Term
| What are the four categories of freehold estates? |
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Definition
(1) the Fee Simple Absolute
(2) the Fee Tail
(3) the Defeasible Fee (of which there are 3 types)
(4) the Life Estate |
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Term
| What words create the Fee Simple Absolute? |
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Definition
"To A" or "To A and his heirs."
- Today, those common law words "anfd his heirs" are not necessary.
Thus, "to A" suffices to create the fee simple absolute. |
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Term
| What are the distinguishing characteristics of the Fee Simple Absolute? |
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Definition
| This is absolute ownership of potentially infinite duration. It is freely devisable (by will), descendible (pass through intestacy), and alienable (transferable inter vivos). |
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Term
| What is the accompanying future interest of the Fee Simple Absolute? |
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Definition
NONE
Only the owner of the fee simple absolute owns anything. A living person has no heirs, so no one holds a future interest. Thus, while the owner is alive, he has only prospective heirs who are powerless. |
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Term
| What words create the Fee Tail? |
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Definition
| "To A and the heirs of his body." |
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Term
| What are the distinguishing characteristics of the Fee Tail? |
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Definition
Virtually abolished in the US today, virtually never tested. Historically, the fee tail would pass directly to: the grantee's lineal blood descendants no matter what.
Today, the attempted creation of a fee tail creates instead a Fee Simple Absolute. |
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Term
| Is there an accompanying future interest in the Fee Tail? |
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Definition
| Yes- in O, the grantor, it was called a Reversion. In a third party it was called a Remainder. |
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Term
*The Defeasible Fee (will be tested**)
What are the 3 types of Defeasible Fees? |
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Definition
(1) The Fee Simple Determinable
(2) The Fee Simple Subject to Condition Subsequent
(3) The Fee Simple Subject to Executory Limitation |
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Term
| What words create the Fee Simple Determinable? |
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Definition
"To A for so long as..."
"To A during..."
"To A until..."
The Grantor MUST use clear durational language. If the stated condition is violated, forfeiture is AUTOMATIC. |
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Term
| What are the distinguishing characteristics of the Fee Simple Determinable? |
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Definition
This estate, like all of the defeasible fees, is devisable, descendible, and alienable, but always subject to the condition.
ex:You may convey less than what you started with, but you can't convey more. In other words, you can't always get what you want. |
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Term
| What are the accompanying future interests of the Fee Simple Determinable? |
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Definition
The POSSIBILITY OF REVERTER in the grantor.
FSDPOR
Frank Sinatra Doesn't Prefer Orville Redenbacher. |
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Term
| What language creates a Fee SImple Subject to Condition Subsequent? |
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Definition
"To A, but if X event occurs, grantor reserves the right to re-enter and retake."
Here, the grantor must use clear durational language AND carve out the right to reenter. |
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Term
| What is another way of saying "the right of entry?" |
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Definition
| The power of termination. |
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Term
| What are the distinguishing characteristics of the Fee SImple Subject to Condition Subsequent? |
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Definition
| This estate is NOT automatically terminated, but it can be cut short AT THE GRANTOR'S OPTION, if the stated condition occurs. |
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Term
| What is the accompanying interest of a Fee Simple Subject to Condition Subsequent? |
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Definition
| The right of entry, aka "power of termination" |
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Term
| What language creates a Fee Simple Subject to Executory Limitation? |
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Definition
"To A, but if X event occurs, then to B."
This defeasible fee involves a third party included in the grant who stands to take in the event of breach automatically. |
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Term
Ex: "To Barry Manilow, but if Manilow ever performs mustic on the premises, then to Mandy."
What estates do Manilow and Mandy have? |
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Definition
Manilow has a Fee Simple subject to Mandy's shifting executory interest
Mandy has: a shifting executory interest |
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Term
| What are the distinguishing characteristics of the Fee Simple Subject to Executory LImitation? |
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Definition
| This estate is just like the fee simple determinable only now, if the condition is broken, the estate is automatically forfeited in favor of someone other than grantor. |
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Term
| What is the accompanying future interest of the FSSEL? |
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Definition
| The Shifting Executory Interest |
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Term
| List the 2 important rules of construction re: the defeasible fees. |
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Definition
(1) Words of mere desire, hope, or intention are insufficient to create a defeasible fee.
- Courts disfavor restrictions on the free use of land.
- Thus, courts will not find a defeasible fee unless clear durational language is used.
(2) Absolute restraints on alienation are VOID.
- An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to any reasonable time-limited purpose. |
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Term
| Ex: In each of these instances, A is vested with a fee simple absolute, and NOT a defeasible fee: |
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Definition
"to A for the purpose of constructing a day care"
"to A with the hope that he becomes a lawyer"
"To A with the expectation that the premises will be used as a Blockbuster video store." |
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Term
| Ex: O conveys: "To A so long as she never attempts to sell." What are the resulting estates in A and O? |
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Definition
This is an ABSOLUTE RESTRAINT ON ALIENATION and it is void.
A has: A Fee Simple Absolute
O has: Nothing |
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Term
Ex: O conveys: "To A so long as she does not attempt to sell until the year 2012, when clouds on the title will be resolved."
What are the resulting estates in A and O? |
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Definition
This restraint is linked to a resaoanble, time limited purpose. Thus it is VALID.
