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Property Law
| Question | Answer |
|---|---|
| How to transfer property | sale (alienated), gift, divise (transfer by will), intestate success (heir at law), |
| when do the gifts in a will take effect? | when the person dies |
| What is the key distinction between present interests and future interests? | the timing of the ownership right |
| Is someone in possession of the property at all times? | yes all times |
| what is the fee simple? | the whole piece of pie; it is capable of lasting forever which makes it the largest estate |
| lasting forever means what? | it is inheritable, it can be transferred by gift or sale in life |
| What is the difference between absolute estate and defeasable estate | divisible is capable of lasting forever but could be cut short |
| Is there an assumption that the grantor conveys all the most that she has? | yes; don't be fooled by words of intent like hope and wish. To anna and I hope she will convey to Ben..anna has a FSA Ben has nothing |
| Does a FSA create a future interest? | no; because it is capable of lasting forever. |
| Whatis a determinable fee simple? | language that terminated a fee; while it is used as a farm, until it is no longer a farm (durational) |
| what is fee simple subject to conditions subsequent | language suggest the grantee must exercise; oliver is given property so long as he meets a condition; provided that the land is not farm; on the condition that |
| possibility of reverter (fee simple determinable)(grantor retains POR) | for so long as, whil during until; terminates upon happeneing of a state event and automatically reverts to grantor (alienable and devisable but subject to condition that limits duration) |
| What is the difference between the FS determinable and subject to condition subsequent? | FS determinable will end at some point while subject to condi su requires the grantor to exercise their right after a condition |
| Possibility of reverter | future interest held by the grantor following an FSD (vests automatically; doesn't have to be reclaimed) |
| O has blackacre so long as used as a public park? What does O have? | a possibility of reverter; if not a park it automatically vests as a FSA to O |
| O conveys to A but if not used as pr | This is a right of entry; must exercise this right. |
| FS subject to executory interest | will end upon the happening of a happening event and will vest in a 3rd party |
| O to A but if liquor is served then to B and his heirs. What does A have; what does B and O have | A=FS subject to executory interest; B is a subsequent grantee and has an executory interest; O has nothing but if went back to him it would have been a right of entry |
| If a 3rd party gets an executory interest what can be said about the 3rd party | they will divest the initial grantee from their property |
| O to A while the land is used for school purposes? O and A? | O has a possibility of reverter; A has a FSD (determinable); while=durational language |
| O to A while the land is used for school then to B? | O has nothing, A has a fee simple subject to executory interest; A has an executory interest and will divest A |
| O to A but if A gets a pet then O may retake? | A has a fee simple subject to conditions subsequent (but if language); O has a right of entry |
| What is a life estate? | a present estate limited by a life; o to a for life |
| Is a life estate transferrable? | yes during measuring life |
| O to A for B's life is a? | Life estate; will end upon the death of the measuring life. |
| Can a life tenant pass the property by a will? | no; the LE ends at the tenants death |
| If the possession of the land goes back to the grantor after the LE what does the grantor retain? | a reversion (this is distinct from a possibility of reverter) |
| O to A for A's life what does O have? What does A have? O to A for life and then to B? What does B have | O has a reversion; A has LE; B has a remainder during A's life, after FSA |
| When does waste come into play? | when more than one party has simultaneous interest. Has to cause a change in value of the land |
| O to A for life and then to B. A dumps hazardous. What can B do? | file a claim for waste. |
| What are the different kinds of waste? | affirmative waste (caused by voluntary conduct); permissive waste (fails to preserve, neglect) ameliorative--where life tenant changes uses of property and actually increases value |
| how do you spot a waste problem? | do multiple parties have simultaneous interest; change in value of property; will it substantially change the interest taken by the party |
| what are concurrent estates? | two or more persons in possession; basic rule is concurrent owners each have right to possess the whole property |
