Term
| What are the four freehold estates? |
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Definition
1. The Fee Simple Absolute
2. The Fee Tail
3. The Defeasible Fees (3 types)
4. The Life Estate |
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Term
| What language do you need to create the fee simple absolute? |
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Definition
| "To A and his heirs was necessary at CL, but today "To A" . . . will suffice to create a Fee Simple Absolute Estate. |
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Term
| When A receives a Fee Simple Absolute, what does he have? What do his heirs have? |
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Definition
| A has absolute ownership, whereas the heirs have nothing. A only has prospective heris. The heirs do not automatically have a future interest in A Fee Simple Absolute Estate. |
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Term
| Does a Fee Simple Absolute Estate have a corresponding future interest? |
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Definition
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Term
| Does a Fee Simple Absolute Estate have a corresponding future interest? |
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Definition
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Term
| What are the distinguishing characterisitcs of the Fee Simple Absolute Estate? |
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Definition
| The Estate is devisable, descendable and alienable. |
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Term
What does devisable mean?
What does descendable mean?
What does alienable mean? |
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Definition
Devisable means that the estate may be passed via will.
Descendable means tha tthe estate will pass down via the intestncy statutes if the holder of the estate dies intestate.
Alienable means that the Estate is transferable inter vivos. |
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Term
| What words are used to create a "Fee Tail" Estate? |
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Definition
| "To A and the heis of his body." |
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Term
| Is the Fee Tail Estate still used? |
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Definition
| Generally, no, including NY. |
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Term
| What were the characterisitc of the Fee Tail Estate? |
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Definition
| The Fee Tail Estate automatically passed A's interest to his blood descendnts. |
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Term
| If a party today were to attempt to create a Fee Tail Estate, what would they actually be creating? |
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Definition
| They would be creating a Fee Simple Absolute. |
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Term
| Did the Fee Tail have an accompanying future interests? |
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Definition
| Yes. There could be a fture interest in the grantor, known as a reversion. Additionally, there could be a future interest given to a third party, known as a remainder. |
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Term
| What are the words used to create the Fee Simple Determinible (the first of the defeasble Fees)? |
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Definition
| To A for long as..", "To A during...", "To A until..." There must be som kind of duratonal language. |
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Term
| In NY, what is the Defeasible Fee caled? |
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Definition
| The Defeasible Fee is called a Fee on Limitation. |
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Term
| What is the purpose of the conditional language? |
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Definition
| The conditional language provides a condition, which if violated cuts the grantee's estate off. |
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Term
| What are the characteristics of the Fee Simple Determinible? |
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Definition
| The Fee Simple Determinible, like the Fee Simple Absolute, is defeasible, devisable and alienable. |
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Term
| What is the accompanying future interest in a Fee simple Determinible? |
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Definition
| The accompanying interest is a possibility of reverter. The possibility of reverter is automatic if the grantee breaches the condition set by the grantor. |
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Term
| What is the language used to create the Fee Simple Subjec to Condition Subsequent (the second Defeasible Fee)? |
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Definition
| "To A, but if event X occurs then the grantor reserves the right to reneter and retake." |
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Term
| What is the difference between the language in the Fee Simple Determinible and the Fee Simple Subject to Condition Subsequent? |
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Definition
| Both provide duraional language, but the Fee Simple Subject to Condition Subsequent also carves out the grantor's right to re-enter and re-take the land. |
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Term
| What is the substantive difference between these two defeasible fees? |
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Definition
| The Fee Simple Determinible automatically cuts off the rights of the grantee once the considtion is violate. In contrast, in the Fee Simple Subject to Condition Subsequent, the grantor has the right to terminate the rights and to re-enter and re-take the estate. |
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Term
What is the accompanying future interest?
In NY, wha tis this future interest called? |
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Definition
The right to re-enter and re-take..
The right of reacquisition. |
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Term
| What words are used to create a Fee Simple Subject To Executory Limitation |
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Definition
| "To A, but if X event occurs then to B." |
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Term
| What is the main characterisitc of the Fee Simple Subject to Executory Limitation? |
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Definition
| The Estate may be automatically cut off if a condition occurs, forfeitng the state to someone other than the grantor. |
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Term
| What future interest accompanies the Fee Simple Subject to Executory Limitation? |
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Definition
| The shifting executory interest. |
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Term
| Mere hope, intention or desire will not create? |
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Definition
| A defeasible fee. There must be clear and present durational language. |
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Term
| What are examples of aspirational language, which do not create a defeasible fee, but rather a Fee Simple Absolute. |
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Definition
| "To A for the purpose of constructing a day care." "To A with the hope tha the will become a lawyer" "To A with the expectation that he will use the premises as a Blockbuster video store." |
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Term
| What type of restraint on alienation is void? |
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Definition
| Absolute restraints. Example, "To A, so long as she never attempts to sell." Here, this appears to be a Fee Simple Determinible, which has a possibility of reverter, meaning if that condition is violated the estate would automatically be cut short and reverted to the grantor. Here, however, the grantor has made an absolute ban on alienation, which is imperissible. Thus, the grantor wil get nothing and has give the grantee a Fee Simple Absolute. The impermissible restriction on alienation falls out of the equation. |
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Term
| How is the Life Estate created? |
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Definition
| In terms of lifetime, not in years. |
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Term
| In a Life Estate, what is the grantee called? |
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Definition
| The grantee is known as the life tenant. |
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Term
| What is the accompanying future interest with the Life Estate? |
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Definition
| The Life Estate has a reversion in the grantor....meaning at thend of A's life the Estate will go back to O or his heirs. |
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Term
| May a life tenant sell her interest in the Estate? |
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Definition
| Yes, provided that she sells only what she has a life estate... another words, it is not permissible for her to sell a Fee Simple Absolute to someone. |
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Term
| What is a life estate pur autre vie? |
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Definition
| Tha tis a life estate tha ti smeasured, not in the grantees life, but in anothers. |
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Term
| Why is the life estate considered to be rooted n the doctrine of waste? |
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Definition
| The life tenant is entitled to make all ordinary uses of the land and to collect ordinary profits from the land. The life tenant must not commit waste by doing anything to the estate that would adversely affect the future interest holders. |
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Term
| What is affirmative or voluntary waste? |
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Definition
| Affirmative or voluntary waste is actual over conduct that causes a dimunition in value of the estate. In other words, willfull conduct that results in destruction. |
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Term
| Generally, a life tenant may not consume the natural resources of the property (natural resources such as oil, timber or minerals). There are four exceptions to this general rule. What are they? P.U.R.G.E. |
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Definition
PU: Prior use: meaning prior to the grant the land was exploited in a particular way in which the life estate may now continue, unless if agreed otherwise.
