder.
Interpert: "to A for life, remainder as A shall appoint, and if A does not exercise this power, to B and his heirs"
If A exercises his power of appointment, it would divest B of his remainder.
Interpret: "to A for life, then to the children of B who survive B" (2 points)
At the time of conveyance, B's childrens' remainder is contingent because there is no way to know which children will survive B. NOTE: if B dies while A is still alive, then B's children have vested remainders.
What is a condition precedent?
A condition that must be met BEFORE a remainder could possibly become possessory
What is a condition subsequent?
A condition that, if it occurs, will bring an estate to an end
Think about condition precedent and condition subsequent
A condition precedent is one that must be met BEFORE a remainder could possibly become possessory while a condition subsequent is one that, if it occurs, will bring an estate to an end
Interpret: "to A for life, then, if B is living at A's death, to B in fee simple"
B has a contingent remainder because if B fails to survive A, then the remainder cannot be possessory. This might look like a remainder subject to defeasance, but the condition is precdent (if B is living) and not subsequent (like, failing to use the property for anything other than a church)
What if a remainder is subject to a condition subsequent?
Then it is NOT a contingent remainder but would instead be a remainder subject to defeasance
What is the traditional test to figure out if a remainder is contingent or vested when looking at conditions that might be precedent or subsequent?
Words alone, so if a condition is written in that gives the estate, then it is a condition precedent and contingent remainder. However, if the estate is given, and then taken away by a second clause, then this is a condition subsequent that would give you a vested remainder.
Interpret: "to A for life, remainder to B and his heirs, but if B dies before A, to C and his heirs" using the traditional test for condition precedent/subsequent
B's remainder is vested because no condition was on the original grant and there is a condition subsequent that takes it away. If it were written the other way, then it would be contingent on B surviving A.
What is two key words to look for when determining a condition precedent or condition subsequent in remainders?
"But if", when the condition follows the phrase it is usually an indication that the remainder is being taken away. Contrast to "then if..." where a condition is often precedent
Discuss survivorship in the context of condition precedent v. subsequent
It can be a precedent just as easily as it can be subsequent, example of Kost v. Foster
What is Kost v. Foster and what proposition does it stand for?
The grantors wrote: "to Ross for life, at his death to his lawful children..." Prior to Ross' death, one child declare bankruptcy. Children sue claiming this was contingent remainder, not vested (local law wouldn't allow bankruptcy to attach this interest). Held: no condition precedent so it was vested. The grammatical structure of the conveyance controls.
What do courts prefer, vested or contingent remainders?
Vested.
Interpret: "to A for life, then to B and his heirs if B survives A, otherwise to C and his heirs"
B and C both have alternative contingent remainders. Contrast with this: "to A for life, then to B and his heirs; but if B dies before A, to C and his heirs" this would be a vested remainder subject to divestment and C would have an executory interest. Form rather than substance controls.
Intepret: "to A for life, then to the children of B" at the time of conveyance B has no children
Then the remainder is contingent in the unborn children. However, if B has children while A is still alive, then it will be a vested remainder.
Intepret: "to A for life, then to A's heirs"
This is a contingent remainder in A's heirs. At the time of his death, it will be become vested and possessory
Interpret: "to A for life, then to his widow"
The widow is not ascertainable at the time of conveyance because there is no way of knowing if the widow will survive A or even still be married
What is the rule of "destructibility of contingent remainders"?
A common law rule. If a contingent remainder doesn't vest at or before the termination of the preceding freehold estate, then the remainder is destroyed.
What would happen if O conveys "to A for life, remainder to the first son of A who reaches 21" when A dies and B's one son is 16?
Then the contingent remainder is the first son to reach 21 is destroyed. So, O's reversion becomes possessory.
What were the two ways to destroy a contingent remainder?
(1) normal expiration of the supporting freeholds amd (2) merger of the supporting freeholds
O conveys "to A for life, remainder to B for life, remainder to B's first son who shall reach 21 and his heirs" What happens if B dies leaving a 19 year old son?
Under common law, the contingent remainder would not have been destroyed because seisin would be held in A.
What is "the doctrine of merger" in the context of destructibility of contingent remainders?
Contingent remainder could be dstroyed because the estate preceding it was merged into another, larger, estate. The smaller estate disappears and the contingent remainder dependent upon it is destroyed.
O conveys "to A for life, remainder to A's first son for life if he reaches 21, remainder to B and his heirs". If A conveys to B when A's son is 19. What happens?
