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89 Cards in this Set

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Rule Against Perpetuities
No interest in property is valid unless it must vest, if at all, not later than 21 years after SOME LIFE IN BEING at the CREATION of the interest. If there is ANY POSSIBILITY the interest might best more than 21 years after a life in being, the interest is void.

Applies to: contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase (not attached to leasehold), rights of first refusal, and powers of appointment.
Fee Simple Absolute
"To A" or "To A and his heirs"

Absolute ownership of potentially infinte duration.

Freely devisable, descendible, and alienable.
Fee Tail
"To A and the heirs of his body"

Virtually abolished. Fee tail would pass directly to grantee's lineal blood descendant.

Future Interest: reversion to O, remainder to 3P

Today creates a FSA
Fee Simple Determinable
"To A for so long as/during/until..." (clear durational langauge)

Forfeiture is automatic.

Devisable, descendible, alienable (but always subj. to condition)

Future Interest: possibility of reverter
Frank Sinatra Didn't Prefer Orville Redenbacher
Fee Simple Subject to Condition Subsequent
"To A, but if X event occurs, grantor reserves the right to reenter and retake." (clear durational language & carved out right to reenter)

Not automatically terminated, @ grantor's option

Future Interest: right of entry (pwr of termination)
Bobby Brown - It's My Perogative
Fee Simple Subject to Executory Limitation
"To A, but if X event occurs, then to B."

Same as FSD, except that when the condition is broken, estate is automatically forfeited in favor of someone OTHER than grantor.

Future Interest: shifting executory interest
Defeasible Fees - Rules of Construction
1. Words of mere desire, hope, intention are insufficient (clear durational language is req'd)

2. Absolute restraints on alienation are void*** (must be linked to some reasonable time-limited purpose)
Life Estate
"To A for life."

Must be measured in explicit lifetime terms, NEVER in terms of years.

Future Interst: O has reversion, 3P has remainder
The Romantic Estate
Life Estate pur autre vie
"To A for the life of B."

A life estate measured by a life other than the grantee's.

Future Interest: O has reversion
Two General Rules for Life Estates
1. Life tenant is entitled to all ordinary uses & profits from the land.

2. Life tenant must not commit waste: do anything to hurt the future interest holders
Life Tenant and Natural Resources
LT must not consume or exploit natural resources on the property.

PURGE Exceptions
1. Prior Use: prior to the grant, land was used for exploitation (Open Mines doctrine: LT may continue to use mine, but only mines already open)

2. Reasonable Repairs: LT may consume natural resources for reasonable repairs and maintenance of the premises.

3. Grant: LT may exploit if expressly granted right to do so.

4. Exploitatin: land is suitable only for exploitation
Voluntary or Affirmative Waste
Actual overt conduct that causes a DECREASE in value.
Permissive Waste, or neglect
Land is allowed to fall into disrepair, or LT fails to reasonably protect the land.
Ameliorative Waste
LT must not engage in acts that will enhance the property unless:

all the future interest holders know and consent.
Future Interests Capable of Creation in the Grantor
1. Possibility of Reverter (FSD)
2. Right of Entry (Fee Simple Subject to Condition Subsequent)
3. Reversion (when grantor transfers estate of lesser quantum other than FSD or FSSCSubsequent)
Future Interests in Transferees
1. Vested Remainder (indefeasibly vested remainder, vested remainder subject to complete defeasment, vested remainder subject to open)

2. contingent remainder

3. executory interest (shifting, springing)
Future interest created in a grantee.

Always accompanies a preceeding estate of KNOWN FIXED DURATION (usually life estate or term of years).

Never follows a defeasible fee --> cannot cut short or divest

Are either vested (ascertained person & not subject to any condition precedent)

or contingent (unascertained or condition precedent)
Forrest Gump
Condition Precedent
"To A for life, then, if B graduates college, to B."
Rule of Destructibility of Contingent Remainders
"To A for life, and if B has reached the age of 21, to B."

At common law, a contingent remainder was destroyed if still contingent at the time the preceeding estate ended. (O or O's heirs would take in FSA)

Today, the rule has been abolished. Now O or O's heirs hold the estate, subject to B's springing executory interest.
The Rule in Shelley's Case
"To A for life, then, on A's death, to A's heirs."

Rule of Law (not construction)

Historically, present & future interests merge giving A a FSA.

Virtually abolished today, where:

A has a life estate, A's unknown heirs have a contingent remainder, O has reversion.
Very arrogant rule
Doctrine of Worthier Title
Rule against a remainder in grantor's heirs. Still viable. A rule of construction.

O, who is alive, conveys "To A for life, then to O's heirs."

