Real Property MT Flashcards
Life Estate
An estate in which a transferee takes possession for no more than one or more human lives. Once terminated, the LE reverts to the transferor or his heirs.
Fee Simple Absolute
A Fee Simple is an estate that is potentially infinite in duration, freely alienable, freely devisable, and which has no limits on inheritance. A FS is the largest fee one can own, and the only thing that will terminate it is
Escheat.
Estate Pur Autre Vie
“estate for the life of another” - It comes to an end when the “measuring life” comes to an end.
- 0 to B for the life of A. B is a life tenant pur autre vie. A is the measuring life, and the estate will end on A’s death.
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The Law of Waste
the holder of the present interest is required to
preserve the estate for the holder of the future interest - doesn’t apply to fees, generally applies to life estates and landlord/tenant.
*Ameliorative Waste, Permissive, and Voluntary
Fee Simple Determinable (FSD)
A FS (Potentially infinite, Alienable, Devisable and Inheritable) created such that upon the happening of an event stated in its creating instrument, the estate will automatically terminate and revert to the transferor or his successor. Must use words limiting the duration, or words of automatic reversion such as: “so long
as”, “during” or “until”
- Automatic termination upon happening of stated event
- Transferor’s interest is called a possibility of reverter and tenant’s interest is a fee simple determinable.
Fee Simple Subject To Condition Subsequent (FSSTCS)
A FS (Potentially infinite, Alienable, Devisable and Inheritable) created such that upon the happening of an event stated in its creating instrument, the transferor or successor has the power to terminate the estate or the right to reenter. - Must use words of condition, AND express words indicating the power to terminate or the right to reenter. - Unlike a FSD, does not automatically terminate on the happening of a contingency, transferor must take steps to reenter.
Fee Simple Subject To An Executory Interest
A FS (Potentially infinite, Alienable, Devisable and Inheritable) created such that upon the happening of an event stated in its creating instrument, it will be divested (cut off) by an interest in a transferee. - DISTINCTION - If it terminates, it terminates in favor of a transferee!
FSST a Springing
a FS in a transferor created such that upon the happening of an event stated in its creating instrument, it will be divested (cut off) by an interest in a transferee. (The interest springs from the transferor to the transferee upon the happening of the stated event.).
Automatic
- Example - A to B upon B’s marriage to C. (A has the FS Prior to B marrying C.
Then, after the marriage, A’s FS is divested by B’s interest).
FSST a Shifting
a FS in a transferee created such that upon the happening of an event stated in its creating instrument, it will be divested (cut off) by an interest in another transferee. (The interest shifts from original transferee to another transferee upon the happening of the stated event.)
- Automatic.
- Example: - A to B, but if B dies w/o issue, to C. (B had the FS, but if he dies w/o issue, B’s FS is divested by C’s EL)
Tenancy in Common
An undivided interest in property held by two or more
persons simultaneously where there is unity of possession.
- Default form of concurrent ownership.
- Unity of Possession - each TIC has an undivided right to use the property (subject to waste for life tenants).
- They can have different:
- Interests - A could have LE, and B could have a FS, as long as they are concurrent. A and B can also have different fractions of ownership. (Each co-tenant is the owner of a separate and distinct share of the property, and each owner has separate, undivided interest in the whole.)
- Time - interests can be created at different times - Title - interests can be created with different title.
- Freely: Alienable (by conveyance or mortgage), devisable, and inheritable
Joint Tennancy
An undivided interest in property held by two or more persons simultaneously that is created by an express writing with a right of survivorship, and unity of
possession, interest, title, and time.
Severing any of the 4 Unities severs the JT, creating a TIC. This can be done w/o permission. A party may unilaterally sever a JT.
Title Theory
a mortgage is a transfer of title, which severs a JT.
Lien Theory
a mortgage is merely a lien - the mortgagee doesn’t really take possession and so the JT is not severed. What happens to the mortgage if A dies?
2 views:
I. The survivor takes the decedent’s interest free of the mortgage,
2. The survivor takes subject to the mortgage (CA)
Ouster
IF the TIP wants to deny the rights of title and interest of the other tenant, he may do so by removing him from the property, keeping him from entering, or giving him notice. (Can’t just intend to oust, must give notice).