R: Reasonable repairs: A life tenant may consume natural resources for reasonable repairs and maintenance of the premises.
G: Grant: The life tenant may exploit atural resources if he receives an express grant to do so.
E: Exploitation: Meaning that the land is only suitable to exploit. |
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Term
| What is the "Open Mines Doctrine" |
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Definition
| If the land was used for mining before the life tenant received the estate then she may continue to mine on the land. She may not, however, open new mines. |
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Term
| When does permissive waste occur? |
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Definition
| This occurs when land falls into disrepai or the life tenant fails to protect the land. |
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Term
| Under the concept of permissive repair and the life tenant's obligaton to repair, wha tis required of the life tenant? |
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Definition
| The life tenant is required to only maintain the premises so that it is in reasonably good condition. |
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Term
| Is the life tenant obligated to pay taxes on the land/property? |
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Definition
| The life tenant is obligated ot py all ordinary taxes on the land to the extent of income or profits from the land. If no income or profits exist, then the life tenant is required to pay pay all ordinary taxes to the extent of the premise's fair rental value. |
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Term
What is ameliorative waste?
May a life tenant commit ameliorative waste? |
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Definition
When a life tenant engages in acts that will improve the property's value.
the life tenant may only commit ameliorative waste when she receives the consent of all future interest holders, even when the changes are enhacing the property. Sentimental value. |
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Term
| NY DISTINCTION AND AMELIORATIVE WASTE |
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Definition
| By statute, life tenant may make reasonable improvements to the property unless the remainder man objects. |
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Term
| What are the future interests of a life estate? |
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Definition
| If the interest is held by the grantor it is called a reversion. If it is held by a third party it is called a remainder. |
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Term
| Wha tis the Right of Entry also known as? |
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Definition
| The Right of Termination. |
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Term
| What are the future interests that are capable of being created in the grantor? |
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Definition
| The possibility of reverter, the right to reenter, the reversion |
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Term
| What are the future interest that are created in a grantees or trnasferees? |
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Definition
| Vested Remainders (3 types): the indefeasibly vested remainder, the vested remainder subject to complete defeasnace, and the vested reaminder subject to open, a contingent remainder, and an executory interest: there are two types (shifting and springing executory interests). |
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Term
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Definition
| A remainder is a future interest vested in a grantee tha ti scapable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the reaminder is created. |
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Term
| What types of estates geerally precede the remainder? |
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Definition
| Life estate or a term of years. Remainders follow estates of fixed durations. The remainder takes when the natural end of the preceeding estte occurs. |
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Term
| If the present estate is a defeasible fee, what is the future interest going to be? |
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Definition
| The future interest is never a remainder because the essence of the defeesible fees is tha thtey are cut off by some event at any time tha ti snot pre-determined. Therefore, when you have a defeasble fee that goes to someone other than the grantor, the future interest is an executory interest. |
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Term
| When is a remainder deemed vested? |
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Definition
| A remainder is vested when it is created in an ascertained person and is not subject to any condition precedent. |
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Term
| When is a remainder considered contingent? |
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Definition
| A remainder is contingent when it is made in an unascertained person or is subject to a condition precedent, or both. |
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Term
| NY DISTINCTION: In NY, what is a fture interest called that is subject to a condition precedent? |
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Definition
| A Remainder Subject to Condition Precedent. |
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Term
"To A for life, then, if B graduates from college to B." A is alive. Bis still in highschool. Before B can take he must satisfy the condition precedent, cutting short A's time with the estate.
1. What does B have?
2. What does O have if B never gradu |
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Definition
1. B presently has contingent remainder
2. O has a reversion
3. B's contingent remainder automatically becomes an indefeasibly vested remainder if he raduates college during A's lifetime. |
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Term
"To A for life, and, if B has reached the age of 21, to B." A is alive. B is 19 years old. Again, B must satisfy a condition precedent before he can take.
1. What does B have?
2. If B never reaches 21 what does O, grantor, have?
3. If B turns 21 du |
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Definition
1. contingent remainder
2. reversion
3. indefeasibly vested remainder |
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Term
| What was the "Rule of Destructibility of Contingent Remainder?" |
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Definition
| This is a CL rule. A contingent remainder was destroyed if it was still contingent at the time the precedding estate ended. Another words, at the end of a life estate, if B did not turn 21 by then the contingent remainder was destroyed and there was a reversion to grantor or grantor's heirs. |
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Term
| The Rule of Destructiblity of Contingent Remainders is abolished, including in NY. What happens if there isa life estate to B and a condition precendent that states that B will take only if he is 21. A dies and B is 20? |
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Definition
| Today, the contingent remainder is not destroyed. At the time of A's death there would be a reversion to O. When B turns 21, however, he has a sprining executory interest, allowing B to now take. |
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Term
| What is the "Rule in Shelley's Case?" |
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Definition
| The rule in Shellys Case is a CL rule. It applied in only one situation. The situation was when the grantor conveys a life estate to A and then on A's death to A's heirs. Hstorically this conveyance would merge giving A, not a life estate, but a Fee Simple Absolute. |
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Term
| What is the significance of the Rule in Shelley's Case being a rule of law and not a rule of construction? |
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Definition
| Because it was a rule of law it could contravert a grantor's intent. In other words, it gave A an fee simple absolute when the grantor sought to nly give A a life estate. |
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Term
| Today The Rule of Shelley's Case is abolished. Therefore, today, if grantor were to say, "A for life, and at the time of A's death, to A's heirs," what is the result? |
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Definition
| A has a life estate. The unascertained grantees (heirs) have a contingent remainder. Grantor would retain a reversion because it is possible that A could des without ever having heirs. |
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Term
| Is the Rule n Shelley's Case abolished in NY? |
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Definition
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Term
| What is the Doctrine of Worthier Title? |
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Definition
| Lance, submit question about this...p.16-17 |
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Term
| The Doctrine of Worthier Title s a rule of construction. What does this mean? |
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Definition
| The grantor's intent, if articulated clearly will control. |
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Term
| Has NY abolished the Doctrine of Worthier Title, which prevents a grantor from providing future interest in his own heirs? |
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Definition
| NY has abolished this doctrine in respect to transfers that take effect after September 1, 1967. |
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Term
| What are the 3 types of vested remainders? |
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Definition
| indefeasibly vested remiander, vested remainder subject to complete defeasance (known as a remainder vested subject to complete defeasance) and vested remainder subject to open. |
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Term
| What is an indefeasibly vested remainder? |
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Definition
| The holder is certain to acquire an estate in the future without any conditions or strings attached. |
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Term
"To A for life, remainder to B."