DOWT: contingent remainder in O's heirs is void. A has life estate and O has reversion.
Much kinder
Indefeasibly vested remainder
The holder is certain to acquire an estate in the future w/no conditions attached.

"To A for life, remainder to B."
No strings attached
Vested remainder subject to complete defeasance
Remainderman's right to possession could be cut short because of a condition subsequent.

B in the following example:

"To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C."
Vested remainder subject to open
Remainder is vested in a GROUP of takers, at least one of whom is qualified to take possession.

But each class member's share is subject to partial diminution because additional takers not yet ascertained can still qualify as class members.

"To A for life, then to B's children."

B could have more children before A dies.
Executory Interest
Future interest in a transferee (3P), which is not a remainder and which takes effect by cutting short some interest in another person (shifting) or in the grantor or his heirs (springing).
Dr. Evil
Four-Step Technique for Assessing Potential RAP Problems
1. Determine which future interests have been created by conveyance (contingent remainders, executory interests, and certain vested remainders subject to open)

2. Identify the conditions precedent to the vesting of the suspect future interest?

3. Find a measuring life (relevant to the condition's occurence)

4. Will we know w/certainty, w/in 21 yrs of measuring life's death, if our future interest holder(s) can or cannot take?

If not, the future interest is void.
Two Bright LIne Rules of Common Law RAP
1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP (Bad as to one, bas as to all)

2. A shifting executory interest w/no limit on the time w/in it must vest violates RAP.
Joint Tenancy
2 or more own w/right of survivorship

Alienable: yes
Devisable: no
Descendible: no
Creation of a Joint Tenancy
T: same TIME
T: same TITLE
I: w/IDENTICAL equal interests
P: identical rights to POSSESS the whole
Severance of a Joint Tenancy
Sale, Partition, And Mortgage

1. JT can sell or transfer interest during lieftime. (Majority jx: a mere K to convey results in a severance)

2. Partition: voluntary agreement, partition in kind (physical divsion), forced sale

3. Mortgage:
Minority (Title theory): regarded as a transfer of title and severs the JT.

Majority (Lien theory): regarded as a lien, one JT's execution of a mortage does not result in a severance

Lease does not sever the JT.
Tenancy by the Entirety
Co-ownership by H & W w/right of survivorship.

Unities req'd: time, title, interest, possession, person (unity of H&W)

Neither spouse can sever alone, both have to join in the conveyance.
Tenancy in Common
1. Each co-tenant owns an individual part, each has right to possess the whole.

2. Each interest is descendible, devisable and alienable. NO SURVIVORSHIP rights.

3. Presumption favors tenancy in common

Can be destroyed by: partition, merger
The Four Leasehold or Nonfreehold Estates

(Landlord/Tenant Law)
1. Tenancy for Years: fixed determined period of time

2. Periodic Tenancy: continues for successive or continuous intervals

3. Tenancy at Will: no fixed period of duration

4. Tenancy at Sufferance: when T has wrongfully held over; allows L to recover rent;
You Take Will Suffering
Duty to Deliver Possession

(English and American Rules)
English Rule (great majority of jxs): L is req'd to put T in ACTUAL PHYSICAL POSSESSION of the premises.

American Rule (tiny minority): L not req'd to deliver to T actual physical possession, only LEGAL POSSESSION.
Constructive Eviction
Substantial Interference: attributable to L's actions/failure to act (chronic problem)

Notice: T must give L notice of the problem and L must fail to respond meaningfully

Goodbye: T must vacate w/in reasonable time after L fails to fix problem
Implied Warranty of Habitability
Premises must be fit for basic human habitation (applies only to residential leases).

T has 4 options when breached:
1. Move out & terminate lease
2. Repair & Deduct
3. Reduce Rent (w/held rent placed in escrow account)
4. Remain in possession, pay rent, and affirmatively seek money damages
T's Obligation to Pay Rent Extinguished

(Commmon Law)
1. Release by L
2. Merger (T acquires property)
3. Expiration of lease
4. Eminent Domain (takes both leasehold and reversion)
5. Constructive Eviction
6. Frustration of Purpose (ex: sole use of the lease becomes illegal)
7. Surrender
4 Types of Waste
1. Voluntary
2. Ameliorative- T not responsible
3. Permissive
4. Equitable- injury to the reversionary interest in land, inconsistent w/good husbandry, recognized only by equitable courts, but does not constitute legal waste (can be enjoined, but no recovery from damages)
T1 transfers his interest in whole to T2.

L and T2: privity of estate (liable to e/o for all covenants in original lease that run w/the land -- rent, repair, etc.)

L and T2: NOT in privity of K

L and T1: no longer in privity of estate, but in privity of K and thus are secondarily liable to e/o
T1 transfers his interest in part to T2.

L and T2 are neither in privity of estate nor privity of K.

