Property Flashcards
(133 cards)
1
Q
What language is needed to create a fee simple absolute?
A
“To A”
or
“To A and his heirs.”
2
Q
Fee Simple Absolute
A
“To A” or “To A and his heirs”
Absolute ownership for a potentially infinite amount of time.
Devisable, descendable, and alienable.
Future interest: None
3
Q
“To A” or “To A and his heirs” creates what?
A
Fee simple absolute.
4
Q
Fee Tail
A
“To A and the heirs of his body.”
Pretty rare now.
Lasts as long as there are lineal blood descendants of grantee.
Transfers automatically to grantee’s lineal descendants.
Future interests: Reversion (if held by grantor)
Remainder (if held by 3rd party)
Possibility of reverter (held by grantor)
5
Q
What does “To A and the heirs of his body” create?
A
Fee tail
6
Q
Fee simple determinable
A
“To A for so long as…” “To A during…” “To A until…”
Must use clear and durational langauge.
If the stated condition is violated, forfeiture is automatic.
It’s devisable, descendable, and alienable, but only alienable subject to the condition. (Mick Jagger rule–You can’t always get what you want.)
Future interest: Possibility of reverter
FSDPOR–Frank Sinatra doesn’t prefer Orville Redenbacher–Fee Simple Determinable Possibility of Reverter
7
Q
What does “To A for long as . . .” create?
A
Fee simple determinable.
8
Q
Fee simple subject to condition subsequent
A
“To A, but if X occurs, grantor reserves the right to re-enter and retake.”
Must use clear durational language and explicitly carve out the right to re-enter.
Estate is NOT automatically ended, but can be cut short at grantor’s option if the stated condition occurs.
Future interest: Right of re-entry; synonymous with power of termination.
Grantor is Bobby Brown…it’s my prerogative!
9
Q
What does, “To A, but if X occurs, grantor reserves the right to re-enter and retake” create?
A
Fee simple to condition subsequent
10
Q
Fee simple subject to executory limitation
A
“To A, but if X occurs, then to B.”
Just like fee simple determinable, but if the condition is broken, the estate is forfeited in favor of someone other than grantor.
Future interest: Shifting executory interest
11
Q
Life Estate
A
“To A for life.”
Must be in lifetime terms, not terms of years.
Future interest: Reversion
12
Q
What is A known as in a life estate?
A
A life tenant
13
Q
What does, “To A for life” create?
A
A life estate
14
Q
What is a life estate pur autre vie?
A
A life estate that is measured by the life of someone other than the grantor.
15
Q
What is voluntary or affirmative waste?
A
Overt conduct that causes a drop in value of the property.
16
Q
If there is voluntary waste of natural resources, what are the exceptions?
A
PURGE
PU=Prior use–if it was already used for that then it’s fine.
R= Repairs–nat resources can be used to repair or maintain the property
G= Grant–can be granted the right to use them
E= Exploitation–if the land is only suitable to exploit already (e.g. a quarry or mine)
17
Q
What is permissive waste?
A
Basically, neglect.
Land falls into disrepair b/c the tenant is sitting idly by, permitting it to happen.
Standard is maintaining the premises in reasonably good repair and expected to pay ordinary taxes.
18
Q
What is ameliorative waste?
A
Life tenant must not engage in acts that will enhance the property’s value unless all further interests are known and consent to it.
19
Q
What are the future interests capable of creation in the grantor?
A
Possibility of reverter (only in fee simple determinable)
Right of re-entry/Power of termination (only in fee simple subject to condition subsequent
Reversion: everything else where grantor transfers estate of lesser quantum than he started with. (So not fee simple absolute, fee simple determinable, or fee simple subject to condition subsequent, but basically everything else where the grantor will have a future interest.)
20
Q
What are the Future interests in transferees?
A
Vested remainder
Contingent remainder
Executory interest
21
Q
Are absolute restraints allowed on alienation?
A
No. If there is an absolute ban on the power to sell or transfer, and there is no reasonable, time-limited purpose, then the restraint is void.
22
Q
What does, “To A for the life of B” create?
