Define Fee Simple Absolute:
Largest estate recognized by law.
Can be sold, divided, devised or inherited and has a potentially infinite duration
Fee simple is presumed in the absnece of contrary language
What are the three defeasible fees (capable of being nulled or voided) and the differnce between them?
- Fee Simple Determinable (and possibility of reverter)
- Automatically reverts back to grantor upon happening of stated event.
- Fee Simple Subject to Condition Subsequent (right of re-entry)
- Gives grantor right to terminate the estate upon the happening of a stated event. (Right of reentry)
- Fee Simple Subject to an Executory Inerest
- Gives third party executory interest upon the hapening of a stated condition.
What is the Rule Against Perpetuities
No interest in property is valid unless it must vest, if at all, within 21 years after some life in being at the creation of the interst.
Any possibility that the interest might vest more than 21 years after a life in being, the interst is void.
What types of interests does the RAP apply to?
- Contingent remainders
- executory interests
- vested remainders subject to open
- options to purchase (not attached to a leasehold)
- rights of first refusal
- powers of appointment
When does a perpetuities period begin to run for an interest granted by will?
date of the testators death
When does a perpetuities period begin to run for an interest granted by deed?
date of delievery
When does a perpetuities period begin to run for an interest granted by irrevocable trust
date trust is created
When does a perpetuities period begin to run for an interest granted by revocable trust
date trust becomes revocable
What are the three types of waste that a life tenant is subject to?
Affirmative (vountary waste)
Affirmative Waste: when can a life tanant explid natural resources
when necessary for repair or maitenance
the land is suitable only for such use
when expressly permited
Permissible Waste. Life tenanant is obigated to:
preserve land and structures in a reasoanble state of repair
pay interst on mortages
pay ordinary taxes on the land
Ameliorative Wate. Life tenant may demolish or or alter buildings if:
the market value of the future interest is not diminished and either:
the remaindermen do not object or
a change in the permanet change in the neighborhood conditions has depreived the property in its corrent form of reasonable productivity
what is an executory interst?
- future interest in third parties that etierh divest a transferee's freehold estate, follow a gap in possession or cut short a grantor's estate.
what are two types of executory interests:
springing executory intersts: cuts short grantors estate
shrifting: divests a transferee's preceding estate
Three types of restraints:
What are the three types of concurrent ownership?
Tenancy by the Entirety
Tenancy in Common
Describe when a class closes:
Rule of convience:
Absent contrary intent, a class closes when some member of the class can call for distrubution
What four types of future interests are subject to RAP
- Vested Remainder Subject to Open
- Contingent Remainder
- Shifting Executory Interest
- Springing Exeutory Interest
What two tupes of future interests are not subject to the RAP
Indefeasibly vested remainder
Vester remainder subject to total divestment
If a future interest is not subject to the rule agaisnt perpetuties, or in other words it is vested, what is its alienablity?
Transferable, descendible, and devisable
- Indefeasibly Vested Remainder
- Vested Remainder Subject to Total Divestement
If a future interest is subject to the Rule Agaisnt Perpetuties, what is its alienablity?
Transferable, descendible and devisable.
What is the distinguishing characteristic:
What is required by the common law for its creation:
Distinguishing characteristic: right of surivorship, if joint tenant dies, the property is freed from her concurrent interst
CL requires four unities to create a joint tenancy: Time, Title, Interst, Possession. Two tenants must have equal interests in all these regards.
What 2 things can destroy a joint tenancy:
Intervivos conveyance: transferee takes a tenant in comon
Contract to convey
What type of estate is a tenancy by the entirety and what can lead to its termination:
Terminated by: death, divorce, mutual agreement, or execution by a joint creiditor of both the husband and wife can sever a tenancy bhe the entirety.
A deed or mortgage against one spouse is ineffecitve
Tenanacy in common:
no right right of survivorship
each can different interests but are entitled to possesion of the whole
What co-tenants duties in regards to expenses for presevation of property:
pro rata duty for share of necessary repairs
no right of contribution for improvements
contribiution can be demanded for taxes and mortgages payements
Tenancy for years
- Created by written lease.
- Continues for a fixed period of time at which time is automatically terminates. Most landlords reserve right of entry for a breach of covenants. Tenant can also surrender.
Period Tenancies: creation (3 ways), termination
run for successive periods until terminate by notices by either party. Created by, express agreement, implication, operation of law.
Termination: automaticallly renewed until proper noitce of its termination is given: usually one full period in advance.
Tenancy at will: creation and termination
created by express agreement that the lease agreement can be terminated at any time
can be terminated by giving notice and a reasoanbel time to quit by any party with the power to do so
Tenancies at sufferance: creation adn termination
creation: a tenancy at sufferance arises when a tenant wrongfull remains in possession after expriation of a lawful tenancy
termination: lasts until landlord takes steps to evict
Four types of tenancies:
Tenancy for years
Tenancy at will
Tenancies at sufferance
Hold over doctrine: rights against tenant
landlord may evict or bind to new period tenancy.
old terms will govern.
commercial will be held to year to year
residential month to month
Two main landlord remedies
Tenant on premises but fails to pay rent: evict or sue for rent
Tenant abandons: do nothing or repossess
Land lord duties to the tenant (3)
- Duty to dleiver actual possession of the premises
- Quiet enjoyment: landord nor paramount title houder will not interefer with tenants quiet enjoyment
- Implied warrant of habiltability, non waivable
what are the 4 components of the implied warranty of habitability:
- landlord must follow local housin codes. if not tenant may:
- terminated lese, repair and offset cost against future rent, remain in possession and pay full rent and sue for damages
what factors go into ownership of chattel?