This is the doctrine of merger. B has two successive vested estates so, since son is not vested yet, his contingent remainder disappears. Basically, the life estate disappears and the son wasn't ready, so B gets it.
What happens when O conveys "to A for life, then to B for life, then to C and his heirs" when A conveys his life estate to C?
B retains his interest after A dies because he was vested. The doctrine of merger does not apply because B was not a contingent remainder.
What is the state of the destructibility rule in modern American law?
In about half the states it has been abolished by statute. Some additional states have done it by case law.
What is the historical rule on the alienability of contingent and vested remainders?
Vested remainders could be always be alienable inter vivos but contingent ones could not
What is the modern American application of the alienability of contingent remainders?
It is alienable, devisable, and descendible just as vested remainders are. Some states have restrictions on inter vivos transfers, but this is rare.
How is a leasehold estate distinguished from a freehold estate?
A lease is a non freehold so the tenant does not hold seisin and it is considered personal, not real property
How is a leashold like a freehold?
They are both estates in land and typically created by a conveyance
How is a leasehold not like a hotel room or a parking lot space?
A leaseholder is entitled to exclusive possession. A hotel guest just has a license.
What are the four types of non-freehold tenancies?
Estate for years, periodic tenancy, estate at will, estate at sufferance
What is the defining characteristic of a estate for years?
It is conveyed for a *fixed period of time* so it automatically terminates with no notice requirement
How does a leashold interact with Statute of Frauds?
Any conveyance for over a year must be in writing although different states have different requirements
What is the defining characteristic of a periodic tenancy?
The periodic tenancy continues indefinetely until terminated by one of the parties by proper notice
Discuss what "proper notice" means for a periodic tenancy at common law?
At common law if the rental period was greater than 6 months, then you needed six months to terminate. However, if the period was less than 6 months then you need just one whole period to give notice
What kind of lease will courts infer if you pay $400 per month with no end period?
If there were an end period, they would infer an estate for years. Without an automatic termination like this, however, they would think it was a periodic tenancy
Describe the sequence of events under a void lease?
A void lease is usually one that failed to be written or under some statutory failure. So if the tenant occupies, then he is a tenant at will. However, once he pay rent for a specific period the court will probably see this as a periodic tenancy.
What happens in a holdover from a leashold and what kind of non freehold estate is created at common law?
If the tenant holds over then the landlord has the choice of treating the tenant as a trespasser or holding him to a new lease. If held over for a new lease, it becomes a periodic tenancy.
What is the defining characteristic of a tenancy at will?
It has no stated duration and may be terminated at any time by either party
How is a tenancy at will usually created?
It is often created by accident... Like if a lease fails to be established or something
What is the tenancy at sufferance?
Not very important actually. It is the period when a tenant holds over and the landlord is deciding whether to hold him to a new lease or kick him out as a trespasser
Discuss the competing rules for tenant's right of possession
The landlord is obligated to deliver legal right but the courts are sharply slipt whether the landlord impliedly warrants that he will deliver actual possession (i.e., what if someone is already occupying the land)? First is American rule (actually, only 1/2 of states) that says the landlord need only deliver legal right. The English rule is that he has to deliver actual possession (about 1/2 of american states follow this)
What is the right for "right of quiet enjoyment" often violated (2)?
A third person assertion of a title superior to landlord and (2) acts of the landlord
What is the general rule for the illegal use of a leasehold?
If the tenant's use is illegal in some cases (not all) the lease will be void and no party has obligation to the other
What is the rule for a building that is in violation of building codes?
If a building is inhabitable for violation of codes, the lease will be held to be void
What are the three policy reasons for following the "English rule" when it comes to tenant's right of possession?
(1) Landlord has better knowledge of whether the property is in someone else's possion, (2) prior to commencement of the least, landlord is generally only one who has the right to evict holdover or trespasser, (3) parties usually intend that landlord warrants actual possession
If L orally leases a store building to T for a period of two years, what rights if any has T?
If T has possession then he would be a tenant at will. If he pays rent, then it turns into a periodic tenancy.
T has a written lease for a two year term. L notifies that T's rent will double if T holds over at the end of the two yeasr. T says nothing and holds over. How much rent can L collect?
Courts are divided on this. Majority is sympathetic to the landlord, but doubling the rent probably isn't justifiable. However, the common law standard is according to the original terms so double the rent isn't covered by common law.
Discuss this (no real answer): L purports to lease to T at an annual rent of $100 "so long as T uses Blackacre for a sawmill." Is this a valid lease?
The Restatements might treat this a determinable life estate. Hard to call it an at will lease because it is only really at will to the operator, not the landlord.