Real Property Flashcards
Fee simple absolute
The least restrictive present possessory interest.
“To A and her heirs” or “To A”
Fee tail
“To A and the heirs of her body”
The fee tail is not used anymore. Any attempt to create a fee tail creates a fee simple absolute.
Fee simple determinable
Fee simple which automatically comes to an end when a stated event occurs or fails to occur.
The grantor must use clear durational language such as “To A so long as” “To A until”
A fee simple determinable endures until named event occurs, then it
Automatically reverts to grantor.
Nemo Dat rule
A person cannot assign a greater interest than the interest which is possessed.
Fee simple subject to condition subsequent
Grantor must use clear directional language and expressly reserve the right to re-enter, e.g. “To A but if…grantor shall have a right of entry.”
Fee simple subject to executory limitation
Provides for the estate to pass to a third person upon the happenings of the stated event. Grantor must use clear durational language, e.g. “To A but if X occurs, then to B.”
The occurrence of the named event results in automatic termination, i.e. the estate will automatically pass to the third-party.
Is “To A with the hope” or “To A with the expectation” a defeasible fee?
No. To have a defeasible fee, clear durational language is required.
Life estate
Ownership must be measured in terms of lifetime.
“To A for life” “To A for B’s life”
Reverts to grantor unless assigned to third-party remainder.
Rights and duties of life tenant
The life tenant is entitled to all ordinary uses and profits of the land.
Life tenets have a duty not to commit waste.
Life Tenant and Affirmative Waste (voluntary waste)
Any structural change intentionally made to the estate that causes harm to the estate or deplete its resources.
A life tenant has a duty not to consume or exploit the natural resources on the land unless
-if, prior to the grant, the land was used for exploitation, then the life tenant can continue to exploit unless otherwise agreed. (The open mines doctrine permits continued excavation from any mine on the property that is already open but prohibits the opening of new mines.)
-consumption of natural resources is for reasonable repair and maintenance of the property
-Expressly authorized by the grantor OR
-Where land is only suitable for such use.
Life tenant and permissive waste
Permissive waste is the failure to maintain the estate both physically and financially. It requires a failure to make ordinary repairs, pay taxes, or pay interest on the mortgage/encumbrances. Note that the life tenant must maintain the estate both physically and financially only to the extent of the income or profits derived from the land. If the life tenant is using the land herself with no rent, then the life tenant must maintain the estate financially and physically only to the extent of the reasonable rental value of the land. The life tenant has no duty to insure the land.
What is the class closing rule for vested remainder subject open (to A for life, then to the children of B and their heirs).
A class closes under the common law rule of convenience when any member of the class can demand possession. However, under the womb rule, children of B in the womb at A’s death are considered members of the class and will share.
A contingent remainder is
A future property interest that is created in an unascertained person or subject to a condition prescedent. Note: A living person cannot have heirs so a living person’s heirs are unascertained persons.
What is a vested remainder?
Vested remainders are created in an ascertained person and not subject to any condition precedent.
Sub classifications of vested remainders
- Indefeasibly vested remainder “To A for life, remainder to B”
- Vested remainder subject to complete defeasance (Either vested subject to being divested by operation of a condition subsequent or buy an inherent limitation of the estate in remainder) “To A for life, then to B for life, then to C and her heirs.”
- vested remainder subject to open “To A for life, then to the children of B and their heirs.”
What is a condition subsequent property law
A condition that, if it occurs, it will bring the estate to an end. “To A for life, then to B; but if B should die under the age of 40, to C. 
What is a Condition precedent in property law
A condition precedent is an actor event that must exist or her before the remainder vests
What happens if a contingent remainder and land does not vest at or before termination of the preceding freehold estate
“to A for life, then if B marries C to B” and A dies before B marries C
At common law, a contingent remainder and land was destroyed if it did not vest at or before termination of the proceeding freehold estate.
Under modern law, distructability has been abolished. The result is that the grantor or the grantor’s heirs hold the estate subject to B’s springing executory interest. Once the condition president has been satisfied, e.g. B marries C, B will take the estate.
Result of “To B for life, then to B’s heirs” and B is alive.
At common law, the rule in Shelly’s case converted the contingent remainder in B’s heirs into a vested remainder in B. After that, the doctrine of merger operated on the two successive freehold estates placed in the same purchaser and converted them into a single fee simple absolute in B.
Under modern law, the rule in Shelly’s case has been abolished. B=life estate. B’s heirs=contingent remainder, O=reversion.
Result of “To B for life, then to O’s heirs” and O is still alive.
