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56 Cards in this Set

  • Front
  • Back
What are the four categories of freehold estates?
1) The Fee Simple Absolute
2) The Fee Tails
3) The Defeasible Fees (of which there are three species)
4) The Life Estate
What are the three things you need to know about the freehold estates?
1) What language will create the estate?
2) Once identified, what are the estate’s distinguishing characteristics? In other words, is the estate devisable, meaning, can it pass by will? Is the estate descendible, meaning, will it pass by the statutes of intestacy if its holder dies intestate (w/out a will)? Is the estate alienable, meaning, is it transferable inter vivos, or during the holder’s lifetime?
3) Which future interests, if any, is the estate capable of?
How do you create a fee simple absolute, what are its distinguishing characteristics, and what are the accompanying future interests?
-How to create: “To A” or “To A and his heirs.” Today, those common law words “and his heirs” are not needed. Thus, “to A” suffices to create the fee simple absolute.”
-Distinguishing characteristics: This is absolute ownership of potentially infinite duration. It is freely divisible (can leave in will), descendible (can pass by statutes of intestacy), and alienable (can transfer it during your lifetime)
-No accompanying future interest: A living person has no heirs. Thus, while A is alive, he has only prospective heirs. They are powerless
How do you create a fee tail, what are its distinguishing characteristics, and what are the accompanying future interests?
-How to Create: “To A and the heirs of his body”
-Distinguishing characteristics: The fee tail is virtually abolished in the US today, including NY. It is virtually never tested. Historically the fee tail would pass directly grantees linear blood descendents no matter what. Today, attempted creation of a fee tail creates instead fee simple absolute
-Historically, accompanying future interest. In O, the grantor, it was called a reversion. In a third party it was called a remainder
What are the three defeasible fees?
1) Fee Simple Determinable
2) Fee Simple Subject to Condition Subsequent
3) Fee Simple Subject to Executory Limitation
How do you create a fee simple determinable, what are its distinguishing characteristics, and what are the accompanying future interests?
-How to create: “To A for so long as...”; “To A During...”; “To A until....” Grantor must use clear durational language. If stated condition is violated, forfeiture is automatic.
-Distinguishing characteristics: (Like all defeasible fees) divisible, descendible, and alienable, but always subject to condition. May convey less than what you started w/ but you can’t convey more. In other words, you can’t always get what you want!
-Future interest accompanies: it is the possibility of reverter in the grantor (must call it the possibility of reverter) (FSDPOR).

Note: In NY, fee simple determinable is called a fee on limitation.
How do you create a fee simple subject to condition subsequent, what are its distinguishing characteristics, and what are the accompanying future interests?
-How to create: “To A, but if X event occurs, grantor reserves the right to reenter and retake.” Here, grantor must use clear durational language AND must carve out the right to reenter.
-Distinguishing characteristics: NOT automatically terminated, but can be cut short at grantor’s option, if stated condition occurs (grantor has prerogative)
-Future interest: 1) Right of entry – synonymous w/ the power of termination. 2) In NY, the right of reacquisition.
How do you create a fee simple subject to executory limitation, what are its distinguishing characteristics, and what are the accompanying future interests?
-How to Create: “To A, but if X event occurs, then to B”
-Distinguishing characteristics: Just like the fee simple determinable, only now, if condition is broken, the estate is automatically forfeited in favor of someone other than grantor (“then to B” – that’s the someone).
-Future Interest: the shifting executory interest
Concerning the defeasible fees, what are two important rules of construction?
1) Words of mere desire, hope, or intention are insufficient to create a defeasible fee. Courts disfavor restrictions on the free use of land and will not find a defeasible fee unless clear durational language is used (e.g., where A is vested w/ a fee simple absolute NOT a defeasible fee: “To A for the purpose of constructing a day care center”; to A w/ the hope that he becomes a lawyer”; to A w/ the expectation that the premises will be used as a Blockbuster video store”).
2) Absolute restraints on alienation are void. Absolute restraint on alienation is an absolute ban on power to sell or transfer that’s not linked to a reasonable time-limited purpose (e.g., O conveys “To A so long as she never attempts to sell." This is void: A has FS Absolute; O has nothing. E.g., “to A so long as she doesn’t attempt to sell until 2012, when clouds on title will be resolved”; note, here restraint is linked to a reasonable, time limited purpose; A has FS Determinable; O has Possibility of Reverter).
What is a life estate?
A life estate is an estate that must be measured in explicit lifetime terms and NEVER in terms of years. For example, O conveys: “To A for life.” Here, A has a lifetime tenancy, and O has a reversion, meaning that at the end of A’s lifetime, the estate reverts back to O or O’s heirs.

