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quitclaim deed 

is a legal instrument by which the owner of a piece of real property, called thegrantor, transfers his interest to a recipient, called the grantee.[1] The owner/grantor terminates (“quits”) his right and claim to the property, thereby allowing claim to transfer to the recipient/grantee.

Unlike most other property deeds, a quitclaim deed contains no title convenant and thus, offers the grantee no warranty as to the status of the property title; the grantee is only entitled to whatever interest the grantor actually possesses at the time the transfer occurs


A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection. 

Collateral estoppel

Collateral estoppel (CE), known in modern terminology as issue preclusion, is a common law estoppel doctrine that prevents a person from relitigating an issue. Once a court has decided an issue of fact or law necessary to its judgment, that decision ... preclude[s] relitigation of the issue in a suit on a different cause of action involving a party to the first case."[1] The rationale behind issue preclusion is the prevention of legal harassment and the prevention of abuse of judicial resources.

Fee Simple (Absolute)

  • largest estate permitted by law with full possessory rights;
  • Hold can sell it, divide it, or devise it;
  • If she dies intestate, her heirs will inherit it;
  • Direct restraints on alienation are void (rule on restraints)
  • Conveyed as:
  • A conveyance from "O to A," (presumed to pass as a fee simple if O owned one.

Life Estate properties

Not terminable at any fixed or computable time;

  • can't last longer than the life or lives of 1 or more persons;
  • usually measured by life of grantee;
  • can be indefeasible (so that it will only end when life tenant dies) or may be made defeasible
  • If all you own is a LE, thats all you can convey;
  • Taxes are not a responsiblity of the holder of the future interest, but of the LE holder (tenant).
  • O conveys "to A for life."  Here, upon A's death, the land reverts back to O.


What are the following:

a) "To A for life, then to B."

b)) "To A for life, but in on event for more than 10 years."

c) "To A for 10 years if he lives so long."

d) "To A for life or until she remarries."

e) "To B and C after the life of A."


a) A has a LE.

b) A has an estate for years that will end in 10 years (fixed period).

c) A has an estate for years with a max duration of 10 years;

d) LE to A subject to a limitation

e) A has an implied LE.

3 Deasible Fees and defintions

Fee simple estates of potentially infinite duration that can be terminated by the happening of a specified event;

  • Fee Simple Determinable (and Possibility of Reverter)
  • Fee Simple Subject to Condition Subsequent (and Right of Entry)
  • Fee Simple Subject to an Executory Interst


Fee Simple Determinable (and Possibility of Reverter)



an estate (Fee Simple) that automatically terminates on the happening of a stated event and goes back to the grantor.


  • created by use of durational, adverbial language: "for so long as," "while," "during," or "until."
  • grantee takes subject to termination of estate by event:
  • O conveys land "to A for as long as no ETOH beverages are consumed on premises."


Fee Simple Subject to Condition Subsequent (and Right of Entry)

Grantor must take affirmative steps to terminate the estate of the grantee


  • estate of grantee continues until the grantor exercises her power of termination (right of entry) by bring suit or making a reentry. 
  • words used to create: "upon condition that," "provided that," "but if," and "if it happens that."
  • Ex: O owns blackacre in fee simple, conveys it "to A and his heirs, on the express condition that the premises are never to be used by A for the sale of liquor,, then O or heirs may enter and terminate estate." A has a fee simple subject to condition subsequent. O has a right of entry; if condition is broken, O may exercise or assert her right of entry.


Possibility of Reverter

A correlative Future Interest in Grantor (only; never initially in a third party; comparable 3rd party interest: an executory interest); 

  • it arises automatically in the grantor b/c grantee's estate may end upon happening of stated event;
  • at common law and most states today, grantor does not have to expressly retain (arises as a consequence of a FS determinable estate);
  • At common law was not transferrable inter vivos or devisable by will; but an attempted transfer would not invalidate; would descend to heirs if owner died intestate;
  • Today, in most jurisdictions, possibility of reverter can be: 1) transferred inter vivos; 2) devised by will; 3) descends to owner's heirs if dies intestate.