A has: a Fee Simple Determinable
O has: Possibility of Reverter |
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Term
| What is the definition of a Life Estate? |
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Definition
| This is an estate that must be measured in explicit life time terms, and never in terms of years. |
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Term
| What words create a life estate? |
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Definition
"To A, for life"
A has a life estate, and is known as the LIFE TENANT. |
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Term
| What is the accompanying future interest in a life estate? |
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Definition
| The grantor has a reversion, meaning that at the end of A's lifetime, the estate reverts back to O or O's heirs. |
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Term
| What is an estate that is for a term of years called? |
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Definition
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Term
| What is a life estate PUR AUTRE VIE? |
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Definition
It is a life estate measured by a life other than the grantee's.
"To A for the life of B." |
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Term
Ex: O Conveys "To Madonna, for the life of David Letterman."
What are the estate interests of Madonna and O? |
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Definition
Madonna has a Life Estate Pur Autre Vie
O has: A reversion.
-at the end of Letterman's life, the estate reverts back to O or O's heirs. |
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Term
| Ex: O conveys: "To Madonna for life." Madonna then sells hers entire interest to D. Letterman. What are the interests of Madonna, Letterman, and O? |
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Definition
Letterman has a Life Estate Pur Autre Vie
Madonna has nothing
O has a reversion. At the end of Madonna's life, the estate reverts back to O or O's heirs. |
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Term
| What are the distinguishing characteristics of a life estate? |
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Definition
The life tenant's entitlements are rooted in the important DOCTRINE OF WASTE.
Note 2 General Rules:
(1) the life tenant is entitled to all ordinary uses and profits from the land.
(2) The life tenant must not commit waste (must not hurt the future interest holders). |
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Term
| What are the 3 types of WASTE? |
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Definition
(1) Voluntary or Affirmative Waste
(2) Permissive Waste or Neglect
(3) Ameliorative Waste |
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Term
| Define voluntary or affirmative waste. |
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Definition
This is overt conduct that causes a drop in value (i.e., destruction).
This is an affirmative act of destruction. |
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Term
| What is the general rule re: Voluntary Waste and Natural Resources? |
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Definition
| The life tenant must not consume or exploit natural resources on the property (such as timber, oil or minerals), unless one of 4 exceptions applies (PURGE). |
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Term
| List the 4 general exceptions to the general rule of voluntary waste and natural resources. |
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Definition
PURGE:
Prior Use
Repairs
Grant
Exploitation |
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Term
| What does prior use mean? |
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Definition
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 the Open MInes Doctrine: If mining was done on the land before the life estate began, the life tenant may continue to mine, but is limited to the mines already open. Thus, the life tenant must not open any new mines. |
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Term
| What does the exception of repairs mean? |
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Definition
| The life tenant may consume natural resources for reasonable repairs and maintenance. |
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Term
| What does the exception of grant mean? |
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Definition
| The life tenant may exploit if granted that right. |
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Term
| What does the exception of exploitation mean? |
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Definition
| The land is suitable only to exploit (such as a quarry, mine, etc.). |
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Term
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Definition
| This occurs when land is allowed to fall into disrepair (this is a pattern of neglect). |
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Term
| Does the life tenant have an obligation to repair permissive waste? |
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Definition
NO- the life tenant must simply maintain the premises in reasonably good repair.
(maintain = the standard) |
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Term
| What is the rule re: permissive waste and the obligation to pay all ordinary taxes? |
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Definition
| The life tenant is obligated to pay all ordinary taxes on the land, to the extent of income or profits from the land. If there is no income or profit, the life tenant is required to pay all ordinary taxes to the extent of the premises fair rental value. |
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Term
| Define AMELIORATIVE WASTE. |
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Definition
The life tenant must not (unilaterally) engage in acts that will enhance the property's value, unless: all future interest holders are known and consent.
(regardless of increase in value, the action is actionable via ameliorative waste) |
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Term
| What is a Life Estate's accompanying future interest? |
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Definition
If held by the grantor, it is a Reversion.
If held by a third party, it is a Remainder. |
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Term
| What are the 6 categories of FUTURE INTERESTS? |
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Definition
Possible future interests capable of creation in the grantor:
(1) The Possibility of Reverter
(2) The Right of Entry (/Power of Termination)
(3) The Reversion
Possible future interests in transferees:
(4) Vested Remainder
(5) Contingent Remainder, OR
(6) Executory Interest |
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Term
| What does the possibility of Reverter accompany? |
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Definition
It accompanies the Fee Simple Determinable.
FSDPOR |
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Term
| What does the Right of Entry accompany? |
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Definition
| It accompanies the Fee Simple Subject to Condition Subsequent. |
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Term
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Definition
| The future interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a FSD or a FSSCS. |
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Term
| List the 3 types of Vested Remainders. |
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Definition
(1) the indefeasible vested remainder
(2) the vested remainder subject to complete defeasance (aka the vested remainder subject to total divestment), and
(3) the vested remainder subject to open. |
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Term
| List the 2 types of executory interests. |
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Definition
(1) the shifting executory interest, and
(2) the springing executory interest. |
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Term
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Definition
| A future interest created in a grantee (third party) 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. |
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Term
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Definition
He is sociable, never travels alone. I.e., Remaindermen always accompanies a preceding estate of known fixed duration. That preceding estate is usually a life estate or a term of years.
ex: "To A for life, then to B," or "To A for ten years, then to B."
The remainderman waits patiently for preceding estate to run its natural course. |
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Term
| Can a remainderman follow a defeasible fee? |
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Definition
| NO- NEVER. 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). |
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Term
| When is a remainder vested? |
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Definition
| If it is both created in an ascertained person and it is not subject to any condition precedent. |
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Term
| When is a remainder contingent? |
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Definition
If it is created in an unascertained person or is subject to a condition precedent (/pre-req), or both.