Contrast this w/ “To A for 40 years, if she lives that long,” or “To A for life, but in no event more than 10 years,” both of which create the term of years (a leasehold interest) and NOT the life estate.
What is the life estate pur autre vie?
The life estate pur autre vie is a life estate measured by a life other than the grantee’s. For example, “To A for the life of B.” Here, A has life estate pur autre vie, and O has a reversion (end of B’s life, estate going back to O or O’s heirs).
Can a life tenant sell his interest?
Yes, a life tenant can sell his interest to another, but that person will have a lif estate pur autre vie and O has a reversion.
What are the two general rules regarding life tenant’s entitlements and the important doctrine of waste?
1) Life tenant is entitled to all ordinary uses and profits from the land
2) Life tenant must not commit waste, meaning must not harm the future interest holders (better not do anything that compromises the expectations of those future interest holders, rooted in preserving the premises value)
In the context of the doctrine of waste and life estates, what are the three species of waste?
1) Voluntary or affirmative waste: this is overt conduct that causes a drop in value (willful destruction). 2) Permissive waste, or neglect. This occurs when land is allowed to fall into disrepair or the life tenant fails to protect the land
3) Ameliorative waste: life tenant must not engage in acts that enhance property’s value, unless all future interests are known and consent (preserves sentimental value). Note, in NY,: by statute, life tenant may make reasonable improvements, unless remaindermen object.
What is the general rule regarding voluntary waste and natural resources?
The general rule regarding voluntary waste and natural resources is that the life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals), unless one of four exceptions applies.
What are the four exceptions to the voluntary waste and natural resources general rule?
Remember PURGE!

1) PU: Prior Use meaning that prior to the grant, the land was used for exploitation. Here the life tenant may continue to exploit, unless otherwise agreed. Note, Prior Use and Open Mines Doctrine: If mining was done on land before life estate began, life tenant may continue to mine, but is limited to mines already open. Thus, life tenant must not open any new mines
2) R: Repairs: The life tenant may consume natural resources for reasonable repairs and maintenance
3) G: Grant: The life tenant may exploit if granted that right
4) E: Exploitation, meaning the land is suitable only to exploit
In the context of the life estate and permissive waste, what is the life tenant's obligation to repair refer to?
The life tenant's obligation to repair means that the life tenant must simply maintain premises in reasonably good repair.
In the context of the life estate and permissive waste, what is the life estate's obligation to pay all ordinary taxes?
The life tenant is obligated to pay all ordinary taxes On land, to extent of income or profits from land. If there is no income or profits, life tenant is required to pay all ordinary taxes to extent of the premise’s fair rental value.
What is the life estate's accompanying future interest?
If held by O, the grantor, it is a reversion. If held by a third party, it is a remainder.
What are the only three future interests capable of creation in the grantor?
1) The Possibility of Reverter: accompanies only the fee simple determinable
2) The Right of Entry, also known as the Power of Termination: it accompanies only the fee simple subject to condition subsequent
3) The Reversion: the future interest that arises in a grantor who transfers an estate of lesser quantum that she stared w/, other than a fee simple determinable or a fee simple subject to condition subsequent (e.g, when O is the holder of a fee simple absolute conveys to A for life; to A for 99 years; to A For life, then to B for 99 years).
If our future interest is held by someone other than the grantor, what are the three possibilities?
1) A vested remainder (of which there are three species: A) the indefeasibly vested remainder; B) the vested remainder subject to complete defeasance (also known as the vested remainder subject to total divestments), and C) the vested remainder subject to open)
2) A contingent remainder; OR
3) An executory interest ( of which there are two species: A) the shifting executory interest, and B) the springing executory interest)
What are our three tasks in assessing future interests in transferrees?
1) Distinguish vested remainders (of which there are three kinds), from contingent remainders
2) Distinguish three kinds of vested remainders from each other; AND
3) We must distinguish all remainders from executory interests
What is a remainder?
A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created
What does it mean that the remainderman is social, patient, and polite?
-Remainderman is sociable. He never travels alone. In other words, remainderman always accompanies a preceding estate of known fixed duration.(usually a life estate or a term of years) (e.g., “to A for life, then to B” or “to A for ten years, then to B”)
-Remainderman is patient and polite. Remainderman never follows a defeasible fee. A remainderman waits patiently for the preceding estate to run its natural course. Note, a remainderman cannot cut short or divest a prior transferee. In other words, if your present estate is a defeasible fee, your future interest is NOT a remainder. Instead it will be an executory interest if held by someone other than grantor.
When is a remainder vested?
A remainder is vested if it is both created in an ascertained person and is not subject to any condition precedent.
When is a remainder contingent?
A remainder is contingent if it is created in an unascertained person OR is subject to a condition precedent, or both:

-The remainder that is contingent because it is created in a yet unborn or unascertained persons: e.g., to A for life, then to B’s first child; to A for life, then to B’s heirs”; to A for life, then to those children of B who survive A
-The remainder that is contingent because it is subject to a condition precedent (prerequisite), or a condition that appears before the language creating the remainder or is woven into the grant to the remainderman; e.g., to A for life then, if B graduates from college, to B (B has contingent remainder; O has a reversion. If B graduates, B’s contingent remainder is transformed automatically into an indefeasibly vested remainder). Note, in NY, any future interest in a transferee that is subject to a condition precedent is called a remainder subject to a condition precedent.
In the context of contingent remainders, what is the rule of destructibility of contingent remainders?
-At common law, a contingent remainder was destroyed if it was still contingent at the time preceding estate ended (call of question includes “historically, at common law").
-Today (in call of question): destructibility rule abolished (e.g., “to A for life, and if B has reached the age of 21, to B” and A dies. If B is under 21 when A dies, O/O’s heirs hold estate subject to B’s springing executory interest. Once B reaches 21, B takes).

Note, the rule of destructibility of contingent remainders has been abolished in NY.
In the context of contingent remainders, what is the rule of Shelley's Case?
At common law, the rule of SHelley's case would apply in one setting only: O conveys “to A for life, then on A’s death, to A’s heirs.” A is alive. Historically, the present and future interests would merge giving A a fee simple absolute. Note, the rule of Shelley’s case is a rule of law, and not a rule of construction. It would apply even in the face of contrary grantor intent. Today, the rule in Shelley’s case has been virtually abolished. Thus, today, when O conveys “to A for life, then to A’s heirs.” A has a life estate, A’s as yet unknown heirs have a contingent remainder, O has a reversion, since A could die w/out heirs.

Note, Rule in Shelley’s Case abolished in NY.
In the context of contingent remainders, what is the Doctrine of Worthier Title (also known as the rule against a remainder in grantor’s heirs)?
The Doctrine of Worthier Title is still viable in most states today. It applies when O, who is alive, tries to create a future interest in his heirs (e.g., O, who is alive, conveys “to A for life, then to O’s heirs.” Due to Doctrine of Worthier Title, contingent remainder in O’s heirs is void. Thus, A has a life estate and O has a reversion). The doctrine endeavors to promote free transfer of land. Note, the doctrine of worthier title is a rule of construction, and not a rule of law. Thus, Grantor’s intent controls. If grantor clearly intends to create a contingent remainder in his heirs, that intent is binding