A
A life estate pur autre vie.
23
Q
What are the two general rules about life estates?
A
Life tenant is entitled to all ordinary uses and profits from the land.
Life tenant must not commit waste.
24
Q
What are the 3 kinds of vested remainders?
A
Indefeasibly vested remainder
Vested remainder subject to complete defeasance (or subject to total divestment)
Vested remainder subject to open
25
What are the two different kinds of executory interests?
Shifting executory interest
| Springing executory interest
26
What is the difference in vested and contingent remainder?
A vested remainder is both created in ascertained persons and is not subject to any condition precedent.
A contingent remainder is created in an unascertained person or is subject to any condition precedent, or both.
27
What is a remainder?
A remainder is a future interest created in a grantee (3rd 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.
28
Remainderman
Remainderman is sociable. He never travels alone. "To A for 10 years, then to B." B is the remainder.
He is polite and patient. He NEVER follows a fee simple determinable.
Jack Johnson is Remainderman. "Must I always be waiting on you?"
29
"To A for life, then to B's first child," creates what kind of remainder?
Contingent remainder, because A is alive, and B does not yet have any children.
30
What kind of remainder does, "To A for life, then to B's heirs" create?
Contingent remainder. A is alive. B is alive, and therefore does not yet have heirs.
31
When is there a condition precedent?
When the precedent appears before the language creating the remainder or is woven in the grant to remainderman.
"To A for life, then, if B graduates from college, to B."
32
What kind of remainder does, "To Laura, then, if Susan passes the bar, to Susan," create?
Contingent remainder. There is a condition precedent to Susan being able to take.
33
What is the Rule of Destructibility on Contingent Remainders?
At common law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended. (So if, "To A for life, and if B has reached 21, then to B," A dies and B was just 19, then B's contingent remainder was destroyed. O would take in fee simple absolute.
Now, the rule has been abolished. Same hpyo, if B is under 21, then O or O's heirs hold the estate subject to B's springing executory interest. Once he turns 21, he takes.
34
What is the Rule in Shelley's case?
Rule applies in one setting only: "O conveys "To A for life, then, on A's death, "to A's heirs." A is alive.
If this happens then the present and future interests would merge and A would take in fee simple absolute.
Now, basically abolished b/c it was a rule of law, not construction, and was applied no matter what. Grantor's intent wasn't considered.
35
What is the Doctrine of Worthier Title?
Applies when O, who is alive, tries to create a future interest in his heirs. O, who is alive, conveys "To A for life, then to O's heirs." If doctrine applies, then the contingent remainder in O's heirs is void, leaving A a life estate and O a reversion.
A rule of construction, not of law, so grantor's intent controls. If grantor clearly intends to create a contingent remainder in his heirs, then it is honored.
36
What is an indefeasibly vested remainder?
Holder in this remainder is certain to acquire the estate in the future with no strings attached.
"To A for life, remainder to B."
What if B dies before A? Then B's future interest passes by will or intestacy.
Think *NSync--No Strings Attached
37
What is a vested remainder subject to complete defeasance?
Remainderman's taking is NOT subject to any condition precedent, but could be cut short because of a condition subsequent.
"To A for life, remainder to B, provided, however, that if B dies under age 25, to C."
38
What is the Comma Rule?
When conditional language in a transfer follows language that, when 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.
39
What is a vested remainder subject to open?
A remainder is vested in a group of takers, at least one of whom is qualified to take.
Each class member's share is subject to partial diminution because additional members can still join.
"To A for life, then to B's children."
40
What is the difference in open and closed classes?
```
A class is open if others can still join.
A class is closed if no others can join.
```
41
When is a class closed?
Whenever any member can demand possession.
42
What is an executory interest?
A future interest created in a transferee (3rd party), which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or in the grantor or his heirs (springing)
43
What does, ""To A and her heirs, but if B returns from Canada sometime in the next year, to B and his heirs," create for B? For A?
B has a shifting executory interest.
He will be cutting short the interest of A and her heirs if he comes back from Canada.
A has a fee simple subject to B's shifting executory interest.
44
What does, "To A, if and when he marries," create for A? For O?
