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fee simple absolute
Potentially infinite duration
  • freely transferrable--any direct restrain on alienation is void
  • conditions on use may be imposed
  • first right of refusal is a valid restaint under the modern rule
  • Common law "to A and his heirs" "to A" ssumed a life estate
  • Modern view: FSA is presumed unles a clear contrary intent is obvious in the grant
fee tail
eliminated or changed in all jdx currently
  • c/l: device to lock property into a family "to A and the hiers of her body" "to A and her bodily heirs"
  • Today this language is presumed to create a FSA
life estate
may be granted expressly or arise by implication
  • never measured by time--only measured by life
  • if created by implication it is created by necessary implication from the terms of the will
life estate pur autre vie
a life estate measured by the life of another
  • if the life tenant dies before the emasuring life dies the estate passes to the estate of the deceased life tenant and continues until the measuring life dies
life estates and restraints on alienation
modern rule allows a provision that terminates the life estate if the life tenant attempts to convey away the life estate
law of waste, generally
the general rule is that the life tenant maintains the estate
  • maintain: expresed both the maximum and the minimum the life tenant can do to the land
voluntary waste
affiramtive action beyond the right of maintenance that causes harm to the premesis
  • life tenant may continue the normal usage of the land
  • depleation of natural resources constitutes waste unless consumption of such resources constitutes normal use of the land (coal min, quarry) open mines doctrine
premissive waste
failure to maintain: life tenant must do the following to avaoid liability for permissive waste
  • repairs
  • paying taxes
  • paying mortgage debt
  • paying insurance
premissive waste: repairs
life tenant has an obligation to make ordinary repairs but not to replace
  • obligation is limited to the amounht of rent and profits received from the land
  • if there are no rent s or profits the repair obligation is limited to the reasonable rental valuse of the lanhd if the life tenant is using the land
  • if the life tenant receives no profits or rents from the land and is not using the land the life tenant has no repair obligations
premissive waste: taxes
life tenant must pay all taxes on the land
  • obligation to apy taxes is subject to the same limitations as repairs
  • holder of anyfuture interest must be sure taxes are paid because otherwise a tax sale will eliminate the future interest
  • buyer at the tax sale takes free and clear of the future interest
premissive waste: mortgage debt
life tenant must pay the interest on any mortgage indebtedness on the property but is not required to make any principle payments
  • holder of the future interest generally must pay the principle
  • interest obligation is subject ot the same limitations as repairs and taxes
premissive waste: insurance
life tenant does not have to pay to insure the property, however life tenant does have an insurable interest
ameliorative waste
occurs when the life tenant alters the property substantially but that activity increases the value of the property
  • if the facts show that changes conditions have made the property relatively worthless, the life tenant can alter the property without incurring liability to the holder of the future interest
seisin
all freehold estates carry this concept--the holder of seisin is the taxpayer
  • every time a conveyance takes effect, property law wants to know who has seisin at all times and under all circumstances
  • NO GAPS ALLOWED
future interests in the grantor: reversion
a reversion in the grantor arises whenever the grantor conveys away less than the full durational estate that teh grantor has
future interests in the grantor: possibility of reverter
whenever the grantor conveys a Fee simple determinable the grantor automatically retains a possibility of reverter
fee simple determinable
estate will end automatically upon the occurance of a stated event
  • "so long as" "while" "during" "until"
  • automatically creates a possibility of reverter in the grantor
future interests in the grantor: right of re-entry/ power of termination
title does not go back to the grantor automatically when the condition is broken
  • title stays in the crantee until  the grantor exercises the right of reentry
  • created whehnever the grantor conveys as fee simply on condition subsequent
fee simple on condition subsequent
estate will end upon the occurance of a stated condition, but the grantor must exercise the right of re-entry---not automatic
  • "provided however" "but if" "on condition that"
  • must be followed by language in which the grantor expressly retains the right of re-entry and retakes the property
transferrability of future interests in the grantor
all future interests in the grantor are vested and therefore not subejct to the RAP
  • all are freely transferrable inter vivos and at death
  • except the right of re-entry which cannot be transferred inter vivos
future interest in the grantee: vested remainders
a remainder is a future interest in a 3p grantee that comes naturally and immediately on the termination of the preceeding estate
  • a remainder is vested is nothing stands in the way of it becoming possessory on the natural expiration of the proceeding estate (taker is ascertainable and no conditions on taking unsatisfied)
  • will become possessory, if at all, only upon the natural expiration of the estate that comes before them
  • remainders never effect the preceeding estate
future interest in the grantee: contingent remainder
a remainer is a future interest in a 3p grantee that comes naturally and immediately on the termination of the preceeding estate
  • a contingent remainder arises where there is a condition (such as survivorship) that the grantee must satisfy before the interest will become possessory
  • will become possessory, if at all, only upon the natural expiration of the estate that comes before them
  • remainders never effect the preceeding estate
future interest in the grantee: class gifts
a class gift is a gift to a group of unnamed persons who answer the class description
future interest in the grantee: class gifts and vested remainders subject to open
