table of contents
POSSESSORY ESTATES. 7
1. Fee Simple [absolute]:7
a.Fee simple determinable[and possibility of reverter]:8
b.Fee simple subject to condition subsequent [and right of reentry]:.8
c.Fee Simple subject to executory limitation. 9
2. Fee Tail [and reverter]:9
3. Life estate:9
FUTURE INTERESTS. 11
2. Possibility of Reverter:.11
3. Right of entry:11
1)Vested Remainders: a vested remainder is one that is created in (1) an ascertained person; and (2) is not subject to a condition precedent. 11
a) Indefeasibly vested:.12
b) Vested subject to partial divestment (subject to open): .12
c) Vested subject to divestment: This is a vested remainder contingent upon some executory interest.12
2)Contingent remainders: a remainder is contingent if (1) it is given to an unascertained person; or (2) it is subject to a condition precedent.12
5. Executory interests:12
a.Springing Executory interest: cuts short (divests) the grantor. 12
b.Shifting Executory interest: cuts short (divests) the grantee. 12
THE RULE AGAINST PERPETUITIES. 13
The Common Law Rule Against Perpetuities (RAP)13
1. Statement of the Common Law Rule: No future interest is valid unless it either vests or fails to vest within a life or lives in being plus twenty-one years (the perpetuities period ). (Plus a 10 month gestation period, if applicable)13
2. When does the perpetuities period begin?. 13
Common Law RAP Analysis Steps. 13
1. Step One: Is the future interest vested ? 13
2. Step Two: Identify the measuring life or lives and whether any of them can be a validating life. .13
Tips for Identifying Who is a Measuring Life or Lives 14
Examples of how to test under the RAP:14
The Uniform Statutory Rule Against Perpetuities (USRAP)15
Wait and See Doctrine-15
Cy Pres Doctrine-.15
Policy re RAP:15
CO-OWNERSHIP AND MARITAL INTERESTS. 16
Tenancy in Common. 16
Joint Tenancy with Right of Survivorship.16
Tenancy by the Entirety. 17
Marital Interest. 17
LANDLORD-TENANT LAW… 19
Landlord-Tenant Law in Context. 19
Categories of Leasehold Estates. 19
1.Term of Years.19
3.Tenancy at Will.20
4.Tenancy at Sufferance. 20
Modern Revolution in Landlord-Tenant Law.20
LEADING UP TO POSSESSION.. 20
The Lease and the statute of frauds.20
Selection of Tenants.20
Landlord’s Duty to Deliver Possession.21
DURING THE TENANT’S POSSESSION.. 21
1. Condition of the Leased Premises:21
a. Breach of the Covenant of Quiet Enjoyment21
b. Constructive Eviction. 22
c. Illegal Lease Doctrine. 22
d. The Implied Warranty of Habitability: New Common Law.. 22
2. Landlord Liability for Personal Injury.22
TRANSFER OF LEASEHOLD INTEREST.. 22
Transfers by Landlord. 24
TERMINATION OF THE TENANCY.. 24
Tenant’s rights when terminating the lease:24
Rights of Landlord When Tenant Abandons:24
Landlord’s Right to Terminate Lease.24
Self-Help Eviction. 24
Summary Eviction Proceedings. 25
THE LAND TRANSACTION.. 34
Steps in the Process. 34
The Broker –. 34
The Contract – agreement between the buyer and seller.34
1.Statute of Frauds – a memorandum of this, sufficient to show an agreement, must be in writing. Contrast this with the deed which has to be totally in writing.34
Title Investigation :34
Duty To Disclose Defects:35
The Deed. 35
1.Statute of Frauds – the whole thing must be in writing, as opposed to the Contract which simply requires a memorandum.35
3.Covenants of title –. 36
i) Covenant of seisin. 36
ii) Covenant of the right to convey. 36
iii) Covenant against encumbrances. 36
i) Covenant of general warranty. 36
ii) Covenant of quiet enjoyment36
iii) Covenant of further assurances. 36
4.Damages – you can not sue on a covenant of title for more than the party received for the conveyance.37
5.Mortgages: ordinarily the buyer will make a down payment of a small fraction of the purchse price and borrow the rest of the money needed.37
After the Deed. 37
Implied Warranty of Quality. 37
ESTATES IN LAND CHART
-Grantor gets this when he gives away something less than his interest.