A has a springing executory interest.
He will be cutting short O's interest if he gets married.
O has a fee simple to A's springing executory interest.
45
What is the Rule Against Perpetuities?
Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
46
What is the 4 step technique for assessing potential RAP problems?
Determine which future interests have been created.
Identify the conditions precedent to the vesting of the future interest.
Find a measuring life.
Ask if we will know for certain w/in 21 years of the death of our measuring life, if our future interest holders can or cannot take.
If yes, then it's good. If not, the future interest is void.
47
What future interests does the RAP apply to?
Contingent remainders
Executory interests
Certain vested remainders subject to open.
48
If a gift is to an open class that is conditional on the members surviving to beyond age 21, is it good?
No. It violates the common law RAP.
Presumed that the measuring life can give birth up to the day of death, and that newborn will never have the chance to get past 21, so the entire gift is void.
Bad as to one, bad as to all.
49
Does an executory interest with no time limit on the time within it must vest violate the RAP?
Yes. Example: "To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be used, to B and his heirs."
There is no limit on how long before B's interest will vest. So strike the offensive future interest. Left with "To A and his heirs so long as the land is used for farm purposes." B gets nothing not, but O has the possibility of reverter.
50
What is the "wait and see" or "second look" doctrine concerning RAP?
Instead of not ever cutting off the class, take a look at the class when the measuring life dies. See if it can happen then, and go from there.
51
What is a joint tenancy?
Two or more owners w/ the right of survivorship.
52
What are the 3 kinds of concurrent estates?
Joint tenancy
Tenancy by the entirety
Tenancy in common
53
Is a joint tenant's interest devisable, descendable, or alienable?
It is alienable only. It is not devisable or descendable because of the right of survivorship.
54
What are the 4 utilities needed to create a joint tenancy?
```
T-TIP
At the same TIME
By the same TITLE (in the same instrument)
IDENTICAL interests
Rights to POSSESS the whole.
```
55
Why is the use of a straw needed to create a joint tenancy?
If Bill has property and wishes to have a joint tenancy with Ted, then he will have to convey his property to a straw, who will then re-convey the property to both Bill and Ted at the same time, in the same title, giving them both identical interests and a right to possess the whole, thus satisfying the four utilities and creating a joint tenancy. The straw is needed so that it can all occur at once.
56
How can a joint tenancy be severed?
SPAM--Sale, Partition, And Morgage
| Any of these ways work.
57
Can a joint tenant sell or transfer her interest in her lifetime?
Yes, and may even do so secretly.
| This severs the tenancy because it disrupts the 4 unities.
58
What is the buyer of an interest in a joint tenancy called?
A tenant in common. They do not become a joint tenant with the others.
59
When one person in a joint tenancy (of more than 2 joint tenants) sells her interest, what is the impact on the other joint tenants?
Their joint tenancy remains intact.
60
In equity, at what point in the process of selling the interest is the joint tenancy severed?
At the point that the joint tenant enters into a contract to sell. That is enough to satisfy the doctrine of equitable conversion.
61
What is the doctrine of Equitable Conversion?
"Equity regards as done that which ought to be done.
62
In what three ways can there be severance and partition in a joint tenancy?
By voluntary agreement
By partition in kind
By forced sale
63
What is a partition in kind?
A court action for the physical division of Blackacre in the best interest of all.
This kind of partition works best when Blackacre has lots of sprawling acres--a farm, e.g.
64
What is a forced sale?
A court action in the best interests of all where Blackacre is sold and proceeds divided proportionately.
This works best when Blackacre is a single building.
65
What is the rule for severance and mortgage?
One joint tenant's execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that now encumbered share only in the minority of states that follow the title theory of mortgages.
The majority rule follows the lien theory of mortgages, whereby a joint tenant's execution of a mortgage on his own interest will not sever the joint tenancy.
66
What is a tenancy by the entirety?
A tenancy created by a married couple. Couple must actually be married. Not just engaged. It arises presumpatively in any grant to married partners unless stated otherwise.
67
Can a creditor of only one spouse go after property that is a tenancy by the entirety?
