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The three types of interests in land
1. Estate (possession); 2. Easement (right to use); 3. Restrictive Covenant
Three types of freehold estates
1. Fee Simple (including defeasible fees); 2. Life Estate; 3. Fee tail (archaic)
Distinguish the applicability of conditions and restraints on alienability for FSA
Conditions may be imposed on the exercise of a fee simple; Whereas restrictions on transferability are prohibited
"Despite the fact that FSA must be fully alienable
courts have upheld this exception"
Life Estate Pur Autre Vie
Measured by the life of another
If life tenant dies before the measuring life dies the life estate passes to
The estate of the deceeased life tenant and continues in place until the measuring life dies
A provision that terminates the life estate if the life tenant attempts to convey away the life estate is
A valid forfeiture restriction
General rule regarding life tenant and the law of waste
Life tenant maintains the estate
Define: Voluntary waste
Any affirmative action beyond the right of maintenance that cause harm to the premises
"For purposes of waste
maintain means"
Rule regarding voluntary waste
Depletion of natural resources constitutes waste UNLESS such consumption constitutes the normal use of the land (i.e. open mines); sale of harvestable crops is not waste
Tenant must do these three things to avoid liability for permissive waste
1. Make ordinary repairs; 2. Pay all taxes on property; 3. Pay interest on any mortgage indebtednedd
What may the life tenant do if changed conditions have made the property relatively worthless
He may alter the property without incurring liability for waste
Future interests retained by the Grantor
- Reversion; - Possibility of reverter; - Right of re-entry
Future interest given to the Grantee
- Remainder; - Executory Interest
A Reversion arises in the Grantor when
Whenever the Grantor conveys away less than the full durationalestate that the grantor had
Possibility of Reverter is automatically retained in the Grantor when
Whenever he conveys a FSD
Language to identify the FSD (4)
"""so long as""
"Whenever Grantor conveys a FSCS
Grantor keeps a"
Language to identify the FSCS
"""provided
How to you identify a Remained in a Grantee
A remained is a future interest in a third party Grantee that comes naturally and immediately on the termination of the proceeding estate
Remainders come in two forms
- Vested; - Contingent
Vested remainder
Taker is ascertainable and no conditions on taking
Contingent remainder
There's a condition that must be satisfied before a future interest vests (i.e. becomes possessory)
General rules regarding Class Gifts (2)
"1. Where the remainder interest is conveyed to a class of unnamed persons whose members are not yet fully known
How do you identify an Executory Interest
An executory interest operates to cut short the estate that comes before it
"If a future interest in a Grantee is NOT a remainder
then it must be"
Why can holders of Executory Interest never sue for waste
They lack standing
RAP always applies to (3)
- Executory Interests; - Contingent Remainders; - Vested Remainders Subject to Open
RAP and Charities
An exception is granted to conveyances from one charity to another
RAP and Rights of First Refusal
Contingent interests violate the RAP IF they could possibily be exercised outside the time period of the rule
RAP and Class Gifts
"Look for age contingency beyond 21 in an open class - whenever the language used in the grant puts the age contingency beyond 21
Four unities necessary to create a joint tenancy
1. Time; 2. Title; 3. Interest ; 4. Possession
"To create a joint tenancy
the language of the conveyance must clearly reflect"
"Where the intent of the Grantor is unclear
courts will presume"
Two ways to terminate a joint tenancy
- Voluntary: Right of Partition; - Involuntary: Severance
General rule regarding Right of Partition
If any joint tenant wants to be relieved of duties of ownership he can do so by asking that the property be partitioned
General rule reagarding Severances
Occurs whenever any one of the four unities is disturbed; a Joint Tenant CANNOT severe by WILL
Four actions that will severe a joint tenancy
- Sale; - Mortgage; - Contract of Sale; - Creditor's Sale of the interest in joint tenancy
Effect of sale on joint tenancy
- The unities are disturbed; - Buyer takes his interest as a tenant-in-common; - Remaining owners maintain their interests as joint tenants and their right of suvivorship remains intact
Effect of mortgage on joint tenancy depends on the jurisdiction
"- Lien theory (FL): when a mortgage is executed
Effect of Contract for sale on joint tenancy - when does the severance occur
When the contract for sale was signed (not closing)
When does a creditor's sale effect a severance
Not until the judicial sale actually takes place
One unity required for a Tenancy in Common
Possession - each co-tenant is entitled to possess the whole of the property
What restrictions are there are the alienability of the estate in a tenancy in commone
None - each co-tenant may do what they want with their portion; any tenant can force a partition; no right of suvivorship
Tenancy by the Entirety requires
Four unities PLUS Marriage
TBE - right of suvirvorship
Yes
TBE - right of partition
No
TBE - severable by the unilateral act of one of the co-tenants
No
Four ways to terminate a TBE
1. Death; 2. Mutual agreement in writing; 3. Divorce (now tenants in common); 4. Execution by a joint creditor (individual creditor will fail)
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