POSSIBILITY OF REVERTER
-Present interest must be determinable fee
RIGHT OF REENTRY
-Present interest = subject to condition subsequent
– To A and heirs of her body
1. ascertained person; and
2. no condition precedent
– To A
– To A and heirs
– To A for life
1. unascertained person; or
2. subject to condition precedent
-Cuts short/divests someone else’s interest
VR SUBJECT TO PARTIAL DIVESTMENT
-Subject to RAP
VR SUBJECT TO TOTAL DIVESTMENT
– So long as
SUBJECT TO CONDITION SUBSEQUENT
-on condition that
-cuts short grantor
– curts short interest in grantee
– To A for life
TERM OF YEARS
– fixed ending date
– No fixed ending date, but fixed periods
TENANCY AT WILL
– No fixed ending date or period. Lasts at the will of either party
TENANCY AT SUFFERANCE
– Holdover tenant, landlord can:
2. Renew previous lease
3. Treat as a periodic tenancy for the terms of the new lease.
SUBJECT TO EXECUTORY LIMITATION
Introduction: The concept of estates arose out of the feudal system imposed in England. Feudal incidents (a form of inheritance tax) were owed by every tenant to his lord. As landlords tried to avoid these taxes, the courts developed rules to maintain the lord’s economic basis. The Statutue of Uses laid the foundation for today’s modern conveyances.
Today, a conveyance is an interest in land that is or may become possessory and is measured by some period of time. The types of estates:
Freehold estates: under the feudal system, a freeholder in possession was treated as having seisin.
1. Fee simple absolute – this estate has the potential of enduring forever
– Fee Simple Determinable – potential for enduring forever, but will automatically revert to the grantor upon the happening of a stated event [possibility of reverter] – Fee simple subject to condition subsequent – has potential of infinite duration, but if event happens, the grantor has the right to retake premises. [right of reentry] – Fee simple subject to executory limitiation – fee simple that has an executory interest hanging over it.
2. Fee tail – this also has the potential to endure forever, but ends if the first fee tail tenant runs out of lineal decendants (not common anymore).
3. Life estate – this ends at the death of a person (doesn’t have to be the tenant).
– Determinable life estate – Garner v. Gerrish – to A as long as A would like. This is a life estate because it can’t last any longer than the grantee.
-Seisin: freehold estates typically had seisin. It was passed by a ceremony of physically givng the dirt of the land to another.
Copyhold (nonfreehold) estates:
4. Leasehold estates – this estate ends at a fixed time or by other agreement between parties (several types exist which are discussed below).
No new estates may be created. Language creating an estate will be construed to mean one of the various types of estates listed above. Ambiguous language creating a freehold estate is presumed to convey a fee simple unless stated in express terms or clear evidence of an intent to create a different estate [White v. Brown].
Present and future interests: Present interests give the grantee immediate right of possession. Future interests are estates that do not give the grantee the immediate right of possession. They will (or may) receive possession at a later date.
Ex) Suppose G give Blackacre “to A and his heirs,” whiteacre “to B for life, then to Z and his heirs” and greenacre “to my nephew C, if he marries before he turns 25, else to T.” A and B both have present estates. Z has a future estate that will vest in him or his sucessors. C and T both have future estates that may vest.
Present Possessory Estates
1.Fee Simple [absolute]: The fee simple is potentially the longest of any possessory estate. A fee simple has no limitations on its inheritability and it cannot be divested or end on the happening of any event.
Words of conveyance/limitation: Words of conveyance identify the person, words of limitation identify the type of estate created. For example, in a fee simple the old words were “To A and his heirs”. “To A” are words of purchase while “and his heirs” are merely words indicating a fee simple. They do not transfer any interest to A’s heirs.