T2 is responsible to T1 and vice versa.
Caveat Lessee
In tort, L was under no duty to make premises safe.

CLAPS Exceptions
Common areas: L must maintain all common areas

Latent defects: L must WARN T of hidden defects of which L has knowledge or reason to know (duty to WARN, not fix)

Assumption of repairs: L who voluntarily assumes repairs has duty to complete w/reasonable care

Public use rule: L who leases public space (ex: museum) and who should know bc of the nature of the defect & length of lease that T will not repair --> L is liable for defects on premises

Short term lease of furnished dwelling: L is responsible for any defect which harms T.
Implied Covenant of Quiet Enjoyment
T has right to quiet use & enjoyment of premises w/o interference from L (commerical & residential)

Breached by:
1. actual wrongful eviction
2. constructive eviction (SING)**
The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land (the servient tenement).
Negative Easement
Entitles holder to prevent the servient landowner from doing something that would otherwise be permissible.

Only 4 categories:




Streamwater from artificial flow

Minority of jxs recognize 5th for Scenic View
Easement Appurtenant
Benefits holder in his physical use or enjoyment of property.

It takes two:
1. dominant tenement which benefits

2. servient tenement which bears the burden

Passes automatically w/dominant tenenment; same w/servient estate unless new owner is BFP w/o NOTICE)
It takes two
Easement in Gross
Confers some personal or pecuniary advantage on holder; no benefitted or dominant tenement.

(Billboards,fish/swim, lay power lines)

Not transferable unless for commercial purposes.
Affirmative Easement
Right to go onto and do something on servient land.

Creation (PING):
1. Prescription (adverse possession; COAH)
2. Implication (from apparent existing use)
3. Necessity
4. Grant (1+ yr, must be in writing)
Scope of Easement
Determined by

terms of the grant; or

conditions that created it
Termination of an Easement

Estoppel: servient owner materially changes her position in reasonable reasonable reliance.

Necessity: expire as soon as necessity ends (unless created by express grant)

Destruction of servient land

Condemnation of servient estate




Privilege to enter another's land for a delineated purpose.

Not subject to SOF, Freely revocable (unless estoppel applies)

Classic cases:
1. tickets
2. oral easement (unenforceable)
Enables holder to enter servient land and take from it: soil, minerals, timber, oil, etc.

Shares all rules of easements.
Promise to do or not do something. A contractual limitation.

Remedy is money damages (whereas equitable servitude is injunction)

Elements Necessary for Burden to Run
1. Writing: original promise
2. Intent: original parties intended covenant would run
3. Touch and cocnern the land: affects parties' legal relations as land owners
4. Horizontal and vertical privity (horizontal= succession of estate; grantor-grantee,L-T, mortgagor-mortgagee)(vertical= some non-hostile nexus)

Notice: A1 had notice when she took

Elements Necessary for Benefit to Run

1. Writing
2. Intent
3. Touch and Concern
4. Vertical privity
Watching Interesting TV
Equitable Servitude

& elements for its creation
A promise that equity will enforce against successors (injunctive relief).

1. Writing
2. Intent
3. Touch and Concern
4. Notice

Implied Equitable Servitude -

General or Common Scheme Doctrine

1. When sales began, the subdivider had a general scheme of residential development which included D's lot; and

2. The defendant lotholder had NOTICE of the promise contained in the prior deeds.

3 Types of Notice (AIR)
1. Actual notice
2. Inquiry notice
3. Record notice (most jxs hold that buyer does NOT have record notice)

Court will imply a reciprocal/implied negative servitude to hold Defendant to the restrictive covenant.
Adverse Possession

1. Continuous: uninterrupted for the given statutory period

2. Open and notorious

3. Actual

4. Hostile

Tacking is allowed so long as there is privity (non-hostile nexus).
Adverse Possession

Disability of True Owner
Statute of limitations will not run against a true owner afflicted by disablity (insanity, infancy, imprisonment) AT THE INCEPTION OF ADVERSE POSSESSION.
Land Contract
Must be:
1. in writing
2. signed by the party to be bound
3. describe the land
4. state some consideration
How does a deed pass legal title?
1. Lawful Execution
2. And Delivery (does not require actual, physical transfer)
Quitclaim Deed
Contains no covenants.

Grantor not even promising that he has title.
Adverse Possession

1. Continuous: uninterrupted for the given statutory period

2. Open and notorious

3. Actual

4. Hostile

Tacking is allowed so long as there is privity (non-hostile nexus).
Adverse Possession

Disability of True Owner
Statute of limitations will not run against a true owner afflicted by disablity (insanity, infancy, imprisonment) AT THE INCEPTION OF ADVERSE POSSESSION.
Land Contract
Must be:
1. in writing
2. signed by the party to be bound
3. describe the land
4. state some consideration
How does a deed pass legal title?
1. Lawful Execution
2. And Delivery (does not require actual, physical transfer)
Quitclaim Deed
Contains no covenants.

