Term
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Definition
| absolute ownership - freely divisable, descendible, and alienable. No future interest. Granted in common law by "to A and his heirs. Granted today by "O to A." |
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Term
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Definition
| "O to A and the heirs of his body" - basically abolished today. Now would become a fee simple. CL future interest in O (reversion) and A is a remainder. |
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Term
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Definition
| fee simple estates of POTENTIALLY infinite duration that can be terminated by the happening of a specified event. |
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Term
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Definition
| estate that AUTOMATICALLY TERMINATES on the happening of a stated event and goes back to grantor. - "SO LONG AS" "WHILE" "DURING" "UNTIL" "AS LONG AS" - Grantor has possibility of reverter. Stated event is natural termination. Divisable, descendible, alienable. |
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Term
| fee simple subject to condition subsequent |
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Definition
| estate that gives POWER OF GRANTOR THE RIGHT TO ENTRY and reacquire title upon the happening of a stated event. "To A but if ____ occurs, grantor reserves right to reenter and retake." Devisable, descendible, but not alienable inter vivos, but always subject to the condition. Future interest = right to reenter. "But" "BUT IF" "ON THE CONDITION THAT" "PROVIDED THAT" |
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Term
| fee simple subject to an executory limitation |
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Definition
| an estate that upon the happening of a stated event, AUTOMATICALLY DIVESTS IN FAVOR OF A THIRD PERSON rather than the grantor. Subject to Rule against Perpetuities. "O to A and his heirs on the express condition that liquor is ever sold on the premises, title passes to B and his heirs. |
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Term
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Definition
| estate measured in life terms and never is years. "to A for life" - Future interest: if held by grantor it is a reversion; if held by 3rd party then remainder. |
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Term
| life estate pur autre vie |
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Definition
| life estate measured by the life of someone other than the life tenant. "to A for the life of B" |
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Term
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Definition
| overt conduct that causes a decrease in value - general rule is that life tenant may not consume or exploit natural resources on the property. Exceptions: necessary for maintenance, given the right (express or implied) |
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Term
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Definition
| when life tenant allows land to fall into disrepair - neglect |
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Term
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Definition
| acts that economically benefit the property. not allowed unless all future interest holders know and consent. |
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Term
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Definition
| a present, legally protected right in property; it is not an expectancy |
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Term
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Definition
| a present, legally protected right in property; it is not an expectancy |
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Term
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Definition
| (non vested reversionary interest) - grantor acquired a possibility of reverter when he/she conveys a fee simple determinable. Not subject to the rule against perpetuities. |
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Term
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Definition
| accompanies the fee simple subject to a condition subsequent. power of termination. must take action to regain title after specific event occurred. not a vested future interest. |
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Term
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Definition
a future interest is vested when
1) there is no condition standing in the way of it becoming possessory other than the natural termination of the preceding particular estate of freehold AND
2) it is possible to ascertain who will acquire title to the land when the preceding estate terminates. |
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Term
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Definition
- Arises in grantor when he transfers less than he has - the leftover is the reversion. Grantor carves out estates (life estate, term of years) and after expiration gets the estate back.
- A reversion is a vested interest by definition, because the only condition standing in the way of its becoming possessory is the natural termination of the support life estate or estate in tail.
- The reversion is therefore not subject to being invalidated by operation of the Rule Against Perpetuities. |
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Term
| 3 future interests in the transferee |
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Definition
1) vested remainder
a) indefeasibly vested remainder
b) vested remainder subject to complete divestment
c) vested remainder subject to open
2) contingent remainder
3) executory interest |
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Term
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Definition
- a future interest in the transferee that is CAPABLE OF TAKING in present possession UPON THE NATURAL TERMINATION OF THE PRECEDING ESTATES created in same disposition.
- Must be expressly created in the instrument creating the intermediate possessory estate. |
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Term
| indefeasibly vested remainder |
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Definition
- the holder of this remainder is certain to acquire an estate in the future with no strings attached. "To A for life, then (remainder) to B."
