Term
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Definition
| A promissory restraint provides that the grantee promises not to transfer her interest. Promissory restraints on life estates are valid. |
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Term
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Definition
| A disabling restraint withholds from the grantee the power of transferring her interest. A conveyance from O “to A for life, and A shall have no power to transfer her interest to anyone” contains a disabling restraint. Disabling restraints on legal life estates are void. |
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Term
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Definition
| A forfeiture restraint provides that if the grantee attempts to transfer her interest, it is forfeited to another person. A conveyance from O “to A for life, but if A attempts to transfer her interest to anyone, to B” contains a forfeiture restraint. Forfeiture restraints on life estates are valid. |
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Term
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Definition
| A spendthrift restraint is a disabling restraint on an equitable interest in trust. A conveyance from O “to T in trust to pay the income to A for life, and on A’s death to distribute the principal to B; no interest of any beneficiary shall be assignable or subject to the claims of creditors” contains a spendthrift restraint. Spendthrift restraints generally are valid. |
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Term
| Rule of Destructibility of Contingent Remainders |
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Definition
| At common law, a contingent remainder had to vest prior to or upon termination of the preceding estate or it was destroyed |
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Term
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Definition
| whenever the same person acquires all of the existing interests in land, present and future, a merger occurs resulting in a fee simple absolute in that person. |
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Term
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Definition
| Under the common law Rule in Shelley’s Case, a conveyance that purports to give a grantee a freehold estate (e.g., a life estate) with a remainder to the grantee’s heirs instead gives the grantee both the freehold estate and the remainder. |
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Term
| Doctrine of Worthier Title |
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Definition
| Under the common law Doctrine of Worthier Title, a remainder limited to the grantor’s heirs is invalid, and the grantor retains a reversion in the property. This doctrine would have been applicable if, for example, O conveyed the property “to A for life, then to my heirs.” |
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Term
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Definition
| A remainder is a future interest created in a grantee rather than a grantor. A remainder must be expressly created in the instrument creating the intermediate possessory estate. A conveyance from “O to A for life, then to B” creates a life estate in A and a remainder in B. |
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Term
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Definition
| A right of entry is the future interest retained by the grantor who conveys a fee simple subject to a condition subsequent. A conveyance from “O to A upon condition that/provided that/but if/if it happens that [event], then O or her heirs may enter and terminate the estate” creates a fee simple subject to a condition subsequent in A and a right of entry in O. |
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Term
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Definition
| A reversion is the future interest left in a grantor who conveys a lesser estate. A conveyance from “O to A for life” creates a life estate in A and a reversion in O |
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Term
If L leases a residence to T “for as long as T desires,” what interest does T have?
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Definition
| If L leases a residence to T “for as long as T desires,” T most likely has a life estate determinable. A tenancy at will is a tenancy that is terminable at the will of either the landlord or the tenant. If the lease gives only the landlord the right to terminate at will, a similar right generally will be implied in favor of the tenant. On the other hand, if the lease gives only the tenant the right to terminate at will, a similar right generally will not be implied in favor of the landlord. Rather, most courts would interpret the lease as creating a life estate or fee simple terminable by the tenant (i.e., determinable). Here, the lease is terminable only at T’s will or on T’s death, and thus creates a life estate determinable in T. |
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Term
Partial actual eviction
def?
by landlord?
by paramount title holder? |
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Definition
| Partial actual eviction occurs when the tenant is excluded from only part of the leased premises. Partial eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises, even though the tenant continues in possession of the remainder of the premises. Partial eviction by a paramount title holder results in an apportionment of rent; i.e., the tenant is liable for the reasonable rental value of the portion that he continues to possess. |
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Term
| When a mortgagee transfers a promissory note, for the transferee to become a holder in due course |
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Definition
When a mortgagee transfers a promissory note, for the transferee to become a holder in due course:
- The note must be negotiable in form—i.e., the note must be payable to bearer or to the order of the named payee and must contain a promise to pay a fixed amount of money and no other promises, except that it may contain an acceleration clause and an attorneys’ fee clause;
- If there is a named payee, she must have indorsed (i.e., signed) the note;
- The note must be delivered to the transferee; and
- The transferee must pay value for the note and take the note in good faith,without notice that the note is overdue or has been dishonored, or that the maker has any defense to the duty to pay it.