Under the doctrine of worthier title, if a grant for devised by oh well oh it’s alive creates a remainder in the heirs of the grantor, that remainder and owes errors is void.
B=life estate
O=reversion
Executory interest
A future interest in a grantee that, in order to become possessory, must divest or cut short either the prior estate (“shifting”) or spring out of the grantor or her heirs (“springing”) at a future date.
The rule against perpetuities
For a future interest to be valid, the interest must vest, if at all, within 21 years after some life in being at the instrument’s effective date, i.e. the measuring life.
Ask: Will we know for sure whether the interest will vest within 21 years after the measuring life?
What is the fertile octogenarian rule? (RAP)
This rule presumes that anyone even an octogenarian can parent a child, regardless of gender or health.
What is the unborn widow rule?
This rule presumed that a grantor could subsequently marry a person who is not a life in being at the time interest was created.
Slothful executor (RAP)
This rule presumed that the executor of the estate might not probate the will for many years after the testator’s death
Precocious toddler (RAP)
This rule presumes that it is possible for a toddler to have a child.
RAP affects
Contingent remainders, executory interest, vested remainder subject to open
Vested remainder subject to open
Vested in a class of persons, at least one of whom is qualified to take possession, but the shares of the class members are not yet fixed because more persons can subsequently become members of this class.
Are charities subject to the rule against perpetuities
It is OK for a charitable grant to be made in perpetuity. The rule against perpetuities does not apply to conveyances from one charity to another.
In order to mitigate the harshness of the rule against perpetuities, some states adopted the wait and see doctrine. What is the Wait and See Doctrine?
The general concept of wait and see is that a perpetuity violation should occur only if an interest actually fails to vest within the perpetuity. One must wait and see whether, in fact, the possibility turns out to be reality at the end of the measuring life.
Uniform statutory rule against perpetuities
Future interest satisfying the common law rule against perpetuities rules are valid. Any future interest that actually vests within 90 years is also valid. If the future interest fails to vest either within 21 years after the measuring life or within the 90 year period, the court may reform the interests in a manner that most closely conforms with the grantors intent and still complies with the rule against perpetuities.
Joint tenancy
Each tenant owns undivided share with the right of survivorship. Not devisable or descendinle because of the right of survivorship. A joint tenant’s interest, however, is transferable inter vivos.
What are the four unities required for a joint tenancy?
Time-The interest of each tenant has to vest at the same time.
Title- Each tenant musket title by the same instrument.
Interest-All interest in a joint tenancy must be equal shares. AND
Possession-Each tenant must have the right to possess the whole.
Straw man conveyance
At common law, O could not convey to herself and another as joint tenants because such a conveyance would violate the unity of time. The requirement, however, is easily satisfied by the use of a strawman conveyance. O conveys to T who immediately conveys back to O and the perspective joint tenant and the unities are thus preserved.
What happens if a joint tenancy is severed
The joint tenancy becomes a tenancy in common.
Will entering into a contract to sell sever a joint tenancy
Even the act of entering into a contract to sell will sever the joint tenancy as to the contracting joint tenant’s interest under the doctrine of equitable conversion.
Does the execution of a mortgage sever the joint tenancy
Under the lien theory of mortgages (majority view), A joint tenants execution of a mortgage does not sever the joint tenancy unless the mortgage is foreclosed upon.
Under the title theory of mortgages a joint tenant’s execution of a mortgage does sever the joint tenancy in regard to the encumbered share. The title theory of mortgages deems the tenancy terminated once the property is unilaterally mortgaged because it treats title as passing from the mortgagor to the mortgagee, thus severing the unity of title. The result is that the joint tenants become tenants in common, with the mortgagee the equitable owner of the undivided portion legally belonging to the mortgagor.
Does a lease sever the joint tenancy?
At Common law, a lease severs the joint tenancy. Under modern law a lease does not sever the joint tenancy.
Do forced sales sever the joint tenancy
Yes
What if one joint tenant murders another
Murder of one joint tenant by another joint tenant operates as a severance, converting the joint tenancy into tenancy in common. The murderer is thus not entitled to the victim’s share by right of survivorship.
Tenancy by the entirety
Husband and wife on undivided share with the right of survivorship
What does tenancy by the entirety require
Valid marriage, four unities (time title interest and possession), and right of survivorship. In states that recognize tenancy by the entirety, there’s a presumption that a conveyance to husband and wife creates a tenancy by the entirety unless it is clearly stated otherwise.
How can tenancy by the entirety the severed
Divorce, mutual written agreement between husband and wife (unilateral conveyance=no severance), execution by joint creditors (unilateral creditors= no severance).
