Property Flashcards
How may real property be transferred
By sale
By gift
By devise
By intestate succession
What is a fee simple absolute
It is absolute ownership of potentially indefinite duration, is freely alienable, and has no accompanying future interest
Most common form of ownership \
Conveyances that are ambiguous are now considered fee simple
Only terminates if the owner dies intestate without heirs
Examples: “to B and his heirs” “to B”
What is a 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
Make sure it is limiting the duration and not just the purpose
Examples: “so long as” “while” “during” “until”
It is freely alienable, devisable, and descendible but always subject to the stated condition
What is a possibility of reverter
It is the future interest of a grantor who grants a fee simple determinable that automatically reverts ownership to the grantor if the stated occurrence in the fee simple determinable
It is freely alienable by the grantor, both during his life and upon his death
A conveys Blackacre “to B and his heirs, until B gets married.”
What is a fee simple subject to a condition subsequent
It is a present fee simple that is limited in duration by specific conditional language
Look for “provided that” “on condition that” “but if”
Freely alienable by the owner during his life, and upon his death it is devisable and descendible
Termination is not automatic so that upon occurrence of the stated condition, the present fee simple will terminate only if the grantor affirmatively demonstrates intent to terminate
What is a right of reentry
The grantor’s future interest in a fee simple subject to condition subsequent that allows him to terminate the fee simple if the condition subsequent occurs
It is devisable and descendible upon death of grantor but cannot be transferred during grantor’s life
A conveys Blackacre “to be and his heirs, but if B gets married then A can reenter Blackacre.”
What is a fee simple subject to an 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
It terminates automatically upon the condition occurring
The third party holds an executory interest
A conveys Blackacre to B as long as the property is used as a hospital, then to C.
What is a life estate
A present possessory estate that is limited in duration by life
“To B for life”
Upon the death of the grantee title reverts back to the grantor.
What future interest does a grantor have in a life estate
A reversion unless the conveyance specifies that somebody else is going to receive title, in which case that other person’s future interest is a remainder.
“To B for life.” gives grantor a reversion
“To B for life, and then to C” gives a future interest of a remainder to C
Life estate is not subject to the Rules Against Perpetuities
Can a life estate be transferred
A life estate is fully transferable during the life of the person whom the life estate is measured but it is not devisable or descendible since it terminates at the death of the person whose life is measured
What is a “life estate pur autre vie”
A life estate that is measured by the life of a third party
A conveys Blackacre to “B for for the life of C”
Doctrine of waste
The rights of a holder of any state except a fee simple may be limited by the doctrine of waste which allows any remainderman or grantor with a reversionary interest to enter upon the land to inspect for waste and seek an injunction to prevent waste
There are three kinds of waste: Affirmative waste, permissive waste, and ameliorative waste
What is affirmative waste
Waste caused by voluntary overt conduct that causes a decrease in the value of the property
Exceptions for the exploitation of minerals and timber if such use was authorized by the grantor, was in effect at the time the tenancy began, or is necessary to maintain the property
What is permissive waste
The result of neglect, a failure to keep up the property, or a failure to reasonably protect the property
What is ameliorative waste
A special situation where a life tenant or another person in possession changes the use of the property increasing its value
At common law, a life tenant was forbidden from making changes to the property’s value unless all future interest holders knew and consented
Modern law allows tenants to physically alter structures on the property when necessary to make reasonable use of the property
What remedies is available for waste
The holder of the vested remainder may bring suit for damages, and either a vested or contingent remainder holder may bring suit for an injunction
What is a concurrent estate
Ownership or possession of real property by two or more person simultaneously
What are the different concurrent estates
- Tenancy in common
- Joint tenants
- tenancy by the entirety
What is a tenancy in common
Any tenancy with two or more grantees where the tenants have equal right to possess or use the property and no right of survivorship exists
Each tenant can devise or freely transfer his interest to anyone
A tenant in common may also transfer his interest to another by a lease but the other tenants in common are entitled to share possession with the lessee and to receive a share of the rental profits from the lessor-tenant in common
What is a joint tenancy
A joint tenancy exists when two or more individuals own property with the right of survivorship
What is a right of survivorship in a joint tenancy
Upon the death of a joint tenant, the interest terminates and automatically goes to the surviving joint tenants
What four things are required for a joint tenancy to be created
The joint tenancy must be created with each point tenant having an equal right to possess or use the property, with each interest equal to the others, at the same time, and in the same instrument
PITT
- unity of Possession
- unity of Interest
- unity of Time
- unity of Title
Can a joint tenancy interest be transferred
It cannot be devised but a joint tenant can convey all or part of their individual interests during their lifetimes to a third party, thereby severing the joint tenancy
What effect does a severance have on remaining joint tenants
One a joint tenancy interest has been transferred inter vivos, the right of survivorship to that interest is destroyed and converted to a tenancy in common but if it is a conveyance by only one of more than two joint tenants then the joint tenancy of the remaining joints tenants is not destroyed
What affect does a mortgage have on a joint tenancy
In a lien theory state, the mortgage is only a lien on the property and does not sever the joint tenancy absent a default and foreclosure sale (Majority view)
In a title theory state, the mortgage severs title, and the tenancy between the joint tenants and creditor is converted into a tenancy in common
What affect does a lease have on a joint tenancy
Some jurisdictions hold that the lease destroys the unity of interest and thus severs the joint tenancy, while others hold that the lease merely temporarily suspends the joint tenancy, which would resume upon expiration of the lease
What is a tenancy by the entirety
Tenancy by the entirety is a joint tenancy between married persons with a right of survivorship
Same rules as a joint tenancy plus the requirement that the joint tenants be married when a deed is executed or the conveyance occurs (utility of person)
Neither party can alienate or encumber the property without the consent of the other
Concurrent estates: ousting
When a co-tenant refuses to allow another access to the property, the ousted co-tenant may bring a court action to gain access to the property and to recover the value of the use of the property for the time during which the co-tenant was denied access to the property
