Real Property Barbri

Front 1

Fee Simple Absolute

Back 1

1. Runs forever and is fully alienable
2. Any attempt to put a direct restraint on alienation is void; ignore the restriction
3. Conditions on the exercise of a fee simple are OK, but any attempt to limt the right to transfer is void
4. Right of first refusal is not an invalid restraint on alienation
5. Courts will presume grant is fee simple unless language shows a clear intent to create another estate

Front 2

Life Estate

Back 2

1. Only measured by life, never by period of time
2. Can be by implication
3. Measuring life can be the life of someone other than the life estate holder (life estate pur autre vie)
4. If life tenant dies before the measuring life dies, life estate passes to the estate of the life tenant until the measuring life dies
5. Forfeiture restrictions on life estates are OK
6. Restrictions on transfer of a life estate DO NOT violate the rule prohibiting restraints on alienation

Front 3

Waste

Back 3

If life tenant does more than or less than merely maintain the estate, then life tenant is guilty of waste

Front 4

Voluntary Waste

Back 4

Any affirmative action beyond the right of maintenance causing harm to the premises

Life tenant can only continue the normal use; any change of use is voluntary waste, and life tenant is liable to the holder of the future interest

Front 5

Open Mines Doctrine

Back 5

Depletion of natural resources is waste unless the normal use of the land was to deplete them

Front 6

Permissive Waste

Back 6

1. Life tenant has failed to maintain
2. Tenant must do three things to avoid permissive waste:
a. Repair - life tenant must keep property in repair, but it only responsible for ordinary repairs, not replacement
b. Taxes - Life tenant pays all taxes on teh property (holder of future interest must make sure taxes get paid, b/c a tax sale terminate the future estate)
c. Interest - life tenant pays any interest on any mortgage (holder of the future interest must pay the principal)
3. Limitation - life tenant's obligation is limited to the amount of income received from the land or, if the life tenant is personally using the property, the reasonable rental value of the land

Front 7

Ameliorative Waste

Back 7

1. Special type of voluntary waste that occurs when the affirmative act alters the property substantially but increases the value of it
2. If changed conditions have made the property relatively worthless in its current use, the life tenant can tear it down without liability to the holder of the future interest

Front 8

Class Gifts

Back 8

1. Members of a class who predecease teh testator are eliminated and do not recover (their gift lapses)
2. Once the class is established when the will is executed, teh class stays open to accommodate those who later meet the definition of class member
3. Rule of Convenience - class closes when any one of the class is entitled to distribution

Front 9

Reversion

Back 9

1. Interest kept by Grantor when Grantor gives less than the durational estate Grantor had
2. Never subject to RAP
3. Can be transferred freely

Front 10

Possibility of Reverter

Back 10

1. Only when Grantor gives a fee simple determinable, Grantor keeps a possibility of reverter
2. Never subject to RAP and freely transferable
3. Key language: O to A...
a. so long as
b. while
c. during
d. until xyz

Front 11

Right of Entry (Power of Termination)

Back 11

1. When grantor gives a fee simple on a condition subsequent, grantor keeps a right of entry
2. Upon the happening of the condition subsequent, grantor must exercise the right of entry to regain title
3. Language: "provided however" and gives O the right "reenter and retake" or "but if" or "upon condition that"
4. Must expressly reserve the right to reenter or condition is ignored
5. Ambiguous language is construed in a way that will not bring automatic forfeiture
6. Not subject to RAP; cant be transferred inter vivos
7. Language "for the purpose of" has no effect

Front 12

Right of Entry Kansas

Back 12

No need to reserve a right of entry if you can shown through extrinsic evidence that it was intended

Front 13

Vested Remainder

Back 13

Nothing stands in the way of its becoming possessory on the expiration of the estate that comes before it

Front 14

Vested Remainder Subject to Open

Back 14

1. Where the remainder interest is to a class whose members are not yet fully known the class remains open to allow for future persons who qualify as members of the class

Front 15

Contingent Remainder

Back 15

1. Something has to happen or be known before the reaminder can become possessory
2. 3 situations:
a. Condition - if a condition must be satisfied before the grantee can be certain of possession
b. Grantee not in existence - at the time of the grant the grantee is not in existence
c. Identity of exact taker unknown - if you can't identify, by name, the person who holds the remainder

Front 16

Executory Interest

Back 16

1. Operates to cut short the estate that comes before it; it does not come into possession at the natural expiration of the earlier estate
2. Holder of executory interest cannot sue life tenant for waste
3. If an executory interest operates by taking title from one grantee and give it to another grantee, it is called a shifting executory interest
4. If an executory interest operates by taking title from teh grantor and giving it to the grantee, it is called a springing executory interest