where the remainder interest is conveyed to a class of unamed persons who members are not yet fully known, the class remains open to allow for future persons who qualify as class members by satisfying the class description
  • "the children of A"
  • this is a vested remainder subject to open--to allow for the birth of futurre children of A
  • sometimes called: a vested remainder subject to partial divestment
future interest in the grantee: vesting of class gifts and the rule of convenience
under the rule of convenience the class closes for a class gift whenever any class member is entitlted to a distribution
  • rule of construction, not a rule of law
  • members of the class who predecease the testator are eliminated
  • their gift lapses unless they were in gestation at the time of the testators death
future interest in the grantee: executory interests
an exceutory interest operates to cut short the estate that comes before it
  • if a future interest is not a remainder it is an executory interest
  • a vested remainder subject to executory interest is sometimes called a vested remainder subject to complete divestment OR
  • a vested remainder subejct to executory limitation
defeasible fees
  • fee simple determinable
  • fee simple subejct to condition subsequent
  • fee simple subejct to executory interest
future interest and the law of wastes
holders of executory interests do not have standing to sue for waste, whereas the holder of the remainder does have standing to sue for waste
RAP: generally
no interest is valid unless it must vest, if it vests at all, within 21 years after the death of some life in being who was alive at the moment the conveyance was made
  • always applies to executory interests, contingent remainders and vested remainders subject to open
  • always ask: could this future interest possibly vest in the grantee outside the time period?--if yes the interest is void and struck out of the grant
  • validity of an interest under the rule is measured at the time to the conveyance was made--the time the interest was created
RAP savings clause
language included in order to save the grant from violating the RAP by making sure the vesting must occur within the time period of the RAP
right of first refusal and the RAP
contingent interests in property, such as options and rights of first refusal, violate the RAP IF they could possibly become exercisable outside the time period of the rule
charity to charity exception for the RAP
saves a gift over to the charity where the gift would othersie violate the RAP because it is entirely possible that the gift over might vest outside the time frame of teh rule
  • property may be used in such a way as to violate the stated condition way outside the time frame of the rules
  • for this exception to operate both transferees must be charities
age contingency beyond 21 in a open class and the RAP
where a class gift is open and the gift over is contingent on class members reachng a certain age
  • if the language of the grant puts the age contingency befoynd 21 years the conveyance loses its link to a life in being
RAP and the fertile octogenarian rule
conclusively presumes that the grantor might have another child regardless of age or medical condition
  • if the RAP serves to void the gift over to any member of the class because that persons interest might possible vest outside the time period of the RAP, all class members lose
  • the entire class gift will be void even if there are class memebrs who satisfy the class definitions and appear vested in their interest
concurrent estates in land: joint tenancy generally
4 unities must be present at the outset in order to creat and JT--otherwise a tenancy in common is created TTIP test
  • unity of Time: all JT interest must vest at the same moment
  • unity of Title: grant to the JT must be by the same instrument
  • unity of Interest: all JT must take the same kind and amount of interest
  • unity of Possession: all JT must have the same (dentical) rights of possession
concurrent estates in land: jointenancy: creation
the language in the conveyance must clearly reflect the Grantors intent to create and JT
  • if the intent is unclear the modern rules will presume and tennacy in common is created
  • "as joint tenants with rights of survivorship" "joint tenancy, with right of survivorship"
  • right of survivorship must be expressly stated in the language of the grant
concurrent estates in land: joint tenants--right of survivorship
the surviving JT automatically take on the death of a joint tenant
concurrent estates in land: joint tenants: partition
if a JT wants to be releived of the common ownership he can do so by asking the property be partitioned
  • in aprtitioning the property lines are drawn and the party seeking partition is no longer a JT and will own his portion outright
  • can be done by agree or the court
  • other JT are still JT, the partitioned JT is now a tenant in common
concurrent estates in land: joint tenants: severence
involuntary termination of the JT through the distrubance of any of the 4 unitites----cannot be severed by will, can be done by:
  • sale: conveyance of the interest in JT by deed
  • mortgage: title theory: MAJ: no severence of JT because when the mortage is executed the lien ataches to the title but title is not conveyed
  • mortgage: title theory: MIN: does create a severence because title passes to the mortgagee even though title returns to the mortgagor when the mortgage is satisfied
  • K of sale: severence occurs on the date the valid K of sale was signed--doctrine of equitable conversion
  • creditors sale of the interest: MAJ: no severence until sale actually takes place
concurrent estates in land: tenancy in common
no untities are required save the unity of possession which means each co-tenanct is entitlted to possess the whole of the property
  • modern presumption in favor of the TIC which means the TIC is the default tenancy
  • of JT is not properly created it becomes a TIC
  • freely alienable
  • any TIC can force a partition
  • TIC carries no right of survivorship
concurrent estates in land: tenancy by the entirety
4 untities of JT plus the unity of marriage
  • unity of Time: all JT interest must vest at the same moment
  • unity of Title: grant to the JT must be by the same instrument
  • unity of Interest: all JT must take the same kind and amount of interest
  • unity of Possession: all JT must have the same (dentical) rights of possession

at c/l any grant to a husband and wife created a TBE provided the four untites were present.
