Estate passes directly to lineal blood descendants no matter what (virtually abolished).
In Grantor -- Reversion; In Third Party -- Remainder
Fee Simple Determinable
How to Create
"To A for so long as . . . " etc. -- Clear durational language
If condition is violated, land is automatically forfeited.
Possibility of Reverter in Grantor
Fee Simple Subject to Condition Subsequent
How to Create
"To A, but if X occurs, grantor reserves right ot re-enter and retake." (Clear durational language and right to re-enter)
If condition is violated, forfeiture is NOT automatic, but at grantor's option
Right of Entry
Fee Simple Subject to Executory Limitation
How to Create
"To A, but if x occurs, then to B."
If condition is broken, estate automatically vests in third party.
Shifting or Springing Executory Interest
When is an absolute restraint on alienation permitted?
When it is linked to a reasonable, time-limited purpose.
Life Estate [pur autre vie]
How to Create
"To A for life." For LE pur autre vie: "To A for life of B"
Life tenant entitled to ordinary use/profits of land, but cannot commit waste.
Grantor: Reversion; Third Party: Remainder
Types of Waste
Voluntary/Affirmative Waste -- overt conduct that causes drop in value
Permissive Waste -- Neglect
Ameliorative Waste -- Acts that enhance properties value
When can a tenant consume or exploit natural resources on property w/o being liable for waste?
Prior Use -- Prior to grant, land was used for exploitation
Repair -- Can use resources to repair or maintain
Grant -- If tenant granted the right
Exploitation -- If land is only suitable to exploit
Open Mines Doctrine
Life tenant may continue to mine but is limited to mines already open.
Types of Vested Remainders
Indefeasibly vested remainder
Vested Remainder Subject to Complete Defeasance (aka Total Divestment)
Vested Remainder Subject to Open
When is a remainder "vested"?
Created in an ascertainable person, and
Not subject to condition precedent
Rule of Destructibility of Contingent Remainders
At common law, contingent remainder was destroyed if not vested by the time the preceding estate ended.
Today, rule is abolished. Grantor holds the estate subject to springing exec. interest
Rule in Shelley's Case
At common law rule of law: if "to A for life, then, on A's death, to A's heirs" and A is alive = A has FSA
Today: Abolished, A has life estate and A's heirs have contingent remainder
Doctrine of Worthier Title
If "to A for life, then to O's heirs" and O is alive, then contingent remainder in O's heirs is void and O has a reversion.
Note: A rule of construction, clear intent of parties can override.
Indefeasibly Vested Remainder
Holder of remainder is certain and no way to lose land in future: "To A for life, then to B"
Vested Remainder Subject to Complete Defeasance
Remainderman's right to possession is subject to condition subsequent
"To A for life, then to B, provided, however, that if B dies under the age of 25, to C" and B is 20 y.o.
Vested Remainder Subject to Open
Remainder is vested in a group of takers, at least one of whom is qualified to take, but other members might still join.
"To A for life, then to B's children" and B is still alive with one child.
Rule of Convenience
In case of Vested Remainder Subject to Open, a class closes whenever any member can demand possession.
Shifting Executory Interest
An executory interest that divests a transferee (i.e., not the grantor)
Springing Executory Interest
Cuts short grantor's fee
Steps to Approach RAP Issue
Determine if applies: must be cont. rem., exec. int., or some vest rem. subj. to open
Identify conditions precedent to vesting
Find measuring life -- person alive at conveyance that is relevant
Ask: Will we know w/in 21 years of the death of measuring life if condition will be met?
Bad as to one, bad as to all rule
Any conveyance violating the RAP for one member of the class invalidates the entire class's conveyance.
Charity to Charity Exception to RAP
RAP is never violated if the gift is from one charity to another (both transferees must be charities)
"To Red Cross, so long as used for medical purpose, and if this ceases then to YMCA." -- This is okay.
Reform to RAP: "Wait and See"
Majority Reform -- Validity of conveyance is determined at the end of measuring life.
Unif. Statutory RAP (RAP Reform)
Codifies common law RAP, but also gives alternative of 90 year vesting period.
Cy Pres Doctrine (RAP Reform)
Both "wait and see" reform and USRAP:
Allows court to reform conveyence that violates RAP in a way that closely approximates original intent.
Also, reduces offending age limits to 21 y.o.