Front 17

Rule Against Perpetuities

Back 17

1. Only applies to: contingent remainders, executory interests, and vested remainders subject to open
2. Rule: No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
3. Validity of a grant is determined at the time of creation (doesnt matter what really happened)
4. Options and Righs of First Refusal: do violate RAP if they could be exercise outside the time period
5. Charity to charity grant is exempt from RAP

Front 18

Kansas RAP

Back 18

Wait and See Doctrine
If interest vests within 90 years then valid; courts can change the language to make the grant effective

Front 19

Perpetuity Saving Clause

Back 19

Saves a grant from being avoided by RAP by making sure vesting must occur within the time period of the rule

Front 20

RAP and Class Gifts

Back 20

1. If RAP operates to void the gift over to any member of the class b/c of the possibility that the interest might vest outside the time period, then all members lose, even those who already satisfy the condition and thus are already vested
2. For RAP purposes, woman can give birth at any age
3. Unborn spouse - gift must be written so the vesting cannot occur until the widow dies to violate

Front 21

Joint Tenancy

Back 21

1. Right of Survivorship
2. Right to partition
a. Any JT can ask that property be partitioned
b. Can come by agreement of the parties, or court can draw the lines; if lines can't be drawn, court can sell property and divide proceeds

Front 22

Creation of Joint Tenancy

Back 22

Requires the "four unities" of time, title, interest, and possession (TTIP)
1. Time
2. Title - the grant to all JTs must be by the same instrument
3. Interest - All JTs must take the same kind and same amount of interest
4. Possession - all must have identical rights of possession

Language for creation: must clearly make intention known, b/c if intent of the grantor is unclear, the court construes the interest to be a tenancy in common; must mention "right of survivorship" in grant

Front 23

Destruction of Joint Tenancy

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1. Partition - voluntary destruction
2. Severance - involuntary destruction that occurs whenever any one of the four unities is disturbed

Front 24

Severance

Back 24

1. Conveyance by one of the JTs, turning it into a tenancy in common
2. A mortgage in title theory state and KS
3. Contract of sale - doctrine of equitable __ means severance occurs when a contract of sale is signed
4. Creditor sale of the interest in the JT (creditor's judgment lien is not enough; there has to be an actual judicial sale)
5. KS - Murder by one JT of a JT severs

Front 25

Lien/Title theory

Back 25

Lien theory - A mortgage does not sever a JT b/c when mortgage is executed, a lien merely attaches to the title; title does not get transferred, so no unity is disturbed

Title theory - When mortgage is executed, title actually passes from mortgagor to mortgagee; even though later the title goes back to the mortgagor, the unity was disturbed

KS follows neither, execution of a mortgage severs JT

Front 26

Tenancy in Common (TIC)

Back 26

1. Right to Partition
2. No right of survivorship
3. Only possession required - each co-tenant has teh right to possess all the property consistent with the other co-tenants' rights to also possess it all

Front 27

TIC & Accountability

Back 27

Requirement that one co-tenant may have to account to another for a share of profits the co-tenant received
1. Means getting a share of the profits from a co-tenant
2. General rule: one co-tenant does not have to account to another co-tenant for a a share of the profits
3. Four exceptions:
a. Ouster - accounting is required if one co-tenant is either keeping a co-tenant off the property, or claiming a rights of exclusive possession
b. Agreement to share
c. Lease by co-tenant of the property to a 3rd party
d. Depletion of natural resources

Front 28

TIC & Contribution

Back 28

Right of one co-tenant to force others to pay their share of some expenditure co-tenant made

No contribution for improvements or non-necessary repairs, money spent may later be recouped at partition or sale of property

Available for any mortgage on the property (signed by all co-tenants), or any governmentally imposed obligation

Front 29

Tenancy for Years

Back 29

Key phrase to remember is: specified time - does not have to be for "years"

Any estate measured by a fixed period of time, no matter how short, is a tenancy for years

S/F: any tenancy for years over 1 year must be in writing (one year oral is OK; one year and a day oral is not)

Front 30

Periodic Tenancy

Back 30

Key word is repeating: an ongoing, continuing, repetitive estate, until one party gives valid notice

Front 31

Creation of Periodic Tenancy

Back 31

3 ways:
1. Express Agreement
2. By implication (where lease is silent as to its duration)
3. By operation of law (2 situations)
a. Oral lease violating S/F
i) Acceptance of rent by L creates a periodic tenancy by operation of law
ii) The period is determined by the period covered by the rent check L accepted
b. Hold Over case - tenant stays after expiration of lease, then landlord accepts rent
i) If holdover T sends L a check for another period's rent, and L accepts it, there is a new periodic tenancy by operation of law

Front 32

Termination of Periodic Tenancy

Back 32

Occurs by giving proper notice
1. Two requirements for notice:
a. Time - equal to the period
i)Exception: if tenancy is year to year, just six months' notice
ii) KS - 30 days notice in writing
b. The right effective day of termination: the last day of a period