1. What does A have?
2. What does B have?
3. What if B predeceases A? |
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Definition
1. A has a life estate
2. B has a indefeasibly vested remainder because no condition precedents are preventing him from taking: no strings attached.
3. At CL B's interest will pass by will or by an intestacy stattue if B dies intestate. |
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Term
| What is a vested remainder subject to complete defeasance (in NY, a remainder vested subject to complete defeasance)? |
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Definition
| The vested remainder subject to complete defeasance involves the grantor, a remainderman and a third party with an executory interest. The remainderman does not have any contingencies to take afterthe preceeding estate ends, but his estate may be cut off by an event that occurs sbsequent to his taking. |
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Term
| What are the interests? O conveys: "to A for life, remainder to B, provided, however, if B dies under the age of 25 to C." A is alive. B is 20 years old. |
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Definition
| A has a life estate. B has a vested remainder subject to complete defeasnace because if something happens, B's death before 25 occurs, then third party C will take cutting B's interest short. Here C has a shifting executory interest, which allows him to take if the subsequent condition occurs, B dies before 25. So, if B dies at 24 his right to transfer the land dies with him and C has a fee simple absolute, which allows C to take or his heirs. Here, O may stil have a reversion. This may be true if B dies at 24 and C never existed or has died without heirs before B turned 25. |
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Term
| What are the inrerests? O conveys "To A for life , and if B has reached the age of 25, then to B" |
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Definition
| A has a life estate. B has a contingent remainder. At the time of A's death is B is not yet 25 then there is a reverion to O or o's heirs. When and if B does turn 25 he has a springing executory interest. If B were to turn 25 during A lifetime he would have an indefeasible vested remainder. Therefore, even if B were to die after he turned 25 during A's lifetime, upon A's death the estate would not revert to O or his heris, but rather to the heirs of B. |
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Term
| What is the vested remainder subject to open? |
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Definition
| This remainder is vested in a class of takers because at least one of the class members qualifies to take possession on behalf of the whole class. Each class member's share is subject to partial diminution because the class is still open and not all takers are yet ascertained. |
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Term
What are the interests: O conveys: "To A for life, then to B's children." A is alive. B has to children C&D.
What does C&D have? |
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Definition
| They have a vested remainder subject to open. |
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Term
1. When is a class open?
2. When is a class closed? |
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Definition
1. A class is open when other can eneter the class without restriction may by the grantor.
2. A class is closed when it reached its maximum membersip, which is based on grantor's conveyance. Setting the limit of the class. |
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Term
| When is the CL Rule of convenience applied? |
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Definition
| It is appled when any member can demand possession, closing the class. |
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Term
What are the interests? O conveys: "To A for life then to B's children. A is alive, B has two children C&D.
When does the class close? |
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Definition
| There are two answers. The class may close at B's death because then B cannot have any more children. Under the Rule of Convenience, however, if A were to die before B, B's children, at the time of A's death, could take and close the class. Any subequent children B has after A's death will be shut out from the conveyance. A's death helps to create a clear bright line, hence the Rule of Convenience. There is an exception: "The womb rule." If A were to die, and B was pregnant, that unascertained child will share in the conveyance with C&D. |
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Term
| Wha tis an executory interest? |
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Definition
| It is a future interest created in a third party, which is not a remainder and which takes effect by either cutting short some interest in another person (a shifting executory interest) or in the grantor or his heris (a springing executory interest). |
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Term
| A shifting executory interest always follows __________ and cuts short somone other than the ______________ . |
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Definition
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Term
What are the interests? O conveys: "To A, if and when he marries."
Does this conveyance violatethe RAP? |
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Definition
O has a fee simple subject to A's executory springing interest.
No, because we will know by the end of A's life whether he has married. |
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Term
What are the interests? O conveys: "To A, if and when he becomes an attorney."
Does this violate the RAP? |
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Definition
O has a fee simple subject to A's springing executory interest.
No. This does not violate the RAP because we will know at the end of A's life whether hh became an attorney. |
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Term
| New York has abolished the distinction between contingent remainders and executory interests. What are they called in New York? |
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Definition
| They are called remainders subject to a condition precedent. |
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Term
| What is the Rule Against Perpetuities? |
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Definition
| The rule finds some futures interests to be be void . If there is any possibility, irespective of how remote, that the future interest may vest more than 21 years after the death of a measuring life, such future interest is void. |
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Term
| What are the four steps to assess whether a future interest violates the RAP? |
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Definition
1. Determine what the future interest is... RAP is only applicable to contingent remainders, executory interests and certin vested remainder subject to open.
2. Identify the conditons precedent to the vesting of the future interest.
3. Find a measuring life. Look for a perosn who is live at the time of the conveyance. Aske whether the person's life or death is relevant to the condition's occurrence.
