Flashcards in Day 1 Deck (86):
What is needed to be categorized as a freehold (present) estate?
An estate must be: i. immobile and ii. for an indeterminate duration
What is fee simple absolute?
It is absolute ownership of potentially infinite duration, is freely alienable, and has no accompanying future interest.
What is a defeasible fee?
Ownership of potentially duration but may be terminated by the occurrence of an event.
What is fee simple determinable?
A present fee simple estate that is limited by specific durational language such that it terminates automatically upon the happening of a stated condition and full ownership of the property is returned to the grantor.
Is a fee simple determinable alienable, devisable, and descendible?
Yes, but it is always subject to the stated condition.
What is the possibility of reverter?
It is the grantors retained future interest
What is a fee simple subject to condition subsequent?
A present fee simple that is limited in duration by specific conditional language
What is a fee simple subject to executory interest?
A present fee simple estate that is limited in duration by either conditional language or durational language such that it will terminate upon the occurrence of the specified condition and title will pass to a third party
What is a fee tail?
A freehold estate that limits the estate to the grantees lineal blood descendants by specific words of limitation
What is a life estate?
A present possessory estate that is limited in duration by a life
What is life estate pur autre vie?
A life estate measured by the life of a third party
What is affirmative waste?
Affirmative (or voluntary) waste is the result of overt conduce that causes a decrease in the value of the property
What is permissive waste?
Permissive waste is the result of neglect, a failure to keep up the property, or a failure to reasonably protect the property.
What is tenancy in common?
Any tenancy with two or more grantees creates a tenancy in common. Equal right to possess or use property and no rights of survivorship exist
What is a joint tenancy
A joint tenancy exists when two or more individuals own property with the right of survivorship
What are the four unities for joint tenancy? (PITT)
Unity of Possession, unity of Interest, unity of Time, unity of Title
Does a tenancy in common require the same unities as a joint tenancy?
No, it just requires the unity of possession
What is a tenancy by the entirety?
Tenancy by the entirety is a joint tenancy between married persons with a right of survivorship
Does a tenancy by the entirety require the same unities as a tenancy by the entirety?
Yes, and adds a fifth unity of Person because tenants must be married when the deed is executed or conveyed
What is a future interest?
A future interest is an interest in presently existing property or in a gift or trust which may commence in use possession or enjoyment sometime in the future
What is a reversion?
The future interest held by the grantor who grants a life estate or estate for years but does not convey the remaining future interests to a third party
What is a possibility of reverter?
A possibility of reverter is automatically retained by a grantor when a fee simple determinable is conveyed
What is a right of reentry?
A right of reentry is a future interest held by the grantor after a fee simple on condition subsequent is granted
What is a remainder?
A future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate of known fixed duration that is created in the same conveyance in which the remainder is created.
What is a vested remainder?
An interest that is not subject to any conditions precedent and is created in an ascertainable grantee
What is a vested subject to open?
When a conveyance grants a remainder to a class of grantees and at least one of the grantees receives a vested remainder at the time of the conveyance
What is a vested subject to complete?
It indicates that the occurrence of a condition subsequent will completely divest in the remainder interest
What is the rule in Shelley's Case?
It prevents contingent remainders by defeating the grantors intent and changing the interest that the grantor purported to give to the grantee and his heirs to a vested remainder in the grantee
What is the Doctrine of Worthier Title?
Similar to the rule in Shelley's case, except it prevents against remainders in the grantors heirs and the presumption is in a reversion to the grantor
What is an executory interest?
A future interest in a third party that is not a remainder and that cuts the prior estate short upon the occurrence of a specified condition.
Are executory interests transferable?
What is a shifting executory interest?
It divests the interest of the grantee by cutting short prior estate created in the same conveyance
What is a springing executory interest?
It divests the interest of the grantor or fills a gap in possession in which the estate reverts to the grantor
What is the rule against perpetuities?
Under this rule, specific future interests are valid only if they must vest or fail by the end of a life in being, plus 21 years.
What does interests the rule against perpetuities apply to?
Contingent remainders, vested remainders subject to open, executory interests, powers of appointment, rights of first refusal, and options
Does the rule against perpetuities apply to future interests that revert to the grantor?
No it does not apply to reversion, possibility of reverter or right of reentry
What are common violations of the rule against perpetuities?
Class transfer, fertile octogenarian, unborn spouse, defeasible fee followed by an executory interest, conditional passage of interest
What are the four different estates that a landlord tenant relationship create?
Tenancy for years; periodic tenancy; tenancy at will; and tenancy at sufferance
What is a tenancy for years (term of years)?
A tenancy for years is an estate measured by a fixed and ascertainable amount of time
How is a tenancy in for years created?
By an agreement with the landlord and tenant
Does the statute of frauds apply to a tenancy for years?
Only for tenancy created for longer than one year, and those agreements must be in writing
How does a tenancy for years terminate?
It occurs automatically at the expiration of the term; or if the tenant surrenders the leasehold prior to the term
Is notice required for termination of a tenancy for years?