Ex: "To A for life, then to B's first child." A is alive. B, as yet, has no children --> contingent remainder.
Ex: "To A for life, then to B's heirs." A is alive. B is alive. B/c a living person has no heirs, while B is alive his heirs are unknown --> contingent remainder.
Ex: "To A for life, then to those children of B who survive A." A is alive. We don't yet know which, if any, of B's children will survive A. --> contingent remainder (b/c of the condition precedent that B's children survive A). |
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Term
| When is a condition a condition PRECEDENT? |
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Definition
When it appears before the language creating the remainder or is woven into the grant to remaindermen.
Ex: "To A for life, then, if B graduates from college, to B." A is alive. B is now in HS. Before B can take, he must graduate from college. He has not yet satisfied this condition precedent.
The CP is a PREREQ to taking.
B has a CONTINGENT REMAINDER.
O has a REVERSION.
If B graduates from college during A's lifetime, B's contingent remainder is transformed automatically into an indefeasible vested remainder. |
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Term
What is the Rule of Destructibility of Contingent Remainders?
and
Assess the state of title of the following (historically and presently):
"To A for life, and if B has reached the age of 21, to B." Now, A has died, leaving behind B, who is still only 19 years old. |
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Definition
At common law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.
Historically at common law, B's contingent remainder is destroyed. Thus, O or O's heirs would take in Fee Simple or FSA.
TODAY, the destructibility rule has been ABOLISHED. Thus, if B is still under 21 when A dies, O or O's heirs hold the estate subject to B's springing executory interest. Once B reaches 21, B takes. |
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Term
| What is the setting at which the RULE IN SHELLEY'S CASE applied at common law? |
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Definition
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 FSA.
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, and A's unknown heirs have contingent remainders. O has a reversion, since A could die without heirs. |
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Term
| What is the Doctrine of Worthier Title and when does it apply? |
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Definition
This is aka "the rule against a remainder in grantor's heirs."
DWOT is still viable in most jdx today. It applies when O, who is alive, tries to create a future interest in his heirs. |
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Term
| What happens if the DWOT does not apply? |
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Definition
| A has a Life Estate and O's heirs have a Contingent Remainder b/c O is still alive and a living person has no heirs. |
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Term
Assess the following estates:
O, who is alive, conveys "To A for life, then to O's heirs." |
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Definition
If the DWOT did not apply, A has a Life Estate, and O's heirs have a Contingent Remainder b/c O is still alive and a living person has no heirs.
Instead, b/c DWOT, the contingent remainder in O's heirs is VOID.
Thus, A has a Life Estate and O has a Reversion. |
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Term
| What is the aim of the DWOT? |
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Definition
It endeavors to promote the free transfer of land.
Note: the DWOT is a rule of construction and not a rule of law, meaning, Grantor's intent CONTROLS. If grantor clearly intends to create a contingent remainder in his heirs, that intent is binding.
DWOT honors any manifestation to any clear explication of his intent to create a remainder. |
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Term
The following cards concern the 3 kinds of Vested Remainders.
Note: Only remainders can be vested. |
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Definition
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Term
| Describe the Indefeasibly Vested Remainder. |
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Definition
The holder of this remainder is certain to acquire an estate in the future, with no conditions attached (// no strings attached).
- The holder is ASCERTAINABLE and WILL take certainly in the future. |
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Term
1. Assess the interests of A and B: "To A for life, remainder to B." A is alive. B is alive.
2. What if B predeceases A? |
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Definition
1. A has: a Life Estate
B has: an Indefeasibly Vested Remainder.
2. At common law, B's future interest passes by his will or through intestacy to his heirs. |
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Term
| Describe the Vested Remainder Subject to Complete Defeasance. |
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Definition
Here, remainderman exists. His taking is NOT subject to any condition precedent. However, his right to possession could be cut short because of a condition subsequent.
Here strings are attached, and the condition subsequent is the string attached. |
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Term
| What is the difference between a CONDITION PRECEDENT and a CONDITION SUBSEQUENT? |
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Definition
A CP creates a contingent remainder, and a CS 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, the condition is a condition subsequent, and you have a vested remainder subject to complete defeasance. |
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Term
Assess the interests of A, B, C and O: 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 yrs old. |
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Definition
A has: a Life Estate
B has: a Vested Remainder Subject to Complete Defeasance
C has: a Shifting Executory Interest.
If B is under 25 at the time of A's death: B still takes. However, B must live to 25 for his estate to retain his interest. Otherwise, B's heirs lose it all, and C or C's heirs take.
O has: a Reversion, b/c it is possible that neither C nor C's heirs will exist if and when the condition is breached. |
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Term
| Assess the following estates: O conveys "To A for life, and if B has reached the age of 25, to B." A is alive. B is 20 yrs old. |
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Definition
A has: a Life Estate
B has: a Contingent Remainder, b/c his taking is subject to a CONDITION PRECEDENT. B must be 25 before he can take possession.
O has: a Reversion. (If B dies under 25, the estate reverts back to O or O's heirs.)
If B is still alive but under 25 at the time of A's death, B cannot take. Instead, the estate reverts backto O or O's heirs, who holds it subject to B's SPRINGING EXECUTORY INTEREST. (If and when B reached 25, B divests O.) |
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Term
| Describe the Vested Remainder Subject to Open. |
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Definition
| 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 b/c additional takers can still join in. |
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Term
| Assess the following estates: "To A for life, then to B's children." A is alive. B has two children, C and D. |
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Definition
A has: a Life Estate.