4. Ask: Will we know with ceertainty within 21 years fromthe deth of our measuring life whether the future interest holder(s) future interest will vest. |
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Term
| Apply RAP formula to the following conveyance. Does it, violate the RAP? To A for life, then to the first of her children to reach 30." A is 70. Her only child B, is 29. |
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Definition
Step 1: what is sthe future interest? A contingent remainder (RAP alert).
Step 2: Wha ti sthe condition precedent for th efuture interest to vest? B must be thirty at the time of A's death.
Step 3: Find a measuring life: A is 70. Don;t use B because the conveyance is not "B" specific, but A is specified in the conveyance.
4. Will we know with certainty within 21 years from A's life whether B can take? We will not know because the RAP assumes the worse. So B may die tomorrow. A may fdie tomorrow. A may have another child who may never live to 30. It is too speculative. So A has a life estate and O has a reversion. |
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Term
| What are the two scenaios that always violate the RAP? |
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Definition
1. A gift to an open class where all members are required to live past the age of 21 for the conveyance to occur.
2. An executory interest where there is no limit on the time in which it must vest violates the RAP. See examples on p.25 |
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Term
| When there is a RAP problem because the condition precedent, which will allow an executory interest holder to take, is too remote, how do you solve the problem? |
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Definition
| You strike everything in from the offensive conditional language forward. This is important because sometimes you are left with a conveyance that is not gramatically correct altering its new meaning. See page 25. |
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Term
| Are there any exceptions to the RAP? |
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Definition
| Yes. The charity-to-charity exception. |
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Term
| What are the wait and see or the seond look doctrines? |
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Definition
| These doctrines are adopted by a majority of states to reform the RAP. Essentially, they tell us to not conjure up a "parade of horribles," but rather to look at the facts as presented at the conclusion of the measuring life. |
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Term
| What is USRAP and what does it do? |
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Definition
| USRAP is the Uniform Statutory Rule Against Perpetuity. It codofoes CL RAP, but also provides for an alternate 90 -day vesting period. |
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Term
| What is the cy pres doctrine? |
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Definition
| The cy pres doctrine means "as near as possible." Therefore is a conveyance were to violate the RAP, a court may alter it to remedy the RAP, and doing its best to come as near as possible to the grantor's intent. |
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Term
| What other reofrms have been established to avoid voiding grantors' conveyances? |
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Definition
| Any age contingency that is beyond 21 years is reduced to make the conveyance compliant under the RAP. |
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Term
| What reforms has NY made to RAP? |
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Definition
| The New York RAP stattue rejects the cy pres and the wait and see doctrines. the NY reform RAP sttute does however reduce the age to 21 when a future interest would be deemed invalid because the age exceeds 21 years. NY modifies the octogenerian prnciple by presuming that a woman over the age of 55 cannot have a child (adopting does not affect a RAP analysis). The Suspension Rule, which will be discussed in T&E. |
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Term
| What are the three forms of concurrent ownership? |
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Definition
| tenancy in common, joint tenancy, and tenancy by the entirety. |
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Term
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Definition
| Two or more people own with the right of survivorship. |
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Term
| What is a tenancy by the entirety? |
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Definition
| It is a protected marital interest between husband and wife with right of survivorship. |
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Term
| What is the tenancy in common? |
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Definition
| 2 or more own with no right of survivrship. |
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Term
| In a joint tenancy hen one owner dies, what happens to that share? |
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Definition
| The share passes to the surviving joint tenants. |
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Term
| Is a joint tenant's share devisable or descendable? |
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Definition
| No. It is alienable, however. |
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Term
| In order for a joint tenancy to be properly formed there must be the meeting of the 4 unities: What are they? |
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Definition
| Joint tenants must take their interests at the same time. by the same title, they must have identical interests, w/ idental rights to possess the whole. |
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Term
| In order for a joint tenancy to be formed there must be the four unities (time, title, identical intersts, and possession) and _______. |
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Definition
| the grantor must expressly state that there is a right of survivorship. |
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Term
| If X holds property in fee simple absolute and decides that he wants to become joint tenants wth hs friend Z what does he need to do? |
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Definition
| In order for X to satisfy the 4 unities he will need a strawman. Step 1: X will have to convey property to strawman. Step 2: Strawman conveys the property to X&Z as joint tenants with the express right of survivorship. Now all the unities ar emet including taking at the same time and via the same title. |
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Term
| How do you effectuate the a fee simple absolute to a joint tenancy in NY? |
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Definition
| In Ny, do not need to have a strawman. The holder of the fee simple absolute over property can convey joint tenancy directly. |
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Term
| How is a joint tnenacy severed? |
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Definition
| Think SPAM: sale, partion and mortgage. |
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Term
| Can a joint tenant sell or transfer her interest during her lifetime? If so are there any conditions? |
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Definition
| Yes, a joint teant is free to sell or transfer her share during her lifetime. She may even do so secretly and without the consent of the other joint tenants. |
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Term
| When one joint tenant sells his share in the joint tenancy she severs the joint tenancy because she disrupts the 4 unities by adding a new person in the mix. After the sale, what is left? |
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Definition
| Well, if there was more than 2 joint tenants then there would still be a joint tenancy between those original parties and a tenancy in common between them and the new party. If there was only one other person in the original jt tenancy then the original party and the new party have a tenancy in common. |
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Term
| If a joint tenant contracts with another to sell her interest in the joint tenancy, in equity, wha ti sthe result? |
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Definition
| This would sever the prospective seller's joint tenancy as to her share. The doctrine of equitble conversion regards as done as ought to be done." Therfore, if X enters this K in January 2007 and the closing is April 2007, the joint tenancy as to that portion of the joint tenancy is severed in January. |
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Term
| There are three types of partitions that result in a severance of the joint tenancy. What are they? |
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Definition
| 1. voluntary agreement; 2. partition in kind; 3. forced sale. |
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Term
In the context of a jont tenancy,
1. what is a voluntary partition?
2. what is a partition in kind?