- if the remainder doesn't follow a life estate, or in the rare instance a term of year, then it is not an indefeasibly vested remainder |
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Term
| vested remainder subject to open |
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Definition
"to A for life, then (remainder) to A's children"
- vested remainder that is certain to take on the termination of the preceding estates, but is SUBJECT TO DIMINUTION (SHRINKAGE) b/c other can become entitled to the remained (more kids can be born) |
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Term
| vested remainder subject to total divestment |
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Definition
- arises when the remainderman is in existence and ascertained and his interest is not subject to any condition precedent, but his right to possession and enjoyment is subject to being defeated by the happening of some condition subsequent.
- "O to A for life, then (remainder) to B and his heirs, on THE EXPRESS CONDITION that if B should fail to reach 21, then title shall pass to C and his heirs.
---- C has a shifting executory interest; he must act to gain title (only can act if A dies before B reaches 21) - shifts title by law if A dies and B dies before he reaches 21. |
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Term
| when is a future interest contingent? |
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Definition
1) If it is created in an unascertained person, OR
- unborn
2) subject to a condition precedent, OR
- a condition must take place in order for that person to have access to the land
- Ex: B must reach the age of 21
3) BOTH |
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Term
| doctrine of worthier title |
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Definition
| a remainder limited to the grantor's heirs is invalid, and the grantor retains a reversion in the property. Still applied to inter vivos transfers in majority of states. |
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Term
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Definition
Only remainders and executory interests in future interests in the transferee. If is it not a remainder because the preceding estate is not a life estate, then it must be an executory interest.
- Executory interests divests the inters of another |
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Term
| shifting executory interest |
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Definition
One that divests the interest of another transferee; i.e. it cuts short a prior estate created by the same conveyance.
- title shifts upon a certain condition being met
- follows a defeasible fee |
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Term
| springing executory interest |
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Definition
An interest that follows A GAP in possession or divests the estate of the transferor.
- By divesting the estate of a transferor, it becomes a springing executory interest. |
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Term
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Definition
| an express trust involves the holding of title to property by a trustee, who has an equitable fiduciary duty to deal with it for the benefit of other persons. |
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Term
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Definition
- person who creates the trust
- statute of frauds requires a writing to create a trust of real property.
- the settlor must own the property at the time the trust is created and must intend to make the trust effective immediately. |
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Term
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Definition
- holds legal title to the property, but must act under instructions of settlor.
- has fiduciary duty to the beneficiaries |
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Term
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Definition
| - person for whose benefit the trust is created and held; holds equitable title |
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Term
| rule against perpetuities |
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Definition
an interest is void if there is any possibility, however remote, that the interest may vest more than 21 years after some life in being at the creation of the interest.
---- if it can be imagined in which the interest might not vest within the perpetuities period, the interest is void.
--- contingent remainders & executory interests
--rule requires than an interest must vest, IF IT DOES VEST, within lives in being plus 21 years |
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Term
| Common Pitfall Cases - Rule Against Perpetuities |
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Definition
1) executory interest following defeasible fee violates rule
----"To John Brown for so long as no marijuana is smoked on the premises; and if so, then to Candy Barr."
2) Age contingency Beyond Age 21 in Open Class
----"To A for life, then to such of A's children as live to attain the age of 25 (or greater)"
3) fertile octagenarian - a woman is conclusively presumed to be capable of bearing children regardless of her age or medical condition.
4) many shifting executory interests wil violate RAP - any future interest with no time limit |
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Term
| Rule Against Perpetuities Analysis - 4 step technique |
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Definition
1) Determine the interests created as though there were no RAP
---contingent remainders, executory interests, certain remainders subject to open
2) Identify conditions precedent to the vesting of the subject future interest
3) Find a measuring life
4) Apply the rule - will we know with certain within 21 years of the death of the measuring life if the future interest holder can take or not? |
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Term
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Definition
- a tenancy with two or more co-owners who take identical interests simultaneously by the same instrument and with the same right of possession.
