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To be categorized as a freehold, an estate must be
- (i) immobile (either land or some interest derived from or affixed to land) and
- (ii) for an indeterminate duration
The owner of a present estate has the right to currently _________ the property.
"Fee simple absolute" is
the most common form of property ownership and the broadest ownership interest recognized by law. It is absolute ownership of potentially infinite duration, is freely alienable (i.e., easily bought or sold), and has no accompanying future interest.
A defeasible fee is
ownership of potentially infinite duration. But, unlike a fee simple absolute estate, a defeasible fee may be terminated by the occurrence of an event.
A fee simple determinable is
a present fee simple estate that is limited by specific durational language (e.g., “so long as,” “while,” “during,” “until”), such that it terminates automatically upon the happening of a stated condition, and full ownership of the property is returned to the grantor. The fee simple determinable is freely alienable, devisable, and descendible, but it is always subject to the stated condition.
A fee simple subject to a condition subsequent is
a present fee simple that is limited in duration by specific conditional language. Typical language that indicates a fee simple subject to a condition subsequent: “provided that,” “on condition that,” “but if.”
Upon the occurrence of the stated condition, the estate automatically reverts back to the grantor. The grantor’s retained future interest is called a “__________________.”
possibility of reverter
What are the different ways that property can be transferred?
- Intestate Succession
Ownership interests are divided in time between __________ interests and ___________ interests.
present interests and future interests
What "magic words" create a fee simple?
"To X and his/her heirs"
If a grant of property is ambiguous, it will be considered to grant a
There is a presumption, when a grant is ambiguous, that a grantor conveys
fee simple, or the most that he or she has
A Defeasible Fee
- May be terminated by the occurrence of an event
- Is capable of lasting forever but also of being terminated early
- A condition will cut short the fee simple
A Fee Simple Determinable is
Limited by specific duration language. For example, "so long as," "until," "while."
Oliver conveys Blackacre "to Anna so long as the land is used as a farm." - this is an example of a:
Fee Simple Determinable
A Fee Simple Subject to Condition Subsequent
Is limited by specific conditional language. The grantor must exercise some right in order to take possession. Examples of conditional language include "provided," "but if," "on the condition that."
Oliver conveys Blackacre "to Anna, but if the land isn't farmed, Oliver may re-enter and re-take the property." This is an example of:
Fee simple subject to condition subsequent
A "possibility of reverter" is a
future interest held by a grantor following a fee simple determinable. The interest vests automatically after the durational period ends.
Oliver conveys Blackacre “to Anna and her heirs, so long as the land is used as a public park.” What future interest does Oliver have?
A possibility of reverter
A "right of entry" is a
future interest held by the grantor following a fee simple subject to condition subsequent. It does not vest automatically; it must be reclaimed.
Oliver conveys Blackacre "to Anna and her heirs, but if the land isnot used as a public park, Oliver can re-enter and re-take.” What future interest does Oliver have?
A right of reentry. Oliver must exercise the right of entry in order for it to become possessory.
A "Fee Subject to Executory Interest" is
Will end upon the happening of an event and the future interest will vest in a third party. It is held by another person and not the grantor.
Oliver conveys Blackacre “to Anna and her heirs, but if liquor isserved on the premises, then to Ben and his heirs.” What interests do the parties have?
- Anna has a fee subject to executory interest.
- Ben has an executory interest.
- Oliver has nothing.
An "executory interest" is a
A future interest that will divest, or terminate, an earlier interest.
Oliver conveys Blackacre “to Anna.” What do the parties have?
- Anna has a fee simple
- Oliver has nothing
Oliver conveys Blackacre “to Anna while the land is used for school purposes.” What interests do the parties have?
- Anna has a fee simple determinable (note the use of "while")
- Oliver has a possibility of reverter
Oliver conveys Blackacre “to Anna while the land is used for school purposes, then to Ben.” What interests do the parties have?
- Anna has a fee simple subject to executory interest
- Ben has an executory interest
- Oliver has nothing
Oliver conveys Blackacre “to Anna, but if Anna gets a pet, Oliver may re-enter and re-take.” What interests do the parties have?
- Anna has a fee simple subject to condition subsequent (note the "but if" language)
- Oliver has a right of re-entry
_________; a future interest held by a grantor after a fee simple subject to a condition subsequent is a _________.
possibility of reverter, right of entry
A "life estate" is defined as
a present estate that is limited by a life
If possession of the land goes back to the grantor after the life estate ends, then the grantor retains a ___________
Oliver conveys Blackacre “to Anna for life.” What interests do the parties have?