No notice is required
How is the right to renew determined under a tenancy for years?
Any right to renew the agreement must be explicitly set out in the lease
What is a periodic tenancy?
A repetitive, ongoing, estate measured by a set period of time but with no predetermined termination date
When does a periodic tenancy renew?
It renews at the end of each period until one party gives a valid termination notice
Does the statute of frauds apply to a periodic tenancy?
No because it does not have a fixed term
How is a periodic tenancy created?
It is created by an express agreement, implication, or operation of law
Is notice required to terminate a periodic tenancy?
Yes, notice of termination must be given before the beginning of the intended last period of the periodic tenancy
What is a tenancy at will?
A leasehold estate that does not have a specific term and continues until terminated by either the landlord or the tenant
How is a tenancy at will created?
It can be created by express agreement of the parties or by implication if one party is allowed to occupy the premises
How does a tenancy at will terminate at common law?
It can be terminated by either party without advance notice but the tenant has to given a reasonable time in which to vacate the premises
How does a tenancy at will terminate by statute?
Most states require that party give advance notice in order to terminate a tenancy at will and some states allow only the tenant to terminate the lease at will
What are some other ways that a tenancy at will can be terminated?
By death of either party; waste or assignment by the tenant; and transfer or lease of the property to a third party by the landlord
What is a tenancy at sufferance?
A tenancy at sufferance is the period of time after the expiration of a lease during which tenant remains on the premises
How is a tenancy at sufferance terminated?
By departure of the tenant; by eviction of the tenant by the landlord; or by the landlords decision to lease the premises to the tenant for another term
What are the basic duties of a tenant?
To pay rent and to avoid waste
What are the exceptions to a duty to pay rent?
Destruction of the premises and material breach of lease by landlord
What is the destruction of premises?
The lease is terminated and the tenant is excused from paying rent if the premises are destroyed as long as the tenant is not at fault for the destruction
What of the contractual duty to repair? non-residential and residential leases?
If a non-residential specifies that the tenant must repair and maintain property then the tenant is generally liable for all damages to the property unless the landlord caused it; if a residential leas places the burden on the tenant it is generally void
If a tenant fails to pay rent what is the landlords remedies?
The landlord can sue for both damages and to remove the tenant from the property
If the tenant abandons the property what can the landlord do?
At common law, he can treat the abandonment as an offer of surrender and can retake the premises
Does the doctrine of anticipatory breach apply to leases?
No, a landlord cannot sue for future rend but may sue for rent as it becomes due
Must the landlord mitigate his damages?
Yes the landlord must make an effort to re rent the premises on the tenants behalf and hold the tenant liable for any deficiency
What is a holdover tenant?
When a tenant continues to occupy the premises without the landlords agreement after the original lease expires
If a landlord excepts rent after a lease expires then tenant becomes a.....?
If a landlord refuses rent after a lease expires the tenant is a.....?
Tenant at sufferance
What are the duties of a landlord?
To give possession; duty to repair; warranty of habitability; and covenant of quiet enjoyment
What must a landlord to have validly given possession to the tenant?
the landlord has an obligation to deliver actual possession of the premises in the majority of states and legal possession in minority states
What is the warranty of habitability?
A landlord must maintain the property such that it is reasonably suited for residential use
What is the covenant of quiet enjoyment?
This is breached when the landlord or someone of superior title disrupts the possession of the tenant
Do actions of off premises third parties count against the covenant of quiet enjoyment?
What is an actual eviction?
If the landlord removes the tenant from the premises
What is a partial eviction?
If the tenant is prevented from possessing or using a portion of the leased premises then the tenant may seek relief
What is a constructive eviction?
If the landlord substantially interferes with the tenants use and enjoyment of the leasehold by breaching a duty to the tenant then the tenant's obligations to pay rent is excused
What is a retaliatory eviction?
When a landlord evicts a tenant for failure to pay rent as a retaliation for reporting the landlord for a housing code violation
What is an assignment?
An assignment is a complete transfer of the tenants remaining lease term
What is a sublease?
Any transfer for less than the entire duration of the lease
Are assignee tenants in privity of estate with the landlord?
Is a sublessee in privity of contract or estate with the landlord?
No and thus is not liable for rent or any covenants due to the lease
What is condemnation?
The taking of land either for public use or because it is unfit for use and it can be a partial taking or a complete forfeiture
What is the Fair Housing and Discrimination Act?
It prohibits discrimination in the sale, rental, and financing of homes and in other housing related transaction
What is adverse possession?
Ownership of a real property is transferred to a person who exercises exclusive physical possession of that property for a certain period of time
What are the elements of adverse possession?
Actual, Hostile, Open, Exclusive, Continuous
A Hoe On Every Corner?
Actual, Open, Notorious: possession must be open and notorious such that a reasonable true owner would become aware of the claim
Continuous: possession must be continuous and uninterrupted for a specific period
Exclusive: possession cannot be shared with the true owner