C and D have: a Vested Remainder Subject to Open. |
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Term
| A class is open if __________. |
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Definition
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Term
| A class is closed when ____________________. |
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Definition
| Its maximum membership has been set so that others cannot join. |
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Term
| How do you know when the given class has closed? |
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Definition
Apply the common law RULE OF CONVENIENCE:
The class closes whenever any member can demand possession. |
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Term
| When does the class close in the following example: "To A for life, then to B's children." A is alive. B has two children C & D. |
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Definition
At B's death, and also, according to the rule of convenience, at A's death, no matter that B is still alive.
Why? B/c that's when C and D can demand possession.
Once A dies, a child born or conceived thereafter will not share in the gift. |
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Term
| What is the WOMB RULE and when does it apply? |
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Definition
| A child in the womb at the time the class is closed will join in the gift. |
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Term
| What is an EXECUTORY INTEREST? |
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Definition
| A future interest created in a transferee (third party), which is not a remainder and which takes effect either by cutting short some interest in another person ("shifting") or in the grantor or his heirs ("springing"). |
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Term
| What is a SHIFTING EXECUTORY INTEREST? |
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Definition
| It always follows a defeasible fee and cuts short someone other than grantor. |
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Term
| Assess the estates in the following: "To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs." |
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Definition
B has: a Shifting Executory Interest
A has: a Fee Simple Subject to B's Shifting Executory Interest. |
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Term
| Assess the interests in the following: "To A, but if A uses the land for nonresidential purposes at any time during the next 20 years, then to B." |
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Definition
B has: a Shifting Executory Interest
A has: A Fee Simple Subject to B's Shifting Executory Interest |
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Term
| Assess the following estates: "To A, if and when he marries." A is unmarried. |
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Definition
A has: a Springing Executory Interest
O has: a Fee Simple Subject to A's Springing Executory Interest |
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Term
| What is a SPRINGING EXECUTORY INTEREST? |
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Definition
| It cuts short the estate of the Grantor. |
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Term
| Assess the following estates: O conveys "To A, if and when he becomes a lawyer." A is in HS. |
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Definition
A has: a Springing Executory Interest
O has: a Fee Simple Subject to A's Springing Executory Interest |
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Term
| RULE AGAINST PERPETUITIES? |
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Definition
Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 yrs after the death of a measuring life.
(i.e., it is a period of uncertainty which will not be allowed beyond a life in being + 21 yrs, otherwise, the gift is VOID!) |
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Term
| List the only 3 types of estates to which the RAP applies. |
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Definition
Contingent Remainders
Executory Interests
and certain Vested Remainders Subject to Open |
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Term
| To which 3 estates does the RAP not apply? |
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Definition
Any Future Interest in the Grantor
Indefeasibly Vested Remainders
Vested Remainders Subject to Complete Defeasance |
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Term
| Assess the estates in the following: "To A for life, then to A's children." A is alive. She has no children. |
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Definition
| The as yet unborn children have: a Contingent Remainder. |
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Term
| What has to happen before a future interest holder can take in the following example: "To A for life, and then to A's children." |
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Definition
| A must die leaving a child. |
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Term
| List the 4 step approach to RAP issues. |
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Definition
(1) Determine which future interests have been created by the conveyance.
(2) ID the conditions precedent to the vesting of the suspect future interest.
(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.
(4) Ask: Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder(s) can or cannot take? |
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Term
Apply the 4-step approach of the RAP to the following:
"To A for life, then to the first of her children to reach age 30." A is 70. Her only child, B, is 29 years old. |
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Definition
Applying the four steps:
(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 (not B b/c the grant is not B specific).
(4) Will we know, with certainty, within 21 yrs of the death of our measuring life, if a future interest holder can take? I.e., is there any possibility, however remote that A would not have a child to reach 30 until more than 21 yrs after A's death? YES.
The common law RAP is miserable. It presumes that anything is possible. B, who is 29, could die tomorrow and A might have another child, no matter that A is 70. A could die in labor, or A could live. We just do not know for sure today whether the condition precedent to any potential newborn's taking--the child's turing 30--will be satisfied within 21 yrs of A's death. Thus:
A has: a Life Estate
O has: a Reversion |
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Term
| What is the FERTILE OCTOGENARIAN RULE? |
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Definition
| It presumes that a person is fertile no matter his/her age. |
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Term
| List the 2 bright line rules of the common law RAP. |
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Definition
(1) A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the RAP.
Ex: "To A for life, then to such of A's children as live to the age of 30." A has two children B & C. B is 35, C is 40. A is alive.
- The class is open, so B & C's vested remainders subject to open are voided by the RAP (bad as to one, bad as to all).
(2) Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP.
Ex: "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."
- Violates the RAP and the future interest is VOID. |
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Term
| What is the CHARITY-TO-CHARITY exception? |
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Definition
| A gift from one charity to another: does not violate the RAP, it will escape the wrath of the RAP. |
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Term
| Assess the following under the common law RAP: "To the American Red Cross, so long as the premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA." |
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Definition
Ordinarily, the YMCA would have an invalid shifting executory interest. However, because of the charity to charity exception to the RAP, the gift is valid.
Thus,
American Red Cross has: a Fee Simple
YMCA has: a (valid) Shifting Executory Interest |
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Term
| What is the WAIT AND SEE or SECOND LOOK doctrine? |
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Definition
Under this majority reform effort to the RAP, 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.
This eliminates the "what if" or "anything is possible" line of inquiry.
