"To A" or "To A and his heirs"

1. absolute ownership of potentially infinite duration

2. Devisible

3. Descendible

4. Alienable

FEE SIMPLE DETERMINABLE

(NY: fee on limitation)

"To A for so long as...", "To A during...", "To A until..."

-forfeiture is automatic when stated duration/condition occurs

-devisible, descendible, and alienable (just subject to the condition)

-possibility of revertor in grantor

FSDPOR

Fee Simple Subject to a Condition Subsequent

(NY: fee on condition)

"To A, but if X occurs, grantor reserves the right to enter and retake"

-Grantor must use clear durational language and carve out the right to re-enter

-not automatically terminated

-future interst: right of entry/power of termination (NY: right of re-acquisition)

"To A, but if X occurs, then to B"

-B has shifting executory interest

-automatic forfeiture to third party

"To A for life"

-measured in explicit life terms (never term of years)

-O has a reversion

"To A for the life of B"

A life estate measured by a life other than the grantees

O still has reversion

1. life tenant is entitled to all ordinary uses and profits from the land

2. life tenant must not commit waste

1. Voluntary/Affirmative (overt conduct that causes drop in value)

2. Permissive Waste/Neglect (land falls into disrepair)

3. Ameliorative Waste (enhances property's value)

*cannot commit ameliorative waste unless all future interest holders are known and consent

NY: life tenant may make improvements unless remaindermen object)

Life tenant must not consume or exploit natural resources on the property (such as timber, oil, minerals) unless one of 4 exceptions applies:

PURGE!

(When can life tenant purge land?)

PU: Prior Use

-prior to the grant, land was used for exploitation (can continue unless otherwise agreed)

*mines: can continue to mine but only in mines that were already open

R: Repairs

-life tenant may consume natural resources for repairs and maintenance

G: Grant

-life tenant may exploit if granted that right

E: Exploitation (land is suitable only to exploit)

The life tenant must simply maintain the premises in reasonably good repair

Life tenant is obligated to pay all ordinary taxes on the land

1. Possibility of Reverter (comes with fee simple determinable)

2. Right of Entry/Power of termination (comes with fee simple subject to condition subsequent)

3. Reversion (when you convey less than you have)

-happens when you convey life estate

1. Vested Remainder

2. Contingent Remainder

3. Executory Interest

A future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created

-either vested or contingent

A remainderman always accompanies a preceding estate of known fixed duration (usually a life estate or a term of years)

-never follows a defeasible fee

-cannot cut short or divest a prior transferee

vested: both created in an ascertained person and is not subject to any condition precedent

contingent: created in an unascertained person OR is subject to a condition precedent (or both)

NY: any future interest in a transferee that is subject to a condition precedent is called a remainder subject to a condition precedent

appears BEFORE the language creating the remainder or is woven into the grant to remainderman

A prerequisite!

"To A for life, then if B graduates from college, to B"

B=contingent remainder

O=reversion

COMMON LAW: a contingent remainder destroyed if it was still contingent at the time the preceding estate ended

TODAY: Destructibility rule has been abolished

(if preceding estate ends, O holds estate subject to B's springing executory interest)

O conveys "To A for life, then, on A's death, to A's heirs." A is alive

Historically: present and future interests merge: creating fee simple absolute (even in the face of contrary grantor intent)

Today: has been abolished

Doctrine of Worthier Title

(rule against a remainder in grantor's heirs)

Applies when O, who is still alive, tries to create a future interest in his heirs

"To A for life, then to O's heirs"

-contingent remainder in O's heirs is VOID!

A= life estate; O=reversion

*promotes land transfer*

Rule of consturction: if grantor clearly intends to create contingent remainder --> binding

NY: abolished with regard to transfers taking effect after 9/1/67

1. Indefeasibly Vested Remainder

2. Vested Remainder Subject to Complete Defeasance (NY-Remainder vested subject to complete defeasance)

3. Vested remainder subject to open

Holder of this remainder is certain to acquire an estate in the future, with no strings attached

"To A for life, remainder to B"

-even if B predeceases A, passes by will or intestacy

Taking is NOT subject to any condition precedent, BUT right to possession could be cut short by a condition subsequent

"To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C"

B=vested remainder subject to complete defeasance

C=executory interest

When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent, and you have a vested remainder subject to complete defeasance

If conditional language appears before the language creating the remainder, it is condition precedent - contingent remainder

Remainder is vested in a group of takers, at least one of whom is qualified to take

BUT additional members can still join in

"To A for life, then to B's children"

Class closes whenever any member can demand possession

"To A for life, then to B's children"

-class closed when A dies --> only goes to children alive at that time OR IN WOMB

always follows a defeasible fee and cuts short someone other than the grantor

"to A and his heirs, but if B returns from Canada sometime next year, to B and his heirs"

A=fee simple subject to B's shifting executory interest

B=shifting executory interest

NOT REMINDER BECAUSE REMAINDERS NEVER FOLLOW DEFEASIBLE FEES

"To A, if and when A marries"

A=springing executory interest

O=fee simple subject to A's springing executory interest

-contingent remainders

-executory interests

-certain vested remainders subject to open

DOES NOT APPLY TO ANY FUTURE INTEREST IN O (grantor) OR INDEFEASIBLY DIVESTED REMAINDERS OR VESTED REMAINDERS SUBJECT TO COMPLETE DEFEASANC

1. determine which future interests have been created by conveyace

2. identify the conditions precedent to the vesting of the suspect future interest

3. Find the measuring life

4. ASK: will we know, with certainty, within 21 years of death of measuring life, if our future interests holders can take?