Tenancy in common
Each tenant has undivided interest in the property with no right of survivorship.
Modern law presumes that a conveyance to two or more non-married person is a
Tenancy in common
What one unity is required for a tenancy in common
Possession. Each tenant must have an equal rate to possess the home.
What is required for a co tenant trying to obtain title through adverse possession
Ouster
If one cotenant has exclusive possession are the other co-tenants entitled to rent?
The other co- tenants are not entitled to rent unless there has been an ouster. And the ouster of a tenant does not entitle that tenant to rent.
 What is ouster?
Ouster is the wrongful exclusion of a cotenant
A cotenant has a right to contribution for any repairs she makes that are
Reasonable, necessary, and have been communicated to the other co-tenants.
Does a cotenant have a right to contribution for the cost of improvements
There is no right to contribution for the cost of improvements except upon partition of the cotenancy. When partition occurs, the improving cotenant is entitled to any increase in value caused by the improvements but will also be held liable for any decrease in value.
A cotenant must not commit what kind of waste
Affirmative waste, permissive waste, ameliorative waste
What is ameliorative waste
Ameliorative waste is an unauthorized improvement to the estate that changes these land’s physical character. (Ameliorative waste is prohibited unless all future interest holders consent.)
In an action for partition of a co tenancy, a court will require
An accounting between the tenants in common relating to the property.
The general rule is that disputes involving real property are governed by the law of
The state where the property is situated.
What is trespass?
Trespass is the invasion of land by tangible physical object. Trespass to land occurs either when the defendant intentionally enters plaintiff’s land without permission, the defendant remains on land without the right to be there, even if original entry was rightful, or the defendant places a tangible object on, or refuses to remove from, plaintiff’s land without permission.
Private nuisance
A substantial and unreasonable interference with a plaintiff’s use and enjoyment of her land. Defendant’s conduct must be negligent, abnormally dangerous, or intentional.
The defendant’s conduct is unreasonable if the harm to the plaintiff outweighs the utility of the defendant’s conduct or the harm caused to the plaintiff is greater than the plaintiff should be required to bear without compensation.
Lateral and subjacent support
If a neighbor’s excavation or excessive extraction of underground liquid deposits cause subsidence, the neighbor will be subject to liability in a tort action. The neighbor will also be strictly liable for damage to buildings on a landowner’s property if the land owner can show that the weight of the building did not contribute to the collapse of the land. If the land owner is not able to make that showing, the neighbor must be shown to have been negligent in order for the land owner to recover damages.
Riparian rights
Under the riparian principle, all landowners whose property is adjacent to a body of water have the right to make reasonable use of it. Therefore, a riparian owner will be liable to other riparian owners if her use of the water unreasonably interferes with other riparian owners use of the water
Prior appropriation
The general principle is that water rights are unconnected to land ownership and can be sold or mortgaged like other property. The water initially belongs to the state, but the first person to use a quantity of water from a water source for a beneficial use has the right to continue to use that quantity of water for that purpose. Subsequent users can use the remaining water for their own beneficial purposes provided that they do not infringe on the rights of previous users.
Percolating water/ground water
Percolating water is water that seeps or filters through the ground without any definite channel and not as part of the flow of any waterway. The owner of the property on the surface of the percolating water is entitled to make reasonable use of the percolating water but cannot commit waste.
Surface water and the common enemy doctrine
This doctrine holds that surface water, i.e. excess of rainwater, is a common enemy that damages property at random. Uphill property owners can take any steps to protect their land from the water, even if it causes damage to the property of others further down the hill. The downhill property owners are supposed to protect their own land, because water is a common enemy, and everyone has to provide their own protection. Today, most states have modified rules that require everyone to act reasonably under the circumstances in order to protect their own property and avoid unnecessary damage to the property of others.
Lease or leasehold estate
An interest in land whereby the owner grants another person the exclusive use of the land for a limited period of time, subject to certain terms and conditions, if any, set forth in the lease. The tenant has a present possessory interest in the land and the landlord has a future interest (reversion).
Tenancy for years, a.k.a. estate for years or term of years
This type of tenancy is for a fixed period of time and, because there is a fixed date for termination, no notice is required to end the arrangement at tenancy for years expires at the specified time.
Under the statute of frauds, when must a leasehold be in writing
A leasehold must be in writing if it is for longer than one year
Periodic tenancy
A periodic tenancy is a lease agreement which continues for successive periods until either party gives proper notice of termination. Notice is required to terminate.
How can a periodic tenancy be created?