How to Create
Four unities and grantor clearly expresses right of survivorship
If one person dies, the other one gets their share. JT can alienate but not devise/descend
The Four Unities (Joint Tenancy)
Time -- Acquired at same time
Title -- Acquired in same instrument
Possession -- Right to possess the whole
How to Severe a Joint Tenancy
Sale -- Can sell share (even covertly), or even merely enter contract to sell (equitable conversation)
Partition-- (a) by agreement, (b) In Kind -- physical division, and (c) Forced sale -- Court sale
Mortgage -- In title theory states, mortgage destroys unities
Tenancy by the Entirety
How to Create
Conveyance to married couple w/ right of survivorship (presumed when selling to married couple unless stated otherwise)
(a) Creditors of only one spouse can't touch this and (b) neither tenant can unilaterally convey
Tenancy in Common
How to Create
Default conveyance to multiple people
Each tenant owns a portion, but has right to possess the whole. (Freely alienable, devisable, descendable.)
Tenancy for Years (and notice req. to terminate)
A lease for a a fixed period of time (could be one day or 50 years)
No notice required
Periodic Tenancy (and notice req. to terminate)
Lease that continues for successive intervals until proper notice to terminate.
Notice at least equal to period itself (or as agreed) but in a year to year only 6 mos. notice
Tenancy at Will (and notice req. to terminate)
Tenancy of no fixed duration (must be expressly agreed to or court will find implied periodic tenancy)
CL -- Terminated by either party at will. Now -- Reasonable notice by LL needed
Tenancy at Sufferance (and notice req. to terminate)
Created when tenant has wrongfully held over past expiration of lease
Terminates on eviction or when LL elects to hold TT to a new tenancy
Tenant's Duty to Third Parties
Must keep premises in reasonably good repair.
TT is liable for injuries to licensees and invitees, even if LL promised to make all repairs.
Tenant's Duty to Repair
TT must maintain premises and make ordinary repairs
TT must not commit waste
TT cannot remove fixtures
Landlord's Options When TT Fails to Pay Rent But Leaves the Premises
Surrender -- Treat TT's abandonment as "surrender"
Ignore (Min) -- Ignore vacation and hold TT responsible for unpaid rent as if he was still there
Re-Let (Maj.) -- Rent premises on TT's behalf, and hold him liable for any deficiency.
Duty to Deliver Possession
Implied Covenant of Quiet Enjoyment
Implied Warranty of Habitability
LL's Duty to Deliver Possession
English Rule (Maj) -- LL must put TT in physical possession of the premises
American Rule (Min.) -- LL need only put TT in legal possession
LL's Duty of Implied Covenant of Quiet Enjoyment
T has right to quiet use and enjoyment w/o LL interference
Can Breach by wrongful or constructive eviction
LL not liable for acts of other tenants, except:
LL must not permit nuisance
LL must control common areas
LL has not physically removed the TT, but has allowed conditions to become so unbearable that tenant has no choice but to move out.
Substantial Interference -- Chronic problem that interferes with use of premises.
Notice -- TT told LL of problem, but LL doesn't fix
Goodbye -- TT must vacate w/in reasoanble time after LL fails to fix.
Implied Warranty of Habitability
Applies only in residential leases and is non-waivable.
Premises must be fit for basic human dwelling.
When Implied Warranty of Habitability Is Breached
- Move out & end lease
- Repair & deduct
- Reduce or withhold rent
- Remain in possession & sue for money damages (key distinction from Constructive Eviction)
Assignment vs. Subleasing
T1 transfers all remaining lease term to T2
LL & T1 = Privity of K, LL & T2 = Privity of Estate
T1 transfers a portion of remaining lease term to T2
LL & T1 = Privity of K & Estate, LL & T2 = Nothing
What are the Landlord's Tort Liabilities?
No duty to make the premise safe.
C: Common areas (hallways & stairwells)
L: Latent Defects rule (duty to warn not repair)
A: Assumption of repairs (complete with reasonable repair)
P: Public use rule (convention hall & museum)
S: Short term lease of furnished dwelling
Definition of Easement
A nonpossessory property interest that entitles its holder to use or enjoyment of the serviant tenement
Note: Can be affirmative or negative.
What is a negative easements and when can they be formed?
Entitles holder to prevent the servient landowner from doing something when his land. Must be express and in writing, signed by the grantor.
