Real Property -- Freehold Estates*

Front 1

Fee Simple Absolute FSA
(3)

Back 1

1) potentially lasts forever
2) fully alienable (restrictions ignored)
3) conditions allowed

Front 2

FSA Modern Presumption

Back 2

Modern courts presume FSA created unless clear intent otherwise from language of grant

Front 3

FSA Creation

Back 3

"To A and his heirs"

Modern -- "To A"
@ CL -- "To A" = Life Estate

Front 4

Exception to FSA Alienability

Back 4

Majority Jx --
Right of First Refusal Upheld

Front 5

Fee Tail

Back 5

Common law device to lock property in family; abolished in most states today

Front 6

Fee Tail Creation

Back 6

"To A and the heirs of his (or her) body"

"To A and his (or her) bodily heirs"

Front 7

Fee Tail Modern Presumption

Back 7

Fee Tail language creates presumption of FSA

Front 8

Life Estate

Back 8

1) Estate for life; measured by life (never time)
2) Can express/implied

Front 9

Life Estate Pur Autre Vie

Back 9

Life estate measured by life of author

Front 10

Life Estate
Common Law
Modern Majority Change

Back 10

CL - If holder of life estate dies, but measuring life still alive = seisin vacant, anybody can take

Modern Majority Change = Life estate passes to deceased's estate until measuring life ends

Front 11

Life Estate
Transfer

Back 11

If life tenant dies before measuring life, life estate passes to estate of life tenant; continues until end of measuring life

Front 12

Life Estates
Restraints on Alienation

Back 12

Modern

Life estate can be terminated IF provision to do so IF life tenant attempts to convey away life estate

Front 13

Life Estate Holder & Law of Waste

Back 13

Life tenant maintains estate

Front 14

Life Estate & Law of Waste (3 types)

Back 14

1) Voluntary
2) Negative
3) Ameliorative

Front 15

Voluntary waste

Back 15

Any affirmative action beyond maintenance that causes harm to premises

Front 16

Open Mines Doctrine

Back 16

Form of voluntary waste -
Depletion of natural resources waste UNLESS consumption of such resources normal use of land

NOT INCLUDED - sale of harvestable crops

Front 17

Permissive Waste

Back 17

When life tenant does not fulfill obligation to make ordinary repairs

(replacement not necessary)

Front 18

(Permissive Waste)
Life Tenant's Duty to Repair
Limit

Back 18

Armount of rents and profits received from the land

IF NONE & USE OF LAND -
Reasonable rental value of land

IF NONE & NO USE OF LAND - No repair obligation

Front 19

(Permissive Waste)
Life Tenant's Duty re Taxes

Back 19

Tenant must pay all taxes same

up to amount of rents and profits received

IF NONE & USE OF LAND -
Up to reasonable rental value of land

IF NONE & NO USE OF LAND - No tax obligation

Failure to pay taxes can result in elimination of life estate through tax sale

IF NONE & NO USE OF LAND - No repair obligation

Front 20

(Permissive Waste)
Life Tenant's Duty re Mortgages

Back 20

Life tenant must pay any mortgage indebtedness but not any principal payments

Holder of Future Interest Must Pay Mortgage

Front 21

(Permissive Waste)
Life Tenant's Duty re Insurance

Back 21

Does not have to insure property

BUT has insurable interest

Front 22

Ameliorative Waste
Definition

Back 22

When life tenant alters the property substantially that increases value of land

Front 23

Ameliorative Waste
Rule

Back 23

If changed conditions have rendered property worthless, life tenant can alter property without incurring liability to holder of future interest

Front 24

Seisin

Back 24

Principal in property law that someone must hold property

This person = taxpayer

Front 25

Seisin-
When to Account for it
(2)

Back 25

1) At all times
2) Under all circumstances

Front 26

Future Interests
Reversion

(Grantor)

Back 26

Whenever grantor gives away less than their full estate

1) RAP? No.
2) Transferable at death? Yes.
3) Transferable inter vivos? Yes.