Front 33

Tenancy at Will

Back 33

1. Either party can terminate at any time, w/o notice
2. Five other ways it terminates:
a. Death of either party
b. Waste by the tenant
c. Assignment by the tenant
d. Transfer of title by landlord
e. Lease by landlord to someone else
f. KS - 30 days written notice

Front 34

Tenancy at Sufferance

Back 34

1. Is the bare possession of holdover T. At L's sole option, L can either:
a. Hold T as a wrongdoing trespasser and sue to throw T off property and recover damages for the holdover; or
b. Impose new periodic tenancy on T
i) for residential property, the new period will always be month to month
ii) for commercial property, the new period is determined as follows:
- if old expired tenancy was for a year or more, the new tenancy is year to year
- if the old tenancy was for less than a year, new tenancy is measured by the rent period of the old tenancy
2. L cannot impose new tenancy on holdover T if it is not reasonable
3. Raised rent
a. If L tells T of higher rent before expiration of lease, and T holds over after expiration, L can impose the new periodic tenancy on the holdover T at the higher rent

Front 35

Tenant's Duties

Back 35

1. If lease is silent on tenant's duties, tenant must:
a. Pay rent
b. Not commit waste
2. If lease says tenant must repair and maintain then T is liable for all damage to the property, including ordinary wear and tear unless that is specifically excluded from the promise to repair
a. Exception: Tenant can terminate the lease if the premises are destroyed w/o tenant's fault

Front 36

Landlord's Remedies

Back 36

1. If T fails to pay rent, L can sue both for damages and to throw T off the property
2. If T unjustifiably abandons the leasehold, L has two choices:
a. Treat abandonment as an offer of surrender and accept the offer by retaking the premises; thus ending T's liability as of that date
b. Re-rent the premises on T's account and hold T liable for any deficiency

Front 37

Landlord's Duties

Back 37

1. To give T possession of the premises when the lease begins
2. To deliver residential premises in a habitable condition:
a. There is an implied warranty of habitability, that is reasonably suited for residential use, in only residential property
b. If L breaches implied warranty, T has two options:
i) T can move out and end the lease
ii) T can stay and sue for damages
3. Implied covenant of quiet enjoyment. 3 ways L can breach:
a. By total eviction of T, which terminates the lease
b. By partial eviction of T, which doesn't terminate lease; T can stay and pays no rent to L (if done by someone, other than L, with better title than L, T's rent is apportioned)
c. By constructive eviction - L fails to provide a service L is supposed to provide, thus making premises uninhabitable
i) For T to be excused, 3 requirements:
- L has to do it
- Must be a substantial interference with the covenant of quiet enjoyment
- Must be an abandonment of the premises within a reasonable time after the breach

KS - any eviction; T can end lease, sue and get damages or 1.5 months rent

Front 38

Assignment - L sues T

Back 38

1. A lease is both a conveyance and a contract
2. T is liable to L if there is privity of estate OR contract
a. Liability for conveyance comes from privity of estate, which exists only between the present L and present T
b. Liability on contract comes from privity of contract, which exists where there is an agreement between the parties or where assignee "expressly assumes" the obligations under the lease

Front 39

Assignment - T sues L

Back 39

1. Original L continues to be liable to T b/c of privity of contract
2. Successor L is also liable if lease covenant runs with the land and there is either privity of contract or estate
a. Covenant runs with the land if they touch and concern the land (T & C)
i) Test - If performance of covenant makes the land more valuable or more useful

Front 40

Sublease

Back 40

Sublessee is not liable to L b/c no POC and no POE (sublessor is deemed to have kept the estate)

Front 41

Rule in Shelley's Case

Back 41

At CL if the same instrument crafted a life estate in A and gave teh remainder only to A's heirs, the remainder was not recognized, and A took the life estate and the remainder

KS - Abolished this rule. Creates a life estate in A and a remainder in A's heirs

Front 42

Doctrine of Worthier Title

Back 42

(a) A remainder in the grantor’s heirs is invalid and becomes a reversion in the grantor. DOWT applies only to inter vivos transfers (not wills) and only if the word “heirs” is used

(i) KS has abolished this rule. Gives A a life estate, O’s heris a contingent remainder, and O a reversion

Front 43

Executor Interests

Back 43

(1)Are future interest in third parties that either divest a transferee’s preceding freehold estate (shifting interests), or follow a gap in possession or cut short a grantor’s estate (springing interests)
(2)Not considered vested and thus are subject to the Rule Against Perpetuities
(3)Only an executory interest can follow a fee simple estate

Front 44

Class Gifts

Back 44

(1)When the class closes – the rule of convenience
(a)In the absence of express contrary intent a class closes when some member of the class can call for distribution of her share of the class gift
(b)Persons in gestation at the time the class closes are included in the class
(2)Survival of a class member to the time of closing is usually unnecessary to share in a future gift unless survival was made an express condition