3. what is a forced sale? |
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Definition
1. This is peaceful way to sever the joint tenancy.
2. A court action for the physical division of the property if in the best interest of all.
3. This is a court action too. If the property cannot be physically divided in the best interest of all then the court will force a sale and the joint tenants are entitled to remuneration based on their interest. Th epresumption is equal, but by K may be different. |
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Term
| When one joint tenant executes either a mortgage or lien on his portion of the property, does that constitute a severace as to his portion of the property? |
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Definition
| A majority of states (NY) who follow the lien theory of mortgages would not find tha tthe joint tenant has severed his interest from the rest of the joint tenancy. In the minority of states, however, the title theory of mortgages applies therefore finding tha tthe joint tenant has severed his interest from the remainder of the joint tenancy. |
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Term
1. NY, recognizes the tenancy by entirety. The tenancy by entirety can only be created in ______ with the _______ .
2. Does the tenancy by entirety have to be expressly convyed to husband and wife? |
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Definition
1. husband & wife, right of survivorship
2. No. Any conveyance to husband and wife is presumptively going to be a tenancy by entirety, unless expressly stated otherwise. |
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Term
| The tenancy is a very protected form of co-ownership. Can the creditros of one spouse, however, disrupt the tenancy? |
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Definition
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Term
| In NY, do creditors have the right to enforce against one spouse? If so, how does that effect the other spouse's interest in the tenancy by entirety? |
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Definition
| In NY, creditors can try to collect on a debt, but only as to the debtor spouse. It power is severely limited insofar as the non-debtor spouse's rights, including her right to survivorship may not be compromised. |
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Term
| Can there be a unilateral conveyance of a tenancy by the entirety? |
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Definition
| Neither party acting alone may convey the tenancy in entirety |
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Term
| What are the three features of the tenancy in common? |
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Definition
1. Each co-tenant own an individual part, but the right to possess the whole.
2. Each interest is devisable, descendable and alienable. There are no survivorship rights between tenants in common.
3. There is a presumption for the tenancy in common. |
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Term
A & B are tenants in common. A contributed 1. 90% of the purchase prce and B contributed 10%. Does B only have the right to possess 10% of the prperty?
2, If A wrongfully excludes B from the property what is that called? |
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Definition
1. No. Even though B contributed only 10% of the property she is still allowed to possess the whole.
2. A wrongful ouster. |
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Term
In the context of a tenancy in common:
1. If A goes away on a trip to Europe for 3 months and B stays behind, can A require B to pay her rent?
2. Same scenario, but now B rents part of the property while A is in Europe. Is A entitled to money? |
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Definition
1. No. A and B have the right to possess the whole either individually or jointly.
2. Yes, she is allowed to collect her share... so if she owns 10% of the premises she shoulf receive 10 percent of the rental income. |
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Term
| How can a tenant in common acquire the whole property through adverse possession? |
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Definition
| Difficult to do, but there must be ouster. The tenant seeking to adversely possess the property must be in exclusive control of the property for 20 years consecutively. |
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Term
| Tenants in common, A&B, own 90% and 10% of Blackacre respectively. How are carrying costs, mortgage, taxes, calculated? |
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Definition
| There share of the carrying costs are predicated on their percentage of ownership. |
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Term
| If a tenant in common makes a necessary repair, is she entitled to contribution from the other tenant? |
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Definition
| Yes. The contribtion will be divided based on their ownership interests. The repairingtenant mus tof told the others of the need. |
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Term
| Is a tenant in common that improves the property entitled to anything? |
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Definition
| Yes, at partition the tenant in common is entitled to a credit for any increase in value. |
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Term
| If a tenant in common improves the property, but at partition the improvement actually degrades the marketability of the property the ____________________ . |
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Definition
| improving tenant is liable for any decrease in value. |
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Term
| Can a tenant in common sue for waste? |
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Definition
| Yes (voluntary , permissive, ameliorative). |
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Term
| Wha tis a tenancy for years? |
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Definition
| A tenancy for years is a lase tha tis fixed for a particular time period (ex. 1 day or 1 year). When you know the termination date from the inception of the conveyance you have a tenancy for years. No notice s needed to terminate a tenancy for years. |
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Term
| Does a term of years greater than one year need to be in writing? |
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Definition
| Yes. For a term of years, which is in excess of a year, to be enforceable there must be a wiritng because of the statute of frauds. |
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Term
| What is periodic tenancy? |
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Definition
| A periodic tenancy continues for successive intervals until the landlord or tenant provides proper notice of termination. |
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Term
| If a landlord conveys his property to T on a month-to-mont basis or a year-to-year basis, wha ti sthis considered? |
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Definition
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Term
| What are the three ways that a periodic tenancy may arise in implicit terms? |
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Definition
1. Property is leased without any express mention of the duration of the lease, but payment arrnagments to the landlord re made at set intervals.
2. An oral term of years that violate the SOF, which is subsequently becomes a periodic tenancy that is measured by the interval of rent payment.
3. If a T has stayed longer than his lease allows and L elects to holdover the T, there is a periodic tenancy that is based on the interval of rent payments tendered in the past. Month-month etc. |
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Term
| NY Distinction: A landlord that elects to holdover a T creates . . . |
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Definition
| an implied month-month periodic teneancy unless otherwise expressly agreeed |
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Term
1. How is a periodic tenancy terminated?
2. How much notice is required (CL)?
* Note: that all CL rules may be altered vis-a-vis private K. |
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Definition
1.Generally, written notice must be given.