No. The property is immune from attack.
68
In a tenancy by the entirety, can either tenant, acting alone, defeat the act of survivorship by unilaterally transferring to a 3rd party?
No. Must not be secretly done. Cannot be unilateral.
69
What are 3 features of a tenancy in common?
Each co-tenant owns an individual part and each has the right to possess the whole.
Each interest is devisable, descendable, and alienable. There is no right of survivorship.
The presumption favors the tenancy in common (because when one dies, his share has to go to probate, and the courts love that crap)
70
May one co-tenant wrongfully exclude another co-tenant from possession of the whole or any part of the property?
No. This is called wrongful ouster, and is not permitted.
71
If only one co-tenant in a tenancy in common has exclusive possession, may another co-tenant collect rent?
No. A co-tenant in exclusive possession is not liable to the others for rent.
72
If one co-tenant in a tenancy in common rents part or all of the property, are other co-tenants entitled to a portion of the rental income?
Yes. The renting co-tenant must account to his co-tenants, giving them their fair share.
73
If one co-tenant has exclusive possession for the required statutory time, may she acquire title to the whole thing by adverse possession?
No, unless she has ousted the other co-tenants. Otherwise, the hostility element of adverse possession is not there.
74
Are co-tenants in a tenancy in common responsible for carrying costs?
Yes, each co-tenant is responsible for his or her fair share. (For example, if Will paid for 80% of Blackacre and Grace paid for 20%, then Will is responsible for 80% of the carrying costs.)
75
Are co-tenants in a tenancy in common responsible for paying for repairs?
Yes. Each is responsible for his or her fair share of the repairs. If one pays for the repairs, she may seek contribution from the others.
76
Are co-tenants responsible for paying for improvements to the property?
No. There is no right to contribution for "improvements."
At partition, however, the improving co-tenant is entitled to a credit equal to the amount of any increase to value she caused.
The co-tenant bears full liability for any drop in value that she caused.
77
Does a co-tenant have a right to bring an action for partition?
Yes.
78
What is a tenancy for years?
A lease for a fixed amount of time. The termination dates must be known from the start. A tenancy for years lasting more than one year must be in writing to satisfy the Statute of Frauds.
79
Does a tenancy for years require notification for termination?
No, because the termination date is part of the terms of the tenancy.
80
What is a periodic tenancy?
This is a lease that continues for successive intervals until L or T give proper notice of termination.
Can be month to month, week to week, year to year, day to day. Just has to be in successive intervals.
81
How can a periodic tenancy arise by implication?
Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals.
An oral term of years in violation of the Statute of Frauds, since it isn't a valid tenancy for years without a writing. If T pays rent and L accepts it, then a periodic tenancy has arisen.
The holdover: L elects to hold over a T who has wrongfully stayed past the conclusion of the original lease.
82
How is a periodic lease terminated?
Notice, usually written, must be given.
83
How much notice is required to terminate a periodic tenancy?
At least equal to the period itself, unless otherwise agreed.
Exception is when the term is more than a year; then only 6 months is required.
HOWEVER, parties are free to lengthen or shorten those notice provisions.
84
When must a periodic tenancy end?
It must end at the conclusion of a natural lease period. (If give notice on the 15th of June, still liable on the lease til the 31st of July, b/c that's the conclusion of the natural lease period of a month.)
85
What is a tenancy at will?
This is a tenancy for no fixed duration. It is completely open ended.
Increasingly rare, and unless the parties expressly agree to this kind of lease, then the payment of regular rent will cause a court to treat this as an implied periodic tenancy.
86
When can a tenancy at will be terminated?
By either party at any time, but a reasonable demand to vacate is usually needed.
87
What is a tenancy at sufferance?
Created when T has wrongfully held over past the expiration of the lease. The leasehold estate is given to permit L to recover rent.
88
How long does a tenancy at sufferance last?
Only until L either evicts T or elects to hold T to a new tenancy.
89
What are a tenant's liabilities to third parties?
T is responsible for keeping the premises in good repair.
90
Is Tenant or Landlord liable for injuries sustained by third parties Tenant invites?
