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111 Cards in this Set

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What type of estate should you think of when you see the words:
(1) PROVIDED, HOWEVER
(2) BUT IF
(3) ON CONDITION THAT
Fee simple on condition subsequent!

HOWEVER< these words MUST be followed by language where the Grantor EXPRESSLY reserves the right to re-enter and re-take the property.
Do the words "for the purpose of" put any limits on title?

Ex. You may have this land for the purpose of building an orphanage.
NO! However, it may lead to an action for breach of CONTRACT.
What are the three ways in which an estate might go back to the GRANTOR?
(1) Reversion
(2) Possibility of Reverter
(3) Right of Entry
Are reversions subject to the rule against perpetuities?
NO
Are reversions freely transferable upon death?
YES
Are reversions freely transferable INTER VIVOS?
YES
Are reversions...
(1) subject to the rule against perpetuities?
(2) freely transferable upon death?
(3) freely transferable inter vivos?
(1) NO
(2) YES
(3) YES
Is the possibility of reverter subject to the rule against perpetuities?
NO
Is the possibility of reverter freely transferrable ON DEATH?
YES
Is the possibility of reverter freely transferable INTER VIVOS?
YES
Is the right of Entry subject to the rule against perpetuities?
NO
Is the right of Entry freely transferrable ON DEATH?
YES
Is the right of Entry freely transferrable INTER VIVOS?
NO
Is the possibility of reverter
(1) Subject to the rule against perpetuities?
(2) Freely transferrable on death?
(3) Freely transferrable inter vivos?
(1) NO
(2) YES
(3) YES
Is the right of Entry
(1) Subject to the rule against perpetuities?
(2) Freely transferrable on death?
(3) Freely transferrable inter vivos?
(1) NO
(2) YES
(3) NO
What is a REMAINDER?
A REMAINDER is a future interest of a THIRD PARTY. It comes NATURALLY and IMMEDIATELY upon termination of the preceeding estate.
O conveys Blackacre to A for life, and then on A's death to B and heirs. What kind of estate was given to
A?
B?
A: A life estate
B: A remainder in fee simple absolute.
Once you recognize that a party has a remainder, you have to decide what type of remainder. What are your two options?
(1) A vested life estate
(2) A contingent life estate
When is a remainder vested?
Generally, if NOTHING stands in the way of its becoming possessory on the NATURAL expiration of the preceding estate.
O conveys Blackacre to A for life, then to B and his heirs, if B survives A. What kind of estate do A and B have?

WHY does B have this kind of interest?
A: Life estate
B: A contingent remainder in fee simple. Why? Because there is a condition (survivorship) that B must satisfy before his interest in Blackacre becomes possessory.
O conveys Blackacre to A for life, then to B and his heirs when B reaches the age of 21. At the time of conveyance, B is 15.
Who has what? Why?
A: Life Estate
B: Contingent remainder in fee simple. Why? There is an age contingency to be satisfied before B's interest becomes possessory.
O conveys Blackacre to A for life, then to B and his heirs when B reaches 21. At the time of conveyance, B is 15.
What property interest does O have?
O has a reversion. Why? Just in case B is not 21 when A dies.
O conveys Blackacre to A for life, and then to B and his heirs when B reaches 21. What if A dies, and B is only 18?
MAJORITY RULE: Blackacre goes back to O by way of reversion, who will hold the property in fee simple, subject to an EXECUTORY INTEREST, and B holds the EXECUTORY INTEREST.
O conveys Blackacre to A for life, then to A's children. At the time of conveyance, A has 3 children, B, C, and D.
Who has what?
A: Life Estate
B, C, D: Vested remainder SUBJECT to OPEN.
What is a synonym for "subject to open?"
Subject to PARTIAL DIVESTMENT.
What does it mean for a vested remainder to be SUBJECT to OPEN.
It means that when the remainder interest is conveyed to a class of unnamed persons, whose members are not yet fully known, the class remains open to allow for future persons who qualify as class members.
O conveys Blackacre to A for life, then to A's children. At the time of conveyance, A has 3 children, B, C, and D. If all of A's children are dead when A dies, what happens to Blackacre?