I.e., wait for the conclusion of the measuring life and actual manifestations at that time. |
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Term
What is the UNIFORM STATUTORY RULE AGAINST PERPETUITIES?
(USRAP) |
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Definition
| It codifies the common law RAP and, in addition, provides for an alternative 90 year vesting period. |
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Term
What is the CY PRES doctrine?
Does the wait and see doctrine or USRAP reforms embrace CY PRES? |
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Definition
"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 with the RAP.
YES- both the wait and see and USRAP embrace the doctrine.
This doctrine allows courts equitable power to "redraft" in a sense. |
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Term
| What is the other reform principle that the "wait and see" doctrine and USRAP embrace? |
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Definition
| The reduction of any offensive age contingency to 21 years. |
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Term
| The following flashcards consider CONCURRENT ESTATES. |
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Definition
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Term
| What is a concurrent estate? |
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Definition
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Term
| What are the 3 forms of concurrent ownership? |
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Definition
(1) Joint Tenancy
(2) Tenancy by the Entirety
(3) Tenancy in Common |
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Term
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Definition
| 2 or more own property w/ the right of survivorship. |
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Term
| What is TENANCY BY THE ENTIRETY? |
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Definition
| A marital interest between married partners w/ the right of survivorship. |
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Term
| What is TENANCY IN COMMON? |
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Definition
| 2 or more own property w/ NO right of survivorship. |
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Term
| What are the distinguishing characteristics of JOINT TENANCY? |
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Definition
(1) the Right of Survivorship = when one JT dies, his share goes automatically to the surviving JT(s).
(2) a JT's interest is ALIENABLE = JT can sell her share during lifetime. It is NOT devisable or descendible b/c of the right of survivorship.
// Destiny's Child: "I'm a survivor, I'm gonna take yours, I'm a survivor, I'm gonna keep yours." |
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Term
| What 4 unities involved in creating a JOINT TENANCY? |
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Definition
T-TIP
Joint tenants must take their interest:
T- at the same TIME
T- by the same TITLE
I- with IDENTICAL shares, and
P- right to POSSESS the whole
Note: the shares are presumptively identical in a JT. |
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Term
| In addition to T-TIP, what else is required to create a JOINT TENANCY? |
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Definition
(1) the 4 unities (TTIP) ((time, title, identical shares, possession right)
(2) The Grantor must clearly express the right of survivorship.
- JTs are disfavored. Thus, in addition to the 4 unities, the grantor must clearly state the right of survivorship.
(3) Use of a STRAW.
- To satisfy the 4 unities, a FSA holder who wishes to form a JT must use a straw. (step 1: FSA holder conveys property to straw. step 2: straw conveys back to original possessor and the other jT and JT's w/ the right of survivorship) |
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Term
| How do you sever a Joint Tenancy? |
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Definition
SPAM:
Sale
Partition
And
Mortgage |
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Term
Rule: A JT can see or transfer her interest during her lifetime.
Q: May she do so secretly? |
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Definition
| YES- w/o the other's knowledge or consent a JT may sever and sell her interest during lifetime. |
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Term
Why does one JT's sale sever the JT as to the seller's interest?
What is the result as to the buyer?
What is the result if there are 2 or more JTs involved in the original JT? |
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Definition
B/c it disrupts the 4 unities.
The buyer of the severed interest becomes a TENANT IN COMMON.
To the extent that we started with more than 2 JTs in the first place, the JT remains intact as between the other, non-transferring JTs. |
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Term
Assess the following interests: O conveys Blackacre "to P, R and M as Joint Tenants with the right of survivorship."
What if P sells her interest to C. What is the state of title?
What if later R dies, leaving behind his heir RR. What is the state of title? |
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Definition
P, R, and M each own: a 1/3 share + the right to possess the whole.
P's act severs the JT as to P's interest. R and M still hold 2/3 as JT's, and C holds 1/3 as their TENANT IN COMMON.
M takes R's share. Thus, M now holds 2/3 with C who holds 1/3. M and C are TENANTS IN COMMON. RR takes nothing. |
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Term
| What is the Doctrine of EQUITABLE CONVERSION? |
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Definition
| Equity regards as done that which ought to be done. |
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Term
| In equity, a JT's mere act of entering into a contract for sale of her share will ____________________________. |
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Definition
| Sever the joint tenancy as to the contracting party's interest. |
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Term
Assess the form of the following concurrent estate: O conveys Blackacre to "Ringo, Paul, and John as JTs w/ the right of survivorship."
What if On Jan 1, Ringo enters into a K for sale of his interest in the JT to George, w/ the closing to take place on April 1. When does the severance as to Ringo's interest occur, and why? |
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Definition
This form of concurrent estate is the Joint Tenancy.
On Jan. 1 under the doctrine of EQUITABLE CONVERSION. |
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Term
| What are the 3 variations of SEVERANCE AND PARTITION of a JT? |
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Definition
(1) By VOLUNTARY AGREEMENT
(2) PARTITION IN KIND
(3) FORCED SALE
Note: (2) and (3) are severance and partition by court action. |
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Term
| What Is severance and partition by VOLUNTARY AGREEMENT? |
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Definition
| A peaceful way to end the relationship between JTs |
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Term
| What is severance and partition by PARTITION IN KIND? |
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Definition
| A court action for physical division of Blackacre if in the best interest of all. (Partition in kind is best when the property involved is agricultural, rural, etc.) |
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Term
| What is severance and partition by FORCED SALE? |
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Definition
| A court action if in the best interests of all where Blackacre is sold & the proceeds are divided proportionally between the joint tenants. |
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Term
| What is the rule involved in SEVERANCE AND MORTGAGE? |
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Definition
One JT's execution of a mortgage or a lien on his or her share will sever the JT 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," whereby a JT's execution of a mortgage on his or her interest will not sever the JT. |
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Term
Assess the following under the minority "title theory of mortgages" and then under the majority "lien theory of mortgages":
Paul, John and George are JTs. Suppose now that Paul mortgages his interest in the JT. Will this sever the JT as to Paul's interest? |
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Definition
In a MINORITY JDX: YES under the title theory of mortgages
In a MAJORITY JDX: NO under the lien theory of mortgages |
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Term
| What is the TITLE THEORY OF MORTGAGES? |
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Definition
One JT's execution of a mortgage or a lien on his or her share will sever the JT as to that now encumbered share.
