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Flashcards in Real property Deck (195)
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31

Future interests subject to RAP

Contingent remainder
Executory interest
Vested remainder subject to open (some)

32

Future interests NOT subject to RAP

Future interest in Grantor: POR, right of entry, reversion
Indefeasibly vested remainders
Vested remainder subject to complete defeasance [STRANGE!]
Charity to charity transfers [not initial transfer to charity]

33

Gift to open class conditioned upon members surving beyond 21y?

Violates CL RAP (since someone still might be born and then need to wait 21y).
"Bad as to one, bad as to all" - CP for each member must occur within RAP period.
Otherwise - entire gift void.

34

Executory interest with no limit on time for vesting

Violates RAP.

35

What happens when future executory interest violating RAP is stricken?

If provision not gramatically sound anymore - entire condition is stricken.
(The result is that O no longer has a POR, and A has FSA!)
(Better for O to state "to A so long as, then to?.)

36

RAP Reform (not NY):
"Wait and See" / "2nd Look"

Validity of suspect future interest determined on basis of
"facts as they now exist, at conclusion of measuring life".
--> No "what if" "anything possible"

37

RAP Reform (not NY):
Uniform Statutory Rule Against Perpetuities

Provides alternative 90-year vesting period.

38

RAP Reform (not NY):
Cy Pres

"as near as possible"
Court power to reform transfer in a way most closely matching grantor's intent, whilee complying with RAP.
[Under "Wait and See" and USRAP]

39

RAP Reform (also NY!):
Age contingency reduction

Reduction of offensive age contingencies to 21.
[Under "Wait and See" and USRAP]

40

RAP Reform in NY?

Reforms:
- Age contingencies reduced to 21y.
- Fertile octogenarian - 55y.
- No suspension of absolute power of alienation if > life+21y
No Wait and See, no Cy pres.]

41

CONCURRENT OWNERSHIP
3 forms:

Joint tenancy
Tenancy by the entirety
Tenancy in common

42

Joint tenancy is:

2 or more own WITH right of survivorship

43

Joint tenancy: Transferability

Transferable inter-vivos.
But not devisable/descendable (because of survivorship)

44

Joint tenancy: Creation

4 unities:
- Same time
- Same title
- Identical equal interests
- With right to possess as a whole
AND Grantor must clearly state right of survivorship. No default.

45

Joint tenancy: Use of straw man?

MBE: Needed when single holder wants to add a joint tenant.
*NY* No need.

46

Joint tenancy: Severance - sale during lifetime

Buyer becomes tenant in common.
Joint tenancy severed as soon as sale agreement signed ("equitable conversion")
OK to sell secretly.

47

Joint tenancy: Severance - partition

1. Voluntary agreement.
2. Partition in kind: Judicial action for physical division
3. Forced sale, proceeds divided equally.

48

Joint tenancy: Severance - mortgage

Execution of mortgage does NOT sever joint tenancy (NY + majority - "lien theory")
(Minority - "title theory")

49

Tenancy by the entirety

Protected marital interest WITH right of survivorship
*NY* default for couples

50

Tenancy by the entirety: Creation

H&W sharing right of survivorship "as fictitious single person"
Default! Any conveyance made to H&W unless stated otherwise.

51

Tenancy by the entirety: Creditors of only one spouse

Creditor of one spouse can't touch tenancy.
*NY* One spouse can mortgage his own share. Right of survivorship cannot be compromised.

52

Tenancy by the entirety: Unilateral conveyance

Spouse can't transfer share to third party without other spouse approval.

53

Tenancy in common

2 or more own WITHOUT right of survivorship

54

Tenancy in common - features

Each owns individual part, with right to possess whole.
Descendible, devisable, alienable.
No survivorship rights.
Favored by presumption!

55

Tenancy in common - can tenant demand rent for being absent?

No.

56

Tenancy in common - can tenant demarcate property?

No - actionable ouster.

57

Tenancy in common - one tenant rents out portion

Other tenants entitled to proportionate amount of rental payments.

58

Tenancy in common - tenant acquires other tenant's title through adverse possession?

MBE: No. Only by ouster (incl hostility)
NY: Yes if in possession for 20y - "implied ouster"

59

Tenancy in common - repairs, carrying costs by one tenant?

Entitles to "contribution" from other tenants.
(Only repairs, not improvements, except credit at partition for increased value)

60

LEASEHOLD ESTATES
4 types

Tenancy for years
Periodic tenancy
Tenancy at will
Tenancy at sufferance