- Anna has a life estate
- Oliver has a reversion, and upon her death, takes Blackacre in fee simple absolute
If possession of the land goes to a third party after the life estate ends, then the third party takes a __________
______________ waste occurs when through voluntary conduct of the person in possession, there is a decrease in the value of the property.
______________ waste occurs when through the neglect of the person in possession, there is a decrease in value of the property
______________ waste occurs when the person in possession changes the property, causing an increase in value of the property
When there is ambiguity as to the type of concurrent estate, there is a presumption that the estate is a _______________ .
tenancy in common.
A "concurrent estate" is defined as a
ownership or possession of real property by two or more persons simultaneously.
Name the three kinds of concurrent ownership/concurrent estates:
- 1. Tenancy in Common
- 2. Joint Tenancy
- 3. Tenancy by the Entirety
A "Tenancy in Common" is defined as:
The default concurrent interest. Any conveyance to more than one person is assumed to be a Tenancy in Common. Concurrent owners have separate but undivided interests in the property. There is no right of surv
Some characteristics of a Tenancy in Common are:
- No right of survivorship
- Each owners interest is seperate but undivided
- The shares do not have to be equal amounts
- Each co-tenant can transfer his interest freely at death as well as during life
What is a Joint Tenency
defining characteristic is the right of survivor-shop, whereby the surviving joint tenant automatically takes the deceased tenant's interest.
How does a grantor create a joint tenancy?
The grantor must make a clear expression of intent, PLUS there must be survivorship language, e.g. "as joint tenants with a right of survivorship."
To create a Joint Tenancy, what four unities must be in place?
- Possession: Requires every joint tenant have an equal right to possess the whole of the property
- Interest: Joint tenants must have an equal share of the same type of interest
- Time: Joint Tenants must receive their interests at the same time
- Title: Joint tenants must receive their interests in the dame instrument of title
Any lien against a joint tenant’s interest ______________________upon that tenant’s death, so the surviving tenants’ interests are not____________.
If any of the unities are severed, then the joint tenancy is terminated and turns into a _____________________.
Tenancy in Common
A joint tenant grants a mortgage interest in the joint tenancy to a creditor.Does the mortgage sever the joint tenancy?
- Majority: Most jurisdictions follow a lien theory. The mortgage is treated as a lien and does not destroy joint tenancy.
- Minority: A minority of jurisdictions follow a title theory. The mortgage severs title and the tenancy between the joint tenants and creditor is converted into a tenancy in common.
A joint tenant leases her share in the property to a tenant. Does the lease sever the joint tenancy?
Some jurisdictions hold that the lease severs the joint tenancy. Other jurisdictions treat the lease as a temporary suspension of the joint tenancy.
What is a Tenancy by the Entirety?
- Joint tenancy between married persons
- Marriage is fifth unity (sometimes called the unity of person)
- Has right of survivorship
- Tenants by the entirety cannot alienate or encumber their shares without the consent of their spouse.
- Magic words: Property conveyed “as tenants by the entirety, with a right of survivorship”
Each co-tenant has right to possess _______________ of the property, regardlessof that co-tenant’s share and regardless of the type of co-tenancy, unless the co-tenants have entered into an agreement to the contrary
Ouster is when
Co-tenant in possession denies another co-tenant denies to the property (e.g., one tenant changes the locks)
Rent received from a third party’s possession of a property owned by co-tenants, are divided based on _______________________ of each co-tenant, minus operating expenses.
In the context of a co-tenancy, what is a "partition?"
Equitable remedy available to all holders of a tenancy in common or a joint tenancy. A court will divide the property into distinct portions. Courts have a preference for a physical division, rather than a partition by sale.
In the context of a co-tenancy, a court will order a partition by sale when
physical partition is not practical; OR not fair to all parties. Proceeds from a partition by sale are divided among the co-tenants based upon their ownership interests.
If co-tenants agree not to partition, for such an agreement to be enforceable, the agreement must be
clear, and the time limitation is reasonable.
In the context of future interests, what are "executory interests?"
A future interests in a third party that divests a prior vested interest.
What are the two kinds of executory interests?
- Springing Executory Interests: divests the grantor
- Shifting Executory Interests: Divests the prior grantees
The characteristics of remainders are
- The follow life estates
- Cannot follow a vested fee simple
- Can be vested or contingent
- RAP applies only to contingent remainders
A vested remainder is an interest that is
- 1) Given to an ascertained grantee (i.e., someone who can be identified); and
- 2) Not subject to a condition precedent (i.e., a condition that must be satisfied in order for the interest to vest)
Remainders that are "vested subject to open" are
- vested remainders in a class gift; AND
- full class membership is unknown
At least one person in the class must be vested for it to be vested subject to open; if no one in the class has vested, the remainder is contingent. When all members of a class are identified, the class is “closed.”