YES!

"Bad as to one, bad as to all"

To be valid, it must be shown that the condition precedent to every class member's taking will occur within the perpetuities period.

RAP REFORM

"Wait and See" or "Second Look" Doctrine

Under this majority reform effort, the validity of any future interest is determined on the basis of the facts as they now exist, at the time of the end of the measuring life

(eliminates the "WHAT IF" or "anything is possible" line of inquiry)

Cy Pres Doctrine

(embraces by "wait and see" doctrine and USRAP)

If a given disposition violates the rule, a court may reform it in a way that most closely matches the grantor's intent while complying with RAP

(reduces any offensive contingency to 21 years)

Common law RAP

(rejects the wait and see and cy pres except for charitable trusts and powers of appointment)

-where an interest would be invalid because it is made to depend on any person's having to attain an age in excess of 21 years, the age contingency is reduced to 21 years

-presumes that a woman over the age of 55 cannot have a child

 -"suspension rule" the rule against suspension of the absolute power of alienation applies the common law RAP to restrictions on the power to sell or transfer (interset is void if it suspends the power to sell or transfer for a period longer than lives in being + 21)

1. Right of survivorship (one joint tenant dies --> his share passes automatically to surviving joint tenants)

2. Joint tenant's interest is alienable but NOT divisable or descendible

(LAST SURVIVOR TAKES ALL)

1. Joint tenants must take their interests:

 T: at the same TIME

T: in the same TITLE instrument
I: they must be IDENTICAL

P: right to POSSESS the whole

2. Grantor must clearly express the right of survivorship

(joint tenancies are disfavored)

3. Use of Straw (A conveys to B who conveys back to A and C)

DONT NEED STRAW IN NEW YORK!!!!!

Severance of a joint tenancy

SPAM!

1. Severance and Sale

-can sell or transfer her interest during her lifetime (can do so secretly)

-buyer becomes tenant in common, but joint tenancy remains intact as between the other, non-transferring tenants

-in equity, joint tenant's mere act of entering into K for sale of share will sever joint tenancy as to contracting party's interest (doctrine of equitable conversion)

2. Severance and Partition (break up of relationship)

-voluntary agreement, partition in kind (court action for physical division), or forced sale

3. Severance and Mortgage

-one joint tenant's execution of mortgage or lien in his share will sever joint tenancy in MINORITY OF STATES

NY: lien theory= joint tenant's execution of mortgage will not sever joint tenancy

-arises presumptively in any conveyance to married persons unless stated otherwise

-creditors of only one spouse canot touch this

-neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to third party

1. each tenant owns an individual part and each has a right to possess the whole

2. each interest is divisible, descendible, and alienable

(no survivorship rights between tenants in common)

3. presumption favors tenancy in common

1.Right to Possess the Whole

2.No right to Rent from co-tenant in exclusive possession

3. Rent from third parties

(a co-tenant who leases all or part of the premises to a third party must account to his co-tenants, providing them their fair share of the rent income)

4. One co-tenant can't acquire by adverse possession (no hostility element, unless there is ouster)

-each co-tenant is responsible for his fair share of CARRYING COSTS (taxes, mortgage interest) based on his undivided share

-Repairing co-tenant enjoys a right to contribution for reasonable and necessary repairs, provided she has told the others

-No right to contribution for improvements (but at partition, improving co-tenant entitled to credit equal to any increase in value attributable to her efforts--also bears liability for drops in value)

-co-tenant must not commit waste

-a joint tenant or tenant in common has right to bring an action for partition

-a lease for a fixed period of time (termination day known from the start)

-no notice needed to terminate

-if greater than one year, must be in writing to be enforceable

-lease that continutes for successive intervals until L or T gives proper notice to terminate

-can be created expressly ("month to month")

-can be created by implication by:

1. no mention of duration but payment of rent at set intervals

2. an oral term of years in violation of the SOF (measured by way rent is tendered)

3. holdover (L elects to holdover a tenant who has wrongfully stayed on past the conclusion of original ease)

NEW YORK: holdover gets implied MONTH TO MONTH!