Note, in NY, the doctrine of worthier title has been abolished in NY with respect to transfers taking effect after September 1, 1967 (so in above example, A has life estate and O’s heirs have contingent remainder because O is still alive and a living person has no heirs)
What is an indefeasibly vested remainder?
The holder of the Indefeasibly vested remainder is certain to acquire an estate in the future, w/ no conditions attached (e.g., To A for life, remainder to B. A is alive, B is alive. A has life estate, B has an indefeasibly vested remainder. What if B predeceases A? At common law, B’s future interest passes by will or intestacy)
What is a vested remainder subject to complete defeasance (also known as the vested remainder subject to total divestment).
For a vested remainder subject to complete defeasance, a remainderman exists. His taking is NOT subject to any condition precedent. However, the right to possession could be cut short because of a condition subsequent (the string attached!).
What is the difference between a condition precedent, which creates a contingent remainder, and a condition subsequent, which creates a vested remainder subject to complete defeasance?
To tell the difference, apply the “Comma Rule”: when conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder that condition is a condition subsequent, and you have a vested remainder subject to complete defeasance. For example, O conveys “to A for life, remainder to B, provided, however, that if B dies under the age of 25, to C.” A is alive. B is 20 years old. Here, A has life estate; B has vested remainder subject to complete defeasance; C has shifting executory interest; O has reversion (possible that C/C’s heirs will not exist if and when the condition is breached)

By contrast, if the conditional language appears before the language creating the remainder, the condition is a condition precedent and you have a contingent remainder
1. E.g., O conveys “to A for life, and if B has reached the age of 25, to B” A is alive. Bi s 20 years old
a. A has life estate; B has a contingent remainder (subject to CP); O has a reversion
What is a vested remainder subject to open?
A remainder is vested in a group of takers, at least one of whom is qualified to take. But each class member’s share is subject to partial diminution because additional takers can still join in (e.g., “to A for life, then to B’s children.” A is alive. B has two children, C and D, If C/D predeceases A, at common law there share goes to their devisees or heirs
In the context of vested remainder subject to open, what does it mean if the class is open or close?
-A class is open if possible for others to enter
-A class is closed when it’s maximum membership has been set, so persons born later are shut out.
In the context of vested remainder subject to open, how will you know when given class has closed?
Apply common law rule of convenience: the class closes whenever any member can claim possession (bright line rule).

Note, the exception to this is the womb rule: for example, “to A for life, then to B’s children.” A is alive. B has two children, C and D. Here, a child in the womb at A’s death will share with C and D.
What is an executory interest?
Executory interest is a future interest created in a transferee (TP) which is not a remainder and which takes effect by cutting short some interest in another person (“shifting”) or in grantor/his heirs (“springing”).
What is a shifting executory interest?
A shifting executory interest always follows a defeasible fee and cuts short someone other than the grantor. E.g., “To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs." B has a shifting executory interest. A has a fee simple subject to B’s shifting executory interest. Note, this is not a remainder because remainders never follow defeasible fees. Also note, this conveyance does not violate the rule against perpetuities because of the one year limit on B’s power.
What is a springing executory interest?
A springing executory interest cuts short O, the grantor. E.g., O conveys “To A, if and when he marries.” A is unmarried. Here, A has springing executory interest; O has a fee simple subject to A’s springing executory interest. Note, it doesn’t violate RAP because we’ll know by the end of A’s life whether the condition is met or not.
Does NY have a distinction between executory interests and contingent remainders?
NY abolished distinction between executory interests and contingent remainders; they are all called remainders subject to a condition precedent
What is the Rule Against Perpetuities?
Certain kinds of future interest are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
What is the Four Step Technique for Assessing Potential RAP Problems?
1) Determine which future interests have been created by the conveyance. The RAP potentially applies only to contingent remainders, executory interests, and certain vested remainders subject to open. The RAP does NOT apply to any future interests in O the grantor, indefeasibly vested remainders, vested remainders subject to complete defeasance (e.g., “To A for life, then to A’s children.” A is alive. She has no children. Here, the as yet unborn children have contingent remainder)
2) Identify the conditions precedent to the vesting of the suspect future interest (In preceding example, what has to happen before a future interest holder can take? A must die leaving a child)
3) Find a measuring life. Look for a person alive at the date of the conveyance and ask whether that person’s life or death is relevant to the condition’s occurrence (in preceding example, A qualifies as a measuring life)
4) Ask: Will we know, w/ certainty, w/in 21 years of death of our measuring life, if our future interest holder(so can or cannot take? If so, the conveyance is good. If not (if there is any possibility, however remote, that the condition precedent could or could not occur more than 21 years after the death of a measuring life), the future interest is void (the preceding conveyance, therefore is good. W will know at the instant of A’s death if A has left behind a child or not).
Apply RAP four-step technique to the following example:

“To A for life, then to the first of her children to reach the age of 30.” A is 70. Her only child, B, is 29 years old
1) Classify the future interest: contingent remainder
2) What are the conditions precedent to the vesting of the future interest? A must die and have a child to reach 30
3) Find a measuring life. A is a measuring life. B is not the measuring life because the grant is not B specific (“then to the first of her children”)
4) Will we know, w/ certainty, w/in 21 years of the death of our measuring life, if a future holder can take? (In other words, is there any possibility, however remote, that A would not have a child to reach 30 until more than 21 years after A’s death?) No, we will not know (yes, it is possible, however remote). Note, Common law RAP is miserable. It presumes anything is possible. What parade of horrible could invalidate the future interest here? B, who is 29, could die tomorrow. Thereafter, A could have another child no matter that A is 70 (This is called the Fertile Octogenarian Rule. It presumes that a person is fertile no matter his/her age) A could die in labor, or A could live. We just don’t know for sure today whether the condition precedent to any potential newborn’s taking – the child’s turning 30 – will be satisfied w/in 21 years of A’s death. Thus, A has a life estate and O has a reversion.
What are the two bright line rules of common law RAP?
1) A gift that is an open class that is conditioned on the members surviving an age beyond 21 violates the common law RAP. Remember, “Bad as to one, bad as to all” ; in other words, to be valid, it must be shown that the condition precedent to every class member’s taking will occur w/in the perpetuities period. If it is possible that a disposition might vest too remotely w/ respect to any member of the class the entire class gift is void (e.g., “To A for life, then to such of A’s children as live to attain the age of 30.” A has two children, B and C, B is 35 and C is 50 A is alive. B /C’s vested remainders subject to open are voided by common law RAP and “bad as to one, bad as to all.” Under common law RAP, we’re left w/ a life estate in A and a reversions in O).
2) Many shifting executory interests violate the RAP. An executory interest w/ no limit on the time w/in which it must vest violates RAP (e.g. “To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs.” B has a shifting executory interest and B’s entitlement will be triggered when the land ceases to be used for farm purposes. A is a measuring life. We will not know w/ certainty, w/in 21 years of the death of our measuring life, if a future interest holder can take; A might abide by condition during her lifetime. Condition may not be breached, if ever. until years have passed. The future interest is void and once the offensive future interest is stricken, we are left w/ “To A and his heirs so long as the land is used for farm purposes.” Thus, A now has a fee simple determinable. O now has the possibility of reverter. Note, there is no RAP problem; RAP won’t apply to future interests of O).