2. Generally, the notice must equate to the present interval of payment, month to month, would require one month of notice. There is one exception if the tenancy is for a year or more the parties are only required to give 6 months of notice. |
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Term
| The periodic tenncy must end at the natural conclusion of a lease period. What does this mean? |
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Definition
| For example, if T has a month-month periodic tenancy, and T gives L notice that he wants to terminate the tenancy, and does so on May 15, T is bound to the tenancy until June 30. The fact that T is telling L on 5/15 does not provide L with adequate notice because at least 30 days are required and because the terms are month to month the lease must end at a natural point, at the end of the month. |
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Term
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Definition
| A tenancy at will has no fixed duration. Courts generally treat a tenacy at will like an implied periodic tenancy. This tenancy can be trminated at any time. Note: in NY, a L terminating a tenancy at will must provide T with 30 day notice in writing. |
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Term
| What is a tenancy at sufferance? |
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Definition
| This leasehold is created when a T worngfully holdsover past the expiraton of the lease. The tenancy at suuferenace allows the L to recover rent. |
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Term
| How long does a tenancy at sufferance last? |
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Definition
| It lasts until the L evics the tenant or until the L lects to hold the T to a new tenancy. |
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Term
| What are tenants' duties? |
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Definition
| 1. T's duty to third parties, 2.T's duty to repair and 3. T's duty to pay rent. |
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Term
| When is a tentant liable to a third party? |
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Definition
| Tenants are responsible for maintaing premises that they are in reaonably good repair. T is liable for injuries sustained to invited third parties even where the L promised to make repairs to the premises. |
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Term
| May tenant seek indemnification if a third party sues her for injuries sustained hile on her property? |
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Definition
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Term
| What is the extent of T's duty to repair? |
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Definition
T must make all ordinary repairs to the premises, even when the lease is silent.
t must not commit waste. Voluntary wate: overt harmful acts, Permisive waste: neglect or ameriolative waste: altertions to the premises that may increase value. |
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Term
| What is the law of fixtures? |
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Definition
| The rule of fitures is affiliated with the notion of waste. A tenant must not commit waste. When a T remove a fixture from the presmises his action are considered voluntary waste. A fixtre may not be removed even if the T installed it. The fixture, which was once moveable chattel is now annexed to the relaty objectively showing the intent to permanently improve the realty. |
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Term
| Wha tis the most fundamental rule of fixtures? |
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Definition
| Fixtures pass with ownership of the land. |
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Term
| How do you know when a tenants installation equates to a fixture? |
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Definition
1. Express terms of the lease may say.
2. If there is no writing, the T may remove the chattel she installed as long as the removal would not cause substantial harm to the premises. |
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Term
| If the removal of a installed chattel would cause substantial harm to the property then ... |
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Definition
| the chattel is a fixure that must be passed with the land and cannot be removed. |
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Term
| What are some examples of fixtures? |
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Definition
| heating systems, custom windows, some light fixtures. furnace etc. |
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Term
1. At CL, if a T expressly takes on the duty to maintain the property for the remainder of the lease . . .
Today, a T's agreement to maintain the premises for the period of the lease . . . |
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Definition
1. The T would be liable to any loss to that property, including losses that occurred due to natural disasters.
2. T is not on th ehook for premises destroyed by natural disasters, and in fact T may terminate the lease. |
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Term
| In NY, absent a tenant's agreement to resotre the premises in the event of its destruction, if the premises are not destroyed at the hands of the T, what is the result? |
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Definition
| T can quit the premises and surrneder premises without any obligation to pay rent. |
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Term
| If a tenant breaches it duty to pay rent, what are the landlord's options? |
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Definition
| The landlord may chose to evict the tenant through the court system, or continue the relationship and sue for back rent. If the landlord does chose to evict she may receive past rent too. |
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Term
| When a landlord elects to evict a tenant, what tyoe of tenant does she have? |
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Definition
| She has tenant at sufferance until the T vacates the premises. |
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Term
| When a T wrongfully holds over, what must a L not do? |
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Definition
| A L mist not engage in self help, which includes: changing locks, physically removing the T or removing tenant's possessions. |
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Term
| In the context of the L/T relationship, is self-help punishable? |
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Definition
| Yes. Self-help may be unished civilly or criminally. |
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Term
| In NY, what may a T receive if a L engages in self-help? |
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Definition
| Treble damages. Self-help is flatly prohbited in NY. |
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Term
| What happens if t breaches his duty to pay rent, but is not in possession of the property, meaning he leaves? |
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Definition
| The L has three options (SIR): the L can: 1. Choose to treat the abandonment as a tacit offer to surrender, which the L may accept (if the unexpired term is over one yr, it has to be in wiritng to comply with SOF). 2. Ignore the abandonment and hold T liable and hold T liable for the unpaid rent a if he were still there (minority view). Re-let the premises on the tenant's behalf hold liable only for deficiency. |
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Term
| NY: Gnerally, in NY is a L required to re-let the premises, meaning is the L required to mitigate his damages when a T abndons the premises? |
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Definition
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Term
| What are landlords' duties to tenants? |
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Definition
| Duty to deliver possession, the implied covenant of quiet enjoyment, the implied warranty of habitability |
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Term
| What is the L's duty to deliver possession? |
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Definition
| The English rule requires the L to put the T in physical possession of the premises. If at the start of the lease the L cannot do that he has breached and T may seek damages. The American rule does not require the L to put the T in actual possession of the premises at the start of the lease. |
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Term
| What does th right to quiet use and enjoyment of the premises apply to? |
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Definition
| This applies to both residential and commercial leases. It allos the tenant to be free from interference from landlord, to enjoy the premises. |
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Term
| What are some common scenarios T/L that would constitute a L's breach of the implied covenant of quiet enjoyment? |