- An JTs have an equal right to possess the property despite percentage owned. TIP need not account to co-tenant for his use and enjoyment of premises. However, when there is an ouster, the TIP is liable for all rents and profits.
Partition
Every co-tenant has the right to force a partition, UNLESS there is an agreement otherwise
- The agreement must:
- Express a clear manifestation of intent. If ambiguous, court will rule in favor of partition.
- Not be for an unreasonable time (thus Cannot agree to never partition b/c it’s not reasonable); and
- Be fair and just.
*Defenses to an agreement not to partition:
- Changes in circumstances where the purpose for the agreement has been destroyed
- Breach of the agreement.
- Marital settlement agreements.
- Types:
I. Partition in Kind - Physical partition of property. Preferred, but seldom practical b/c
it’s hard to divide equally.
2. Partition by Sale - CT orders prop sold and proceeds divided. This is the most
common type.
- The practitioner has the right to force a sale.
- Frequently bought ought by wealthiest co-tenant, but could end in a bidding war.
- Court may adjust the percentages for a number of reasons.
Condos
Condos are a merger of 2 estates:
1. Interior of Unit - fee simple absolute subject to CCR (Covenants, conditions and
restrictions).
2. Common Areas - tenancy in common of a fee simple
- Each co-tenant is only severally liable for his pro-rata share of any damages caused in a
common area.
Time Shares
are basically condo ownership divided among several owners, each of whom has the exclusive right of occupancy and use for a specified time period.
Adverse Possession
where possession is actual and exclusive, open, notorious and visible, hostile and adverse, under claim of right or color of title, and continuous for the statutory period; the original owner will be barred from possession, and the possessor will have title as if he/she took by will/deed - though there is no actual instrument.
Color of Title
apparent title, i.e. a forged deed. Two possible advantages: All jurisdictions give the party w/ Color of Title constructive possession (title to the part that he actually possesses, and some jurisdictions grant a shorter period of AP for a party possessing under Color of Title.
Claim of Right
not “color of title” - claiming it as your own, and not under someone else (pretty much the same as hostile and adverse).
- No constructive possession
- Doesn’t mean possessor thinks they are correct, or that they have a right to be there;
only means that they are acting on their own right. A minority add a condition of
Good Faith, thus you must think you are right.
Tacking
adverse possession is the running of the SOL, and you can add (tack) successive periods of AP to meet the required SOL BUT there must be some sort of
relationship, called privity of estate - some relationship between the successors so as to raise them above the level of unrelated trespassers. Examples: Deed, inheritance, will, mortgage, gift.
Disabilty
— If the party trying to defeat the claim of AP has a disability (age/mental) it will toll the SOL from running. The disability cannot arise after the beginning of the
cause of action for AP, the disability must exist at the time the AP begins to toll the statute, and thus disabilities are not tacked.
- IF the property is subject to a future interest (i.e. reversion after a life estate) the adverse
possession SOL begins again when the future interest vests (i.e. when the tenant dies
Prescriptive easements
require open notorious USE, which does not have to be exclusive, but Adverse Possession requires actual and exclusive POSSESSION.
Boundary Line by acquiescence
similar to adverse possession - where the
boundary is uncertain, but there is an agreement as to where the boundary line should be, the
line is marked in some manner, and both sides occupy the land as if those boundaries were
correct for a sufficient period of time, then a new boundary by acquiescence is created.
Warranty Deed
contains either express or implied covenants for title,meaning the grantor will defend the title and indemnify the grantee should the grantee not get the type of estate the deed conveys.
Quitcalim Deed
conveys any interest the grantor has to the grantee, but contains no covenants for title. The grantor does not warrant that the deed contains anything. In effect
saying “you have what I have, if anything.”
- Both are equally effective for transferring real property,
- Purchasing under a QCDalone does not put one on inquiry notice,so that he/she is still a BFP(under recording act - below).
Elements of a modern deed
operative words, description, date and sign.
