Tenancy in Common Rule

Tenancy in common is a form or concurrent estate where each tenant in common has the right to possess the whole, ownership is freely devisable, and is the presumptive estate with ambiguous conveyances.  

O to A and B

Presumed to be equal shares unless stated otherwise

Subject to partition (later card)

Joint Tenancy with Right of Survivorship Rule

Tenancy by Entirety

TbE is a form of concurrent estate that is exclusive to married couples with the right of survivorship, with four unities present, where the marital unit owns the whole and can only be severed by death, divorce, or common conveyance.  

• It is the default standard presumption in com law

 Creditors to Tenancy by Entirety

3 Approaches

1. estate is not subject to the separate debts of one spouse only
2. Debts of single spouse may be attached only to the right of that debtor suvivorship - nothing until the non debtor spouse dies
3. Same as #2 with the present ability to claim the debtor spouses current interest in the right of survivorship

• Everyone has right to possess the whole regardless of your share
• Entitles to fractional profits in proportion
• Can convey without others consent
• Ten in possession can use as long as not wasted
• Share expenses and necessary repairs, no duty for improvements

• Same time (of ownership), same title, same interest (equal proportions), same right of possession
• Leases may or may not break the unities - based on jurisdictions
• Conveyance severs the 4 unities and the Jnt Tenancy

Ouster Definition

• Outser occurs when a tenant out of possession requests to possess the land and the co-owner in possession excludes him by some explicit act. 

• Tenant in possession must pay rent to ouster tenant
• Constructive ouster when multiple occupancy is impossible -10 people in 1 bedroom, etc. 
  • Or if hostility flows from the co-tenant in possession. 

1. Partition in Sale- sell property and get your $ based on your fractional ownership 
2. Partition By Kind- Co tenants receive their respective fractional amounts of actual land

Fee Simple Absolute Definition

O to A and her heirs

FSA is a present estate that is freely defeasible and carries no future interests. 

Fee Simple Determinable

O to A so long as XXX

while used as ...

during XXX use

O to A so long as used for X purposes, if otherwise, reverts to O (or whomever)

FSD is a present estate that is defeasible upon a specified condition, which when violated,  automatically triggers the future interest known as the "possibility of reverter" that returns ownership to the grantor.

Fee Simple subject to a condition subsequent

O to A on condition that it be used for residential purposes; if not, then O shall have right of re-entry

provided that ...

but if...

FSSCS is a present estate that ends upon a condition, which if met, gives the grantor the right to assert his future interest known as the "right of re-entry".

Fee simple subject to executory LIMITATION

Not for grantor, future interest only in 3rd party

O to A so long/on condition as used for residential purposes, then to B

Words of duration

until... unless... but if...

The FSSEL is a present estate which ends when a specified condition is met, automatically triggering the future  "executory interest" to a third party. 

Life Estate

Language: For life

Cannot devise but can convey (selling is unlikely)

If ambiguous, fee simple absolute assumed

A LE is a present estate that ends at the death of the designated individual and triggers the future interest known as either a reversion back to the grantor or a remainder to a third party.  

Reversion- life estates back to O

Remainder - life estates (then to X)

Possibility of reverter - Fee Simple Determinable - back to O

The non joining tenant in a lease may not demand exclusive possession, but can demand to be let into possession

Non joining tenant not bound by lease

1. absolute vested remainder (then to X - named)
2. vested remainder subject to open (then to children of B - where there is 1 or more kid already but more may be coming)
3. vested remainder subject to divestment (then to B if condition is met - see separate card - then to B , but if B does not survive A, then to C)

In Life Estates (remember remainders in life estates)

Contingent upon something - then to A if A becomes a lawyer

Contingent remainders if to someone's heirs (unknown until death) or to children of B (if not born yet)

Contingent Remainders 

vs

Vested Remainders sub to divestment

IMPORTANT CARD!!!!!

Remember Diff between Contingent (uncertainty) and Vested (known and established pre-criteria)

Vested sub to divestment - at least 1 person known - has estate now, but could lose estate (then to B but if B marries a lawyer, then DIVESTS to C)

Contingent - heirs, unborn, or contingent upon future event - to B if he graduates from law school

B does not have it yet, but could gain it

Vested in known person ( to B) right now

Subject to divestment - could lose it

then to B, but if B marries lawyer, then to C

B can lose/DIVEST it to C if he marries a lawyer

Present interests that terminates on a specific event - followed by a future interest

1. Fee simple determinable - so long as used residental
2. Fee simple subject to condition subsequent
3. Fee simple subject to executory limitation

Holder of life estate owes a fiduciary duty to the owner of the remainder or reversion.  

Three types of waste:

1. Voluntary / affirmative waste - deliberate acts of damage - removal of trees
2. Permissive waste - passive, no maintenance
3. Ameliorating waste - improvements to property increasing value of land

1. Sue life tenant for injunction to stop
2. Sue life tenant for damages
3. Sue for termination of life estate (Mcintyre vs xxx)

Other Future interest in other estates may sue for injunction if waste is active/affirmative/permissive destruction of property

1. Answer her question specifically
2. Give rules - and refer back/restate for separate questions
3. Use facts in the case - do not make up - rain can equal wet roads
4. Define all abbreviations
5. Be sure to IRAC
6. Number your answers
7. Argue both ways - even if seems obvious - JnT vs Tnc

Courts prefer to interpret ambiguous conveyance to avoid a future interest

Complete estate shall pass to the grantor unless there is clear intent for a lesser estate in terms or language

Revert to fee simple determinable

Restraints against alienation

Rule against creation of new estates

Alientation - courts disapprove of restrictions on the free transfer of property - cannot require that they never sell the property - can say that they do not partition property

Cannot create new estates - heirs on her father's side (what does this mean) - interpreted as the most similar estate - example 

No interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the interest. 

Translated: rule invalidates future interests that may vest too far in the future

Gives current owner more control of property

Note difference between creation of instrument and creation of the interest

Does not apply to grantor or those already vested

1. Reversion (life estate)
2. Possibility of reverter (fee simple determinable)
3. Rights of re-entry (fee simple sub to cond. subsequent)
4. Absolutely vested remainders (life estates)
5. Vested remainders sub to divestment (life estates)

Applies to unknown/uncertain future interests

1. Executory interest (fee simple sub to exec inter)
2. Contingent remainders (life estates)
3. Vested remainders subject to open (life estates)

Must be in existence when the INTEREST is created - at death of devisee or at transfer of conveyance (if not, RAP applies and invalidates future interest)

In utero is "life in being"

Does not need to be named in grant/transfer - or even named at creation of the INSTRUMENT

If the future interest can possibly vest more than 21 years after the death of all lives in being at the creation of the interest

Future interest is void

Strike back until indefinable/recognizable estate remains

1. ID the interests and see if they are subject to RAP
   • Executory interests, contingent remainders, vested subject to open (some life estates)
2. ID all lives in being at the creation of the interest
3. Is it possible that the future interest vests outside of 21 years of these lives?
4. If so, apply strike back rule

Does RAP Apply?

Is RAP violated?

Cannot require someone:

Marry a specific person

That they cannot marry at all

Must be reasonable restrictions - marry inside the faith

Question - is requirement to marry a lawyer allowed by restraint on marriage rule?

Lease Definition

Rules against restraints on  alienation

Rule against new estates

Rules against forfeiture

Rule against perpetuities

Implementation of grantors intent