| Can concurrent owners contract out of the basic rule? | yes they can; this encourages agreement |
| What are the 3 types of concurrent estates? | tenancy in common (default); joint tenancy, and tenancy by entirety |
| tenancy in common | separate but undivided interest in property; O to A and B; each has 50% share (separate) and undivided; each has a right to the whole; freely divisible |
| O to A, B, and C; B dies and gives to Brad | A has 1/3 interest; Brad has 1/3 taken from his dad B; C has a 1/3 interest |
| Joint Tenancy (right of survivorship) | O to A and B with right of survivorship; A leaves a will with everything to Amy; Who owns?---Ben because he had the right of survivorship |
| How is a joint tenancy created? | clear expression of intent+survivorship language; Four unities= equal rights to possess the whole with identical equal interests at the same time by the same title |
| What are the four unities? | equal rights to possess the whole, with identical equal interests, at the same time, by the same title (PITT) |
| IF A receives a 1/3 and B receives 2/3 are the unities covered? | no; not equality in ownership; hence no Joint Tenancy and this is now a tenancy in common |
| What happens if any one of the unities is destroyed? | it becomes severed and becomes a tenancy in common |
| If a JT conveys away an interest has this destroyed the Unities? | yes; however |
| A B and C are joint tenants; A transfers to Amy; what is the effect? | Amy now has a 1/3 interest as a tenant in common; B and C still have a Joint Tenancy with a tenancy in common with Amy |
| Does a lien against a JT's interest survive that person's death? | no; you cannot take from the other JTs |
| Does a mortgage sever a JT? | in some states yes in others no; majority say mortgage is a lien and say it will not sever; others follow title theory and thus severs) |
| Does a lease sever a JT? | some say yes; others say is a temporary suspension of the JT |
| Tenancy by the entirety | JT with ROS (between marriage spouses) Marriage is the 5th unity; protected from creditors of only one spouse |
| can a tenant by entirety sell interest without other spouse's consent? | no this makes it different from JT |
| In a JT can a creditor take your share? In a tenancy by the entirety? | yes in a JT this transfers it to a TC with the new creditor (often have to sell) but in Tenancy by Entirety this cannot be done unless both man and woman sign the mortgage |
| Does each tenant have the right to all of the property? | yes; if A owns 2/3 and b owns 1/3; can B occupy the whole of the property...yes; is B an adverse possessor--No |
| What is Ouster? | when the co-tenant wants to possess property but the other tenant is preventing this; it is an injury |
| What are the ousted tenants options? | get an injunction; or recover damages for the time when the co-tenant was unable to access the property |
| What about 3rd party rents to co-tenants? | it is divided based on ownership interests. if 10% you get 10% of the rent |
| What about charges like taxes? | also based on ownership share |
| Is there a right of reimbursement for necessary repairs? what about improvements? | no; however they get credit in a partition action...improvements are the same |
| what is a partition? | an equitable remedy available to JT or TC; divide the property into distinct portions. |
| Is a partition a unilateral right? Do T by E have unilateral right | yes; and no for T by E |
| In a partition to Courts have preference for physical division? | yes this is called a partition in kind |
| When will Courts order a partition by sale? | if physical partition is not practical; OR not fair to all parties |
| A and B have a JT of a condo; A sues for partition what kind of partition? | partition by sale; not practical to divide a condo. |
| Can you agree not to partition? | yes provided the agreement is clear and reasonable |
| Define Future interests | give holder a present, legally-protected right or possibility of future possession of an estate |
| Executory interest two kinds | 1) sprining executory interest (divests the grantor) 2) shifting executory interest (divests a prior grantee) |
| O to A for life then to B 1 year after A's death | B has a springing executory interest; O gets remainder for 1 year |
| O to A but if land is used for commercial purposes to B | A has FS subject to EI; B has shifting executory interest |
| O to A after she is admitted to the Bar? A has a ? | springing executory interest |
| What is a remainder? can if follow a FSA | after a LE; no; RAP only applies to contingent remainder |
| What is a vested interest? | given to an ascertained grantee AND not subject to a condition precedent |
| O to A for life and then to B? Is Ben ascertained? Is there a condition precedent? Is he vested? | A has LE, B has remainder; he is ascertained and there is no condition precedent; he is vested |