Note: this is the MINORITY approach. |
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Term
| What is the LIEN THEORY OF MORTGAGES? |
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Definition
A JT's execution of a mortgage on his or her interest will not sever the Joint Tenancy.
Note: this is the MAJORITY approach. |
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Term
| Recall: What is a TENANCY BY THE ENTIRETY? |
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Definition
It is a form of ownership between married partners with the right of survivorship.
Note: 21 states recognize Tenancy by the Entirety. |
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Term
| When does a Joint Tenancy by the Entirety arise in states recognizing this form of ownership? |
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Definition
| It arises presumptively in any conveyance to married partners, UNLESS stated otherwise. |
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Term
| Can CREDITORS reach this form of co-ownership to satisfy debts? |
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Definition
The creditors of only one spouse CANNOT touch this tenancy. *This is a very protected form of co-ownership.
//MC Hammer: "Can't touch this." |
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Term
| May either tenant acting alone convey their ownership interest? |
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Definition
NO- neither tenant acting alone can unilaterally convey this form of property ownership.
I.e., Neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to a third party. |
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Term
| What is the effect of an attempted unilateral transfer of one tenant to a tenancy by the entirety with right of survivorship? |
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Definition
| The transfer is INEFFECTIVE --> CAN'T TOUCH THIS. |
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Term
| List the 3 features of a TENANCY IN COMMON. |
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Definition
(1) Each co-tenant owns an individual part and each has a right to possess the whole.
*(2) Each interest is descendible, devisable, and alienable. There are no survivorship rights between tenants in common.
(3) The presumption favors tenancy in common. |
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Term
| List and describe the 9 rights and duties of co-tenants. |
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Definition
(1) Possession: Each co-tenant is entitled to possess the whole. If one co-tenant wrongfully excludes another from possession of the whole or any part, he has committed WRONGFUL OUSTER.
(2) Rent from co-tenant in exclusive possession: Absent ouster, a co-tenant in exclusive possession is NOT liable to the others for rent.
(3) Rent from 3rd parties: A co-tenant who leases all or part of the premises to a third party must account to his co-tenants providing them their fair share of the rent income.
(4) Adverse possessio: Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession pd cannot acquire title to the exclusion of the others.
(5) Carrying costs: Each co-tenant is responsible for his or her fair share of carrying costs (such as taxes and mortgage interest payments) based on: the undivided share he holds (i.e., his % of ownership).
(6) Repairs: The repairing co-tenant enjoys a right to contribution for reasonable, necessary repairs provided that she has told the other(s) of the need.
(7) Improvements: During the life of the co-tenancy, there is no right to contribution for "improvements." However, at partition, the so-called "improver" bears full liability for any drop in value due to her efforts.
(8) Waste: A co-tenant must not commit waste (either voluntary, permissive, or ameliorative).
(9) Partition: A JT or tenant in common has a right to bring an action for partition (see "severance and partition" card 115). |
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Term
| The following flashcards relate to LANDLORD/TENANT LAW. |
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Definition
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Term
| List the 4 LEASEHOLD or "Nonfreehold Estates." |
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Definition
(1) Tenancy for Years (aka "Estate for Years" or "Term of Years")
(2) Periodic Tenancy
(3) Tenancy at Will
(4) Tenancy at Sufferance |
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Term
| What is the TENANCY FOR YEARS? |
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Definition
A lease for a fixed period of time, which could be as short as a day or month, or as long as 50 years).
When you know the termination date from the start, you have the tenancy for years. |
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Term
| Is notice needed to terminate the Tenancy for Years? |
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Definition
| NO- b/c the lease states from the outset when it will terminate. |
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Term
| Assess the following: L leases Blackacre to T "from Jan. 1 2007 to July 1, 2007." Which form of tenancy exists here, and why? |
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Definition
| Tenancy for Years b/c it is a lease for a fixed period. |
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Term
| Does the SOF apply to a Tenancy for Years? |
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Definition
| A term of years greater than one year MUST BE IN WRITING to be enforceable b/c of the SOF. |
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Term
| What is a PERIODIC TENANCY? |
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Definition
A lease which continues for SUCCESSIVE intervals until L or T give proper notice to terminate.
Note: a PERIODIC TENANCY can be either EXPRESSLY or IMPLICITLY created. |
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Term
| How is a PERIODIC TENANCY expressly created? |
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Definition
| To T from "month to month" or "year to year" or "week to week." |
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Term
| What are the 3 ways a PERIODIC TENANCY can be created by implication? |
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Definition
(1) Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals.