Front 27

Future Interests
Possibility of Reverter

(Grantor)

Back 27

Whenever grantor conveys FSD
(durational)

1) RAP? No.
2) Transferable at death? Yes.
3) Transferable inter vivos? Yes.

Front 28

Future Interests
Possibility of Reverter
Magic Words -- FSD
(4)

(Grantor)

Back 28

1) so long as
2) while
3) during
4) until

Front 29

Future Interests
Right of Re-Entry (Power of Termination)

(Grantor)

Back 29

Whenever grantor conveys FSCS
(conditional)

Need:
1) magic words
2) express reservation of right to entry

Must be exercised

1) RAP? No.
2) Transferable at death? Yes.
3) Transferable inter vivos? No.

Front 30

Future Interests
Right of Re-Entry
Magic Words -- FSCS (conditional)
(3)

(Grantor)

Back 30

1) provided that
2) but if
3) on condition that

Front 31

Future Interests
Precatory Words

Back 31

No effect

Front 32

Future Interests
Vested Remainder

(Grantee)

Back 32

Remainder vests:

if nothing stands in the way of its becoming possessory at the natural expiration of the preceding estate

Front 33

Future Interests
Contingent Remainder

(Grantee)

Back 33

Remainder vests:

when condition must be satisfied first

Front 34

Future Interests
Contingent Remainders

(Grantee)

Back 34

If grantee not in existence at the time conveyance takes effect, remainder is contingent

Front 35

Future Interests
Class Gifts -- Vested Remainder Subject to Open
(aka Vested Remainder Subject to Partial Divestment)

(Grantee)

Back 35

When remainder interest conveyed to a class of unnamed persons whose members are not yet fully known, allows for future persons who qualify as class members by satisfying class description

Front 36

Future Interests
Class Gifts -- Rule of Convenience

(Grantee)

Back 36

Class closes when any class member entitled for a distribution

UNLESS grantor expresses clear intent otherwise

(rule of construction)

Front 37

Future Interests
Class Gifts -- Predeceased and Pretermitted Children

(Grantee)

Back 37

Lose out on class gift

Front 38

Future Interests
Executory Interests

(Grantee)

Back 38

Operate to cut short an estate that comes before it

Front 39

Futures Interests & Law of Waste
Standing to Sue

Back 39

Holders of Vested Remainders -
Standing


Holders of Contingent Remainders --
Standing

Holders of Executory Interests -
No Standing

Front 40

RAP
Rule

Back 40

No interest is good unless it must vest, if at all, not later than 21 years after the death of some life in being at the creation of the interest

POLICY -- protection against remote vesting

(Common law)

Front 41

RAP
Applicable Classes of Interests

Back 41

1) Executory Interests
2) Contingent Remainders
3) Vested Remainders Subject to Open

Front 42

RAP
Analysis

Back 42

Could this future interest possibly vest in the Grantee outside the time period of the Rule,

YES? Void.

(Strike out void portions)

Front 43

RAP
When to consider - Testamentary Gifts

Back 43

(WILL)

At time of testator's death

Front 44

RAP
When to consider - Inter Vivos Gifts

Back 44

(DEED)

At time deed takes effect

Front 45

RAP
Perpetuities Savings Clause

Back 45

Language included in order to save a grant from violating the Rule Against Perpetuities by making sure that vesting occurs within the time period of the rule

(ex. To A and his heirs for so long as no liquor is consumed on the premises, and if so, within 21 years after the death of the A or his survivor)

Front 46

RAP
Effect on Right of First Refusal and RAP

Back 46

Contingent interests in property, such as options and rights of first refusal violate RAP if they could possibly be exercised around time period of the rule

Front 47

RAP
Charity-Charity Exception

Back 47

Saves gift subject to RAP if between two charities

BOTH transferees must be charities

(Ex. "To Saint Anne's Catholic church for so long as its premises are used for church purposes, and if it should ever cease to be so, to the American Red Cross")

Front 48

RAP
Effect on Class Gifts

Back 48

Whenever language used in a grant puts age contingency beyond 21, conveyance loses its link to a life in being

Front 49

RAP
Fertile Octogenarian Rule

Back 49

CONCLUSIVE presumption that Grantor might have another child, regardless of age or medical conditon