-Notice (usually written) at least equal to length of period itself (unless otherwise agreed)

exception: is from year-to-year or greater, needs 6 months notice

-can shorten or lengthen notice provisions

NOTE: must end at conclusion of natural lease period

-no fixed duration

-unless expressly agreed otherwise, payment of regular rent will cause court to treat this as implied periodic tenancy

-may be terminated by either party at any time but reasonable demand to vacate is typically needed

NEW YORK: needs 30 days written notice

created when T has wrongfully held over past the expiration of the lease

-wrongdoer has a tenancy at sufferance so L can recover rent

-lasts until L evicts or decides to hold T to new lease

NY: L's acceptance of rent subsequent to expiration of term creates implied month-to-month periodic tenancy

1. Liability to 3rd Parties

2. Duty to Repair

3. Duty to pay rent

-T responsible for keeping premises in good repair

-liable for injuries sustained by 3rd parties T invited, even where L promised to make all repairs

Maintenance

(must maintain premises and make ordinary repairs)

Must not commit waste! (voluntary, permissive, or ameliorative)

Removing fixture: voluntary waste

-once movable chattel that, by virtue of its annexation to realty objectively shows the intent to permanently improve the realty

examples: furnace, custom storm windows, lighting installations, etc.

T CANNOT REMOVE EVEN IF SHE INSTALLED (pass with ownership of the land)

-express agreement controls

-if no agreement, T can remove chattel that she installed so long as removal does not cause substantial harm to premises

If removal will cause substantial damage - then T has shown intent to install fixture and it STAYS PUT!

T's duty to repair when T has expressly covenanted in the lease to maintain the prop in good condition for duration of lease:

HISTORICALLY - T was liable for loss to prop (including forces of nature)

TODAY - the majority view is that T may end the lease when the premesis are destroyed w/o fault of T

NEW YORK: if premesis are destoryed through no fault of T, T may quit premises and surrender possession without further duty to pay rent

-if T breaches, landlord can evict through the courts or continue relationship and sue for past rent due

If L moves to evict - still entitled to rent until tenant (at sufferance now!) vacates

L must not engage in SELF HELP (punishable criminally and civilly) NY=treble damages

When T stops paying rent but is OUT of possession:

SIR!!!

Surrender: can treat abandonment as offer of surrender which L accepts

Ignore: ignore abandonment and hold T responsible for unpaid rent just as if T as still there (only in minority of states)

Re-let: and hold T liable for any deficiency

*MAJ: duty to mitigate

NY: L generally not required to mitigate damages when tenant abandons

1. Duty to deliver possession

2. Covenant of Quiet Enjoyment

3. Warranty of Habitability

Maj rule: requires that L put T in physical possession of the premises.If there is a holdover T at start of T's lease, L has breached and new T gets damages.

Min: obliges L to provide only legal possession (keys)

-both residental and commercial leases

-T has right to quiet enjoyment of the premises without LL interference

-breach by WRONGFUL eviction: L wrongfully evicts or excludes from premises

-breach by CONSTRUCTIVE eviction: SING!

1. substantial interference

(due to L's actions or failure to act) --> chronic infirmity

2. notice

3. goodbye

(T's vacates after failure to act)

Is L liable for acts of other tenants?

Generally, NO

but:

1. L must not permit a nuisance on site

2. L must control common areas

-only residential

-non-waivable

-premises must be fit for human habitation

(standards can be from case law or housing codes)

examples: no heat, no plumbing, running water

Tenant's Remedies for breach of implied warranty of habitability:

MR^3

M: move out and end lease BUT T doesn't have to

R: Repair and deduct (allowable by statute)

R: Reduce Rent or withold all rent until the court determines fair rental value (typically must place in escrow to show good faith)

R: Remain in possession, pay rent, and seek money damages

T may freely trasnfer his or her interest in the whole (assignment) OR or in party (sublease)

- L can probit this without written appropval or prohibit in lease, but once L consents to a one transfer by T, waives right to object to future transfers by that T Unless L reserves the right

unless lease provides otherwise, a residential T may not assign without L's written consent

-L can unreasonably withod consent to assign, and T's sole remedy is to seek release from lease

-but RESIDENTIAL T having four or mour units has right to sublease subject to L's written consent and it cannot be unreasonably withheld

unreasonably withheld --> consent

L and T2 are in privity of estate (liable to each other for all of the covenants in the original lease that run with the land)

-promise to pay rent, paint, repair, etc.

L and T2 are NOT in privity of K unless T2 assumed all promises in the original lease

L and T1 are no longer in privity of estate but remain in privity of K

(makes L and T1 secondarily liable to each other)

L and sublessee are in neither privity of estate nor privity of K

T1 liable to T2 and vice versa BUT mere sublease, L and T1 relationship remains fully intact

In common law of caveat lessee: let tenant beware (L was under no duty to make premises safe)

EXCEPTIONS TO common law caveat lessee

SO L is liable for:

CLAPS!

C: common areas must be maintained

L: latent defects rule (L must warn T of all hidden defects that L knows about or should know about)

A: Assumption of repairs (L who voluntarily makes repairs must complete them with reasonable care)
P: Public Use Rule

S: Short term lease of furnished dwelling (L liable for any defect on site)

L who leases public space (such as: convention hall, museum) and who should know, because of nature of defect and length of the lease, that T will not repair is lible for any defects on the premises

THINK T-REZ AT THE PROM