Why?
It goes to their estate.

Why? Because they had a VESTED remainder.
What term do you use to refer to a conveyance to A's children?
A CLASS GIFT.
When does the class for a CLASS GIFT close?

Can this rule be avoided?
Under a rule of CONVENIENCE, the class closes whenever ANY class member is entitled to a distribution.

Because this is a rule of construction, not of law, the grantor can specify otherwise.
With a class gift, what happens if a member of the class predeceases the testator?
That person's interest lapses, and their interest is ELIMINATED.
O conveys Blackacre to A for life, then to A's children. At the time of conveyance, A has no children.
Who has what?
A: Life Estate
A's children: A contingent remainder. Why CONTINGENT? They are not yet in existence at time of conveyance.
O: A reversion, just in case A dies never having any kids.
O conveys Blackacre to Harry for life, then to Harry's widow. At the time of conveyance, Harry is married to Sally.
Who has what?
Harry: Life Estate
Harry's Widow: a contingent remainder
Sally: nothing
O: a reversion, should Harry be unmarried at the time of his death.
When does a remainder become possessory?
It will becomes possessory, if at all, upon the NATURAL EXPIRATION of the estate that comes before them.
How is an EXECUTORY INTEREST different than a REMAINDER?
An executory interest operates to CUT SHORT the estate that comes before it. A remainder is patient, and just waits until the previous estate expires naturally.
O conveys Blackacre to A so long as the property is used for residential pruposes; if it is ever used for something else, then to B and heirs.
Who has what?
A: Fee simple subject to an executory interest.
B: Executory Interest
Does a remainder EVER follow a fee simple conveyance?
NO. NEVER, EVER.
What are 2 synonyms for a vested remainder in fee simple subject to an executory interest?
(1) A vested remainder subject to total divestment
(2) A vested remainder subject to an executory limitation
O conveys Blackacre to A for life, then to B and his heirs; but if at B's death, B is not survived by issue, then to C and her heirs.
Who has what?
A: Life Estate
B: Vested remainder in fee simple subject to executory interest
C: Executory interest
Can someone with an executory interest sue the holder of the property for WASTE?
NO. Holders of executory interests do NOT have standing to sue for waste.
Can the holder of a remainder sue a life tenant for WASTE?
YES. The holder of a remainder has standing to sue for waste.
What is the RULE AGAINST PERPETUITIES?
NO interest will be valid unless it must vest - if it is going to vest at all - within 21 years after the death of some "life in being" who was alive at the moment the conveyance was made.
What three things does the rule against perpetuities apply to?
(1) Executory Interests
(2) Contingent Remainders
(3) Vested Remainders Subject to Open
What happens if a future interest is void under the rule against perpetuities?
Just CROSS OUT the language of the conveyance that violates the rule.
When do you apply the rule against perpetuities for a
(1) Conveyance?
(2) Will?
(3) Deed?
(1) At the time to conveyance is made
(2) At the time of the testator's death
(3) At the time that the deed takes effect
What is a perpetuities savings clause?
It is language that is intended to SAVE a grant from violating the rule by making sure that vesting must occur within the time period of the rule.
Can a grantor ever create a right of re-entry for a third party?
NO WAY! A right of entry can be created in favor of the GRANTOR only.

When it looks like a right of re-entry, it is either an executory interest or a remainder.
Can contingent interests in property, like options and rights of first refusal, violate the Rule Against Perpetuities?
YES, IF they could possibly be exercised outside the time period of the rule.
What is the exception to the Rule Against Perpetuities?
The Charity to Charity Exception.

