by abwilt


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Fee Simple Absolute
"To A" or "To A and his heirs"

Absolute ownership of potentially infinite duration. 

Freely devisable, descendable and alienable.

No accompanying future interest.
Fee Tail
"To A and the heirs of his body"

Property would pass directly to grantee's lineal blood descendants

Today, fee tail creates a fee simple absolute instead.

Accompanying future interest if a reversion in the Grantor or a remainder in a third party.
Defeasible Fee
"To A for so long as..." To A during..." "To A until..."

Grantor must use clear durational language and if the stated condition is violated, automatic forfeiture.

Devisable, descendable and alienable but always subject to the condition.

Accompanying future interest is the possibility of reverter in the grantor.

There must be clear durational language.
Fee Simple Subject to Condition Subsequent
"To A but if X event occurs, grantor reserves the right to reenter and retake"

Estate is not automatically terminated but it can be cut short at the grantor's option if the stated condition occurs.

Accompanying future interest is the right of entry/ power of termination by grantor.
Fee Simple Subject to Executory Interest
"To A but if X event occurs, then to B"

Just like fee simple determinable only now, if the condition is broken, the estate is automatically forfeited in favor of someone other than the grantor.

Accompanying future interest is a shifting executory interest.
Absolute Restraints on Alienation Void
No absolute ban on the power to sell or transfer that is not linked to a reasonable, time limited purpose.
The Life Estate
"To A for life"

Measured in explicit lifetime terms and never in terms of years.

A is the life tenant.  Grantor has a reversion meaning that at the end of A's lifetime, the estate reverts back to Grantor or Grantor's heirs.
Life Estate Pur Autre Vie
"To A for the life of B"

Measured by a life other than the Grantee's

At the end of B's life, Grantor has a reversion back to Grantor or heirs.
Waste and the Life Estate
Life tenant's entitlements are rooted in the doctrine of waste.  LT must not commit waste or harm the future interest holders.

Life tenant is entitled to all ordinary uses and profits of the land.

Voluntary or Affirmative Waste
Overt conduct that causes a drop in value - willful destruction

The life tenant must not consume or exploit natural resources on the property unless one of the four exceptions applies:

Prior use: Prior to the grant the land was used for exploitation. Open mines doctrine allows tenant to continue mining.

Repairs: LT may consume natural resources for reasonable repairs and maintenance.

Grant: the LT may exploit if that right is granted.

Exploitation: meaning this land is suitable only to exploit.
Permissive Waste or Neglect
Occurs when land is allowed to fall into disrepair.

Life tenant must simply maintain the premises in reasonably good repair.

LT is obligated to pay all ordinary taxes on the land to the extent of income or profits from the land.  If there is no income or profit, the life tenant is required to pay all ordinary taxes to the extent of the premises fair rental value.
Ameliorative Waste
LT must not engage in acts taht will enhance the property's value, unless all future interest holders are known and consent.

May not unilaterally convert property into a shopping mall.
Life Estate's Accompanying Future Interest
If future interest is in the grantor, this is a REVERSION.

If future interest is held by a third party, if is a REMAINDER.
Future Interests Capable of Creation in the Grantor
Possiblity of reverter: accompanies only the fee simple determinable.

Right of Entry/ Power of Termination: accompanies only the fee simple subject to condition subsequent.

Reversion: future interest that arises in a grantor who transfers an estate of lesser quantum that she started with, other than a fee simple determinable or a fee simple subject to condition subsequent. Ex. "To A for life" "To A for 99 years" "To A for life, then to B for 99 years"
Future Interests in Transferees
Vested Remainder: Indefeasibly vested remainders, vested remainder subject to complete defeasance, vested remainder subject to open.

Contingent Remainder

Executory Interest: Shifting and Springing
Remainder
Future interest created in the grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.

Remainder usually follows an estate of fixed duration such as a life estate or term of years.  Waits for preceeding estate to run its course. 

Never follows a defeasible fee.

Cannot cut short or divest a prior transferee
Vested v. Contingent Remainders
Vested: it is both created in an ascertained person and is not subject to any condition precedent.

Contingent: if it is created in a unascertained person or is subject to a condition precedent or both.
Contingent Remainders
In unborn/unascertained persons: "To A for life, then to B's first child"

Subject to a condition precedent: condition precedent when it appears before the language creating the remainder or is woven into the grant to remainderman. 

"To A for life, then, if B graduates from college, to B"

B has a contingent remainder

Grantor has a reversion

If B graduates before A dies, then B's contingent remainder becomes an indefeasibly vested remainder.
The Rule of Destructibility of Contingent Remainders
Ex.  "To A for life, then, if B graduates from college, to B"

At common law, a contingent remainder was destroyed if it was still contingent at the time the preceeding estate ended.  The remainder would then revert to the grantor or his heirs.

