Property Final 2

Question 1

FSA Restraints

Answer 1

Absolute restraints on FSA are prohibited (generally)

Although some courts might allow very limited restraints of reasonable in purpose, effect and duration

Question 2

Life Estates Restraints

Answer 2

Disabling restraints are void

Forfeiture restraints are generally allowed (E.g., a tenant’s lease is forfeited if they default

Question 3

White v Brown

Answer 3

Majority
FSA with an unenforceable restraint on alienation

Dissent
Life estate with a condition - Restraint

Question 4

Possessory Estates Restraints

Answer 4

FSA
Absolute; no limitation

Life estate and leasehold
Have natural/inherent limitations
No additional limitation added

No “additional” words of limitation
I.e., and his heirs, for life, and for 20 years

Defeasible estates/Defeasible fees
Grantor includes additional words of limitation

Question 5

Defeasible fees

Answer 5

Defeasible (defeased): brought to an end

A Defeasible Estate is a present interest that terminated (or is capable of being terminated) upon the happening of a stated event that might or might not occur

Question 6

Fee Simple Determinable [FSD] Examples

Answer 6

O to A and her heirs until no longer used by NYLS for school purposes then to O

O to A and her heirs so long as NYLS continues to use; then to O
During
“while”

Question 7

Fee Simple Determinable [FSD] Future interest

Answer 7

Possibility of reverter (POR)-

Retained and held by grantor/creator

Either grantor expressly reserves it it or is silent )operation of law)

FSD - condition occurs, then defeasance is automatic

The present interest estate automatically ends

Question 8

Fee Simple Subject to a condition Subsequent [FSSCS] Example

Answer 8

O to A and her heirs; but if NYLS doesn’t use for school purposes, then reverts to O

O to A and her heirs; provided that NYLS uses for school purposes, and if NYLS doesn’t use for school purposes, then to O

“On the condition that”
“However if”

Question 9

Fee Simple Subject to a condition Subsequent [FSSCS] Future interest

Answer 9

Right of entry a/k/a power of termination - (ROE/POT)
Retained and held by Grantor/creator
Either grantor expressly reserves it or it is silent (operation of law)

If condition occurs, then holder of future interest has the power of termination - the right of entry

If exercised, then the present interest estate is defeased (ends)

FSSCS requires holder to take action

Question 10

Defeasible Fees: FSD v FSSCS Semicolon rule

Answer 10

FSD - To A for so long as (condition); then to O

Example
To NYLS so long as the land is used for school purposes;

FSSCS- To A; but if (condition) then to O

Example
To NYLS; but if the land is not used for school purposes then the grantor reserves the right to retake the property

Question 11

FSD Maximum Duration

Answer 11

Potentially indefinite duration; estate terminates immediately upon breach of the stated condition; Original owner retains the right to receive the property upon breach of the condition

Question 12

FSD Language

Answer 12

As long as; so long as; while; during; until [stated condition is violated]

E.g., to NYLS as long as the land used for school purposes

Question 13

FSD Future interest that follows

Answer 13

Possibility of Reverter (POR)

Retained and held by the Grantor (and grantor heirs)

Question 14

FSSCS Maximum Duration

Answer 14

Potentially indefinite duration estate terminated when right to entry is exercised after breach of condition; original owner of the property retains the right to receive the property upon breach of the condition

Question 15

FSSCS Language

Answer 15

Porivided, however; but if; words expressly reserving right to reclaim property may be included

E.g., to NYLS; but if the land is not sued for school purposes then the grantor reserves the right to retake the propert

Question 16

FSSCS Future interest that follows

Answer 16

Right of Entry (ROE) (or power of termination)

Retained and held by the grantor (and grantor’s heirs)

Question 17

Estate & Future interest

Answer 17

Fee Simple Absolute (FSA)
None

Life Estate & Term of Years
Reversion or Remainder

Fee Simple Determinable - FSD
Possibility of Reverter

Fee Simple Subject to Condition Subsequent - FSSCS
Right of Entry [Power of Termination]

Question 18

Traditional Common Law Rule ROE/POR Transfer

Answer 18

POR and ROE could not be transferred inter-vivos or devisable (by will) - it could only be inherited at death

Only exception
The holder of future interest could transfer POR/ROE to the holder of the present possessory interest (this is called a release)