Stream water from artificial flow
When can an easement be transferred?
Benefit -- follows the land automatically.
Burden -- follows the land automatically, except to BFP.
Not transferable, unless the easement serves a commercial purpose -- then can sell to others
How can an Affirmative Easement be formed?
Perscription -- Like Adv. Poss.
Implication -- Apparent prev. use.
Grant -- Express agreement
How can an implied easement form (i.e., easement formed by implication)?
Previous use was apparent, and
Parties expected it to continue b/c it was reasonably necessary to dominant land's use and enjoyment
How is an easement made by prescription?
Continuous use for stat. period
Open and notorious use
Hostile use (i.e., w/o consent)
How can an easement by terminated?
Estoppel -- detrmtly relies on promises that won't use
Necessity -- Ends as soon as necessity ends
Destruction of servient land -- no fault of owner
Condemnation by eminent domain
Release -- written release
Abandonment -- physical action to never use again
Merger-- dom and serv land vested in same person
Perscription -- COAH
License: What is it and when can't it be revoked?
Ticket -- freely revokable licenses
Unenforceable Easement -- when SoF bars easement, it becomes freely revokable license
Note: Estoppel will bar revocation when licensee invested "substantial money, labor, or both" in reasonable reliance on continuation
What is a Profit?
Entitles holder to enter servient land and take soil or some substance of the soil (i.e., minerals, timber, or oil)
What is a covenant and how does it differ from an easement?
Its a promise to do or not do something related to land.
Unlike easement because does not grant a property interest, but rather a contractual limitation/promise.
Requirements for Burdens to Run (Real Covenants)
Wealthy Indians Taunted Horrible Vacationers
Writing -- original promise in writing
Intent -- Orig. parties intended it to run w/ land
Touch & Concern Land -- effects rights as landowners
Horizontal Privity -- Succession of estate
Vertical Privity -- Non-hostile nexus
Requirements for Benefits to Run (Real Covenants)
Wealthy Indians Tout Victory
Writing -- orig. promise in writing
Intent -- orig. parties intended to run
Touch & Concern -- affects parties as landowners
Vertical Privity -- Non-hostile nexus
Requirements for Equitable Servitude to Run
Writing -- Generally, original promise in writing
Intent -- Orig. parties intended to run
Touch & Concern Land -- Affects parties as land owners
Notice -- successors to land had notice
The Implied Equitable Servitude (General or Common Scheme Doctrine)
Subdivider had general scheme of residential development which included B's lot, AND
B had notice of the promise contained in prior deeds
Defense to Equitable Servitude
Changed Conditions -- Changes are so pervasive that entire area has changed
Adverse Possession (Elements)
Continuous for statutory period
Open & Notorious -- Ownerlike use
Actual -- Literal entry
Hostile-- No consent
Note: Possessor's subjective intent is irrelevant.
Requirement for Tacking in Adv. Possession Context
Must be privity: any non-hostile nexus.
Ouster does not count
"Defense" to Adv. Possession based on owner's mindset
Disability -- Cannot adv. poss. if owner was disabled at start of adverse possession period.
"Disabilities" -- Insanity, infancy, imprisonment
How does assignment effect relations between landlord and T1?
-assignment doesn't release T1 from contractual obligations w/ LL
-assignee is in privity of estate w/ LL and is liable on all covenants in lease that run w/ the land
-covenants to pay rent and to perform physical acts on property run w/ the land
Can LL retaliate against tenant?
-if tenant exercises legal right to report housing/building code or other statutory rights violation, LL can't terminate tenant's lease in retaliation
-LL also barred from penalizing tenant in other ways, such as raising rent
0this protect is recognized by residential landlord-tenant acts in nearly 1/2 of all states
What are fixtures?
Items of personal property that have been so permanently annexed to the realty that they are regarded as part of the real property
Can tenant remove chattel from property?
modern view: yes, as long as removal doesn't cause substantial damage to the premises or destruction of the chattel
What are LLs options when tenant stays past termination of lease?
-declare T trespasser and commence eviction proceedings
-make written demand for possession
-bind T to new periodic tenancy by operation of law on same terms as original lease
When can license ripen into an easement by estoppel?
where there is detrimental reliance
When can license become irrevocable?
licensee makes improvements w/ knowledge of the licensor
Is option to buy real property subject to SOF?