In the past, a fee simple must include the words “and his heirs,” but modern law does not require such a formality. Deed or will is presumed to pass the largest estate the grantor or testator owns. So “To A” would constitute a fee simple.
Transferability: The Statute Quia Emptores established the basis rule that land should be freely alienable. [Remember, property is “devised” under a will. Those who receive property after dea
Rule: Common law, the court will assume the largest estate possible unless the “words or context” of the instrument clearly demonstrates an intent to convey a lessor estate. Contrast, Tennessee statute implied presumption of a life estate without contrary intention.
Held: departs from statute and says the language conveyed a fee simple.
Transfer: A life tenant can transfer her life estate, but it will only last as long as the original life estate. This creates a lot of inflexibility for various transactions (bank loans, lease, etc…). I.e. the yard stick for measuring the life estate (the person’s life) doesn’t change when it is transferred to another.
Waste: A life tenant is entitled to the use and enjoyment of the land but cannot waste it. There are three types of waste:
Affirmative (voluntary) waste: This occurs when the tenant destroys the property or exploits its natural resources.
Permissive (involuntary) waste: This occurs when the land is neglected causing it to deteriorate.
Other: When the principal use of the land is substantially changed so as to increase the value of the land.
Sale of property in court: Even were one or more of the holders of the remainder cannot or don’t legally consent to a sale a court may order a sale if it is in the best interest of the parties. Additionally, some statutes authorize a sale under certain conditions. [Baker v. Weedon]
Facts: lady owned a life estate (grandchildren had contingent remainder) and wanted to sell even though the grandchildren didn’t want to.
Rule: a court may order the sale of property when it is in the best interest of the parties or when it would prevent waste or deterioration.
Held: a sale is authorized but it was remanded to determine the amount to sell as to only provide what was needed to the old lady and nothing more.
Introduction: A future interest is a present non-possessory interest capable of becoming possessory in the future. There are only five types of future interest:
Possibility of reverter;
Right of entry;
remainder (vested or contingent); and
Future interests are fixed the moment they are created. So executory interest will remain an executory interest even if it is transferred to the original grantor.
Alienability: while it wasn’t the case at common law, all future interests are alienable with the exception of rights of entry. Many states apply the common law and do not allow entry to be alienated while some states will allow alienation.
1. Reversion: a reversion is a future interest left in the grantor after conveying a lessoer estate than she has (ex. Conveying a life estate from a fee simple). The interest may be expressly retained in the deed or will or may arise by operation of law.
Vested: All reversions are vested interests even though not all reversions will necessarily become possessory. Being vested means the reversion is fully alienable, when the preceding estate ends – the present estate ends.
Difference between the possibility of reverter: a possibility of reverter occurs when a fee determinable is transferred which isn’t the case in reversionary interest.
2. Possibility of Reverter: A possibility of reverter occurs in the grantor when a fee simple determinable is transferred (estate ends automatically upon the happening of some future event).
Alienability: At common law a possibility of reverter could not be transferred except at death. Modern courts typically allow the possibility of reverter to be transferred at life and death.
3. Right of entry: arises when the grantor conveys a fee simple subject to condition subsequent and retains the power to cut the interest short.
Alienability: Traditionally this interest was inalienable until death because it was treated as a choice rather than an interest. Today, some states treat the interest as alienable.
Termination: A majority of states follow the common law rule that a right of reentry could last indefinitely after the condition occurred. However, some states limit the time for reentry by statute.
4. Remainders: a remainder is a future interest created in the grantee that is capable of becoming a present possessory estate upon expiration of a prior estate. A remainder must be expressly granted in the same instrument (deed, will, etc…) that created the prior estate. The prior/preceeding estate must be a (1) fee tail, (2) life estate, or (3) term of years.
Classifications: Remainders are either vested or contingent. The classification affects the applicability of certain legal rights (e.g. the rule against perpetuities).
1) Vested Remainders: a vested remainder is one that is created in (1) an ascertained person; and (2) is not subject to a condition precedent. “To A for life, then to B in fee simple.” B is an ascertained person and the deed did not require an event happening before B gets his interest.