Question 19

Mahrenholz

Answer 19

School had property but contract was ambiguous on FSD or FSSCS

IF FSD- Only wins on Breach of FSD. Loses on FSD no breach and FSSCS breach and no breach

Question 20

Modern Law on POR/ROE transfer

Answer 20

POR/ROE may be transferred inter-vivos or devisable (by will) although some states still follow traditional rule that such interest are not transferable, but are only inheritable or transferred to the present interest holder (release)

Question 21

Presumption in favor of FSSCS

Answer 21

Presumption is in favor of FSSCS since FSD results in automatic forfeiture

Question 22

Unity of possession

Answer 22

With all co-tenancies, each co-tenant has same rights to possess entirety of the property. Each co-tenant has “separate but undivided interests” in whole

Question 23

3 Types of Co-Tenancies

Answer 23

Tenants in Common
Separate but undivided interest in the whole

Joint Tenancy (with rights of survivorship) JTWRO

Tenants by the Entirety

Question 24

Tenants in Common

Answer 24

Separate but undivided interest in the whole

Question 25

Joint Tenancy (with rights of survivorship) JTWRO 4 units and Description

Answer 25

Unity of Possession Separate but undivided interests in the whole Unity of Time Acquired at the same time Unity of Title Acquired in the same instrument (deed or will, no intestacy) Unity of Interest Ownership percentages are equal (i.e., 50%/50%)

Question 26

Tenants by the Entirety

Answer 26

Unity of Possession Separate but undivided interests in the whole Unity of Time Acquired at the same time Unity of Title Acquired in the same instrument (deed or will, no intestacy) Unity of Interest Ownership percentages are equal (i.e., 50%/50%) Unity of marriage A&B must be married

Question 27

Concurrent Ownership Interests

Answer 27

Tenants in Common Unity of Possession only Joint Tenancy (with rights of survivorship) JTWROS 4 unities: unity of possession; unity of title; unity of time; and unity of interest Tenants by the Entirety 5 unities: unity of possession, unity of title; unity of time; unity of interest; and unity of marriage

Question 28

A & B are planning on getting married. Two weeks before they are legally married, they take title as: A&B as tenants by the entirety (To A&B, as tenants by the entirety [and they are not married]

Answer 28

Tenants by the entirety No, can’t be TBE since they were not married at time Joint tenancy Closest to intent of parties if parties use phrase “TBE” since it indicates “survivorship” In NY: A&B would be JT (based on statutory presumption) Tenants in Common Modern presumption is typically TIC (and note that many states don't recognize TBE)

Question 29

General Presumptions Under Traditional Common Law (Co-tenancies)

Answer 29

Traditional (Common Law) - At common law, presumption was in favor of Joint tenancy over TIC, unless expressly states to create a TIC - Need to overcome presumption in favor of JT - If unable to overcome presumption, a grant to 2 or more persons likely created a JT

Question 30

General Presumptions Under Modern Common Law (Co-tenancies)

Answer 30

Under most modern rules, presumption is in favor of Tenants-in-common over JT, unless an express intent to create a JT is expressly stated (i.e. survivorship rights). - Need to overcome strong presumption in favor of TIC - If unable to overcome presumption, a grant to two or more persons likely creates a TIC

Question 31

O to A & B ( and does not include any other language) Traditional Rule

Answer 31

At common law, presumption was in favor of Joint Tenancy over TIC, unless expressly states to create a TIC. Need to overcome presumption in favor of JT. Therefore, a grant to 2 or more persons likely created a JT

Question 32

O to A & B ( and does not include any other language) Modern Rule

Answer 32

Under most modern rules, presumption is in favor of Tenants-in-common over JT, unless an express intent to create a JT is expressly stated. Need to overcome very strong presumption in favor of TIC. Therefore, a grant to two or more persons likely creates a TIC. *Note re “O to A&B, jointly”: Courts have thought a conveyance from O to A and B “jointly” merely indicates an intent to create some type of concurrent estate (co-tenancy) but not necessarily a joint tenancy. The use of the word “jointly” is not dispositive of intent to create JT with survivorship right - “jointly” is only evidence of desire to create co-tenancy Therefore, O to A&B, jointly would be treated the same as just a conveyance that states: O to A&B

Question 33

O to A & B ( and does not include any other language) New York

Answer 33

EPTL Sec 6-2.2(a) - if not married: A disposition to 2 or more persons creates in them a Tenants-in-common, unless expressly declared to be a JT EPTL Sec 6-2.2(b) - if married: A disposition of real property to A&B, if married - creates a Tenancy By the Entirety, unless expressly declared to be a JT or TIC