Today, the destructiblity rule has been abolished.  If the contingent remainder does not vest by the time the preceeding estate ends, the Grantor will hold the estate subject to B's springing executory interest.  When B graduates, B takes.
The Rule in Shelley's Case - a rule of law
Grantor conveys "To A for life, then, on A's death, to A's heirs."

Historically at CL, the present and future intersts would merge, giving A a fee simple absolute. Promotes alienability and applies even if contrary to grantor's intent.

Today this rule has been virtually abolished, thus A would have a life estate and A's yet unknown heirs will have a contingent remainder, and grantor has a reversion in case A has no heirs when she dies.
Doctrine of Worthier Title - a rule of construction (grantor's intent should govern)
Does not apply in Virginia.  Applies when Grantor, who is alive, tries to create future interests in his own heirs.

O who is alive, conveys "To A for life, then to O's heirs"

If doctrine of worthier title did not apply, A has a life estate and O's heirs have contingent remainders.

If doctrine applies, the contingent remainder in O's heirs is void.  A has a life estate and O has a reversion.
Indefeasibly Vested Remainders
Holder of this remainder is certain to acquire an estate in the future, with no conditions attached.

"To A for life, remainder to B."  A has a life estate and B has an indefeasibly vested remainder.
Vested Remainder Subject to Complete Defeasance
Remainder is subject to a condition subsequent that may cut short the right of possession.

Use Comma Rule to differentiate between conditions precedent which create a contingent remainder, and a condition subsequent.  When conditional language in a transfer follows language that taken alone and set off by commas would create a vested remainder, the condition is a condition subsequent.

CP = "To A for lie, and if B has reached the age of 25, to B"

CS = "To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C." 

A has a life estate

B has a vested remainder subject to complete defeasance (must live to 25)

C has a shifting executory interest

Grantor has a reversion because its possible that C will not exist if B doesn't reach 25.
Vested Remainder Subject to Open
"To A for life, then to B's children"  A is alive and B has two children, C & D.

C&D are part of a class that is still open.  They have vested remainders subject to open.

Remainder is vested in a group of takers, at least one of whom is qualified to take. 

Each class member's share is subject to partial diminution because additional takers can still join in.  The class is closed when its maximum membership has been set so that persons born later are excluded.
Common Law Rule of Convenience
Determines that a class is closed whenever any member can demand possession.

However, if a child is in the womb when the class closes, that child still is a class member.

If a member of the class predeceases A, his or her heirs will take that portion.
Executory Interest
A future interest created in a transferee (3rd party), which is not a remainder and which takes effect by either cutting short some interest in another (shifting) or in the grantor or his heirs (springing).
Shifting executory interest
"To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs."

A has a fee simple subject to B's shifting executory interest.  B has a shifting executory interest.

Always follows a defeasible fee and cuts short someone's interest other than the grantor's.
Springing executory interest
"To A, if and when he marries"

A has a springing executory interest and Grantor has a fee simple subject to A's springing executory interest.

Cuts short the grantor's interest.
Rule Against Perpetuities
Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.

Steps for assessing:

1. Determine which future interests have been created by the conveyance (only contingent remainders, executory interests and vested remainders subject to open)

2.  Identify the conditions precedent to the vesting of the suspect future interest.

3. Find a measuring life - one who is alive at the date of the conveyance and is relevant to the condition's occurrance.

4.  Ask - will we know with certainty, within 21 yeast of the death of our measuring life, ir the future interest holders can or cannot take?  if not, the interest is void.

The void interest must be stricken and the interests must then convey.
RAP Brightline Rules
1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP. Bad as to one, bad as to all - to be valid, it must be shown that the condition precedent to every class member's taking will occur within the perpetuities period.  If it is possible that a disposition might vest too remotely with respect to any member of the class, the entire class gift is void.

2. Many shifting executory interests violate the RAP.  An executory interest with no limit on the time within it must vest violates the RAP.  Ex. "To A and his heirs so lona as the land is used for farm purposes, and if the land ceases to be used, to B and his heirs."

A gift from one charity to another does not violate RAP ever.
Reform of RAP
Wait and see/ second look: The validity of any suspect future interest is determined on the basis of the facts as they exist at the end of the measuring life.

USRAP: Codifies the common law RAP and in addition provides for an alternative 90 year vesting period.

Both reforms codify the doctrine of cy pres: seek to closely match the grantor's intent as near as possible.  The offensive age contingency will be reduced to 21 years.
Concurrent Estates
The Joint Tenancy: Two or more own with the right of survivorship.

Tenancy by the Entirety: A marital interest between married partners with the right of survivorship.

Tenancy in Common: Two or more own with no right of survivorship.
Creation of Joint Tenancy
Four Unities

Joint tenants must take their interests:

1. At the same Time

2. By the same Title or legal instrument

3. Identical interests

4. Right to Possess the Whole

Grantor must clearly express the right of survivorship.

*Use of Straw - P wants to hold Blackacre with his friend X.  P conveys blackacre to 'straw' and straw conveys back to P and X as joint tenants.
Severance of Joint Tenancy
1. Severance and sale: a joint tenant can sell or transfer her interest during her lifetime.  May do so without the knowledge or consent of the others.  The buyer is a tenant in common.