The "Rule of Convenience"
- Prevents classifying an interest as vested subject to open and therefore avoid the Rule Against Perpetuities.
- If the grantor doesn’t have an express closing date, the Rule of Convenience closes the class when any member of the class becomes entitled to immediate possession.
The "Doctrine of Worthier Title"
- Prevents against remainders in the grantor's heirs
- Creates a presumption in a reversion to the grantor.
Oliver conveys “to Anna for life, then to my heirs.” What future interest does Oliver retain under the Doctrine of Worthier Title?
The "Rule in Shelley's Case"
Prevents against remainders in a grantee's heirs. Uses doctrine of merger to create a fee simple.
Oliver conveys “to Anna for life, then to Anna’s heirs.” What estate does Anna have under the Rule in Shelley’s case?
a fee simple
The Rule Against Perpetuities does not apply to ______________.
By what method should you analyze whether a problem satisfies RAP?
- When, what who?
- When: Identifying when the interests are created
- What: Determine if interests created are subject to RAP
- Who: Identify the relevant and, if applicable, validating lives
What kind of interests does RAP apply to?
contingent remainders and executory estates. Applies also to vested remainders subject to open if remainder not closed by rule of convenience
Under RAP, to be a "validating life" it must be
- Must be alive when the interests are created
- Can validate her own interest
- If there is no validating life, then the interest is no good and we strike it from grant
Oliver conveys Blackacre “to Anna, but if the land is ever used as a business during Anna’s lifetime, to Ben.” What interests are created.
Anna has a fee simple subject to executory interest. Ben has an executory interest and Oliver has nothing.
Oliver conveys “to Anna so long as the property is used as a farm,then to Ben.” What interests are created?
Because of RAP, the offending language of "then to Ben" is struck, and Anna receives a fee simple determinable, Oliver has a possibility of reverter, and Ben gets nothing.
Oliver conveys “to my grandchildren who reach 21.” Oliver has two children, Anna and Ben, and three grandchildren under the age of 21. What interests are created?
Because of RAP, the offending language of "to my grandchildren who reach age 21" is struck, and Oliver is left with a fee simple absolute, and the grandkids get nothing.
If a portion of a transfer is found to violate the Rule Against Perpetuities, then how will courts treat the transfer?
The portion of the transfer that violates the rule is void, and the rest is valid.
What is the special rule that pertains to class gifts that violate RAP?
If the gift to any member of the class is void under RAP, then the gift is void as toall members of the class. The gift is “bad as to one, bad as to all.” (The "all or nothing" rule.)
What is the "Rule of Convenience," as it pertains to RAP?
Can save a class gift from being invalidated under RAP. For purposes of avoiding RAP, the class closes as soon as a member of the class is entitled to immediate possession.
RAP does not apply to a gift from one _____________ to another ____________.
charity to another charity
RAP does not apply to _______________ held by a current tenant to purchase a fee interest in the leasehold property.
- creates both a contract and a property interest
- Landlord-tenant law is a mix of contract law and property law.
Four types of estates that can govern the landlord-tenant relationship, i.e., tenancies:
- 1) Tenancy at will
- 2) Tenancy for Years
- 3) Tenancy at Sufferance
- 4) Periodic Tenancy
What is a Tenancy for Years, and how is it created/terminated?
It is a tenancy measured by a fixed and ascertainable amount of time. To create one, requires an agreement by the landlord and the tenant, demonstrating the intent to create a tenancy for years. Note: if the agreement is for longer than a year, it must be in writing, per the SAF. Termination occurs naturally upon expiration of the lease or the tenants surrenders the least, or the tenant or landlord commits a material breach.
What is a "periodic tenancy?"
Estate that is repetitive and ongoing for a set period of time. Renews automatically at end of each period until one party gives notice of termination.
How is a periodic tenancy created?
Parties must intend to create a periodic tenancy Intent can be express (e.g., a signed lease) or implied (e.g., payment of rent)
How is a periodic tenancy terminated?
Renews automatically until proper notice is given. Proper notice means the terminating party gives notice before the start of what will be the last term. Notice is effective the last day of the period.
What is a tenancy at will?
A tenancy that may be terminated by either landlord or tenant at any time, for any reason.
How is a tenancy at will created and terminated?
It can be created by express grant or by implication. It can be terminated by either party without notice, unless the agreement states otherwise. However, if the agreement gives the landlord the right to terminate at will, the tenant gets the right automatically, but not vice versa. If the landlord dies, the tenancy terminates.