Front 50

RAP
Effect of Fertile Octogenarian Rule

Back 50

If RAP voids any gift as to one member of a class, all members lose out (even if some fall within the confines of the RAP)

"Bad as to one, bad as to all"

Front 51

RAP
Uniform Statutory Rule Against Perpetuities
(Some Jx, including CA)

(2)

Back 51

(DON'T APPLY UNLESS CALL OF QUESTION TELLS YOU THIS IS A JX THAT APPLIES THIS)

1) Codifies RAP
2) Provides alternative "wait and see period" to determine whether vesting actually occurs within 90 years

Front 52

Joint Tenancies
Four Unities (TTIP)
(4)

Back 52

1) Time
2) Title
3) Interest
4) Possession

Front 53

Joint Tenancies
Four Unities - Time

Back 53

Joint Tenants' interests must vest at the same time

Front 54

Joint Tenancies
Four Unities - Title

Back 54

Grant to all joint tenants must be by the same instrument

Front 55

Joint Tenancies
Four Unities - Interest

Back 55

All joint tenants must take the same kind and same amount

Front 56

Joint Tenancies
Four Unities - Possession

Back 56

All joint tenants must have identical rights of possession

Front 57

Joint Tenancies
General Rules
(4)

Back 57

1) Language of conveyance must clearly reflect grantor's intent to create a joint tenancy
2) Create right of survivorship
3) Create right of partition
4) Magic Words -- "As joint tenants with right of survivorship"

Front 58

Joint Tenancies
Severance

Back 58

Whenever any one of the four unities is disturbed

Usually one of four circumstances:
1) Sale
2) Mortgage
3) Contract of Sale
4) Creditor's Sale

(usually not by will)

Front 59

Joint Tenancies
Severance
Sale

Back 59

Conveyance of interest in joint tenancy by deed

(four unities disturbed)

Front 60

Joint Tenancies
Severance
Mortgages - Lien theory

Back 60

MAJORITY (four unities not disturbed)

When mortgage executed, lien attaches but title remains with mortgagor (owner)

Front 61

Joint Tenancies
Severance
Mortgages - Title theory

Back 61

MINORITY (four unities disturbed)

When mortgage executed, title passes to mortgagee (lender); returns to mortgagor (owner) when mortgage paid in full

Front 62

Joint Tenancies
Severance
Contract of Sale

Back 62

Severance occurs on date valid contract of sale signed

(Doctrine of Equitable Conversion)

Front 63

Joint Tenancies
Severance

Back 63

MAJORITY

No severance until judicial sale actually takes place

Front 64

Tenancy in Common
(5)

Back 64

1) Only unity required - possession (each co-tenant entitled to possession of whole property)

2) modern presumption of TIC as default

3) alienable

4) can be partitioned

5) no right of survivorship

Front 65

Tenancy by the Entirety
(3)

Back 65

1) Four unities (TTIP) plus marriage
2) right of survivorship
3) NO right of partition (cannot be severed by unilateral act of one co-tenant)

Front 66

Tenancy by the Entirety
Termination Methods
(4)

Back 66

1) Death
2) Divorce
3) Agreement in writing
4) execution by a JOINT creditor

Front 67

Incidents of Co-Ownership
(3)

Back 67

1) Equal Possession -- yes
2) Accountability -- no (unless exception)
3) contribution -- depends

Front 68

Incidents of Co-Ownership
Equal Possession

Back 68

Each co-tenant has right to possess whole property

Front 69

Incidents of Co-Ownership
Accountability

Back 69

Generally, no duty to account unless exception

Front 70

Incidents of Co-Ownership
Accountability Exceptions
(4)

Back 70

1) Ouster
2) Agreement to share
3) Lease of property by a co-tenant to a third party
4) Depletion of natural resources

Front 71

Incidents of Co-Ownership
Contribution
(4)

Back 71

1) Improvements -- No
2) Repairs -- Necessary Repairs only
3) Mortgage -- If signed by all co-tenants
4) Taxes -- All government imposed taxes and assessments