  • no right of survivorship
  • right of partition
  • not severable by the unilateral act of one T

May be termianted by:
  • death
  • mutual agreement in writing
  • divorce'execution by a joint creditor
incidents of co-ownership: possession
each co-T has the right to possess the whole of the property consistent with the same right in every other co-T
incidents of co-ownership: accountability
issue is wehter a Co-T in possesson has to share profits that he has received from the land. generally one co-T does not have to account to another co-T for his share of the profits, except in the following four exceptions:
  • ouster: accounting is required if one co-T is either keeping a co-T off the property or claiming a right of exclusive possesion
  • agreement to share
  • lease of the proeprty by co-T to a third aprty
  • depleation of natural resources
incidents of co-ownership: contribution
contribution concerns the right of one co-T to force the other co-T to pay their fair share of some expenditure amde on the proeprty. the right depends on the type of expenditure made;
  • improvements: no current right of contribution, any monies expended for improvements (non-necessary repairs) may be rcouped later at the time the proeprty is sold or on partitioning of the proeprty
  • repairs: contribution is required for necessary repairs
  • mortgage: contribution required for paytments on any mortage on te property that has been signed by all co-T
  • taxes: contribution is required towards all governement imposed obligations such as property taxes, or other assesments such as fair improvements to curbs, streets, sewers etc

non-freehold estates (LL/T): estate of years
specified term
estate must specify the definite beginning date and a definite ending date.
  • to satisfy the SOF and tenancy for years over one year must be in writing
  • one you tenancy may be oral
  • no notice is required between LL and T to terminate thye tenancy for years
non-freehold estates (LL/T): periodic tenancy: creation
repeating: the estate rolls on ad on, repeating itself for the period in the grant until one party gives proper notice of termiantion. created by:
  • by express agreement
  • by implication: no agreement to duration: if the lease does not specify how long the tenancy is to last it is presumed to be a periodic tenancy measured by the rent payment
  • by operation of law:
  • oral lease that violates the SOF: LLs acceptance of the rent check results in a periodic tenancy that arises by operation of law even though the lease itself violates the SOF. period covered by the rent check accepted determines the duration
  • holdover tenant: a tenant who was on the property under a valid lease which has expired and has remained is a holdover tenant. when LL accepts a rent check a periodic tenancy is created by operation of law for the persiod specified by the accepted check
non-freehold estates (LL/T): periodic tenancy: termination
either party can terminate a periodic tenancy by giving proper notice. to be valid notice must satisfy two independent requirements:
  • enough time: an amount of time equal to the length of the period of the tenancy except in the case of ayear to year, which generally requires 6 months notice
  • effective date: to be valid the effective date specified in the notice must be at the end of the period of tenancy
non-freehold estates (LL/T): tenancy at will
either party can terminate this tenancy at any time. no notice is required as this tenancy is extremely fragile. estate can also be termianted by operation of law
  • death of either party
  • waste by the tenant
  • assignment by the tenant
  • transfer of title by the LL
  • lease by the LL to a 3p
non-freehold estates (LL/T): tenancy at sufference
holdover tenants--refers to the bare possession that a tenant has of the proeprty when the T wrongfully holdsover

LL has two options:
  • sue to evict: sue in trespass to remove the T and recover damages for the holdover
  • inpose a new periodic tenancy: LL may elect to treat the T as a new periodic T.  if the old expired tenancy was for less than one year the new tenancy will be measured by the period covered by the rent payment. in the case of residential property the new period will most likely be month to month. in the case of commercial proeprty, if the old expired tenancy was for a year or more the new periodic tenancy may be for year to year
non-freehold estates (LL/T): raises rent situations
if the LL gives the T notice of the increase in rent before the expiration of the lease, then the LL may proeprly demand payments of the ihgher rent amount if the T holds over.
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