Grantor
Grantor - must be identified on the face of the deed
- Must be in existence (watch for corporation date of incorporation)
- Must have capacity to convey property (Watch for Infancy, Incompetency)
Grantee
Grantee must be able to identify, even if not from face.
- Must be in existence
- Can be blank provided that the grantor empowers the person to whom it is delivered to fill in the grantees name. (Womack v. Stegner - grantor gave grantee power to fill in his own name, but died before deed recorded. Held: the power to fill in the name was
coupled with an interest, and thus survives the death of the principle. Other cases, however, hold that a deed is a nullity until the name is filled in, and if the principle died,
the deed was null w/o an interest. This case is followed.)
- Capacity - common law -> grantee capacity required; modernly -> no
Operative Words
are in the Granting Clause - “A conveys to B”
- In older deeds there was a Habendum Clause - “To have and to hold to B and his heirs” However, it is redundant, and can conflict. HC’s are no longer necessary, and the GC will prevail over the HC if there is a conflict.
- No particular words are necessary but they must be sufficient to show intent to transfer. Typically: convey, transfer, sell, B&S, quitclaim. (“A warrants to B” is not
sufficient)
Description of the property
being conveyed - only has to be so a reasonable person can determine where the land is with reasonable certainty. (A tract home could be with an address, but a farm could not.) - Legal descriptions below
Dated and Signed by the grantor-
need not be signed by grantees. Most jurisdictions do
not require a witness or notary.
- Does not require consideration to be effective.
- Third Parties:
- Common Law - one cannot reserve an interest in property to a stranger to the title; still in effect in many jurisdictions.
- Modem Law - The CT must balance the injustice done by the common law rule against the grantor’s intent.
Reservations -
exists where the grantor passes her entire interest, but the grantee re-grants a new interest to the grantor, e.g. A to B reserving a LE in A.
Exception-
created where grantor passes her entire interest, except an existing interest, which would otherwise pass to the grantee, e.g. A to B excepting the eastern 50 feet.
- Reason for the difference - an easement is an interest in the property of another, and so it must be a newly created interest (reservation) b/c you cannot create an easement on your own property (an easement cannot be created via exception).
Rules of Construction where there is an Ambiguity in the Deed
The CT will look to the 4 corners of the instrument first, but if there is an ambiguity, the CT must interpret the words used to determine the parties’ intent in light of the surrounding circumstances. When the intent of the parties is not clear, the CTs resort to rules construction.construction.
Delivery
in order to make the deed operative, it must be delivered after signature. However,you cannot deliver a deed that is not valid.
- Defined- manifestation of intent to make the deed presently operative by placing the transaction beyond the power of the grantor to recall.
Fraud in the inducement
using fraud to induce delivery does not make it is voidb/c it was still delivered(the owner intended to make the deed presently operative by placing the
deed out of his/her control). However such a deed is voidable.Thus, the recording act may still apply.
Conditional Delivery
the deed is not “delivered” until the conditions are fulfilled
- Delivery Directly to Grantee— Majority - no oral conditions. Thus, if a deed is absolute on its face, and the delivery is directly to the grantee, extrinsic evidence cannot later be introduced to show that the delivery was conditional.
- However, extrinsic evidence can be introduced to show that there was no delivery at all.
Look for grantor manifestation of intent to immediately place the transaction beyond his ability to recall it at will.
Delivery to a Third Party (Escrow)
Delivery to a 3P escrow agent with oral condition,
however, is a valid delivery with a valid oral condition. IF the conditions are fulfilled, the deed is delivered, whether or not it actually moves anywhere. If the condition, express or oral, is not met, then there is no delivery,.
Legal Description
A description of the property in the deed must be sufficient to be found with reasonable certainty. However, it is better to have a legal description that describes the property concisely.
Ambiguities in the Legal Description
- IF ambiguous on the face, parole evidence is allowed to show the parties’ intent at the time the deed was created. In addition, CTs will look at what is on the ground (i.e. where is the house, brewery) to solve the ambiguity.
- CA doesn’t ask if there is an ambiguity on the face of the document, rather whether the words of the document are reasonably susceptible to the interpretation offered? If so then parole evidence is allowed.
