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System of Estates

System of Estates - Property Law

Fee simple absolute - language to create 'To A and his heirs' or 'To A'
Fee simple absolute - duration Absolute ownership of potentially infinite duration
Fee simple absolute - transferability Devisable, descendible, alienable
Fee simple absolute - future interest None
Fee tail - language to create 'To A and the heirs of his body'
Fee tail - duration Lasts only as long as there are lineal blood descendants of grantee
Fee tail - transferability Passes automatically to grantee's lineal descendants
Fee tail - future interest Reversion (grantor) or remainder (grantee)
Fee simple determinable - language to create 'To A so long as...', 'To A until...' 'To A while…' (clear durational language)
Fee simple determinable - duration Potentially infinite, so long as event does not occur
Fee simple determinable - transferability Alienable, devisable, descendible, subject to condition
Fee simple determinable - future interest Possibility of reverter (always held by grantor, automatic)
Fee simple subject to condition subsequent - language to create 'To A, but if X event happens, grantor reserves the right to reenter and retake' (Grantor must carve out right of reentry)
Fee simple subject to condition subsequent - duration Potentially infinite, so long as event does not occur, and, thereafter, until holder of the right of entry timely exercises the power of termination
Fee simple subject to condition subsequent - transferability Alienable, devisable, descendible, subject to condition
Fee simple subject to condition subsequent - future interest Right of entry/power of termination (grantor must exercise)
Fee simple subject to an executory limitation - language to create 'To A, but if X event occurs, then to B'
Fee simple subject to an executory limitation - duration Potentially infinite, so long as stated contingency does not occur
Fee simple subject to an executory limitation - transferability Alienable, devisable, descendible, subject to condition
Fee simple subject to an executory limitation - future interest Executory interest (3d party, automatic)
Life estate - language to create 'To A for life' or 'To A for life of B'
Life estate - duration Measured by life of transferee or pur autre vie
Life estate - transferability Alienable, devisable and descendible if pur autre vie and measuring life still alive
Life estate - future interest Reversion (grantor) or remainder (grantee)
Words of mere desire, hope, or intention Insufficient to create a defeasible fee
Absolute restraints on alienation Void
Life tenant is entitled to all ordinary uses/profits from the land
Life tenant must not commit waste
Types of waste (3) Voluntary/affirmative, permissive/neglect, ameliorative
Voluntary waste - exceptions (4) PURGE: Prior Use, Reasonable repairs, Grant, Exploitation
Obligations to avoid permissive waste (2) Maintain property in reasonably good repair, pay all ordinary taxes to extent of income/profits - if no income/profit, must pay all ordinary taxes to the extent of fair rental value
Future interests in transferees (3) Vested remainder, contingent remainder, executory interest
Remainderman cannot/never Cut short or divest a prior transferee/follows a defeasible fee
Vested remainder (2) Created in an ascertained person, is not subject to any condition precedent
Contingent remainder - creation (2) Created in as yet unborn or unascertained persons/subject to a condition precedent
Rule of destructibility of contingent remainders - common law Contingent remainder was destroyed if it was still contingent when the preceding estate ended
Rule of destructibility of contingent remainders - modern Abolished
Doctrine of worthier title - common law Contingent remainder in O's heirs is void (but grantor's intent controls)
Doctrine of worthier title - modern Contingent remainder in O's heirs is void (but grantor's intent controls)
Vested remainders - 3 types Indefeasibly vested remainder, vested remainder subject to complete defeasance, vested remainder subject to open
Indefeasibly vested remainder No conditions attached
Vested remainder subject to complete defeasance (total divestment) Remainderman's right to possession could be cut short because of a condition subsequent
Vested remainder is subject to open Remainder is vested in a class, at least one member is qualified to take, but additional takers can still join the class
Rule of convenience A class closes when any member can demand possession
Womb rule A child in the womb will share in a class gift
Remainderman is like Tom Hanks
Executory interest is like Dr. Evil
Shifting executory interest cuts short Someone other than the grantor
Springing executory interest cuts short The Grantor
Rule against perpetuities - approach Dtrmn which ftr. interests have been created, ind. the conditions precedent to vesting of the suspect future interest, find a measuring life, ask if we will know, with certainty, within 21 years of the death of our measuring life, if our future interest h
Interests subject to the rule against perpetuities (4) Contingent remainders, executory interests, vested remainders subject to open, rights of first refusal
Interests NOT subject to the rule against perpetuities (3) Any future interest in O, indefeasibly vested remainders, vested remainders subject to complete defeasance
Key interests that violate the common law rule against perpetuities (2) A gift to an open class that is conditioned on the members surviving to an age beyond 21, an executory interest with no limit on the time within which it must vest
Charity-to-charity exception Exempt from rule against perpetuities
'Wait and see' or 'second look' doctrine Majority reform effort; validity of suspect future interest determined on the measure of the facts as they exist at the end of the measuring life
USRAP alternative 90-year vesting period
Cy pres doctrine (modern approach to rule against perpetuities) 'as near as possible' - a court may reform a disposition to most closely match grantor's intent while still complying with the rule against perpetuities
Age contingency reduction (modern approach to rule against perpetuities) Any offensive age contingency is reduced to 21 years
Joint tenancy - traits (2) Two or more owners, right to survivorship
Joint tenancy - creation (4, 1) T-TIP: same TIME, same TITLE, identical INTERESTS, rights to POSSESS the whole; grantor must clearly express the right of survivorship
Tenancy by the entirety - traits (2) Marital interest with right of survivorship
Tenancy in common - traits (2) Two or more owners, NO right to survivorship
Straw Middleman to aid in creation of joint tenancy
Joint tenancy - severance (3) SPAM: SALE, PARTITION AND MERGER
Joint tenancy - severance and sale (2 key points) A joint tenant may sell or transfer interest during lifetime, even secretly; mere act of entering into a contract will sever tenancy as to that share
What is the meaning/effect of equitable conversion? Equity regards as done that which ought to be done - applies during escrow period. Buyer considered owner, so joint tenancy severed and/or buyer liable for damage to property
Partition (3) Voluntary agreement, partition in kind, forced sale
Joint tenancy - severance - mortgage - title theory Minority view: One joint tenant's execution of a mortgage/lien on his or her share will sever the joint tenancy as to that share
Joint tenancy - severance - mortgage - lien theory Majority view - Joint tenant's execution of mortgage on his or her interest will NOT sever the joint tenancy
Tenancy by the entirety - creation Default for married partners, if a state recognizes TIE
Tenancy by the entirety - 'can't touch this' (2) Creditors of only one spouse can't touch TIE, and neither tenant alone can defeat the right of survivorship by unilateral conveyance
Rights and duties of cotenants (4) Possession of the whole; share of rent from 3d parties, carrying costs, repairs; no waste; action for partition
NOT rights or duties of cotenants (3) Rent from co-tenants in exclusive possession; adverse possession; improvements (but credit/liability at partition)
Joint tenancy - effect of severance A tenancy in common between any remaining joint tenants and owner of severed share
Tenancy by the entirety - termination (4) Death of a spouse, divorce, mutual agreement, execution by a joint creditor of both spouses
Tenancy by the entirety - mortgage requirement Both spouses must join
Why does a deed offering 'A and his heirs' the right of first refusal to buy property when offered for sale? Because it could vest more than 21 years after the death of a life in being at the time of the grant
Who must pay the taxes on a property? Holder of present possessory interest
What if taxes aren't paid on a property? Property will be sold at a tax sale and future interest holders will lose their interests
Created by: 2039807
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