(2) An oral term of years in violation of the SOF creates an implied periodic tenancy measured by the way rent is tendered. OR
(3)The HOLDOVER: In a RESIDENTIAL lease, if L elects to hold over a T who has wrongfully stayed on past the conclusion of the original lease an implied periodic tenancy arises measured by how rent is now tendered. |
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Term
| Assess the following leasehold estates: T rents an apt from L, beginning June 1. Nothing is said about duration. T pays rent each month. What tenancy exists? |
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Definition
| T is an IMPLIED MONTH-TO-MONTH PERIODIC TENANT. |
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Term
| Assess the following form of Nonfreehold or Leasehold estate: L and T negotiate on the telephone for a commercial lease. They ORALLY agree on a 5-year lease with rent at $1K/ month. |
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Definition
| This is NOT a tenancy for years because it violates the Statute of Frauds. However, IF T sends L a check for $1K and L accepts it, T's first rental payment renders his interest an implied periodic tenancy, with the intervals based on the way rent is tendered. |
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Term
| Assess the following Nonfreehold or Leasehold estate: T holds over after the expiration of her one-year lease, but sends another month's rent check to L, who cashes it. What tenancy now exists? |
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Definition
| An implied month to month periodic tenancy. |
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Term
| How do you terminate a periodic tenancy? |
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Definition
Notice, usually written, must be given.
At common law, at least as much notice equal to the period itself unless otherwise agreed.
Thus,
In a month to month periodic tenancy: one month
In a week to week periodic tenancy: one week
The one EXCEPTION: If the tenancy is from year-to-year or greater: 6 months |
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Term
*NOTE: By private agreement, the parties may lengthen or shorten these common-law prescribed notice provision under FREEDOM OF CONTRACT.
*NOTE: The periodic tenancy must end at the conclusion of a natural lease period.
(turn over for example) |
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Definition
| Ex: L leased Blackacre to T on Jan 1, 2003, for a periodic tenancy of month to month. On May 15, 2003, T sends written notice of termination. T is bound until June 30 (the conclusion of the natural lease period). |
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Term
| What is the TENANCY AT WILL? |
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Definition
A tenancy for NO FIXED DURATION.
Ex: "To T for as long as L or T desires." |
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Term
| Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court _____________________________. |
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Definition
| to treat this as an implied periodic tenancy. |
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Term
| How can a TENANCY AT WILL be terminated? |
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Definition
| By either party at any time but a reasonable demand to vacate is usually needed. |
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Term
What is the TENANCY AT SUFFERANCE?
How long does it last? |
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Definition
| This form of tenancy lasts only until L either evicts T or decides to hold T to a new tenancy. |
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Term
| What are the 3 duties of a Tenant? |
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Definition
(1) T's Liability to third parties (matter of tort law)
(2) T's duty to Repair
(3) T's duty to Pay Rent |
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Term
| What is a tenant's liability to third parties? |
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Definition
T is responsible for keeping the premises in good repair.
T is liable for injuries sustained by third parties T invited, even where L expressly promised to make all repairs. |
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Term
| What is the result of the following situation: L leases a building to T, expressly promising to maintain the premises in a state of good repair. T's invitee trips over a loose floorboard and sues T. If invitee sues T, what result? |
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Definition
| T LOSES. It does not matter that T may seek indemnification from L. Vis-a-vis the P, who is a guest, T loses. |
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Term
| When the lease is silent, what are the T's 3 duties to repair? |
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Definition
(1) T must maintain the premises and make ordinary repairs.
(2) T must not commit waste (voluntary, permissive, or ameliorative).
&
(3) T MUST NOT REMOVE A FIXTURE, NO MATTER THAT SHE INSTALLED IT. FIXTURES PASS W/ OWNERSHIP OF THE LAND. |
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Term
| What is the *LAW OF FIXTURES? |
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Definition
| When a tenant removes a fixture, he commits voluntary waste. |
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Term
What is a FIXTURE?
List a few common examples of fixtures. |
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Definition
A once movable chattel that, by virtue of its annexation to realty OBJECTIVELY shows the intent to permanently improve the realty.
Common examples =
- heating systems
- custom storm windows
- furnace
- certain lading installments |
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Term
| How do you tell when a tenant installation qualifies as a fixture? |
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Definition
(1) Express agreement controls: any agreement between L and T on point is binding OR
(2) in the absence of an agreement, T may remove a chattel tht she has installed so long as it won't cause substantial harm to the premises. If removal will cause substantial damage, then in OBJECTIVE JUDGMENT T has shown the intent to install a fixture, and the fixture stays put. |
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Term
| What is T's duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease at common law, historically? |
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Definition
| T was liable for any loss to the property, including loss due to force of nature. |
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Term
| What is T's duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease today under the majority view? |
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Definition
| T may terminate the lease if the premises are destroyed w/o T's fault. |
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Term
| When a T breaches the DUTY TO PAY RENT and is in possession of the premises, what are L's options? |
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Definition
| To evict through the courts OR continue the relationship and sue for rent owed. If L moves to evict, she is nonetheless entitled to rent from the tenant until the T, who is now a T at sufferance, vacates. |
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Term
| What is L NOT entitled to do if the T breaches his duty to pay rent? |
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Definition
Engage in self-held, such as changing the locks, forcibly removing T, removing T's possessions.
Self-help is flatly outlawed, and is punishable civilly and criminally. |
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Term
| What happens if the T breaches the duty to pay rent but is out of possession? |
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Definition
SIR
(the L can):
(1) Treat T's abandonment as an offer of SURRENDER which L accepts
(2) IGNORE the abandonment and hold T responsible for the unpaid rent, just as if T were still there. (this option only available in a minority)
(3) RE-LET the premises on the wrongdoer T's behalf, and hold him/her liable for any deficiency.
but Note: Majority Rule: L must at least TRY to RELET as a principle of mitigation.