- each tenant has a right of survivorship
- Four Unities - Time (interests vested at same time), Title (interests acquired by same instrument), Interest (interest of same type and duration), Possession (identical rights to enjoyment)
- when one owner dies, nothing passes to the other, rather one interest is extinguished
- cannot be severed by the unilateral transfer of one joint tenants interest to a 3rd party |
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Term
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Definition
1) inter vivos conveyance by 1 JT of her undivided interest destroys JT so that transferee takes the interest as T in Common.
2) The majority view is that a lien is not considered a sufficiently substantial conveyance to destroy the unities of time and title.
---- the foreclosure proceeding will sever though
3) One JT's execution of a mortgage on her interest does not by itself cause a severance (needs to be foreclosed to sever) - minority holds mortgage does sever
4) JT cannot convey right of survivorship
Notes: JT avoids probate b/c of right of survivorship, not will |
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Term
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Definition
| - PITT (possession, interest, time, title) + marriage; can be created only by husband and wife, surviving tenant has the right of survivorship, one spouse cannot unilaterally sever the TE, they both must give or sell together. |
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Term
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Definition
- Concurrent estate with no right of survivorship
- Each owner has a distinct, proportionate, undivided interest in the property
---- each tenant is entitled to possession of the whole estate
- interest is descendible and may be conveyed by will or deed |
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Term
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Definition
- when one tenant wrongfully excludes another co-tenant from possession of the whole or any part of the whole, there is an ouster.
- the ousted co-tenant is entitled to receive his share of the fair rental value of the property for the time he was wrongfully deprived of possession.
-- If all three occur, then ouster and rent will be paid:
1) possessing tenant must exclude the non-possessing tenant
2) non-possessing tenant must demand use of the property
3) demand must be refused |
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Term
1) partition in kind
2) partition by sale |
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Definition
1) division of the tract into parcels
2) sell and divide the proceeds according to the ownership interest.
-- Must satisfy 2 conditions: 1) physical attribute of land makes partition in kind impracticable 2) interests of owners better served by sale.
Notes:
- A partition in kind is generally preferred, but partition by sale is allowed when a fair and equitable physical division of the property cannot be made. |
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Term
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Definition
- nuisance as a matter of law
- not a lawful enterprise, D operating illegal business
- an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings |
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Term
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Definition
- nuisance in fact
- those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated |
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Term
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Definition
- arises from unreasonable interference with the use and enjoyment of land
--- ONLY OWNERS OF INTEREST IN LAND CAN BRING SUIT |
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Term
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Definition
- act that interferes with general community interests or the comfort of the public at large
- unreasonable interference with a right common to public
-- unreasonableness depends on
1) whether the conduct significantly interferes with public health, safety, peace, comfort, or convenience
2) whether the conduct is proscribed by statute or ordinance
3) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect
- ANY MEMBER OF THE PUBLIC CAN SUE, BUT USUALLY ONLY IF THE PERSON BRINGING SUIT CAN SHOW SPECIAL INJURY |
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Term
| nuisance liability arises only if... |
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Definition
- the resulting interference is SUBSTANTIAL (doesn't have to be egregious, just something that someone normal would find unreasonable) AND UNREASONABLE
---- intentional invasion is unreasonable for purposes of nuisance law if:
a) the gravity of the harm caused outweighs the utility of the actor's conduct OR
b) the harm caused by the conduct is serious and the financial burden of compensating for this would not make the continuation of the conduct not feasible. |
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Term
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Definition
1) injunction activity until fixed
2) permanent damages and allow nuisance to continue (allowed where the loss recoverable would obviously be small as compared with the cost of removal of the nuisance - balance the equities)
3) abate the nuisance and force Plaintiff to pay damages (relocation, etc) - coming to the nuisance cases
4) let activity continue by denying all relief |
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Term
| non possessory interests in land |
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Definition
- easements, covenants, servitudes
- create a right to use land possess by someone else |
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Term
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Definition
- right to use a tract of land for a special purpose, but has no right to possess and enjoy the tract of land.