Compare preceding example w/ “To A and his heirs, but if the land ceases to be used for farm purposes to B and his heirs.”
Same result as in the preceding example, except that now once the offensive future interest (“to B and his heirs”) is stricken, no longer have a grammatically correct declaration. Thus the entire conditional clause is stricken and A is left with a fee simple absolute. O has nothing.
In the context of RAP, what is the charity-to-charity exception?
A gift from one charity to another does not violate the RAP (encouraging ppl to be charitable)
For example, "To American Red Cross, so long as premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA." Ordinarily the YMCA would have an invalid shifting executory interest. However because of the charity-to-charity exception to the RAP, the YMCA’s shifting executory interest is good. Thus, ARC has a fee simple subject to the YMCA’s valid shifting executory interest.
In the context of reforming RAP, what is the “wait and see” or “second look doctrine?”
Under this majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they now exist at the end of the measuring life. It eliminates the “what if” or “anything is possible” line of inquiry.
What is the Uniform Statutory Rule Against Perpetuities (USRAP)?
It codifies the common law RAP and, in addition, provides for an alternative 90 year vesting period (can use either traditional common law RAP measuring life + 21 or more precise 90 year vesting period)
What two things do both the “wait and see” and USRAP reforms embrace?
1) The cy pres doctrine: “as near as possible.” If a given disposition violates the rule, a court may reform it in a way that most closely matches grantor’s intent while complying w/ the RAP
2) The reduction of any offensive age contingency to 21 years

Note, NY applies the common law RAP, and has rejected “wait and see” and cy pres, except for charitable trusts and powers of appointment.
What are four points to know about the NY Perpetuities Reform Statute?
1) Under perpetuities reform statute, where interest would be invalid because it’s made to depend on any person’s having to attain an age in excess of 21 years, age contingency is reduced to 21 years
2) The common law fertile octogenarian principle is modified by the NY perpetuities reform statue. The NY statue presumes that a woman over the age of 55 cannot have a child. The possibility that the person may have a child by adoption is disregarded
3) The NY “suspension” rule (tested w/ Trusts and Wills) The rule against suspension of the absolute power of alienation applies the common law RAP on restrictions on the power to sell or transfer. Thus, an interest is void if it suspends the power to sell or transfer for a period longer than lives in being + 21. In other words, for a conveyance to be valid under the suspension rule, there must be persons in being who could join together in a conveyance of the full fee simple title w/in lives in being plus 21 years.
4) (Administrative contingency problem: where the duration or vesting of an estate is contingent upon the occurrence of a specified event, it is presumed that the creator of the estate intended the contingency to occur, if at all, w/in 21 years from the effective date of the instrument creating the estate)
What are the three forms of concurrent ownership?
1) The joint tenancy: two or more own with the right of survivorship
2) The tenancy by the entirety: a marital interest between married partners w/ the right of surivorship
3) The Tenancy in common: two or more own w. no right of survivorship
What are the two distinguishing characteristics of a joint tenancy?
1) Right of survival ship: when one joint tenant dies, his share passes automatically to the surviving joint tenant.
2) A joint tenant’s interest is alienable (can sell share during lifetime); but it is not divisible or descendable (because of right of survivorship).
How do you create a joint tenancy?
-The four unities. Remember this “T-TIP”. Joint tenants must take their interests at the same time (T), in the same title (T), w/ identical shares (I), and the right to possess the whole (P).
-Grantor must clearly express the right of survivorship. Joint tenancies are disfavored (able to avoid probate). Thus, in addition to the four unities, grantor must clearly state right of survivorship
-Use of a straw: For example, Dave holds Blackacre to fee simple absolute. He wishes to hold it as a joint tenant w/ Paul. How must Dave proceed. To satisfy the four unifies, Dave must use a straw (middle man). First, Dave conveys to straw. Second, straw conveys back to Dave and Paul as JTWROS (as joint tenants with the right of survivorship).

