Possibility of reverter

FSD->POR

Frank Sinatra Doesn't Prefer Orville Redenbacher

Fee Simple Determinable -> Possibility of Reverter

Voluntary waste - who must not commit?

What are the different types (3)?

Life tenant must not commit waste.

Types:

Voluntary:  Prior Use, Repairs, Grant, Exploitation (PURGE)

Permissive (neglect)

Ameliorative (enhancing value)

Vested and contingent remainders:

Ascertained / unascertained person?

Subject to condition precedent?

A remainder is vested if it is BOTH created in ascertained person and not subject to any condition precedent.

A remainder is contingent if:

1) it is created in an unascertained person OR

2) is subject to a condition precedent, or both.  

Sociable - never travels alone - accompanies a preceeding estate of known fixed duration.  

Patient and polite - never follows a defeasible fee (cannot cut short or divest prior transferee - if your present estate is defeasible fee, future interest in NOT remainder)

1.  Indefeasibly vested remainder - no conditions (strings) attached - NSYNC

2.  Vested remainder subject to complete defeasance - not subject to condition precedent, may be subject to condition subsequent

3.  Vested remainders subject to open - vested in group of takers, 1 of which is qualified to take

Future interests - ONLY to contingent remainders, executory interests, and certain vested remainders subject to open

NOT future interests in grantor, indefeasibly vested remainders, vested remainders subject to complete defeasance.

1.  determine future interests created

2.  ID conditions precedent to vesting of suspect future interest

3.  Find measuring life - person alive @ conveyance that is relevant to condition's occurrence.

4.  Will we know, with certainty, within 21 years of death of the measuring life, if our future interest holder can or cannot take?     ->If No, interest void!

1.  Gift to an open class that is conditioned on the members surviving to an age > 21

2.  An executory interest with no limit on the time within which it must vest (except gift from one charity to another)  

1.  Right of survivorship

2.  A joint tenant's interest is alienable (NOT divisible or descendible)

T-TIP:

1.  At the same Time

2.  By the same Title

3.  With Identical shares

4.  Right to Possess the whole 

+

Grantor must clearly express the right of survivorship

SPAM:

Sale, Partition, and Mortgage

Married partners

Remember, married partners are TIEd together

No!

Creditors of only 1 spouse cannot touch.

Neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to a 3rd party.

1) each cotenant has individual part and right to possess the whole

2)  No survivorship rights (Each interest is descendible, divisible, and alienable)

3)  presumption favors tenancy in common

Not much.

When a tenant removes a fixture, he commits voluntary waste.  The tenant must not remove a fixture, no matter that she installed it (Fixtures pass with ownership of the land).

Under title theory, legal title is in the mortgagee until the mortgage has been satisfied or foreclosed, and the mortgagee is entitled to possession upon demand at any time.

According to lien theory, the mortgagee is considered the holder of the security interest only, and the mortgagor is deemed owner of the land until foreclosure.

It takes 2 (baby)!

2 parcels of land must be incolved.

Dominant tenemant derives the benefit

Servient tenemant bears the burden

No, unless it has a house which has a new construction and the seller is the builder.

Contracts of sale and deeds of real property carry no implied warranty of quality or fitness for purpose.  However, a majority of courts now recognize a warranty of fitness or quality in the sale of a new hous by the builder.

Seller is liable for failure to disclose defects if:

1) he knows or has reason to know of the defect

2) the defect is not apparent, and the seller knows that the buyer is unlikely to uncover it by ordinary inspection

3) the defect is serious and would probably cause the buyer to reconsider the purchase if known

Buyer benefits.

The covenant is breached if at the time of conveyance the grantor is not the owner of the interest he purports to convey.  

Do zoning restrictions affect marketability of title?

Do building code violations affect marketability of title?

1) premises must be fit for basic human dwelling

2) bare living requirements must be met

Caveat lessee, unless CLAPS

1)  Common areas

2) Latent defects (landlord must warn

3) Assumption of repairs

4) Public use rule

5) Short term lease of furnished dwelling

4 categories:  LASS

Light, air, support, stream water from an artificial flow

Creation:  only expressly, by writing signed by the grantor.  No natural or automatic right to negative easement!

No, unless it is for commercial purposes

(Ex:  easement to use lake to fish for fishing company)

PING

Perscription (COAH)

Implication (prior to division of a single tract there is an apparent and continuous use that the parties intended to continue OR subdivision plat)

Necessity (landlocked)

Grant (SOF - must be in writing if > 1 yr)

END CRAMP

Estoppel - servient owner changes position in reliance

Necessity - need ends

Destruction - of servient land - other than thru willful conduct

Condemnation - of servient estate - by eminent domain

Release - written, given by easement owner to servient owner

Abandonment - intent to never use easement again, physical action (!= nonuse)

Merger doctrine - title to easement and servient land vest in same person

Prescription - COAH

If P wants $ damages, construe as covenant

If P wantes injunction, construe as equitable servitude

WITHN

Writing - original promise is in writing

Intent - original parties intended covenant would run

Touch and concern the land - promise must affect the parties' legal relations as landowners, not simply as members of community at large

Horizontal (A-B) & Vertical privity (A-A1) - succession of estate (grantor/grantee, landlord tenant, mortgagor, mortgagee), non-hostile nexus between A-A1

WITNES

Writing

Intent

Touch and concern

Notice - of the promise

NOTE:  no privity required

A life tenant can substantially alter or even demolish existing buildings if:

1) market value of the future interests is not diminished, and EITHER

2) remainderman does not object OR

3) a substantial & permanent chance in the neighborhood conditions has deprived the property of reasonable productivity or usefulness

Protected:  Purchasers - including mortgagees for value.