TYPES:
1) affirmative - right to enter upon the servient estate and make an affirmative use of it
2) negative - entitles the holder of the easement to compel the possessor of the servient estate to refrain from engaging in activity
Notes:
dominant estate has the benefit, servient estate has the burden |
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Term
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Definition
- benefits a specific piece of land; the easement of the dominant estate passes to next owner, regardless if mentioned in the conveyance.
- the same easement will pass to next owner of servient estate if notified of easement
--- notified by 1) actual knowledge, 2) visible appearance of easement, or 3) from the fact that the document creating the easement is recorded in the public records. |
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Term
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Definition
- does not benefit the owner of the easement in the use of land belonging to the owner, but benefits the owner without regard to ownership of the land
- personal (swim in pool) or commercial (RR tracks) |
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Term
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Definition
1) express grant or reservation (must be in writing b/c of S/F and signed by grantor)
2) implication; created by operation of law - 3 types: 1) intended easement based on a use that existed when the dominant and servient estates were severed. 2) easement implied from a recorded subdivision plat or profit a prendre. 3) easement by necessity.
3) prescription (open and notorious, adverse, continuous and uninterrupted - pay attention to tacking)
4) easement by estoppel |
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Term
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Definition
- the key factor is the reasonable intent of the original parties.
- the easement has to be used in the way it was created - normal, foreseeable use; cannot be an unreasonable burden |
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Term
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Definition
1) merger - anytime the dominant and servient estate are owned by the same person
2) abandonment - physical action showing an intention never to make use of the easement again; words alone and mer non use is not enough
3) natural - stated conditions of easement
4) release - requires both parties; formal
5) when necessity expires
6) prescription of the servient tenement
7) involuntary destruction of servient estate
8) estoppel - reasonable reliance and change of position of servient tenement, based on assertions or conduct of easement holder |
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Term
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Definition
- a privilege to enter upon the land of another, but is not an interest in land and is revocable at the will of the licensor.
- the right is personal to the licensee
- 2 exceptions to a license being revocable
1) estoppel - if a licensee invests substantial amounts of money or labor in reliance on a license, the licensor may be estopped by revocation, becoming an affirmative easement.
2) license coupled with an interest - Ex: A, the owner of Blackacre, sell 100 crates of oranges stored in a shed on Blackacre and at the same time licenses B to come onto Blackacre to remove the crates. B has an irrevocable license to enter BA and remove crates w/in a reasonable time. |
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Term
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Definition
- a written promise to do or not do something on the land.
- run with the land - subsequent owners adhere to covenant |
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Term
| Requirements for Covenant to Run with the Land |
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Definition
1) INTENT of covenanting parties that successors be bound by covenant
2) NOTICE that land is subject to covenant (not applicable at common law); if covenant is recorded, then notice is satisfied
3) PRIVITY between the party claiming benefit and the burdened party - horizontal ( the original covenanting parties share some interest in the land independent of the covenant) and vertical (successor that holds the entire duration interest; ex: life estate has no vertical privity)
4) TOUCH AND CONCERN - that the effect of the covenant is to make the land itself more useful or valuable to the benefited party. |
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Term
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Definition
- promises to pay money, if connected with the land, will run the land. Ex: homeowners' association fees.
- covenants not to compete: courts differ here
- racially restrictive covenants cannot be enforced by courts, but are valid on the face
- breach of a real covenant is remedied by damages, not injunction
- real covenant can be terminated by: 1) release in writing 2) merger 3) condemnation of the burdened property |
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Term
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Definition
- a covenant 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.
- the usual remedy is injunction against violation of the covenant
- created in a writing
- Requirement for Burden to Run: 1) INTENT 2) NOTICE, actual or constructive - exists apart from recording acts 2) TOUCH AND CONCERN ** privity not required |
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Term
| Equitable Defenses to Enforcement of Equitable Servitudes |
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Definition
1) unclean hands
2) acquiescence
3) estoppel
4) changed neighborhood conditions |
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Term
| Termination of Equitable Servitudes |
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Definition
1) written release
2) merger
3) condemnation of burdened property |
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Term
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Definition
- statutes enacted by municipalities to reasonably control the use of land for the protection of the public's health, safety, morals, and welfare.
