Real Property Flashcards Preview

Texas Bar Exam: MBE > Real Property > Flashcards

Flashcards in Real Property Deck (133)
Loading flashcards...

What are the four ways property can be transferred? Also, what are the two types of interests (time-wise) in property?

Sale, gift, devise, and intestate succession.

Present and future interests.


Who is a person who survives a decedent and takes through intestate succession? Through a will?

An heir takes through intestate succession. You have no heirs until you die. A beneficiary takes through a will.


What is the largest possessory estate? What makes it so? Is it inheritable?

The fee simple absolute because it is capable of lasting forever. The fee simple is inheritable upon the owner's death by intestate succession or transferred during life through gift or sale.


How is a fee simple absolute created?

Generally, the easiest way is to use "and his/her heirs," but the fee simple is the presumption when you simply have transfer language such as "to A."

Basically, if it is ambiguous, it creates a fee simple.


What is created here? Who has what interests?

"to Anna, my hope and wish being that on her death, Anna will give the property to her son, Ben."

This creates a fee simple absolute owned by Anna. Ben doesn't own anything. Don't be fooled by words of intent or purpose (precatory language).


T/F - With a fee simple absolute, there is a present interest and a future interest.

False. There is no future interest associated with a fee simple. This is capable of lasting forever.


What is a fee simple determinable? What language makes a fee simple determinable? What are the different interests in a fee simple determinable?

A FSD is that which is limited by specific durational language. Look for language such as "while," "during," and "until."

The Grantee receives a fee simple determinable.
The Grantor reserves a "possibility of reverter"


T/F - The possibility of reverter activates automatically upon the expiration of a fee simple determinable.



What is a fee simple subject to a condition subsequent? What language makes it? What are the different interests?

A fee simple that is limited by specific conditional language. Look for language such as "but if," "provided that," and "on the condition that."

The grantee receives a fee simple subject to a condition subsequent.

The grantor retains a right of reentry. This does not grant possession automatically! The grantor must take action and exercise a the right in order to take possession.


What is a fee simple subject to an executory interest? Who owns what interests?

This is a fee simple that will end upon the happening of an event and the future interest will vest in a third party (someone other than the grantor).

The grantee has a fee simple subject to an executory interest.

The third party has the executory interest

The grantor retains nothing because he has given away all present and future interest.


T/F - An executory interest is a present interest that will cut short (divest), or terminate, an earlier interest.

False. It is a future interest.


Explain what a life estate is. Whose life are we talking about? What are the different interests?

This is a present estate interest that is limited by a life? The measuring life can be the grantee or another person.

Example: "to A for B's life."

Grantee has the present interest, which is the life estate.

Grantor retains a reversion (vests automatically at the end).


T/F - The present interest in a life estate is transferable, but the life estate ends upon the same measuring life in the original transfer.



T/F - The owner of a life estate interest who is also the measuring life can transfer the life estate by will and intestate succession.

False. If the owner of the life estate is the measuring life, then the life estate expires upon his/her death and they cannot grant it by will or intestate succession. It automatically goes back to the grantor.


If a grantor dies with a reversion interest or a possibility of reverter, what happens?

He can either pass that interest on through a will, or it will remain in his estate and it will pass through intestate succession.


What is a remainder interest? How is it created?

This is a future interest held by a third party in a life estate after the measuring life dies. This is where the grantor gives a life estate and the future interest (his reversion interest) to a third party.

The grantor retains nothing here!


When does "waste" come into play? What are the different types of waste?

This is when you have more than one party with an interest in the same piece of real property. The owner of the present interest has a duty not to commit waste and preserve the property. The three different types of waste are:

1) Affirmative waste - waste caused by voluntary conduct, which causes a decrease in property.

2) Permissive waste - waste caused by neglect toward the property, which causes a decrease in value.

3) Ameliorative waste - person with present interest changes the use of the property and actually increases the value of the property.

All in all, the property value must CHANGE.


T/F - Waste can occur between two co-tenants (one in possession and one not).



T/F - Concurrent estates EACH have the right to use/possess the WHOLE property.


Exception - If the concurrent owners contract out of the basic rule.


Name the three kinds of current estates. Are all available in Texas?

Tenancy in Common

Joint Tenancy

Tenancy by the Entirety (doesn't exist in Texas because Texas is a community property state)


What is the default concurrent estate interest? What makes it unique from the other two types of concurrent estates?

The tenancy in common is the default. There is NO RIGHT OF SURVIVORSHIP here.


T/F - Tenants in common have separate but undivided interests in the property.



What does it mean to have "no right of survivorship" in a co-tenancy?

This means that each co-tenant can transfer their interest in the property freely at death as well as during life.


What is the defining characteristic of a Joint Tenancy? How is it created?

The right of survivorship is the defining characteristic of a joint tenancy, whereby the surviving joint tenants automatically take the deceased tenant's interest.

The right of survivorship MUST BE CLEARLY EXPRESSED through "survivorship language."


What four unities must be in place to create a Joint Tenancy? What if one of the unities is destroyed during the Joint Tenancy?

1) Possession - every JT must have an equal right to possess the whole of the property.

2) Interest - JTs must have an EQUAL SHARE of the same type of interest.

3) Time - JTs must receive their interests at the same time.

4) Title - JTs must receive their interests in the same instrument of title.

If ANY of the unities are severed (destroyed), then the joint tenancy is terminated with regard to THAT interest and turns it into a tenancy in common.


What are the three ways a joint tenancy can be severed? What are the majority and minority views of each?

1) Inter vivos transfer - a gift of the JT interest during life destroys the right of survivorship.

2) Mortgages - can possibly sever a JT interest depending on which jurisdiction you are in. The majority of jurisdictions are LIEN STATES that treat the mortgage as a lien and does NOT destroy the JT. The minority of states are TITLE STATES where the mortgage does sever the JT.

3) Leases - whether a lease severs a JT depends on jurisdiction as well. The jurisdictions are split here (no majority or minority). Some say it severs the JT, while others treat the lease as a temporary suspension of the JT.


What is a Tenancy by the Entirety? Does this exist in Texas?

This is a joint tenancy between married couples. Marriage is considered the 5th element of the joint tenancy unities here. There is a right of survivorship here.

Because Texas is a community property state, we do not have Tenancy by the Entirety here.


What is "ouster," and how can it be remedied?

Ouster is when a co-tenant in possession denies another co-tenant access to the property (changes the locks).

The ousted tenant can get an INJUNCTION granting access AND/OR recover DAMAGES for the value of the USE while the co-tenant was unable to access the property.


How is rent of co-owned property divided? Is anything subtracted?

Rent received from a third party's possession of the property, minus operating expenses, are divided based on ownership interests of each co-tenant.

Operating Expenses - necessary charges, such as taxes or mortgage interest payments.


T/F - There is a right to reimbursement from co-tenants for necessary repairs and improvements to the land.

If false, what is the remedy?

False as to both.

The negatively affected co-tenant can seek a credit in a later partition action for his payments for necessary repairs and improvements to the land.