Right of Entry

The Correlative Future Interest in a Grantor of a FS subject to condition subsequent (the interest retained by the grantor); 


  • also called a "power of termination."
  • Important: courts often hold that words of condition, standing alone, create only covenants, easements, or trusts, or are mere precatory terms.


Actions by Grantor construed as "waiving of right of entry."

Grantor can elect whether or not to terminate grantee's estate;

  • so may waive her right to enforce forfeiture by: express agreement or by conduct.
  • 1) Inaction itself not a waiver: breach of condition and person does nothing, power of termination not waived; but detrimental reliance by fee holder, may courts treat inaction as waiver on an estoppel or laches theory;
  • 2) Transferability of Right of Entry: at common law, ROE not devisable or transferable inter vivos to a 3rd person; right of entry did descend to heirs;
  • Today, in most jurix, ROE still not alienable inter vivos; in a handful of states, an attempt to transfer destroys it; in most states they are devisable (testamentary disposition of property); and in all states descend to heirs.

Executory Interest - correlative Future Interest in Third Party

note, a right of entry can only be created in favor of the grantor and her heirs

  • If the property is ever used for other than church purposes, then to B and his heirs. - a conveyance with an executory interest to B and his heirs;
  • Unlike a right of entry (which is not), an executory interest is subject to the Rule Against Perpetuities
  • Distinguish from a FS determinable, which automatically terminates upon condition; this estate continues in grantee unless or until grantor or her successor affirmatively elects to terminate.

Courts fix ambiguous language

General policy is to avoid forfeiture of estates so if ambiguous language (both durational language and power of termination), courts will classify language to create either estate, but the FS subject to condition subsequent is preferred.

  • O conveys land "to A so long as liquor is not sold on the premises, and if liquor is sold, O has a right to reenter." 
  • so long as points to FS determinable
  • right to reenter suggests a FS Sub to CS b/c the forfeigure is optional

Fee Simple Subject to an Executory Interest

A FSS to an executory interest is an estate that, upon the happening of a stated event, is automatically divested in favor of a third person rather than the grantor.

O conveys land "to Church; provided, however, that if the premises shall ever case to be used for church purposes, title shall pass to the American Heart Association."

  • Church has: a FS subject to an executory interest;
  • the executory interest is in favor of the Heart Association;
  • O does NOT have a right of entry b/c no such interest as reserved in the conveyance;
  • Heart Association's interest is NOT a Right of Entry b/c that future interest can only be reserved in favor of a grantor;
  • Heart Association's future interest NOT a remainder b/c (a remainder) divests a fee simple.
  • Executory interst are subject to RAP but HA's interests are valid b/c of the "charity-to-charity" exception to the Rule.

Benefits of a life tenant and waste (son with gravel pit example)

The charity could sue the son (the life tenant) on a theory of waste;  both the gravel mining and the tree cutting could be voluntary waste;

  • generally, a LT can only maintain the property and not sell off any of the natural resources, such as trees and gravel.  
  • But there is an exception for existing exploitation of resources (if already mining before he took possession)
  • But since the tree had not been originally used as a tree farm, the general rule applies and cutting the trees would be waste.
  • destruction of the house may be considered ameliorative waste--destruction that results in improvements on the life estate that increase the property value (by making the gravel mining more profitable);
  • generally life tenant cannot tear down improvements simply b/c he wants, but an exception exists when changed conditions have made the destruction of the improvement reasonably necessary.

Waste (tenant duties and landlord remedies)

Doctrine of Waste (tenant's duty to repair)


  • a tenant cannot damage (i.e. commit waste on) leased premises.  Also applies in the life estate context;


1) Voluntary (affirmative) waste: results when the tenant intentionally or negligently damages the premises or exploits minerals on the property.

2) Permissive waste: when the tenant fails to take reasonable steps to protect the premises from damage from the elements; tenant liable for all ordinary repairs.

