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If a Seller breaches in good faith, what is the Buyer's remedy?
Out of pocket expenses
Is failure to close on a specified date a breach?
Not unless the parties expressly state that "time is of the essence." If time is of the essence, liable for damages.
By her validly executed will, a testator devised a certain tract of land to her son for his life with remainder to such of his children as should be living at his death, "Provided, however, that no such child of [the son] shall mortgage or sell, or attempt to mortgage or sell his or her interest in the property prior to attaining 25 years of age: and, if any such child of [the son] shall violate this provision, then upon such violation his or her interest shall pass to and become the property of the remaining children of [the son] then living, share and share alike." The testator's will included an identical provision for each of her four other children concerning four other tracts of land. The residuary clause of the will gave the residuary estate to the testator's five children equally. The testator died and was survived by the five children named in her will and by eleven grandchildren. Several additional grandchildren have since been born. In an action for a declaration of rights, it was claimed that the attempted gifts to the testator's grandchildren were entirely void and that the interests following the life estates to the testator's children passed to the children absolutely by the residuary clause. Assuming that the action was properly brought with all necessary parties and with a guardian ad litem appointed to represent the interests of unborn and infant grandchildren, the decision should be that
even if the provisions against the sale or mortgage by the grandchildren are void, the remainders to the grandchildren are otherwise valid and given effect. Remainders held by grandchildren are a fee simple subject to an executory int. The exec int is held by the grandchildren who do not sell. This condition is void under RAP. Therefore the exec int is struck leaving the grandchildren with remainders as a fee simple absolute.
Which makes title unmarketable?
a) zoning ordinance
b) uncertainty of the restrictions that affects the title
What are the ways property can be transfered?
- 1. sale
- 2. gift
- 3. devise (will)
- 4. intestate succession
Ownership interests are divided in
time between present and future interests
- - largest
- - can last forever = no future interest
- - default estate (in case of ambiguity)
- - creation: "and his or her heirs" ; "O to A" not rqd
Fee simple determinable
- - limited by durational language ("so long as, while, during, until)
- -future int = Possibility of reverter interest vests AUTOMATICALLY
Fee simple subject to condition subsequent
- - limited by specific conditional language (but if, provided that, on the condition that)
- - future interest = Right of Entry must be reclaimed by suing
Fee Simple Subject to Executory Interest
- - Will end upon the happening of an event and the future interest will vest in a 3rd party
- -Oliver conveys Blackacre “to Anna and her heirs, but if liquor is served on the premises, then to Ben and his heirs.”
- (Anna = Fee Simple subject to executory interest; Ben has an executory interes)
Future interests following a life estate
- 1. Reversion - if possession of land goes back to the grantor after the life estate ends
- 2. Remainder - if possession of land goes to a third party after the life estate ends
Types of waste
- 1. Affirmative,
- 2. permissive,
- 3. ameliorative
How to spot a waste problem?
1. Do multiple parties have simultaneous interests, (e.g., life tenant, remainder, future interests, Landlord vs. Tenant)?
2. Is there a change in the value of the property due to the actions/inactions of the party in possession?
3. Will the waste substantially change the interest taken by the party out of possession?
Types of Concurrent Estates
- 1. Tenants in Common
- 2. Joint Tenants
- 3. Tenancy by the Entirety
Tenancy in Common
- - Default concurrent estate
- - Concurrent Os have separate but undivided interests in the property
- - NO right of survivorship
- Right of survivorship
- 1. Grantor must make a clear expression of intent AND
- 2. Must be survivorship language "as joint tenants with a right of survivorship"
- Need 4 unities:
- 1. Unity of possession: equal right to possess the whole of the property
- 2. Unity of Interest: Must have equal share of same type of interest
- 3. Unity of Time: Must receive ints at same time
- 4. Unity of Title: Must receive ints in same instrument of title
- Severance: if any unity severed, joint tenancy terminated and turns to tenants in common
Common ways to sever a joint tenancy
Destroy one of the 4 unities
- Intervivos transfer: transfer during life will destroy the right of survivorship and convert the estate into a tenancy in common
- Mortgage: a joint tenant grants a mortgage int to the joint tenancy to a creditor. (Majority Lien Theory = joint tenancy not destroyed; Minority Title Theory = mortgage severs joint tenancy)
- Leases (Some JXs = lease severs; others = temporary suspension of tenancy)
What happens to a lien on a joint tenant's int after his death?
It terminates and does not encumber the other joint tenants
Tenancy by the Entirety
- - Joint tenancy btwn married spouses
- - right of survivorship
- - Cannot alienate or encumber shares w/o consent of other spouse
Permits the reduction or elimination of a devise when the assets of the estate are insufficient to pay all debts and satisfy all devises. A general devise (e.g. a bequeath of $) is sacrificed to honor a specific devise
Applies only to specific and not general devise
life tenant liability for damage caused by third party negligence
If no titile is acquired, can you still have eminent domain?
No. Would need to argue for AP
If there is no dedication statute for schools, is it enough that the deed intended to give the school the property for the school to own it?
Who owns legal title in a Title theory state?
The Mortgagee (Lender)
Who owns title to the land in a Lien Theory state?
The Mortgagor until foreclosure