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Definition
1. Breach by actual wrongful eviction: excludes T from premises.
2. Breach by a constructive eviction: |
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Term
| What are the elements for constructive eviction (SING)? |
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Definition
1. Substantial Interference: A chronic problem either due to the L's action or inaction.
2. Notice: T must give L notice of the problem, and L's failure to act must be intentional.
3. Goodbye:T must vacte the premises in a reasonable amount of time after L fail s to remedy the problem. |
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Term
| Are L's liable for the acts of other tenants? |
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Definition
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Term
| What are the exceptions to the rule that a L will not be liable fro the actos of other Ts? |
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Definition
| L must not permit a nuisance on the premises & L must control common areas. |
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Term
| Does the implied warranty for habitability apply to commercial leases? |
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Definition
| No. This implied warranty only applies to residental leases. |
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Term
| Is the implied warranty of habitability waivable? |
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Definition
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Term
| What is the standard for the implied warranty of habitability? |
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Definition
| The premises must be fit for habitability: the basic habitation or bare ling requirements must be met. |
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Term
| Who sets the standards for the implied warranty of habitability? |
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Definition
| The local housing code or independent judicial determination. |
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Term
| What are examples of problems that need to be remedied in order for a L to not be in breach of his implied warrant of habitability? |
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Definition
| Must have heat in the winter, Must have adequate plumbing, Must have running water |
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Term
| If L breaches his implied warranty of habitability what is T entitled to? (MR3) |
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Definition
| 1. Move: move out and terminate the lease. 2. repair and deduct: In many states, T is allowed to remedy the breach by fixing the problen and then deducting the cost from its rent. 3. reduce rent: T may reduce rent until a judicial determination is made re: wha tthe rent should be in light of the breach (T must put full rent in escrow). 4. remain in possession: T pays rent and affirmatively seeks remuneration from L. |
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Term
| What is retaliatory eviction? |
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Definition
| Retaliatory eviction is where a T is harrassed fro reporting L who is violation of housing code. Such conduct is barred: ending lease, raising rent or harrassing T. |
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Term
| Absent a prohibition in the lease agreement, may a T tranfer her interest in the lease in whole to someone else, which is an ________, or in part, which is a _______ ? |
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Definition
assignment, sublease.
A T may freely assign or sublet her lease. |
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Term
| In a lease L may prohibit the T from assigning or subletting the lease. If, however, the L does permit a transfer of T's interest to ta third party, what happens? |
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Definition
| L by allowing the t to trnsfer her interest to another once, result in L waiving the right to object to future transfer by that T, unless the L expressly reserves the right to limit future ssignments and sublets. |
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Term
| What is NY's rule regarding assigning a lease in a residence with less than 4 units? |
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Definition
| In NY, a residential T may not assign her lease, unless the lease expressly allos her to assign. L can unreasonably withhold the right to provide consent to a n assignment. In such circumstances, a T's only remedy is to seek a release from the lease. |
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Term
| What is the NY rule regarding assigning a lease in a residence with 4 units or more? |
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Definition
| In contrast, a T in a residential building having four or more units has a right to sublease subject to L's written consent. Consent by the L cannot be witheld unreasonably, if so it is as if the L consents to the assignment. |
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Term
| When a T assigns the lease in whole wha ti sthe relationship called that now exists between the L and T2? |
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Definition
| They have a privity of estate, and T1 and L are in privity of K. |
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Term
| What does it mean to be in privity of estate? |
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Definition
| This means that the L and T2 are bound to all covenants in the original lease that run with the land. |
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Term
| What are some examples of covenants that run with the land in the context of an assignment of a lease? |
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Definition
| T2's duty to pay rent, paint the premises when leaving, make necessary repairs. |
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Term
| Can L and T2 ever be in privity of K? |
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Definition
| They are not in privity of K, unless T2 expressly assumes all covenants under the initial lease. |
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Term
| Once T1 assigns a lease to T2 is T1 in privity of estate with L? |
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Definition
| No. They are still in privity of K though. Therefore, L and T1 are secondarily liable to each other. |
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Term
L leases Blackacre to T1. T1 assign to T2, who then assigns to T3. T3 trashes the apartment.
1. Can L proceed against T3, the direct wrongdoer?
2. Can L priceed against T1 the original T?
3. Can L proceed against T2? |
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Definition
1. Yes L can proceed against T3 because they are in privity of estate.
2. Yes, because they are in privity of K. T1 is secondarily liable to L.
3. No. There is no privity of K or privity of estate. The only way that L could commence an action against T2 is if T2 expressly assumed all the coveneants from the initial lease. In that case there would be privity of K between L and T2 and as a result the L would not have a reason to recover from T1, who he no longer woul dhave privity of K with. |
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Term
| Under CL the L had very limited obligations, for example no duty to make the premises safe. Today, some exceptions to this harsh rule have been created. Because of these rules think how Ts (CLAPS). CLAPS represented some of the amendments to the harsh ru |
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Definition
C: Common Areas: L bears the duty to maintain all the hallways, stairwells, etc. and may be liable in tort for not fulfilling hs duty.
L: Latent Defects Rule: This is the duty to warn, not to repair. L has a duty to tell T of any latent defects that he is aware of or should be aware of...
A: Assumption of Repairs: A L who volunteers and takes on repairs must complete those repairs with reasonable care.
P: Public Use: L must reasonable repairs to the premises when the premises are a leased as public space and L knows that because of the nature of defect and the length of the lease the T will not repair the defect. For example, leasing out an auditorium for a day and 8 of the chairs are extremely dangerous, and must be fixed.
S: Short-term lease of furnished dwelling: L is responsible for any defect that harms T in a short-term lease where there is no expectation or expertise to make repairs to the premises. |
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Term
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Definition
| An easment is a grant of a nonpossessory property interest that entitles the holder to some form of use of another's land, which is called the servient tenament. |
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Term
| What is the privilege of laying power lines aon another's land considered? |
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Definition
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Term
Easments may be affirmative or negative.
Wha tis an affirmative easment and what is a negative easment? |
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Definition
| An affirmative easment is the right for a holder of the easment to do something to or on the servient tenement. A negative easment, in contrast, provides the holder of the easment to power to not allow another person from using their property in a way tha tis lawful, therby making that a servient tenament too. |
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Term
| Negative easments are generally only recognized in 4 categories: (LASS) |
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Definition
1. L: Light
2. A: Air
3. S: Support
4. S: Stream water from an artificial flow
* I na minority of states, a negative easment may be allowed for a scenic view. |
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Term
| How are negative easments created? |
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Definition
| A negative easment must be stated expressly in a writing signed by the grantor (servient tenament). There is no natural right or automatic right to a negative easment. |
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Term
| An easment is either appurtenant to land or it is held in gross. What does it mean for an easment to be appurtenant to the land? |
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Definition
| An easment that is appurtenant to the land always involves two parecls, one that is dominant, meaning benefitting from the easment, and on the is servient, bearing the burden of the easment. |
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Term
| What is an easment in gross? |
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Definition
| An easment in gross does not involve two parcels of land. an easment in gross probvides the easment holder a pecuniary or personal advantagetha tis not related to the use or enjoyment of his own land. Thus, there is no dominant tenement in an easment in gross. There is only aservient tenement. |
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Term
| The right to swim in someone's lake or the right to place a billboard on someone's land, what are these rights called. |
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Definition
| These are examples of easments in gross. The easment provides either a pecuniary benefit or personal benefit to the easment holder. There is only one parcel of land involved here and that land is the servient tenement. |
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Term
| Which type of easment runs with the land? |
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Definition
| The easment appurtenant to the land. The easment runs with the dominant tenement and does not have to be mentioned in the conveyance to be valid. |
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Term
| Does the burden of the easment appurtenant run with the land? |
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Definition
| Yes, provided that the bona fide purchaser is aware of the easment. |
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Term
| Is an easment in gross transferrable? |
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Definition
| It is not transferrable if the easment is for personal use. It is , however, transferrable if the use if for a commercial purpose. |
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Term
| How do you create an affirmative easment? (PING) |
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Definition
G: Prescription: Grant: An easment for more than on eyear must be in writing to satidsfy the SOF. The writing that creates the easment is called the a Deed of Easment.