3) Ameliorative waste: tenant alters the leased property, thereby increasing its value; generally the tenant is liable for the cost of restoration.  


  • modern exception - permits tenant to change if long-term tenant and change reflects changes in neighborhood.



Fee simple subject to open

occurs during a conveyance where the class closes after a certain event; 

In this case, the children of testator's niece (who possed the remainder / future interest) had a vested remainder (it didn't have to spring, or come into being); but this remainder is subject to the class closing rule: Whenever any member of the class is entitled to a distribution (as what happened when Donna suddenly died, so her heirs were entitled to the distribution) the class closes and the distribution is made then.

  • vested remainders, including vested remainders subject to open, are fully devisable and descendible.

Joint tenancy

has a right of survivorship; when 1 joint tenant dies, the property is freed from her concurrent interest (her survivors do not succeed to it).


  • creation at common law requires 4 UNITIES--time, title, interest, possession--to creat a joint tenancy;
  • the interests of joint tenants MUST BE EQUAL in every way;
  • they must take identical interests, at the same time, by the same instrument, with the same right to take possession.
  • If 3 joint tenants, they each on an undivided 1/3 interest;


tenancy in common

Equal shares are presumed, but not required;


  • If the conveyance is to 2 or more with no more information, assume its a tenancy in common.
  • 1 of 3 tenants may own a 2/3rd interest; the other 2 would own 1/6th interests apiece.
  • Modern law also requires a clear expression of a right of survivorship; otherwise a conveyance to two or more persons is presumed to be a tenancy in common.


What severes a joint tenancy?


  • An inter vivos conveyance: a voluntary or involuntary conveyance by a joint tenant of her undivided interest destroys the joint tenancy ;
  • the transferee takes as a tenant in common.
  • When there are more than 2 joint tenants, conveyance by one destroys the joint tenancy only to the extent of the conveyor's interest.
  • In a joint tenancy, if both tenants convey an equal share to another tenant (like husband / wife to a daughter); the daughter will take as tenant in common, but the husband / wife will remain undistrubed as joint tenants.


What does not severe a joint tenancy:

1) Judgment Liens: a money judgment against a D b/cmes a lien on the D's real property in the county where the judgment is docketed; the lien runs with the land, burdening it until the judgment is paid or the lein expires (10 years); if against a joint tenant, it does not sever the joint tenancy until actually sold at a foreclosure sale.


  • Mortgage: a lien on title and does not sever a joint tenancy; severance occurs only if the mortgage is foreclosed; but execution of a mortgage in title theory states does sever a joint tenancy
  • Leases: states are split as to whether one joint tenant's lease of her interest causes a severance.


Can a couple pretending to be married take a tenancy by the entirety?

No; a tenancy by the entirety can exist only between parties who are married to one another at the time of the grant;

this requirement is absolute, and their holding themselves out as married (or trying to be married at-common law) will not create a tenancy by the entirety, it can only be a joint tenancy or a tenancy in common; without language expressely making a joint tenancy, it has to be a tenancy in common.

  • tenants in common, like joint tenatns, have the right to partition; but tenants by the entirety do not have the right to partition.
  • tenancy by the entirety is only severed by the death of one of the parties (which then gives title to the survivor). 

the effect of divorce on a tenancy by the entirety? 

Things that can severe a tenancy by the entirety:

  • divorce makes the parties tenants in common, with each party owning an undivided half;
  • death of one of the parties (gives title to the survivor);
  • execution by a joint creditor (not an individual creditor of one of the parties)
  • Abandonment by one of the parties would not sever the tenancy;

What defects are landlords liable for to short term tenants?

The owner is liable to the wife.  Landlords are liable for latent defects even if they neither knew nor should have known of the defect if the lease is for a short term and the property is furnished.

  • This is an exception to the general rule that a landlord is not liable for latent defects unless the landlord either knew or had reason to know of the defects.

What is the general rule regarding landlords and latent defects?
andlord is not liable for latent defects unless the landlord either knew or had reason to know of the defects.
What remedies does a landlord have if a tenant wrongfully holds over after the expiration of a lease?