- objective intention of the party who made the annexation of the item: factors in this determination are
- nature of article,
- manner of attachement,
- amount of damage that would be caused by removal and
- adaption of the item into the realty
easement holdr has the right to use anothe's tract of land for a special purose but has not right to possess or enjoy that land. an easement is presumed to be of prepetual duration unless the grant specifically limits that interest.
Affirmtative easement appurtenant:
an easement that runs with the land regardless of whether it is mentioned in the conveyance. dominant tract is benefited by the servient tract.
Easement in gross:
easement that does not require the holder to have another parcel. Right to use. this is not transferable if non economic
What are the four ways that easements can be created:
- Express grant
- Epxress reservation
In an easement implied from existing use: what are the 4 elements:
- Prior to the division of a single tract
- An apparent and continuous use exists on the servient part
- that is reasonably necessary for the enjoyment of the dominant tract
- the court determines that the parties intended the use to continue after the division of the land.
Easement implied without existing use:
How is an easement created by perscription:
- open and notorious use
- continous uninterrupted
- for statutor period
How can an easement be terminated:
- stated conditions
- unity of ownership (merger)
- deed of release
- end of a necessity that created the easement
- condemnation and destruction
Liscenses are revokeable. What two circumstances make them irrevocable:
- license coupled with an interest
Requirements for burden of Real Covenant to run with land
- Intent of the original parties
- Notice (if BFP)
- Hoizontal Privity (shared interst between original parties in the land)
- Vertical Privity (successor must hold entire durational interst)
- Touch and Concern
Requirement for Benefit to Run
- vertical privity
- touch and concern
Define Real Covenant:
Written promise to do somethign on the land or not to do something on the land usually found on in the deed.
What can terminate a real covenant
- written release
- merger of the benefit and burdened estatess
- condemnation of the burdened property
Define Equitable Servitude
a covenant that regardless of whether it runs with the land, equity will enforce agaisnt the assignees of the burdened land who have notice of the covenant. The usual remedy is injunction.
What is the important difference between real covenants and equitable servitudes:
The remedy sought. Real covenants=money. Equitable servitudes = Injunction.
A single promise can create both a real covenant and an equitable servitude.
Both equitable servitudes and real covenants are usually created by a written promise that meets the statute of frauds. what is one exepction for equitable servitudes:
negative equitable servitudes may be implied from a common scheme for development of a residentail subdivision.
For the non-written exception to creating an equitable servitude for a common scheme the requirments are:
evidence of a common scheme by a : recorded plat, general pattern of restrictions, oral representations by early buyers
notice (actual, inquiry, record)
Requirements for burdens of an equitable servitude to rune:
- Intent of orignal parties
- Successor of the porimsory has acutal, inquiry or record notice of the servitude
- Covenant touches and concerns the land
Requirements for benefit to run for equitable servitude
original parties intdneded
servitude touches and concerns the benefited property
Requirements for successful adverser possession
- Actual entry giving exclusive possession
- Open and notorious
- continuous throught the statutory period
Disability and adverse possession
statute of limitations does not run when the true owner was under some type of disability when the cause of action first accrued
what are the four chronological periods of the sale of land. each of these time periods have special duties.
Parties enter into land contract
Time Between contract and closing
Period 1 of Sale of Land: Parties Enter into Land Sale Contract
What three things to be aware of:
The contract must be in writing to comply with the statute of frauds
The Prsumption will be that time is not of the essence unless so stated
Implied covenant of marketibiltiy arises
Period 2 of Sale of Land: Time between closing and contract
What two tthings to be aware of
Buyer inestigates Seller's title. If tefective, buyer must notify seller and give him an opportunity to cure.
During this time, the risk of loss is on the buyer
Period 3 of Sale of Land: Closing
What three things happen
Title passes if deed is valid ly executed and delievered.
Land sale contract is extinguished along with implied covenant of marketabiltiy if title passes
At this point the only basis for a suit by the buyer is an express covenenat. There are 6.
Period 4 of Sale of Land: Recordation
Buyer records deed to protect title against a subsequent purchaser for value
When is the presumption agaisnt time being of the essence overcome?
if the contract states, the circumstances indicate that it was the parties intent, one party gives the other party notice
Deeds transfer title to an interest in real property. What formalities are required:
- must be in writing
- signed by the grantor
- reasonably identify the parties and the land
A deed is not effective until what happens
It has been delievered and accepted
What are the three types of deeds used to convey real property:
- General warranty deed
- Special warrranty deed
- Quitclaim deed
what are the 6 covenants included in a general warranty deed?
Covenant of right to convey
Covenant agaisnt encumbrances
Covenant for quet enjoyment
Covenant of warranty
covenant for further assurances
covenant of seisin:
grantor covenants that he has title and possession of the poperty at the time of the grant
covenant of right to convey
covenant that grantor has authroity to make the grant
covenant of quiet enjoyment
grantor covenants that grantee will not be distrubed in possession by a thrid party's lawful claim of title
covenant of warrranty
grantor agrees to defend agaisnt reasonable claism of title by a thrid party and to compensate the gratee for any loss sustained by the claim of superior title
covenant for further assurances
the grantor promises to perform acts reasonable necessary to perfect title conveyed
what covenants are breached only at the time of conveyance:
seisin, right to convey, against encumberances
future covenents disturbed only upon disturbance of the grantee's possession
quiet enjoyment, warranty and further assurances
What two assurances are included in a special warranty deed:
that the grantor has not conveyed the same estate or any interest therein to anyone other than the grantee
that the estate is free from encumbrances made by the grantor