Tenant, even where Landlord promised to make repairs.
91
What are Tenant's duties to repair when the lease is silent?
T must maintain the premises and make routine repairs, other than those due to ordinary wear and tear.
T must not commit waste.
92
What is the law of fixtures?
When a tenant removes a fixture, she has committed voluntary waste.
93
What is a fixture?
A fixture is a once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty.
94
If a Tenant installs a fixture, may she remove it at the end of her lease?
No. Fixtures pass with ownership of the land.
There can be an express agreement to remove fixtures, so long as removing them will not cause substantial harm to the premises.
95
What is Tenant's duty to repair if T has expressly covenanted to maintain the property in good condition for the duration of the lease?
Historically, T was liable for any loss the property incurred, including loss due to forces of nature.
Now, the majority view is that T is off the hook for forces of nature.
96
What can Landlord do if Tenant breaches the duty to pay rent and is still in possession of the premises?
Landlord can evict through the court or continue the relationship and sue for rent due.
If Landlord opts to evict, then tenant becomes a tenant of sufferance, and Landlord is still entitled to rent.
97
Can a landlord engage in self-help when dealing with a tenant who is in breach of his duty to pay rent?
No. Landlord may NOT change the locks, forcibly remove Tenant or Tenant's belongings.
This is punishable both civilly and criminally.
98
How may Landlord proceed if Tenant breaches the duty to pay rent but is out of possession?
SIR
Surrender--Landlord can treat T's abandonment as surrender, which is when T shows, by words or actions that she wants to give up the lease. (Must be in writing if surrendering more than a year before the lease is up)
Ignore the abandonment and continue to hold T liable for the rent as if T were still there.
Re-let the premises on the T's behalf and hold her responsible for any deficiencies. (Landlord must mitigate in a majority of states, and re-letting is a form of mitigating.)
99
What is the majority (English) rule regarding Landlord's duty to deliver possession?
L must put T in actual possession. Thus, if at the start of T's lease, a prior holdover tenant is still in control, L has breached and the new T is entitled to damages.
100
What is the American rule regarding Landlord's duty to deliver possession?
Only legal possession, not actual possession, is required.
101
What is the applied covenant of quiet enjoyment?
Applies to both residential and commercial leases.
| T has a right to quiet use and enjoyment without interference from L.
102
What is breach by constructive eviction?
Tenant has to SING.
Substantial Interference due to L's actions or failure.
Notice: T must notify L of the problem and L must fail to fix it.
Goodbye or Get out. T must vacate within reasonable time after L fails to fix the problem.
HAVE to SING..the getting out is a must.
103
When is the landlord responsible for the acts of other tenants?
L must not permit a nuisance.
| L must control common areas.
104
What is the implied warranty of habitability?
Applies only to residential leases.
It is NON-WAIVABLE.
Standard is the the premises must be fit for basic dwelling. (Pretty low standard). Appropriate standard may be supplied by either the housing code or by case law.
105
What are Tenant's entitlements when the implied warranty of habitability is breached?
Mr. Cubed. M R R R
Move out and end the lease (but T doesn't HAVE to)
Repair and deduct from rent
Reduce rent (or withhold all rent) until court determines fair rental value (rent usually goes in escrow)
Remain in possession, pay rent, and affirmatively seek money damages
106
What is the difference in an assignment and a sublease?
In an assignment, Tenant is freely transferring to someone else his interest in whole.
In a sublease, Tenant is freely transferring to someone else just part of his interest.
107
What is privaty of estate?
In an assignment, Tenant (T1) assigns his interest to T2. T2 and Landlord have privaty of estate, meaning that they are liable to each other for all the covenants in the original lease that run with the lease.
108
In an assignment, are T2 and Landlord in privaty of contract?
No, not unless T2 assumed all promises in the original lease. (Will be expressly stated)
109
When an assignment occurs, what is the relationship between T1 and Landlord?
They are no longer in privaty of estate, but still remain in privaty of contract. They are secondarily liable to one another.
110
In a sublease, are L and the sublessee in privaty of contract or privaty of estate?