- a zoning ordinance will be declared unconstitutional only where its provisions are clearly arbitrary and unreasonable and have no relation to public welfare
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Term
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Definition
- districts are graded from highest (single family residence) to lowest (worst kind of industry)
- uses permitted in each district are cumulative - higher uses permitted in lower uses, but not vice versa |
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Term
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Definition
- a use that exists at the time of passage of a zoning act that does not conform to the statute cannot be eliminated at once.
- need to have building, not just intention for building
- grandfathered in
- runs with the land, but cannot be changed to another use or expanded |
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Term
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Definition
- have a certain amount of time to become conforming use
-Factors in assessing reasonableness of amortization period:
1) nature of the use
2) number of improvements
3) public detriment
4) amount of time needed to amortize the investment |
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Term
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Definition
- if granted, allows a landowner to build on land or use the land in a manner otherwise not permitted under the zoning ordinance
- to be granted a variance you need to show
1) a unique hardship imposed by ordinance, AND
2) the variance will not be contrary to public welfare |
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Term
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Definition
| - allows landowner to put his property to a use which the ordinance permits, but only if you meet certain guidelines (guidelines must not be arbitrary) |
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Term
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Definition
| - when an amendment to the law takes place to benefit a particular land owner as opposed to the general public |
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Term
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Definition
- the power of the gov't to force transfers or property from owners to itself
1) the power of the gov't to force sale on an unwilling buyer, can't be challenged as unconstitutional - can do it if you follow certain rule
2) nor shall private property be taken for public use w/o just compensation (fair market value)
--- the reach of eminent domain power hinges directly on the breadth or narrowness of the meaning attached to public use.
--- if you can dream public use, you can get public use (very liberal construction) |
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Term
| Procedures gov't must comply with to condemn private property |
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Definition
1) file a petition in court
2) give notice to all persons with an interest in the property
3) trial is held, where gov't must establish its authority to condemn
4) if there is a jury trial, jury determines just compensation (issues of public use and necessity are decided by the court) |
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Term
| Difference between eminent domain and police power. |
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Definition
- eminent domain - gov't takes property b/c it is useful to the gov't (right to compensation)
-- compensation is required when the public helps itself to good at private expense, but not when the public simply requires one of its members to stop making a nuisance to himself
- police power - gov't takes property b/c it is harmful (no right to compensation)
--- underlying notion: gov't is curbing a public bad rather than expropriating a public good |
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Term
| 3 tests for taking cases: |
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Definition
1) permanent physical occupation - always takings
2) nuisance control measures - never takings
3) diminution in value test - concerned with differences of degree rather than differences in kind |
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Term
| Denial of ALL economic value of land |
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Definition
- is a taking
- equivalent to a physical appropriation, unless the use is prohibited by nuisance or property law when then owner acquired the land |
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Term
| Denial of NEARLY ALL economic value |
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Definition
- is decided to be taking by balancing these factors:
1) social goals sought to be promoted
2) diminution in value to the owner
3) owner's reasonable expectations regarding use of the property
- generally found to be a taking only if is UNJUSTLY REDUCES the economic value of the property |
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Term
| Unconstitutional Exactions |
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Definition
- If the gov't demands, in exchange for zoning approval for a new project, that the landowner give up some land for a public purpose (such as street widening), it is unconstitutional unless the govt meets the burden of these tests:
1) essential nexus - govt's demand must be RATIONALLY CONNECTED to some additional burden that the proposed project will place on public facilities or rights.
2) Rough proportionality - If essential nexus is met, gov't can't demand too much. The required dedication must be REASONABLY RELATED, both in NATURE (essential nexus) and EXTENT (amount of exaction), to the impact of the proposed development. |
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Term
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Definition
- must abandon all right, title, claim, and possession
- if owner still has good title, then land has not been abandoned |
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