Grantor not even promising that he has title.
General Warranty Deed
Warrant against all defects in title, including those attributable to grantor's predecessors.

Contains 6 covenants
Present: seisin, right to convey, against encumbrances

Future: quiet enjoyment, warranty, further assurances
Present Covenants (in General Warranty)
Seisin: warrants that he owns the estate

Right to Convey: has to power to make conveyance (no temporary restraints)

Against encumbrances: no servitudes or mortgages on the land
Future Covenants (in General Warranty)
Quiet enjoyment: grantee will not be disturbed in possession by 3P's lawful claim of title.

Warranty: will defend grantee should there be any lawful claims of title asserted by others

Further assurances: do whatever future acts are reasonably necessary to perfect the title (administrative)
Statutory Special Warranty Deed
Grantor makes 2 promises ONLY on behalf of himself:

1. hasn't conveyed the estate to anyone else

2. estate is free from encumbrances MADE BY GRANTOR
Notice Jurisdiction and BFP
O to A. Later, O to B.

If B is a BFP, B wins regardless of whether she records before A.
Race-Notice Jurisdiction and BFP
O to A. Later, O to B.

If B is BFP, B wins if she RECORDS PROPERLY before A does.
Bona Fide Purchaser
1. purchases for value

2. w/o notice that someone got there first
Inquiry Notice
B is on inquiry notice of whatever an examination of the land would reveal.
Record Notice
B is on record notice at the time she takes if:

A's deed was properly recorded w/in chain of title.
The Shelter Rule
One who takes from a BFP will prevail against any entity the BFP would have prevailed against.

O conveys to A, who does not record. Later, O conveys to b a BFP, who records. B then conveys to C. C wins.
Wild Deed
O sells to A, who doesn't record. A sells to B. B records the A-B deed.

NOT connected to chain of title (O to A), thus incapable of giving record notice of its existence.

If O conveys to C, B's recording is a nullity, C prevails.
Estoppel by Deed
One who conveys realty in which he has no interest is estopped from denying the validity of the conveyance if he subsequently acquires the interest that he had previously transferred.
Doctine of Merger
The contract merges into the deed, and the terms of the contract are meaningless.

Even though the contract specified a "good and marketable title," it is the deed that controls, and the deed contained no covenants of title. A deed does not incorporate the title terms of a contract.
Co-Tenants' Duty to Improve
A co-tenant has no duty to improve the property and cannot force the other co-tenants to contribute to the cost of improvements made by him
Abandonment of Easements
Easements are presumed to be of perpetual duration, and mere nonuse is not enough to constitute termination by abandonment. To abandon, the easement holder must demonstrate by physical action (e.g., removing the railroad tracks) an intention to permanently abandon the easement.
Grantee, to be bound by covenant not in her deed:
To be bound by a covenant not in her deed, a grantee must have had notice of the covenants in the deeds of others in the subdivision.

Notice may be actual (direct knowledge of covenants),

inquiry (neighborhood appears to conform to common restrictions), or

record (prior deed with covenant in grantee's chain of title)
Implied Easement
An easement may be implied if, prior to the time the tract is divided, a use exists on the "servient part" that is reasonably necessary for the enjoyment of the "dominant part," and a court determines that the parties intended the use to continue after division of the property.

To give rise to an easement, a use must be apparent and continuous at the time the tract is divided.
Equitable Mortgage
A landowner needing to raise money may "sell" the land to a person who pays cash and may give the lender an absolute deed rather than a mortgage.

Creditor required to forclose, like a mortgage.

The following factors indicate an equitable mortgage: (i) the existence of a debt or promise of payment by the deed's grantor; (ii) the grantee's promise to return the land if the debt is paid; (iii) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property; (iv) the degree of the grantor's financial distress; and (v) the parties' prior negotiations.
Mistake in Deed
Physical description takes precedence over the quantity description unless there are grounds for reformation of the underlying deal
Doctrine of the Equity of Redemption
at any time prior to the foreclosure sale, the borrower has the right to free the land of the deed of trust by paying off the amount due.
Annexed Chattels after Termination of Tenancy
A tenant must remove annexed chattels before the termination of the tenancy or they become the property of the landlord.
Factors for evaulating Annexor's Intent
i) the relationship between the annexor and the premises,

(ii) the degree of annexation, and

(iii) the nature and use of the chattel
Constructive Annexation
An article of personal property that is so uniquely adapted to the real estate that it makes no sense to separate it (e.g., keys to doors, custom curtain rods) may be considered a fixture even if it is not physically annexed to the property.