What is a tenancy at sufferance?
When a tenant holds over after the lease has ended. It is a temporary tenancy that exists before the landlord either evicts the tenant or re-rents the property to the tenant. The terms of the prior lease control.
Distinguish between a tenancy at will and a tenancy at sufferance:
- Tenancy at will: Created by the agreement of the landlord and tenant
- Tenancy at sufferance: Created by the actions of the tenant alone
What are the three ways a tenancy at sufferance will terminate:
- The tenant voluntarily leaves
- The landlord evicts the tenant
- The landlord re-rents to the tenant
Equitable servitudes are
covenants about land use that are enforced in equity by injunction. For an equitable servitude to exist, there must be a written agreement that reflects an intent for the restriction to be enforceable by and against successors in interest. In addition, the restriction must touch and concern the land, and the person against whom the servitude is to be enforced must have notice of the restriction.
A taking has occurred when
the governmental regulation results in a permanent physical occupation of the property.
An easement by necessity is created when
property is virtually useless without the benefit of an easement across neighboring property. Both the dominant and servient estates must have been under common ownership in the past. The necessity of the easement must have arisen when the unified property was severed into the dominant and servient estates.
Under the Statute of Frauds, a land sales contract must:
(i) be in writing, (ii) be signed by the party to be charged, and (iii) contain all of the essential terms (i.e., parties, property description, terms of price and payment).
Equitable servitudes are
covenants about land use that are enforced at equity by injunction. For a servitude to be enforced at equity, it must be in writing and meet the following requirements: (i) there must be intent for the restriction to be enforceable by and against successors in interest, (ii) the servitude must touch and concern the land, and (iii) the person against whom the servitude is to be enforced must have notice (whether actual, record, or inquiry notice) of the servitude.
A future interest held by a grantor after a fee simple determinable is a _________; a future interest held by a grantor after a fee simple subject to a condition subsequent is a _________.
possibility of reverter, executory interest
A remainder is contingent if it is created in a grantee that
is not ascertained.
A tenant has two basic duties:
- 1. pay rent
- 2. avoid waste
There are three situations in which a tenant's duty to pay rent is suspended:
- 1) Premises are destroyed,so long as the tenant didn’t cause the damage
- 2) The landlord completely or partially evicts the tenant
- 3) the landlord materially breaches the lease
What is the covenant of quiet enjoyment?
The tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the tenant is constructively evicted.
What are the elements of constructive eviction?
- 1) The premises were unusalbe for their intended purpose
- 2) The tenant notified the landlord of the problem
- 3) the landlord does not correct the problem; and
- 4) the tenant vacates the premises after a reasonable amount of time has passed
What is the implied warranty of habitability?
The landlord has an obligation to maintain the property such that it is suitable for residential use. We are concerned with conditions that threaten tenant health and safety. The tenant cannot waive habitability protection. The landlord’s failure to comply with applicable housing codes constitutes a breach. Applies to residential properties, usually multi-family buildings;not to commercial leases
Regarding a tenant's duty to avoid waste:
The duty to avoid waste is a background rule; does not have to be writing in a lease in order to apply. The tenant has a duty not to commit affirmative (voluntary) waste or permissive (neglectful) waste. A tenant may make changes to the property that increase the property’s value (“ameliorative waste”). Landlords usually require permission before a tenant can make the change.
Regarding the "Duty to Repair":
In a residential lease, the landlord is presumed to be responsible for repairs. The tenant must notify the landlord of any needed repairs. However, the landlord is not responsible to make repairs caused by the tenant's actions. In a commercial lease, the landlord can place the duty to repair on the tenant.
Concerning the landlord's "Duty to Mitigate":
According to the majority rule, if a tenant abandons the property early or is evicted by the landlord, the landlord must make reasonable efforts to re-rent the property. If the landlord does not make diligent efforts to mitigate, the tenant is relieved from obligation to continue paying rent. The landlord will be entitled to the difference between the original rent and the rent received from the replacement tenant. According to the minority rule, the landlord does not have to mitigate damages. The minority rule is more common in cases involving commercial leases.
How can a landlord deal with a holdover tenant?
- 1. Evict the tenant
- 2. Continue the relationship with the tenant by treating the holdover as a periodic tenant. The amount of rent is the same as under the old lease, unless the landlord notified the tenant of the increase prior to the expiration of the old lease.
What is the "Duty to Deliver Possession"?
Under the majority rule, the LL must deliver actual possession of the leasehold premises. This means physical possession of the property. Under the minority rule, the LL was only required to deliver legal possession.
quiet enjoyment is violated when
the landlord, or someone connected to the landlord, renders the premises unsuitable for the intended purpose. The landlord must control common areas and nuisance-like behavior of other tenants, but is not responsible for off premises actions of third parties.