When a tenant wrongfully holds over after the expiration of a lease, the landlord has two choices: either (i) treat the tenant as a trespasser and sue for damages and possession; or (ii) impose a new periodic tenancy on the hold-over tenant.

  • If the LL chooses to impose a new periodic tenancy, most courts in residential situations would impose a month-to-month tenancy; the rent of the new tenancy will generally be the same as the old one, except when the LL has told the tenant of a future higher rent and the notification came bfore the expiration of the old lease

What is a licensee?

A licensee is a privilege to enter onto another's property; it may be revoked at any time merely by a manifestation of the licensor's intent to end it.


What type of merger will terminate an express easement?
In order for a merger to terminate an express easement, each of the 2 parcels must be owned exactly in the same manner; one can't be owned as a life estate while the other is a fee simple.
Fee tail

An estate where inheritability is limited to lineal heirs; it is created by the words, "to A and the heirs of his body."  

  • Most jurisdictions have abolished the fee tail, and an attempt to create one results in a fee simple

Life estate by Marital Right (Legal Life Estates)

Dower (the interest of the wife in the husbands estate) and curtesy (the interest of the husband in the wife's estate) were the common law interests of a spouse in the real property of the other, creating, in essence, a legal life estate that could not be defeated by conveyance or creditors.

  • most states have abolished dower and curtesy in favor of a statutory right to a portion of the spouse's estate.

FS Determinable

To A & His heirs, for so long as...; as long as; until, while, during;


  • As long as condition is met, then automatically back to grantor; possiblity of reverter in grantor; (similar to the FS subject to executory interest (in TP) for FSS to EI.
  • the possibility of reverter (future interest) is transferable, descendible, and devisable.


Fee Simple Subject to Condition Subsequent

To A and his heirs, but if...; upon condition that...; provided that; + reentry by grantor (has to have this also)


  • Right of Entry in Grantor
  • This right is descendible and devisable, but some courts hold not transerable inter vivos


Fee Simple Subject to an Executory Interest

To A and his heirs for so long as...and if not, to B

  • FS to A as long as condition is met, executory interest to B.

Affirmative (voluntary) waste--natural resources

Exploitation of natural resources (e.g. minerals) by a life tenant is generally limited to situation when (i) necessary for repair or maintenance of the land; (ii) the land is suitable only for such use; or (iii) it is expressly or impliedly permitted by the grantor.

  • Under the open mines doctrine, if mining was done on the land prior to the life estate, the life tenant can continue mining--but is limited to the mines already open. 

Permissive waste

Permissive waste occurs when a life tenant fails to protect or preserve land.  A life tenant is obligated to: (i) preserve the land and structure in a reasonable state of repair; (ii) pay interest on mortgages (not principal); (iii) pay ordinary taxes on the land; and (iv) pay special assessments for public improvements of short duration (improvements of long duration are apportioned btwn LT and future interest holder.

  • A LT is not obliged to insure the premises for the benefit of the remainderman and is not responsible for damages caused by a third-party tortfeasor.

Ameliorative Waste

Ameriorative waste is a change that benefits the property economically.  This waste was actionable at common law, but now a life tenant may alter or even demolish existing buildings if:

(i) the market value of the future interest is not diminished; and either

(ii) the remaindermen do not object; or

(iii) A substantial and permanent change in the neighborhood conditions (e.g., change from residential to 90% industrial) has deprived the property in its current form of reasonable productivity or usefulness;

a) Compare this to leasehold tenants, who remain liable for ameliorative waste even if the neighborhood has changed and the market value of the premises was increased;

b) Worthless Property:  if the land is practically worthless in its present state, the LF may seek a partition sale, the proceeds of which are put in trust with income paid to the LT.

Tenancy for Years

A lease for a fixed period of time where you

  • know the termination date
  • Because the term of years is stated at outset, no notice is needed to terminate
  • May be for 2 days, 10 mos, 50 years.
  • NOTE:  A term of years greater than one year MUST BE IN WRITING.
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