Yes, even if it's tied to a lease for less than a one year period (e.g., pty leases property for 10 months, with option to buy at the 11th month - option will only be valid if it's in writing)
Requirements for writing transferring real property to satisfy the SOF
-description of the property
-identity of the parties
-amount of purchase price, and
-signature of party to be charged
A has FSA, subject to C's executory interest. A gives B lease with option to purchase in 10 months. During the 10 months, event occurred, triggering C's executory interest (A no longer has ownership of property). What happens to B's option?
It goes away! C holds title in FSA, clear of B's option.
A has FSA, subject to C's executory interest. A gives B lease with option to purchase in 10 months. During the 10 months, event occurred, triggering C's executory interest (A no longer has ownership of property). What happens to B's lease?
-lease is enforceable against A (even if it was oral, since oral leases for less than a year are outside of SOF)
-but C can evict B, because A can't convey interest greater than she owns, and A no longer owns property
-if C evicts B, B can pursue action for damages against A for breaching covenant of quiet enjoyment
-lease is not enforceable against C because C wasn't party to lease
How does personal property become a fixture?
-property must be annexed to the realty (either actually or constructively)
-property must be appropriated to the purpose for which the realty is used
-party annexing the property must "intend" that it become a fixture
Factors to consider w/r/t whether personal property has become fixture
-annexor's intent most important factor (objective- would reasonable person infer that prop had become party of realty); other considerations:
-nature of item affixed
-relation of annex or to the realty
-amount, structure, and mode of attachment
-whether removal of item would cause substantial damage to the real property or item to be removed, and
-whether article is appropriate and ordinary adjunct to the property based on custom of time and place
What is required for valid conveyance of property?
-written deed signed by grantor (SOF)
-delivery (crux of delivery: grantor's intent to pass title and relinquish control)
What is a license to use property?
-revocable privilege to enter licensor's lands (or servant tenement)
-license is personal to licensee, not transferable
-doesn't have to be in writing (SOF)
-if licensee relies on privilege, licensor may be estopped from revoking license
How can delivery of deed be accomplished?
-grantor physically or manually transfers deed to grantor w/ intent to pass title
-recording: if grantor intends recording of document to be final act vesting title in grantee, such recording creates rebuttable presumption of delivery)
-implied conveyance (e.g., if A told everyone that she was conveying property to B, and then executes proper deed but dies before delivery, should argue that this is an implied conveyance)
What are LL's rights if T is conducting illegal activity in property?
-LL can evict T is T has been engaging in illegal activity that is continuous, not just occasional
-LL must not have been party to the illegal activity
-LL's remedies: damages in form of lost rental value, if LL can't relet for remainder of T's rental period; injunctive relief to stop illegal activity
Who is responsible for property damage by act of God: LL or T?
T must report damage in timely fashion; if failure to report leads to further damage, then T liable for repairing the damage)
What is the "shelter rule"?
allows a person who takes from a BFP to prevail against any interest that the transferor-BFP would have prevailed against, even if the transferee had actual knowledge of the prior recorded interest
"Any conveyance of an estate in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice, unless the conveyance is recorded."
What type of statute is this?
What is a pure notice statute?
last BFP wins
allows subsequent purchaser for value and w/o notice of prior conveyance to prevail over prior transferee, regardless of whether subsequent purchase records
If property has Life tenant and remainder men, who is liable for the property taxes?
life tenant is obligated to pay all ordinary taxes on land, to the extent of income or profits from the land
-but tax sale will cut off rights of remainder men, so they have an interest in paying the taxes
How are damages measured for loss volume sellers?
lost profit is measured by the contract price less the cost to the dealer
When does a suretyship agreement fall outside the SOF?
when the main purpose or leading object of the promisor is to secure and advantage or pecuniary benefit for himself, even if the effect is still to pay the debt of another
If you want to grant someone else ability to use land for a specific purpose, for only a limited amount of time - what is the best way to do this?
easement - can limit it to specific purposes
lease not a good way because would give pty more control over the land than an easement, would be more complicated to create; lease grants lessee exclusive right to possess the premises, so owners couldn't have access to the land; lessee can us property for any legal reason not prohibited by the lease - so owner would have to restrict any undesirable uses
Does a junior creditor hav any recourse prior to foreclosure on a property by a senior creditor, to protect its interest?
yes, can pay off senior creditor's interest to preserve its own interest
if junior lien holder pays off senior lien, he becomes surrogated to the rights of the senior lien holder
Under the riparian doctrine, what is the difference between natural and artificial uses of water?