| O to A for life and then to A's first born grandchild and at the time no 1st born grandchild. is grandchild an ascertainable grantee? | no; as a result the 1st born grandchild has a contingent remainder |
| O to A for life and then to B if B survives A? what does B have? | B has a contingent remainder; O has a reversion on the chance the B does not survive A |
| Vested subject to open | veseted remainder in a class gift and full class membership is unknown (at least one person must be vested) |
| When all members of a class are id'd what happens to vested subject to open? | it closes and is now a vested interest |
| O to A for life and then to A's children 21 years after her death? A has one child B. | B has a vested right subject to open. |
| Does the RAP apply to vested remainders subject to open? | yes it applies |
| O to A for life and then to A's children. When does the class close? | when A dies |
| What is the doctrine of worthier title? | prevents a remainder in the grantor's heirs. creates a presumption of reversion. |
| O to A and then to O's heirs; what does O have? | O has a reversion and not the heirs |
| The rule in Shelley's case (merger) prevents against grantee heirs? O to A for life and then to A's heirs. | not going to give heir a remainder but instead will give A a fee simple |
| What is the rule against perpetuities? | At the creation of the interest, the FI must vest or fail by the end of a life in being, plus 21 years |
| think of th eRAP as... | a statute of limitations for contingent future interests (not just contingent remainders) |
| RAP method | when what and who? |
| RAP when | ID when the interest are created (intervivos transfer...created at the time of the grant; for a will at the testators death) |
| What | determine if the interests created are subject to the RAP; contingent remainders and executory interests and vested remainders subject to open |
| Who | Who are the lives in being at the creation? ID the relevant and if applicable validating lives; who is relevant the person that is listed; validating life is the person that says whether or not the interest will vest. |
| O to A but if land is ever used as a business to B during A's lifetime then to B | when-at time of conveyance; what--B's executory interest; Who--A and B and A is the validating life |
| If there is no validating life what happened to the interest? | the entire interest gets struck if it is invalid. as if the interest was never created |
| Will an interest vest remotely? | if it exists beyond 21 years of the validating life; what is the last moment of time the interest will vest is that within the RAP time |
| O to a for life and then to A's first child to reach 22 | kid has contingent remainder which is possible to vest more than 21 years after A's life; gets struck down and now O has a reversion |
| If we can come up with a scenario for remote vesting is the RAP violated? | yes |
| Do you have to be alive at the time of the interest in order to be a validating life? | yes validating life has to be alive |
| O to A so long as is used as a farm and then to B? will this violate the RAP? What is struck? | this violates the RAP because there is no time limitation; it becomes O to A so long as is used as a farm; now a FSD and O has possibility of reverter; and B has nothing |
| O to my grandchildren that reach 21; O has A and B as children and 3 grandchildren does this violate the RAP? | yes; it is possible that O will have a new child (not lives in being); that new grandchild could reach age 21 more than 21 years after the last life in being; O now has FSA after being struck down |
| IF the gift to any member of the class if bad what happens to other members? | it is bad to all...bad to one bad to all |
| O to A for life and then to all of her children that reach 25 | B is 26 and is now vested but is subject to open; doesn't survive RAP because A can have more children and thus create a life that can't be validating and its possible this could vest more than 21 years after lives in being |
| What is the rule of convenience? | can save a class from being invalidated under RAP |
| What is the rule of convenience? | the class closes as soon as a member of the class is entitled to immediate possession |
| o to a for life and then to A's grandchild and A has 1 grandchild | it is possible that A will have more grandchildren; with the rule of convenience the class is closed at A's death |
| Exceptions to rule of conveninece | transfers of a specific dollar amount and transfers of a subclass |
| exceptions to RAP generally | charitable exception gift to another charity from a charity |
| Do RAPs apply to options to buy FSA? | No |
| Wait and See Approach | Some states follow the wait and see if it actually vests |
Created by:
acrawfo222