Not Protected:  donees 

FR3

Forfeiture restrains on transferability of future interests; 

Reasonable restrictions in commercial transactions;

Rights of first refusal; and

Restrictions on assignment and sublease of leaseholds

An agreement between the landlord and the tenant is controlling on whether an annexed chattel is a fixture.  Absent an agreement, a tenant is deemed to lack the intent to permanently improve the property, and may remove the annexed chattels if removal would not damage the premises.

A tenant must removed annexed chattels before the termination of the tenancy or they become property of the landlord

Who wins in physical decription vs quantity description in deed if there is a discrepency?

Does the numerical discrepency invalidate the deed?

Physical description, as long as there is a unilateral mistake.

The numerical discrepency does NOT invalidate the deed.

Accretion is the increase of riparian land by the slow and imperceptible change in course of a river serving as a boundary.  

Accretion belongs to the riparian owner

[present covenants - violated at delivery]

S – Covenant of Seisin.
E – Covenant against Encumbrances
C – Covenant of the right to Convey

[future covenants - breached during possession]
F – Covenant of Further Assurances
E – Covenant of Quiet Enjoyment
W – Covenant of Warranty

S – Fee Simple Subject to a Condition Subsequent or Precedent
- You’ll recognize these interests when they BOP you on the head
o B – “But”
o O – “On condition that”
o P – “Provided

A – Fee Simple Absolute
D – Fee Simple Determinable
- These interests can be recognized by SUD language
o S – “So long as”
o U – “Until”
o D – “During”

PINTS for real covenants, but TINS for equitable servitudes 

(for the burden to run)

P – Privity of Estate (vertical [OPs] and horizontal [successor])
I – Intent by original contracting parties that covenant attach to land & run to future
assignees (Horizontal Privity)
N – CIA Notice of Restrictive Covenant
T – Must Touch & Concern the land
S – Must satisfy the SOF
'TINS' is PINTS withouth the element of privity of estate.

Vertical privity

Intent - that successors in interest to the covenantee or assigneses to the equitable servitude be able to enforce the covenant  or equitable servitude

Touch and Concern

(IT is VIT without vertical privity)

What is the difference between an equitable servitude and a covenant?

Hint:  injunction or money damages?

Equitable servitudes are covenants that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have NOTICE of the covenant.

Crucial difference - remedy sought.

Injunction = equitable servitude.  Covenant = money damages

C – Court Decree
O – Oral Agreement between all (100%) of the co-tenants provided they all (100%)
go into possession
W – Signed Writing voluntarily partitioning property by exchange of deeds signed by
all co-tenants

C – Both dominant & servient estates were formerly held by a Common Owner
R – Use of an implied easement is Reasonably Necessary for reasonable use of the
dominant estate
A – Use of the easement was plainly & physically Apparent from reasonable
inspection of the land (exception: implied easement for underground water pipes)
B – Former use of the land subordinated one part of the land for the Benefit of
another part

Under the doctrine of equitable conversion, if a party to a land sale contract dies before the contract is completed, the seller's interest passes as personal property and the buyer's interest passes as real property.  Thus, if the seller dies, bare legal title passes to his heirs or devisees, but they must give up title to the buyer at closing.

"real" defenses, such as infancy, duress by physical threat, and fraud in the factum.

A transferee does not take subject to "personal" defenses - lack of consideration, duress by non-physical threat, and fraud in the inducement.

A purchase money mortgage is a mortgage given in exchange for funds used to purchase the property.  PMMs are given either to the seller as part of the purchase price or to a 3rd party lender.

PMMs have priority over prior non-PMMs, even if such mortgages are recorded first.

The covenent says that neither the landlord nor someone with paramount title will itnerfere with the tenant's quiet aenjoyment and possession of the premises.  

The covenant will be breached by actual eviction, which occurs when the landlord or paramount title holder, or a hold-over tenant in most jurisdictions, excludes the tenant from the entire leased premises.

debt promise to return lower distress negotiations

1) existence of a debt or promise of payment by the deed's grantor

2) the grantee's promise to return the land if the debt is paid

3) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property

4) the degree of the grantor's financial distress, and

5) the parties' prior negotiations

Original tenant and landlord are in privity of contract.  This means the original tenant is liable for the rent covenants.

Original tenant remains in privity of estate with the landlord (the sublessee is not in privity of estate).  This means that the sublessee cannot enforce any covenants made by the landlord in the main lease, except maybe the implied warranty of habitability.

A common plan or scheme at the time that sales in subdivision began applied to all parcels.  This scheme may be evidenced by:

1) a recorded plat

2) a general pattern of restrictions, or

3) oral representations to early buyers

1) a common scheme for development

2) notice of the covenants

Original tenant and landlord are in privity of contract, which means that the original tenant is still responsible for rent covenants.

Assignee and landlord are in privity of estate, meaning that the assignee and landlord and liable to one another for all covenants in the lease that "run with the land" (intent + touch and concern)

The one who dies last.

An attempted conveyance by either spouse is usually void, but once one spouse dies the other can convey to their heirs (or whomever)