When BOTH transferees are charities, the rule against perpetuities does NOT apply.
What should you look out for in class gifts and the rule against perpetuities?
Look out for an age contingency over 21. Then, the conveyance can LOSE its link to a life in being.
For the rule against perpetuities, what is the fertile octogenarian rule?
It holds that one ALWAYS presumes a woman could have another child, even if she is in her 80s (or is otherwise physically unable to have children).
O conveys Blackacre to Mary for life, then to such of Mary's children as reach the age of 30. Mary is now 87, and she has 3 children.
Who has what?
Mary: a life estate
Children: NOTHING.

Why? The entire class fails as violating the rule against perpetuities.
What MUST you have in order to create a JOINT TENANCY?
(1) The Four Unities: T.T.I.P. (time, title, interest, possession)
(2) The language of the conveyance must clearly show the grantor's INTENT to create a joint tenancy.
(3) The conveyance MUST say "with right of survivorship"
For joint tenancy, what are the "four unities?"
T.T.I.P.
T = unity of TIME. All joint tenancy interest must vest at the same TIME.
T = unity of TITLE. The grant to all joint tenants must be by the same INSTRUMENT.
I = unity of INTEREST. All joint tenants must take the same KIND and the same AMOUNT of interest.
p = unity of POSSESSION. All joint tenants must have identical rights of possession.
If the intent of the grantor is unclear as to whether he wanted to create a joint tenancy or a tenancy in common, what do you presume it is?
A TENANCY IN COMMON.
Under the MAJORITY rule today, what MAGIC words must be used to create a joint tenancy?
"as joint tenants, with the right of survivorship"
OR
"in joint tenancy with right of survivorship."
Does joint tenancy carry the right of survivorship?
YES. And, that right must be clearly stated in the instrument.
What is a right of survivorship?
It means that the surviving joint tenants take AUTOMATICALLY on the death of a joint tenant. The dead joint tenant's share does NOT go to his estate.
What are the two ways in which one can terminate joint tenancy?
(1) Voluntarily, via right of PARTITION.
(2) Involuntarily, via SEVERENCE.
How does voluntary termination of joint tenancy by partition work?
Lines are drawn and the party seeking the partition then owns the property outright.

The parties may do this by agreement, or alternatively, a judicial action seeking partition can be brought.
When does SEVERENCE of a joint tenancy occur?
What are examples of this?
Whenever one of the four unities is disturbed.
(1) Sale
(2) Mortgage, if in a TITLE theory state
(3) Contract of Sale
(4) Creditor's Sale of the interest in joint tenancy

It CANNOT be severed by WILL.
What is required for a tenancy-in-common?
No unities EXCEPT on: unity of POSSESSION, which means that each co-tenant is entitled to possess the whole of the property.
Is a tenancy-in-common (T.I.C.) alienable?
Yes, the rights associated with a tenancy in common are fully alienable, so each co-tenant can DO WHAT HE WANTS.
For T.I.C., is there any right of survivorship?
NO.
In a T.I.C., who can force a partition?
ANY tenant.
What is a tenancy by the entirety?
It occurs when one has the four formalities of a joint tenancy (T.T.I.P.), plus marriage.