A periodic tenancy can be created expressly, by written agreement, by implication, or by operation of law. A periodic tenancy is created by implication and there is no mention of duration but payment is required at specific intervals. Periodic tenancy is created by operation of law when there is an oral agreement for a leasehold that is longer than one year and a rental payment is made by the tenant and excepted by the landlord and when a tenant remains on the land after the expiration of the lease and submits a rental payment that is excepted by the landlord.
What is required for termination of a periodic tenancy?
To terminate a periodic tenancy the tenant must provide a reasonable period of notice. For leases shorter than a year, notice equal to the length of one period is required. For leases longer than one year, only six months notice is required. Notice must specify last day of your period as date for termination and not some intervening date. Note: these are default provisions that the parties may contract around.
Tenancy at will?
A tenancy at will is a leasehold with no stated duration that will endure only so long as both landlord and tenant desire.
Tenancy at will can be created by
Express agreement
Implication- A court may temporarily imply a tenancy at will when a tenant takes possession under an invalid oral lease. However, a rent payment by the tenant that is accepted by the landlord will convert the implied tenancy at will into an implied periodic tenancy.
What is required for termination of a tenancy at will?
Either party can terminate a tenancy at will at any time without advance notice, though generally modern statutes tend to require a notice period equal to one payment period.
Tenancy at sufferance, a.k.a. holdover tenancy
A tenancy at sufferance exist only when the tenant holds over at the end of a valid lease
How can a tenancy at sufferance be terminated?
A tenancy at sufferance last only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy
What are a tenant’s duties?
Duty to pay rent
Duty to repair
Duty to invited third parties
Tenant’s tort liability
Where the tenant breaches the duty to pay rent while still in possession of the land the landlord may
Evict the tenant through the eviction process OR
Continue tenancy and sue for back rent BUT
Self-help is prohibited
Where the tenant reaches the duty to pay rent while out of possession of the land, the landlord can
Accept the tenant surrender, leave the premises vacant and sue for back rent (minority of states), or relet the premises and sue the tenant for the deficiency (majority of states).
What may a landlord use a security deposit for?
A security deposit maybe used to cover damage to the property, cleaning, key replacement, and or back rent, but a landlord may not retain the security deposit beyond the damages actually incurred by the tenant’s breach.
If the lease is silent regarding repairs, the tenant must
Keep the premises in reasonably good repair by making ordinary repairs and must not commit waste.
A tenant’s removal of fixtures
Whenever a tenant removes a fixture, the tenant has committed voluntary waste. In the absence of an agreement, the tenant may remove any fixtures she installed so long as the removal will not substantially damage the property.
Fixture?
Personal property that is attached to land or a building that is objectively regarded as an irremoval part of the real property. Any express agreement between the landlord and tenant will control whether or not the personal property is a fixture.
Express covenant to maintain
If the lease expressly covenants that the tenant must maintain the premises in good condition, the tenant will be held responsible for any loss or destruction. At common law the tenant is responsible for any loss or destruction regardless of fault, including loss is caused by the force of nature. Today, however, the tenant may terminate the lease if the premises are destroyed and the tenant is not at fault.
What duty does a tenant have to invited third parties
The tenant has a duty to keep the land in reasonably good condition so the tenant will be liable for injury to invited third parties even if the landlord expressly promised to make all repairs. The tenant, however, may seek indemnification against the landlord if the landlord expressly promised to make all repairs.
What are a landlord’s duties
Duty to deliver possession
Implied covenant of quiet enjoyment
Implied warranty of habitability
Landlord tort liability
Landlord’s duty to deliver possession
The majority of states require that the landlord put the tenant in actual, physical possession at the beginning of the lease. This requires the landlord to evict any holdover tenant prior to the start of a new lease.
A minority of states only require legal possession, not actual, physical possession.
Implied covenant of quiet enjoyment?
The implied covenant of quiet enjoyment is an implied warranty that the landlord will not unreasonably interfere with the tenant’s use and enjoyment of the premises. This warranty applies to both commercial and residential leases and can be breached by either an actual wrongful eviction or a constructive eviction.
To make a claim for a constructive eviction, there must be
Substantial interference caused by the landlord’s actions or failure to act, notice to the landlord, and the tenant must vacate the premises within a reasonable time after the landlord fails to remedy the problem.
Implied warranty of habitability?
Applies only to residential leases
If a landlord provides premises that are uninhabitable, the tenant’s duty to pay rent may be excused.
The standards for habitability may be provided either by the local housing standards or by the court.
Can the implied warranty of habitability be waived by a tenant?
No