Natural uses include such domestic uses as household consumption, gardening and limited grazing.
Artificial uses include irrigation and manufacturing.
Natural uses of water prevail over artificial uses. X, who only uses water for natural uses, prevails over Y, who uses the water for artificial uses, even if X uses a lot more water than Y and X's use totally deprives Y of his water needs.
What is a trespasser?
person who comes onto land without permission or privilege
What is a licensee?
one who enters land w/ landowner's permission, express or implied, for his own business rather than the landowner's benefit
What is an invitee?
one who enters onto the land in response to an express or implied invitation from the landowner
When does person lose status as invitee?
If person exceeds scope of the invitation (e.g., if he goes into a portion of the premises where his invitation can't reasonably be said to extend)
What duty do landowners owe child trespassers?
A landowner is liable to a child trespasser who is injured by a hazardous artificial condition on the land if it is foreseeable that children will trespass on the land. (i.e., if there is an attractive nuisance).
D may be held liable even if the child is injured by something else on his land, besides the attractive nuisance (i.e., if kids are attracted to your land because of a swing set but they get hurt in a bear trap, you’re liable).
What duties do landowners owe to trespassers?
-undiscovered trespassers: none
-discovered/anticipated trespassers: duty to warn of artificial conditions known to landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover
What length of tenancy results from holdover tenant who originally had multi-year lease/tenancy?
-in commercial lease, if original lease term was for a year or more, a year-to-year tenancy results
What is the doctrine of equitable conversion?
fixes rights of parties after they enter into a valid land-sale contract: purchaser is regarded as the real owner of the property, and seller is regarded as having a personal property right to the proceeds of the sale
governs the rights of the ptys in a case where, as here, the purchase dies before the sale is completed at closing
B makes land-sale contract with A. B dies, leaving C the property and D the residual estate. Can C compel D to pay the purchase price of the property?
Yes - doctrine of exoneration
What is an ouster (w/r/t co-tenants)?
-if property held by TIC is is solely owned by one co-tenant, could have an ouster if non-occupying TIC:
1. attempted to physically occur premises, w/ occupying TIC refusing to allow him to do so, or
2. demanded that the occupying TIC vacate the premises or pay rent
What are TIC obligations w/r/t property taxes?
-property taxes paid by one TIC generally viewed as being made for benefit of all TICs b/c they protect the payments of all TICs
-TIC making payments entitled to deduct payments from rent from 3d ptys, or will be reimbursed for payments from proceeds of a partition sale
-in some states, can also bring a direct suit against TIC for contribution
What are TIC rights w/r/t repairs made by one TIC?
-if one TIC makes repairs, usually allowed to recover against other TICs for their share of repair cost
-can be done via direct action, or by deducting ant of other TICs share of rent paid by 3d ptys
-can also be reimbursed via partition sale
-in most states, can't bring direct action for contribution against TIC
What are TICs rights w/r/t improvements?
-if one TIC pays for improvements to property that other TIC didn't agree to, TIC can't recover contribution in direct suit against other TIC
-generally not entitled to deduct cost of such improvements rent from of 3d ptys, unless rents collected have increased due to improvements; then can deduct from portion to rent paid to other TICs
-could also deduct increase in improvement from proceeds to be distributed to other TICs in partition sale
What are options for tenant who was constructively evicted?
-terminate lease w/in reasonable period of time following eviction
-if tenant stays on property in spite of constructive eviction, must continue to pay rent
-but can see for compensatory damages for interference w/ quiet right of enjoyment
-right to abandon can only be invoked w/in reasonable time following eviction
Can LLs deposit of trash on Tenant's property be partial actual eviction?
-T could regard lease as terminated immediately upon partial eviction and refuse to pay rent, even though T remains in possession of remainder of leased property (majority)
-minority- since T stayed on property, must still pay rent but is entitled to compensatory damages
What can landlord use a security deposit for?
in absence of statute to contrary, can use SD to offset damages caused by abandonment of property by tenant or for misuse of premises
-once lease terminates, LL must return SD, after subtracting any damages that LL has suffered
-could also deduct any unpaid rent due to the LL, $ to repair damages caused by Tenant
-LL must account for the deductions from the SD
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