Question 34

O to A&B, Jointly Traditional Rule

Answer 34

At common law, presumption was in favor of Joint Tenancy over TIC, unless expressly stated to create a TIC. Need to overcome presumption in favor of JT. Therefore, a grant to 2 or more persons (jointly) likely created a JT

Question 35

O to A&B, Jointly Modern

Answer 35

Under most modern rules, presumption is in favor of tenants-in-common over JT, unless an express intent to create a JT is expressly. Need to overcome very strong presumptions in favor of TIC.

Question 36

Does use of word “jointly” indicate express intent to create a Joint Tenancy

Answer 36

Courts have thought a conveyance from O to A and B “jointly” merely indicates an intent to create some type of concurrent estate (co-tenancy) but not necessarily a joint tenancy The use of the word “jointly” is not dispositive of intent to create JT with survivorship right - “jointly” is only evidence of desire to create co-tenancy Therefore, O to A&B, jointly would be treated the same as A conveyance that states: O to A&B

Question 37

O to A&B, as Husband and Wife Traditional Rule

Answer 37

At common law, presumption was in favor of Joint Tenancy over TIC

Question 38

O to A&B, as Husband and Wife Modern Rule

Answer 38

Under most modern rules, presumption is in favor of TIC, unless an express intent to create a JT is expressly stated. Need to overcome strong presumption in favor of TIC. a few states might find “husband and wife” as evidence of intent to create survivorship rights - but many states will still require express statement of “rights of survivorship” to overcome strong presumption in favor of TIC. some states might have a statutory presumption, in which case the statute governs

Question 39

O to A&B, as Husband and Wife New York

Answer 39

EPTL §6-2.2 If married: Tenancy by the Entirety: a disposition of real property to A&B, if married - creates a tenancy by the entirety, unless expressly declared to be a JT or TIC. EPTL Sec 6-2.2(b) If not Married: Joint Tenancy - a disposition of real property to persons who are not legally married to one another but who are described in the instrument as husband and wife creates in them a joint tenancy, unless expressly declared to be a TIC

Question 40

Creation of Joint Tenancy under Traditional Common Law

Answer 40

No, under Traditional Common law - A couldn’t create a JT in 1-step transaction. Creation of Joint Tenancy rule requires 2-steps Using a strawman Under traditional CL theory, A & B did not share 4 unities Time: B acquired land on 1/1; and A acquired land earlier in time Title: B acquired land by Deed from A; A acquired land in an earlier Deed

Question 41

Modern Approach Creation of Joint Tenancy

Answer 41

Creation of a Joint Tenancy can be done in 1 step, does not require 2

Question 42

Severance of Joint Tenancy under Traditional Common Law

Answer 42

Did not recognize a transfer from A to A - requires 2 step severing A could not transfer a JT to a TIC to themselves “A person cannot convey to themselves what they already possess”

Question 43

Modern rule on Joint Tenancy severance

Answer 43

Modern common law rule is severance in 1-step is permitted

Question 44

Easement in Gross

Answer 44

There is only servient Estate, no dominante estate

Question 45

Appurtenant Easement

Answer 45

If there is a Dominant Estate & Servient Estate

Question 46

Appurtenant Easement Dominant Estate

Answer 46

Has the right - Benefit Passes automatically to the new owner - regardless of any mention in conveyance

Question 47

Appurtenant Easement Servient Estate

Answer 47

Burdened by the easement passes automatically to the new owner of the Servient Estate unless protected by Record statute

Question 48

Express Easements Statute of Frauds

Answer 48

Easements are subject to statute of frauds. Therefore, they must be in writing

Question 49

Creation of an Express easement (in writing)

Answer 49

Writing Express easements must comply with Statute of Frauds Intent Did creator intend to create easement (a right that is not revocable) or a license? Notice Similar to record statute since easements are conveyances. If not recorded, might not be binding on new buyer Easement is void if subsequent BFP doesn't have notice (notice statute) Easement is void if subsequent BFP doesnt have notice and records first (R/N) Appurtenant All easements are appurtenant to the servient estate Appurtenant There must be a Servient Estate & Dominant Estate In gross No Dominant Estate - there is only a servient estate