They are in neither. The original Tenant is still responsible for all.
111
What are the exceptions that make Landlord liable in tort?
CLAPS
Common areas
Latent defects rule--L must WARN (but not fix) of hidden defects that L knows about or should now about
Assumption of repairs: If L voluntarily makes repairs, then is responsible for them if done negligently
Public Use rule--if L leases public spaces for a short time and depending on the nature of the defect, L is responsible for damages. T has no duty to repair
Short term lease of furnished dwelling
112
What is a real covenant?
A real promise to do or not to do something on the land.
They run with the land at law.
Their general remedy is damages.
113
What is an equitable servitude?
A covenant that, whether or not it runs with the land at law, equity will enforce against assignees of the burdened land who have notice of it.
114
What is a covenant for title?
A covenant contained in a deed that gives the grantee and her successors certain assurances regarding the title conveyed.
115
What is necessary for burden for a real covenant to run with the land?
1. The covenanting parties intended that the successors in interest be bound by the covenant.
2. The successor in interest has notice of the covenant.
3. There is horizontal privaty between the original parties.
4. There is vertical privaty between the coventantor and her successor in interest.
5. The covenant touches and concerns the land.
116
What is acquiescence?
When the benefited party seeking to enforce an equitable servitude previously consented to another party's violation of the servitude.
117
What is the defense of unclean hands?
A defense that applies when the benefiting party is violating a similar restriction on his own land.
118
What is the defense of laches?
A defense that applies when the benefited party fails to bring suit against the burdened party within a reasonable time.
119
What is the defense of changed conditions?
A defense that applies when a neighborhood has changed significantly since the time a servitude was created such that it would be inequitable to enforce the restriction.
120
For the benefit of a real covenant to run with the land, what is needed?
Vertical privaty, intent that the covenant run with the land, and that the covenant touches or concerns land.
121
Is a long period of non-use sufficient to terminate an easement?
Yes, so long as it has continued for the statutory period and has other evidence of the intent to abandon the easement.
122
What is required for horizontal privaty?
The two original covenanting parties shared some interest in the land independent of the covenant.
123
What is required for a successor in interest to be bound by vertical privaty?
The successor in interest must hold the entire durational interest held by the covenantor at the time she made the covenant.
124
What is the general remedy for a breach of a real covenant?
Money damages.
| A real covenant gives rise to personal liability only.
125
If equitable relief, such as an injunction, is sought, may the promise be enforced as a real covenant?
No. If equitable relief is sought, then the promise may be enforced as an equitable servitude.
126
What are the ways that an easement can be implied?
If, prior to the time that the tract was divided, the now servient part relied on something from the now dominant part, or if there is reasonable necessity, or by grant or reservation.
127
What elements are required for an easement by prescription?
When the use is open and notorious, adverse, and continuous. At common law, it need not be exclusive, but in Kentucky, it must also be exclusive.
128
What is a profit and how is one created?
A profit is a nonpossessory interest in land. The holder of the profit is entitled to enter upon the servient tenement and take the soil or a substance in the soil (minerals, timber, oil, or game). They are created in the same way as an easement is.
129
What are the formalities in deed formation?
The Statute of Frauds requires that a deed be in writing and signed by the grantor.
Must identify the land. This doesn't have to be formal, but it must be unambiguous.
The parties must be identified, either by name or by describing them in some other identifiable way.
There must be words of intent--must evidence an intention to transfer realty.
Must be signed by the grantor.
Grantee's signature is not required.
130
Is consideration required for a deed to be valid?
No. It need not recite any consideration, nor must any consideration pass in order for it to be valid.
131
What is the difference in a void and voidable deed?
Both are defective. Void implies that the deed will be set aside by the court even if the property has passed to a BFP. Voidable implies that the deed will be set aside only if the property has not passed to a BFP.
132
When will a deed be considered void?
Ones that were forged, were never delivered, were issued to a non-existent grantee, or were obtained by fraud in the factum.
133
When will a deed be voidable?
Those executed by persons younger than the age of majority or who otherwise lacked capacity, and deeds obtained through fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty.