Note, in NY has dispensed w/ need to use a straw. Okay for Dave to convey to himself and Paul as joint tenants w/ the right of survivorship.
What are three ways to sever a joint tenancy?
Remember SPAM; Sale, Partition And Mortgage

1) Severance and Sale: A joint tenant can sell or transfer her interest during her lifetime. She may do so secretly w/out the other’s knowledge or consent. One joint tenant’s sale severs joint tenancy as to seller’s interest because it disrupts the four unities. Thus, buyer is a tenant in common (note, to the extent that we started w/ more than two joint tenants in the first place: the joint tenancy remains intact as between the other, non-transferring joint tenants). In equity, joint tenant’s mere act of entering into a K for the sale of her share will sever joint tenancy as to contracting party’s interest. This is because of the doctrine of equitable conversion, which provides “equity regards as done that which ought to be done”
2) Severance and Partition: Remember three variables: A) by voluntary agreement (a peaceful way to terminate); B) Partition in kind (a court action for physical division of Blackacre if in the best interest of all); and C) Forced sale (a court action if in best interest of all where Blackacre is sold and proceeds divided proportionally).
3) Severance and Mortgage: One joint tenant’s execution of a mortgage or a lien on his share will sever the joint tenancy as to that now encumbered share only in the minority of states to follow the title theory of mortgages. By contrast, the majority of states follow the lien theory of mortgages, whereby a joint-tenant’s execution of a mortgage on his own interest will not sever the joint tenancy. Note, NY follows the lien theory of mortgages.
What is a Tenancy by the Entirety and how is it created?
-How to create: created between married partners that share right of survivorship
-In the 21 states recognizing it (including NY), tenancy by the entirety arises presumptively in any conveyance to married partners unless stated otherwise. This is a very protected form of co-ownership (remember CAN’T TOUCH THIS). Creditors of only one spouse can’t touch this tenancy. In NY, one spouse may mortgage his interest and his creditors may enforce against that interest, but only as to the debtor-spouse’s share. Further, the non-debtor spouse’s rights including the right of survivor ship, must not be compromised. Note, neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to TP (so no unilateral conveyance allowed).
What are the three features of the Tenancy in Common?
1) Each co-tenant owns an individual part and each has a right to possess the whole
2) Each interest is divisible, descendable, and alienable. There are no survivorship rights between tenants in common
3) The presumption favors tenancy in common
What are the nine rights and duties of co-tenants?
1) Each co-tenant is entitled to possess the whole (no matter how much they contribute). If one co-tenant wrongfully excludes another co-tenant from possession of the whole/any part he has committed wrongful ouster
2) Absent ouster, a co-tenant in exclusive possession is not liable to the other co-tenants for rent
3) A co-tenant who leases all or part of the premises to TP must account to his co-tenants, providing them with their fair share of rental income
4) Unless he has ousted the other co-tenants, one co-tenant in exclusive possession of the statutory adverse possession period cannot acquire title to the exclusion of the others. Note, the hostility element of adverse possession is absent There is no hostility because there was no ouster. Also note, in NY, a recent Court of Appeals case held a co-tenant may acquire full title by adverse possession if he is in exclusive possession for 20 continuous years (theory of implied ouster).
5) Each co-tenant is responsible for his fairs share of carrying costs (such as taxes, mortgage interest payments), based upon his undivided share
6) The repairing co-tenant enjoys the right of contribution for necessary and reasonable repairs, provided that he has told the others of the need
7) During life of co-tenancy there’s no right of contribution for “improvements." However, at partition, the improving co-tenant is entitled to a credit, equal to any increase in value caused by her efforts. Attendantly, at partition, the so-called “improver” bears full liability for any drop in value caused by her efforts
8) Waste: a co-tenant must not commit waste (recall the three species of waste: voluntary (willful destruction); permissive (neglect); and ameliorative (changes that increase value). A co-tenant can bring a waste action during life of co-tenancy.
9) Partition: joint tenant or tenant in common has a right to bring an action for partition (voluntary agreement; partition in kind; forced sale).
What is the Tenancy for Years (also known as the Estate for Years or the Term of Years)?
This is a lease for a fixed period of time. That period could be as short as one day or as long as 50 years, for example. When you know the termination date from the start, you have the tenancy for years. Note, because a term of years states from the outset when it will terminate no notice is needed to terminate. Also note, a term of years greater than one year must be in writing to be enforceable, because of the statute of frauds.