Ignore the abandonment |
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Term
| What are the Landlords 4 duties? |
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Definition
(1) Duty to deliver Possession
(2) The Implied Covenant of Quiet Enjoyment
(3) Implied Warranty of Habitability
(4) Retaliatory Eviction: if T lawfully reports L for housing code violations, L is barred from penalizing T by, f.g., raising rent, ending the lease, harassing T, or taking other reprisals. |
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Term
| What is the L's DUTY TO DELIVER POSSESSION? |
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Definition
(aka the English Rule)
The majority rule requires that L put T in actual possession of the premises. Thus, if at the start of T's lease a prior holdover T is still in possession, L has breached and the new T gets damages.
Note: American rule doesn't require that L put T in physical possession, L must merely give T legal possession. |
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Term
| What is the L's *IMPLIED COVENANT OF QUIET ENJOYMENT? |
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Definition
Applies to both residential and commercial leases.
T has the right to quiet use and enjoyment of the premises w/o interference from L. |
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Term
| What are the 2 types of breaches the L can commit re: the IMPLIED COVENANT OF QUIET ENJOYMENT? |
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Definition
(1) breach by actual wrongful eviction, which occurs when L wrongfully evicts T or excludes T from the premises.
(2) Breach by CONSTRUCTIVE EVICTION if 3 elements are met (SING):
SUBSTANTIAL INTERFERENCE: due to L's actions or failures
NOTICE: T must tell L of the problem and L must fail to act.
GOODBYE: T must vacate w/in a reasonable time after L fails to fix the problem. |
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Term
| What are the 2 exceptions to SING in a breach by constructive eviction? |
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Definition
(1) L must not permit a nuisance on the premises
(2) L must control common areas |
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Term
What is the *IMPLIED WARRANTY OF HABITABILITY?
List examples of such breaches. |
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Definition
Applies only to residential leases & is NON-WAIVABLE.
The standard = the premises must be fit for basic human dwelling (i.e., bare living requirements must be met).
The appropriate standard may be supplied by housing code or court decisions. The sorts of problems to trigger breach of the implied warrant of habitability include: no heat in winter, no plumbing, no running water. |
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Term
| What is T entitled to if the L breaches the IMPLIED WARRANTY OF HABITABILITY? |
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Definition
M R 3
Move Repair Reduce Remain
MOVE out and end the lease.
REPAIR and deduct, allowable by statute in a growing number of jdx. T may make the reasonable repairs and deduct their cost from future rent.
REDUCE RENT or withhold all rent until the court determines fair rental value. Typically, T must place withheld rent into escrow to show her good faith.
REMAIN in possession, pay rent and affirmatively seek money damages. |
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Term
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Definition
| In the absence of some prohibition in the lease, a T may freely transfer his or her interest in WHOLE. |
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Term
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Definition
| In the absence of some prohibition in the lease, a T may freely transfer his or her interest in PART. |
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Term
| In the lease, L can prohibit T from assigning or subletting without L's _______________________. However, once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless L _______________________. |
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Definition
prior written approval
reserves the right |
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Term
Is the following an ASSIGNMENT or a SUBLEASE: T1 has 10 months remaining on a two-year term of years. T1 transfers all 10 months to T2?
What is the result of the transfer? |
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Definition
An assignment.
The result of the transfer is that L and T2 are in PRIVITY OF ESTATE. However, L and T2 are not in privity of K unless T2 assumed all promises in the original lease.
Note: L and T1 are no longer in privity of estate, however, they may remain in privity of K. Thus, L and T1 are secondarily liable to each other. |
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Term
| What is PRIVITY OF ESTATE? |
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Definition
| The landlord and assignee are liable to each other for fall of the covenants in the original lease that RUN WITH THE LAND. |
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Term
| Give a few common examples of covenants that run with the land. |
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Definition
- promise to pay rent
- promise to paint X
- promise to repair
(most promises run with the land). |
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Term
Assess the following parties' causes of action: L leases Blackacre to T1. T1 assigns to T2. T2 assigns to T3. T3 then engages in flagrant abuse to the premises.
(1) Can L proceed against T3, the direct wrongdoer?
(2) Can L proceed against T1, the original tenant?
(3) Can L proceed against T2? |
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Definition
(1) YES- L will win. L and T3 are in privity of estate.
(2) YES- Under privity of K, T1 is secondarily liable to L (meaning if T3 has fled the jdx or is insolvent, T1 is on the hook).
(3) NO- L loses. Privity of estate ended when T2 assigned to T3. There was never privity of K unless T2 assumed all promises in the original lease. |
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Term
| What is the common law rule for the LANDLORD'S TORT LIABILITY? |
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Definition
Caveat emptor: let T beware
In tort, L was under no duty to make the premises safe.
5 most important exceptions: CLAPS
(1) COMMON areas: L must maintain all common areas (such as hallways, stairwells).
(2) LATENT defects: L must WARN T of hidden defects that L knows about or should know about.
(3) ASSUMPTION of repairs: A L who voluntarily makes repairs must complete them w/ reasonable care.
(4) PUBLIC use: L who leases public spaces and who should know, because of the nature of the defect and the length of the lease that T will not repair is liable for any defects on the premises. (applies to short term leaseholds of spaces such as convention hall, museum, amphitheatre).
(5) SHORT term lease of furnished dwellings: L is liable for any defects which harm T. |
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