I: Implication: An affirmative easment may be implied by prior use, and when the parties expected the use would survive the conveyance because the easment is reasonably necessary for the purchase to use and enjoy his land.
N: Necessity: An easment will be implied if an aowner conveys a prt of his land, which leaves the other parcel landlocked.
P: Prescription: An easment may be acquired by satisfying the elements of adverse possession. |
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Term
| What are the elemnts required to adversely possess someone's land? |
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Definition
| 1. Continuous use of the land for the statutory period 2. The use must be open and notorious 3. It must be an actual use. 4. The use must be hostile not by permission of the servient owner. |
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Term
| In NY, what is the statutory period for adverse possession? |
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Definition
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Term
| What generally sets the scope of an easement? |
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Definition
| The grant or conditions that created it. |
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Term
| How is an easment terminated? (END CRAMP) |
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Definition
E: Estoppel: When the dominat tenement owner tells the servient tenement owner that tthe use of the easment is no longer needed, if the servient owner relies on that statement and does something, like builds a guest house on the land that was part of that easment, the former easment holder is estopped from trying to re-assert its right to the use of that land.
N: Necessity: Easments that are created because they are a necessity expire once the necessity is no longer present. If the easment was granted expressly, however, it will not end automatically just because it is no longer necessary to have the easment.
D: Destruction: Destruction of the land will end the easment, unless there is willful conduct by the servient owner.
C: Condemnation of the Servient Estate: The easment may end because of eminent domain.
R: Realease: A written release by the easment holder to the servient tenement's owner.
A: Abandonment: The holder of the easment takes physical action to illustrate that he no longer will use the easment again (requires physical conduct). Non use or words are not enough to destroy the easment (good xample: where the easment holder creates a structure that prevents the use of the easment).
M: Merger doctrine: When the Deed of Easment and the title to the servient land are held by the same owner. If there is later a separation of title the easment is not automatically revived.
P: Prescription: The servient owner's adverse posession of the easment will extinguish it. A gives B a easment across his land. Subsequently, A erects a fence. The fence remains for ten years. The easment is adversely possessed and is terminated. |
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Term
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Definition
| It is a mere privilee to enter someone's land for a specific purpose. |
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Term
| Are licenses subject to SOF? |
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Definition
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Term
| Licenses are generally freely revocable, when will a license not be revocable? |
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Definition
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Term
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Definition
| Tickets are freely revocable licenses. |
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Term
| An oral easement is considered? |
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Definition
| A revocable license because an easmenet must be wrtiign and thus is unenforceable. |
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Term
| When will the court estopp a licensor from revoking a licensee's license (oral easement)? |
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Definition
| The court may not revoke the oral agreemnet if the licensee can show that he invested a substantial amount of money or labor in reliance on the licensor's promise. |
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Term
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Definition
| The profit entitles its owner to enter the land and take from it the soil or some substance of the soil (minerals, oil, timber). |
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Term
| What rules are the profit governed by? |
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Definition
| They are governed by the same rules of the easment. |
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Term
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Definition
| A covenena tis a promise to do or not do something related to land. |
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Term
| How is a easment different than a covenant? |
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Definition
| A covenant is a contractual limitaiton or promise regarding an interest in land. In contrast, an easement gives someone else the right to use land... |
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Term
What is an example of a negative covenant?
What is an example of an affirmative covenant? |
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Definition
I promise not to use my land for commercial purposes. I promise not to paint y shutters brown.
I promise to maintain our common fence or retaining wall. |
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Term
| How can you tell the difference between an equitable servitude or a covenant? |
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Definition
| An equitable servitude the party is always seeking injunctive relief opposed to the covenant who is seeking money damages. |
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Term
| Does the benefit and burden of the covenant run to subsequent landowners? |
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Definition
Step 1: Does the burden on A's land run to A1 (known as vertical privity)?
1. Was there a writing? The original promis between A&B had to be in writing.
2. Intent: The original parties had to run with the land. (Courts are generous with finding such an intent).
3. Touch and concern the land: the promise must affect the parties' legal relations as landowners.
4. Was there horizontal privity? Were the oringinal parties: mortgagor-mortgagee? Landlord-tenant? grantor-grantee?
Verticla privity is established by privity of K, devise, or descent
5. A1 needs to have notice of the covenant when he took possession (WITHN)
Then do the same analysis to see if the benefit to run (same) WIT writing, intent, touch and concern, no H need for benefit to run, only need vertical privity (some non-hostile nexus: K, devise, descend) so that leaves with WITV...
Start with burden more elements to show:
1. Writing (horizontially)
2. Intnet (horizontally)
3. Touch and concern the land
4. Horizontal and vetical privty
5. Notice upon vertical taker: taking |
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Term
| Wha ttype of covenants never run with the land? |
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Definition
| Covenants not to compete. Covenants to pay money in connection with the land (community fees). |
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Term
| When will vertical privity not be present? |
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Definition
| When the vertical taker acquired interest via adverse posession. |
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