It does not exist in California, since it is a community property state.
For tenancy by the entirety, is there a right of survivorship?
YES
For tenancy by the entirety, is there a right of partition?
NO
Is a tenancy by the entirety severable by the unilateral act of one party?
NO
What are the four ways in which a tenancy by the entirety may be terminated?
(1) Death
(2) Divorce
(3) Mutual agreement
(4) Execution by a JOINT creditor
For co-tenancies, what does "possession" mean?
It means that each co-tenant has the right to possess the WHOLE of the property - consistent with the same right in every other co-tenant.
For co-tenancy, does a tenant have to SHARE PROFITS that the co-tenant has received from the land?
Generally, no. However, there are four exceptions.
(1) Ouster: accounting is required if one co=tenant is EITHER keeping the other off the property OR claiming a right of exclusive possession
(2) Agreement to share
(3) Lease of the property to a 3rd party
(4) Depletion of natural resources
For co-tenants, what is contribution?
It is the right of one co-tenant to force the other co-tenants to pay their share of some expenditure made on the property.
Does a co-tenant have a right to contribution for
(1) Building onto a house (improvements)?
(2) Fixing things (repairs)?
(3) Paying the mortgage?
(4) Paying the taxes?
(1) NO. However, they may be recouped later, at the time of sale.
(2) YES, but only if they are necessary.
(3) YES, if the mortgage was SIGNED by ALL the cotenants.
(4) YES.
What are the four types of non-freehold estates?
(1) Estate of Years
(2) Periodic Tenancy
(3) Tenancy at Will
(4) Tenancy at Sufferance
What is the KEY PHRASE associated with an estate for years?
SPECIFIED TIME. It need not be actual years.
When does the Statute of Frauds apply to a tenancy for years?
When it lasts OVER one year.
Is there any notice required to terminate an estate for years?
Generally, NO.
What is a PERIODIC TENANCY?
It is a tenancy that is continually repeating UNTIL one party gives proper notice.
What are the three ways you can create a periodic tenancy?
(1) By EXPRESS agreement
(2) By IMPLICATION
(3) By OPERATION of LAW
If a lease does not say how long a tenancy is to last, it is presumed to be a _____________ measured by the ______________ payment.
If a lease does not say how long a tenancy is to last, it is presumed to be a PERIODIC TENANCY measured by the RENT payment.
How is a periodic tenancy created by OPERATION of LAW?
(1) An oral lease that violates the statute of frauds becomes a periodic tenancy
(2) Holdover tenancy becomes a periodic tenancy
How does a periodic tenancy terminate?
By giving proper notice. No notice means that there will be a repeat of tenancy. Notice must
(1) Give enough TIME: time equal to the length of the period of the tenancy EXCEPT for year to year, requires 6 mo
(2) Effective DATE: date specified must be at the END of the period of tenancy. ** TRICKY **
How do you know if notice gives the proper effective DATE for termination of a periodic tenancy?
Look at the date of the initial transaction. Use that date to determine the END of any given period.
What is a TENANCY AT WILL?
It is a tenancy by which either party can terminate the tenancy at ANY time, without notice.
A tenancy at will is sometimes terminated by operation of LAW, what are these five cases?
(1) Death of either party
(2) Waste by the TENANT
(3) Assignment by the TENANT
(4) Transfer of title by the landlord
(5) LEASE by the landlord to a third party.
What is a tenancy at sufferance?
It refers to the bare POSSESSION that a tenant has of the property when the tenant WRONGFULLY holds over.
When a landlord is faced with a tenancy at sufferance, what are his two options?
(1) Sue to evict: sue in trespass and to recover damages
(2) Impose a new periodic tenancy. The landlord MAY elect to treat the tenant as a new periodic tenant. If old tenancy for less than 1 year, time measured by rent payment. For commercial, if tenancy for a year or more, then can impose year-to-year.
Generally, can a landlord raise rent on a tenant?Yes.
If the LL gives the tenant NOTICE of the increase in rent BEFORE the expiration of the lease, he may properly demand higher rent.
What are the duties of a tenant?
(1) Duty to pay rent
(2) Duty to maintain premises
- usually specified in lease
- even if lease is silent, dity not to commit WASTE
- if lease contains covenant to repair and maintain, tenant becomes absolute insurer of premises
When a lease has a covenant to repair and maintain, does is the tenant insurer of ordinary wear and tear?
Under common law, no.
The modern trend is to hold tenants liable for everything, including wear and tear, unless the agreement excludes this responsibility.
When a tenant unjustly abandons, what are the landlord's two options?
(1) Accept the tenant's offer of abandonment. Tenant has no further rent obligation.
(2) LL relets, or re-rents premises, holding tenant liable for any DEFICIENCY.
At common law, LL was under no duty to relet property.
Modern trend is that LL has a duty to mitigate by reletting.
What happens if a LL agrees to lease a premises, but then he cannot deliver possession to the tenant (like if there is a holdover tenant)?
He is in BREACH of the lease.
Does a LL have a duty to deliver leased premises in a habitable condition?
Under common law, NO. He merely must transfer estate.