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Term
| statutory right of redemption |
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Definition
About half the states (**NOT in NY) provide a statutory right to redeem for some fixed period after the foreclosure sale has occurred, usually six months or one year.
The amount to be paid is the foreclosure sale price, rather than the amount of the original debt. This right extends to mortgagors and, in some states, to junior lienors. |
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Term
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Definition
| A clause that requires full payment of a mortgage debt if the mortgagor transfers her interest without the lender’s consent is enforceable by an institutional mortgage lender. These “due-on-sale” clauses are a feature of most modern mortgages. Federal law makes due-on-sale clauses enforceable for all types of institutional mortgage lenders on all types of real estate. This federal preemption does not apply to isolated mortgage loans made by private parties. |
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Term
When may a mortgagee take possession of the mortgaged property?
title theory state?
lien theory state?
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Definition
A mortgagee may take possession of the mortgaged property on default, in a title theory state. When a mortgagor defaults on his debt, the mortgagee can sue on the debt or foreclose the mortgage. The mortgagee will have a right to take possession before foreclosure only in the minority of jurisdictions where she is deemed to have legal title to the property. In practice, this means the mortgagee can take possession as soon as a default occurs.
A mortgagee may nottake possession of the mortgaged property on default in a lien theory state. A majority of the states follow the lien theory, under which the mortgagee is deemed to hold a security interest in the land and the mortgagor is considered the owner until foreclosure. According to this theory, the mortgagee may not take possession of the land before foreclosure.
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Term
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Definition
| A deed of trust is a security interest in land. The debtor (i.e., the trustor) gives a deed of trust to a third-party trustee such as the lender’s lawyer or a title insurance company. In the event of default, the lender (i.e., the beneficiary) instructs the trustee to foreclose the deed of trust by selling the property. |
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Term
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Definition
| An installment contract is a security interest in land. The debtor (i.e., the buyer) contracts with the seller to pay for the land in regular installments until the full contract price has been paid, plus interest. Only then will the seller transfer legal title to the buyer. The contract usually contains a forfeiture clause providing that the seller may cancel the contract upon default, retain all money paid, and retake possession of the land |
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Term
| doctrine of transferred intent |
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Definition
permits an intent to commit a tort against one person to be transferred to another tort or person
may be invoked only if the tort intended and the tort that results are one of the following:
- Assault;
- Battery;
- False imprisonment;
- Trespass to land; and
- Trespass to chattels
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Term
| battery (prima facie case) |
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Definition
The elements that must be proved to establish a prima facie case for battery are:
(i) An act by the defendant that brings about harmful or offensive contact to the plaintiff’s person;
(ii) Intent by the defendant to bring about the harmful or offensive contact; and
(iii) Causation.
Whether the contact is harmful or offensive is judged by whether it would be considered harmful or offensive to a reasonable person. |
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Term
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Definition
By statute in some states and case law in others, shopkeepers have been given a privilege to detain someone suspected of shoplifting and thus avoid liability for false imprisonment. The following conditions must be satisfied:
- There must be a reasonable belief as to the fact of theft;
- The detention must be conducted in a reasonable manner and only nondeadly force can be used; and
- The detention must be only for a reasonable period of time and only for the purpose of making an investigation.
A shopkeeper is not required to notify the police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting. |
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Term
| prima facie case for intentional infliction of emotional distress |
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Definition
prima facie case for intentional infliction of emotional distress requires proof of:
(i) An act by the defendant amounting to extreme and outrageous conduct;
(ii) Intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress, or recklessness as to the effect of the defendant’s conduct;
(iii) Causation; and
(iv) Damages ─ severe emotional distress. |
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Term
| prima facie case for interference with business relations |
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Definition
To establish a prima facie case for interference with business relations, the plaintiff must show:
1. Existence of a valid contractual relationship between the plaintiff and a third party, or a valid business expectancy of the plaintiff;
2. The defendant’s knowledge of the relationship or the expectancy;
3. Intentional interference by the defendant that induces a breach or termination of the relationship or the expectancy; and
4. Damage to the plaintiff.
Damages are NOT presumed if the interference is intentional and unprivileged. The plaintiff must prove actual damages from the interference.
A defendant MAY be privileged to interfere if it is a competitor of the plaintiff. Interference with the plaintiff’s prospective business relationships is likely to be privileged if the defendant is a competitor of the plaintiff pursuing those same prospective customers. |
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