The landlord’s liability to invitees, licensees, and foreseeable trespassers is:
- Responsible in negligence for latent or hidden defects about which the tenanthas not been warned
- Responsible for faulty repairs completed by the landlord (or the landlord’s agent) negligently
- Responsible for negligence that causes injuries in common areas of the property
a complete transfer of the tenant’s remaining term.
a transfer for less than the entire duration of the lease.
In an assignment, the landlord can collect rent from:
- the tenant (privity of contract), or
- the subsequent tenant (privity of estate)
In a sublease, the landlord can collect rent from:
the original tenant (privity of contract and estate). The subtenant only has rent obligations to the original tenant
Can the landlord deny permission to a transfer of the lease?
- Majority Rule: A landlord may deny permission to a transfer only for a commercially reasonable reason
- Minority Rule: A landlord may deny permission at her discretion,which means for any reason or no reason at all.
What conduct is covered under the Fair Housing Act?
- Refusing to rent
- Requiring different rents
- Falsely denying that a unit is available
- Providing different services to facilities
- stating a discriminatory preference in an advertisement
What are the four elements of adverse possession?
- Continuous for the statutory period
- open and notorious
- hostile to the true owner
- exclusive possession
In the context of adverse possession, what is "tacking?"
If the adverse possessor cannot satisfy the continuity requirement on her own, she can tack on her predecessor’s time on the property to satisfy the statute of limitations. To tack the time of adverse possession of a prior adverse possessor, the current adversepossessor must be in privity with the prior adverse possessor
In the context of adverse possession, what effect do disabilities have on calculating time?
The statute of limitations will not run against a true owner who has a disability at the time the adverse possession begins. Common examples of disabilities include infancy, imprisonment, or insanity. The disability must exist WHEN THE TRESPASSER ENTERS THE PROPERTY
How does a true owner stop a person from taking property through adverse possession?
A true owner can interrupt the adcerse possession period by ejecting the adverse possessor. This will stop the adverse possession clock.
In the context of adverse possession, to be "open and notorious" means that
the use must be such that it would put a reasonable true owner on notice of the adverse use.
In the context of adverse possession and the requirement that the possessor be "hostile" to the true owner's interest, what is the majority rule?
Does not inquire into the adverse possessor’s state of mind
In the context of adverse possession and the requirement that the possessor be "hostile" to the true owner's interest, what is the minority rule?
- Inquires into the adverse possessor’s state of mind. There are two camps:
- Good Faith: Some jurisdictions require that the adverse possessor thinks the land is unowned or that she is the rightful owner. This is adverse possession based on a mistake.
- Bad Faith: Other jurisdictions require that the adverse possessor tries to acquire title to the property by adverse possession. This is adverse possession based on an aggressive trespass.
What is constructive adverse possession?
Adverse possessor enters under color of title from an invalid instrument (e.g., fraudulent deed) and occupies a portion of the property described in the instrument. The adverse possessor is in actual possession of the occupied land and constructive possession of remaining land described in the deed.
What are the two stages of a land sale contract?
- Contract stage: Any liability must be based on a contract provision
- Deed stage: Any liability must be based on a deed warranty
What is the "Doctrine of Merger?"
Covenants under the contract are merged into the deed and therefore can’t be enforced unless the covenant is also in the deed.
Under the doctrine of attornment, the tenant is
bound to honor any covenant in his lease that has been assigned by the landlord to a third party, if the covenant touches and concerns the land.
The right of a tenant upon condemnation
depends upon whether the condemnation is partial or complete. If the condemnation is partial, meaning only a portion of the leased property is taken, the tenant must continue to pay rent. The tenant is entitled to compensation for the portion that was taken.
under the doctrine of marshaling of assets, how can junior interests protect their interests in the event of foreclosure?
Generally, upon default of an obligation, a mortgagee may foreclose on any and all parcels of real property of the mortgagor that serve as security for the obligation. If there are junior security interests with respect to some of those parcels of real property, however, those junior interests may petition the court for protection of their interests under the doctrine of marshaling of assets. Under this doctrine, the holder of a senior security interest must first proceed against the property on which there are not any junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created.
When can the right of redemption be used?
Until property that is subject to a mortgage or a deed of trust is foreclosed upon by sale, the borrower has a right to redeem the property by satisfying the obligation for which the property serves as security. While this right may be waived after the borrower has defaulted, the terms of the mortgage or deed of trust cannot waive this right as a matter of course.