Question 50

Easement by Grant Definition

Answer 50

The beneficiary is the grantee

Question 51

Easement by Grant Similar to licenses

Answer 51

In that they are personal, but are not recoverable

Question 52

Easement by Grant Sometimes referred to as

Answer 52

Personal Easements

Question 53

Easement by Grant Name of Dominant estate

Answer 53

Is not referred by dominant Estate--the person or entity named is the “dominant” easement holder

Question 54

Easement by Reservation Definition

Answer 54

The beneficiary is the grantor

Question 55

Easement by reservation in 2 steps (regrant theory)

Answer 55

Grantor deeds the land and Grantee grants the easement to the grantor

Question 56

Willard v First Church of Christ, Scientist Common Law

Answer 56

beneficiary of easement had to be grantor or grantee, not third parties to a contract or property

Question 57

Willard v First Church of Christ, Scientist Modern Law

Answer 57

Beneficiary can be third party - not grantor/grantee

Question 58

Easement by Estoppel

Answer 58

If license is irrevocable then its the same as an easement Elements: -Permissive use A license -Dominant tenant Changes position, makes substantial improvements reasonable reliance; and -Reasonably foreseeable By servient estate/tenant

Question 59

Hollbrook v Taylor Permissive use

Answer 59

The owner of servient parcel (Holbrook) permits another (i.e., Dominant Estate) (Taylor) to use land on the servient parcel (typically, an oral “license” for access, driveway, etc)

Question 60

Hollbrook v Taylor Dominant tenant Changes position, makes substantial improvements reasonable reliance

Answer 60

The other (dominant/Taylor) changes position (e.g., making substantial improvements) in reliance upon the permissive use (i.e., the oral licence of the servient estate - Hollbrook) and

Question 61

Hollbrook v Taylor Reasonably foreseeable By servient estate/tenant

Answer 61

It was reasonable for the servient estate owner (Hollbrook) to foresee that the other (owner of the Dominant estate/Taylor) might change its position Note: this is not recognized in some jurisdiction if strict view of the statute of frauds Oral license v Written license

Question 62

Easement Implied from prior existing use Elements (All at the time of severance)

Answer 62

Common ownership of the dominant and servient estate (at some time in the past) The parcel was severed into 2 or more parcels in connection with conveyance Use by the common owner of one parcel to benefit the other (quasi-easement - if the owner didn’t own both parcels, it would be an easement) (prior use at the point of severance) Which was apparent (or reasonably discoverable) (not the same as visible) Continuous Necessary: strict v reasonably necessity

Question 63

Easement Implied from prior existing use Quasi-Easement

Answer 63

An existing use exists prior to (and at time of) severance of Lots

Question 64

Easement Implied from prior existing use Use by the common owner of one parcel to benefit the other

Answer 64

its about intent; had they thought about it - wanted use to continue) (stronger the use stronger the intent)(courts fixing something they forgot to do; must've been on their contemplation)

Question 65

Easement Implied from prior existing use Modern Rule

Answer 65

Reasonably necessary for an implied easements (whether reservation or by grant) Reasonable use and enjoyment of land (highly convenient) Intent: Did grantor intend for use to continue Is continuation of use necessary for reasonable beneficial enjoyment? The basic consideration is the presumed intention of the parties as disclosed by the character of the use, the nature of the property, and the relation of the separated parts to each other

Question 66

Easement Implied from prior existing use Traditional Rule

Answer 66

Strict necessity for implied easements by reservation Reasonable necessity for implied easement by grant

Question 67

Easement Implied from prior existing use Side Notes

Answer 67

Easement does not end when necessity ends Looking at the use of the person selling the property

Question 68

Easement implied by necessity (access easement implied by necessity)

Answer 68

Common Ownership of the dominant and servient estate (at some time in the past) AND The parcel was severed into 2 or more parcels in connection with conveyance; AND Conveyance/Severance of part of larger parcel caused it to be landlocked; AND Strict necessity: the claimants property is landlocked (absolutely no access to a public road) without easement and landlocked problem was created by the severance of the ownership of the two parcels

Question 69

Easement implied by necessity (access easement implied by necessity) Notes

Answer 69

Note 1: there are few jurisdictions, however, that permit an easement by necessity even when other access exists so long as that other access is inadequate, difficult or costly. Note 2: In some jurisdictions, water access would be sufficient to preclude an easement by necessity in others it would not Easement ends when necessity ends