2.  Severance and partition: results in dissolution.  May occur by voluntary agreement, partition in kind (litigation), forced sale by court action.

3.  Severance and Mortgage: Joint tenant's execution of a mortgage or lien on his or her share will sever the joint tenancy as to that now encumbered share only in the minority of states to follow the theory of mortgages.  Majority follow the lien theory whereby a joint tenant's execution of a mortgage on his or her interest will not sever the joint tenancy.
Tenancy by the Entirety
Created between married partners withthe right of survivorship.  Arises presumptively in the 21 states that recognize it.

Because of the marital interest, creditors of one spouse cannot reach the property.

Neither spouse acting unilaterally can defeat the right of survivorship by transferring to a third party.  It is Null.
Tenancy in Common
Each co-tenant owns an individual pary and each as a right to possess the whole.

Each interest is descendable, devisable, and alienable.  There are no survivorship rights between tenants in common.

The presumption favors the tenancy in common.
Co-Tenants and Possession
Each co-tenant is entitled to possess the whole.  If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed wrongful ouster.
Co-Tenants and Rents
Absent ousterm a co-tenant in exclusive possession is not liable to the others for rent.

A co-tenant who leases all or part of the premises to a third party must account to his co-tenants and give them their fair share of the rental income - proportionally
Carrying costs and Co-Tenants
Each co-tenant is responsible for his or her fair share of carrying costs, such as taxes and mortgage interest, based on his or her undivided share.
Repairs, Improvements, Waste
The repairing co-tenant enjoys a right to contribution for reasonable and necessary repairs, provided that she has told the other of the need for the repair ahead of time.  Contribution amount is related to proportion of ownership interest.

There is no right to contribution for improvements. However, at partition, the improving co-tenant is entitled to a credit equal to any rise in value as a result of the improvement, or a reduction based on a drop in value.

Co-tenant must not commit waste.  Action for waste can be brought during the life of the co-tenancy.
Tenancy for Years
Lease for a fixed period of time.  Doesn't need to be in years.  If the term is greater than one year, must be in writing to be enforceable.
Periodic Tenancy
Lease continues for successive intervals until the landlord or tenant gives proper notice to terminate.

Can be created expressly or by implication.

By Implication:

1. Land is leased with no mention of duration but provision is made for the payment of rent at set intervals.

2. An oral term of years in violation of the statute of frauds creats an implied periodic tenancy measured by the way rent is tendered.

3. The holdover: in a residential lease, if landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises which is measured by the way rent is tendered.
Notice to terminate tenancy
Notice must be given in writing.  Should be given at least equal to the length of the period itself unless agreed otherwise.

Periodic tenancy must end at the conclusion of a natural lease period.
Tenancy at Will
Tenancy for no fixed duration.  "To T for as long as L or T desires"

Unless the parties expressly agree to tenancy at will, the payment of regular rent will cause a court to treat this as an implied periodic tenancy with intervals gaged by rent.

May be terminated by either party at any time with a reasonable demand to vacate.
Tenancy at Sufferance (Holdover)
Created with T has wrongfully held over past lease expiration.  The wrongdoer gets a leasehold estate to permit the landlord to collect rent.
Tenant's duties
Keep premises in reasonably good repair. 

Must not commit waste

Liable for injuries sustained by third parties he invited, even where landlord expressly promised to make all repairs.

Fixtures (tested with waste): A fixture is a once moveable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty.  When a tenant removes a fixture, he commits voluntary waste.  Must not remove, even it he installed it, unless it does not cause substantial harm to the premises.
Tenant's duty to repair
Historically T was liable for any loss to the property, including loss due to force of nature.

Today, T may terminate the lease when the premises are destroyed without T's fault.
Tenant's duty to pay rent
If tenant breaches this duty and is in possession of the premises, the landlord's only options are to evict through court or continue the relationship and sue for rent.  If the landlord moves to evict, she is nonetheless entitled to rent from the tenant until the tenant (now a tenant at suffrance) vacates.

Landlord must not engage in self-help, such as changing locks, forceably removing tenant, or removing any of tenant's possessions.
Tenant breaches duty to pay rent but is out of possession
1.  Surrender: Landlord could choose to treat tenant's abandonment as an implicit offer of surrender which landlord accepts.  If the unexpired term is greater than one year, surrender must be in writing to meet the statute of frauds.

2.  Ignore the abandonment and hold tenant responsible for the unpaid rent just as if tenant were still there.

3.  Re-let the premises on the wrongdoer tenant's behalf and hold him or her liable for any deficiency.

In the majority, L must try to re-let the premises (mitigation principal)
Landlord Duties
Duty to deliver possession (the english rule):  The majority requires that landlord put the tenant in physical possession or the premises.  Failure to do so means that tenant may seek damages.

American/minority rule: landlord need only provide tenant with legal possession, not physical.
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