Under the modern trend, there is an IMPLIED WARRANTY OF HABITABILITY for RESIDENTIAL properties. So, the LL must provides leased premises that are REASONABLY suited for residential use.
What are the tenant's remedies for the LL's brech of the implied warranty of habitability?
(1) Tenant can MOVE OUT and NED THE LEASE
(2) Tenant can stay on the property and SUE FOR DAMAGES
What is the implied covenant of quiet enjoyment?
It holds that EVERY lease includes the LL's implied promise NOT to interfere with the tenant's quiet enjoyment of the leased premises.
Applies to residential, agricultural, industrial...
How may a LL breach the implied covenant of quiet enjoyment?
(1) Total eviction
(2) Partial eviction
(3) Constructive eviction
What is total eviction?
When the LL uses physical force to throw the tenant off the premises.
What is partial eviction?
When the LL physically excludes tenant from some PORTION of leased property (even just storing a few things in the basement)
OR
Where a 3rd party, who holds paramount title, retakes property and physically excludes tenant from that portion of the leased land.
What is constructive eviction?
Where LL fails to provide some service that LL is obligated to provide AND failure makes property uninhabitable.
Three requirements:
(1) LL must fail, not a third party
(2) Must be SUBSTANTIAL interference with right to quiet enjoyment
(3) Tenant must abandon within a REASONABLE TIME after the breach
What is the difference between an assignment and a sublease?
An assignment transferrs all rights and obligations of the tenant.
A sublease transfers only part; the original tenant keeps a reversion interest.
If a tenant is PARTIALLY evicted by someone other than the LL, what happens with the rent?
The rent is proportionately REDUCED to reflect the amount taken.
What are the two types of privity that a lease creates?
(1) A lease is a contract, so it creates PRIVITY OF CONTRACT between the parties
(2) A lease is a conveyance of an estate, creating PRIVITY OF ESTATE between the parties.
Regarding privity, when is a tenant liable to a landlord for rent?
When there is EITHER privity of estate or privity of contract.
Can privity of estate exist between the present LL and a former tenant?
NO. Privity of estate only exists between the present LL and the present tenant.
When does privity of contract exist?
Privity of contract exists ONLY where there is an AGREEMENT between the LL and the particular tenant from whom the LL seeks to recover rent.
What is the liability for rent in a suit by LL against tenant 1 for rent that came due AFTER tenant 1 has assigned to tenant 2?
First, ask
Privity of estate: NO
Privity of contract: YES
What is the liability for rent in a suit by LL against tenant 2 for rent due BEFORE tenant 2 assigns to tenant 3?
Privity of estate? YES, because there is a present relationship in the land b/t the LL and tenant 2.
Privity of contract? NO, only w/ original tenant 1.
What is the liability for rent in a suit by LL against tenant 2 for rent due after tenant 2 assigns to tenant 3?
Privity of estate? NO. Tenant 2 is not the present tenant.
Privity of contract? NO. Only with original tenant 1.
Do covenants (promises) contained in a lease always run with the land?
Covenants to pay RENT always run with the land, so they can be enforced with either privity of contract or privity of estate.
Other covenants only run with the land if it TOUCHES and CONCERNS the land. If they run with the land, they are enforceabe against successive assigness if one type of privity exists.
How do you know if a covenant touches and concerns the land?
Use common sense. If performance of the covenant makes the land MORE VALUABLE or MORE USEFUL, then the covenant touches and concerns the land.
When a covenant does not run with the land, what is it called?
It is called a promise that is PERSONAL to the GRANTEE.