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Property Flowchart

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by

Kim Ray

on 11 June 2015

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Transcript of Property Flowchart

Identifying Property Interests
Future Interests
Present Interests
Single Ownership
Concurrent Ownership
Contingent Remainder
Is there a time frame attached to the granted interest?
Freehold Estate
Defeasible Fee:
Does it include the language "the heirs of his body?
There are specific conditions
attached to the interest
(not a death or date passing)
Yes
Is that term expressed in reference to a life?
Life Estate
"To A for life"
Life Estate pur autre vie
"To A for the life of B"
Yes
No
No
Fee Simple Absolute
"To A and A's heirs"
Tradtionally, the one with freehold estate also has seisen
No
Fee Tail
"To A and the heirs
of his body"

Passes down interest in a lineal bloodline; NOT valid in most states
Yes
Yes
Is the granted interest phrased as passing "until" an event occurs or "so long as" something continues?
No
Fee Simple Subject to Condition Subsequent
"To A and but if A moved to NJ then O has the right to re-enter and re-take the property"
Fee Simple Determinable
"To A and until lives in this state" OR "To A so long as he lives in this state"
If the condition passes, does O have a Right of Entry?
Yes
No
Fee Simple Subject to Executory Limitation
Is the interest still with the grantee?
Vested Remainder
Executory Interest
Term of Years
"To A for 20 years"
No
Is there an ascertained person AND not subject to a condition precedent (woven into the fabric of conveyance and IDed by coming before or absent a comma)?
Is the class of grantee open?
Vested Remainder subject to complete defeasance (or total divestment)
Yes
Yes
"O conveys to A for life, remainder in B, provided that if B dies under 40 to Skinner"
No
Indefeasibly Vested Remainder
"O conveys to A for life, then to B"
Is there a condition subsequent?
No
Vested Remainder
Subject to Open
"O conveys to A, then to all of B's children."
B has one child alive.
When A dies and the interest vests, the class closes
Yes
Does it cut short the interest of another?
No
Yes
Doctrines from Common Law that Frustrate Contingent Remainders
Doctrine of Worthier Title
Rule in Shelly's Case
Rule of Destructibility
At common law, a CR was destroyed if it was still contingent at the time the preceding estate ended
Applies when "O conveys to A and to A's heirs at A's death"
Common law merged the interests into a FSA for A. Today, A has LE, heirs have CR
Applies when "O conveys to A for life then to O's heirs."
Voids "then to O's heirs" and gives O a reversion, for certainty and alienability of interest.
Whose interest is being cut short?
Shifting
Executory Interests
Springing
Executory Interests
Not Grantee's
Grantee's
"O conveys to A if and
when A gets married"
A is not yet married.
"O conveys to A but if A leaves the country then to B"
Fee Simple Subject to Springing Executory Limitation
"O conveys to A if and when A gets married"
O has FS sub. Spring. EL
Fee Simple Subject to Shifting Executory Limitation
"O conveys to A but if A leaves the country then to B"
Yes
No
Rule Against
Perpituities
1. Identify future interests
2. Identify what must happen for future interest holder to take.
3. Identify measuring lives
4. Will we know for certain at the time the instrument becomes effective whether or not within 21 years of the death of measuring lives that the interest will vest? (Fertile Octogenarian Rule: if someone is alive, then can give birth)
Yes
Conveyance is Valid
Conveyance is Invalid
The interest will not vest. Remove the problematic portion until the sentence makes grammatical sense. This is the valid conveyance.
No
Leasehold
Term of Years
Periodic Tenancy
Tenancy at Will
Holdover Tenancy
Fixed period of time. No notice needed to terminate. Certain, but inflexible
Fixed duration with successive periods. Option to renew. Notice to terminate 6m for a year period, or time of period if less than 6m
No fixed period. Endures so long as both tenant and landlord desire.
Arises when tenant remains in possession after lease expires. Risk eviction or being forced into another term.
Joint Tenancy
Tenancy by Entirety
Tenancy in Common
Requires: takes at the same time, interest in the same instrument, identical rights to possess whole, right of survivorship
Disfavored by courts. May require Straw.
Severed by: sale, partition, mortgage (in title theory)
Traditionally owned by husband and wife (some same-sex couples). Arise presumptively where recognized. Originated for equity to protect wife.
Each tenant owns individual part, but right to possess whole. Carrying cost dist. by interest.
Devisable, descendable, aleinable. Law favors.
Yes
Did the interest holders take identical interest at the same time via the same instrument, and do they have a right of survivorship?
Did the interest arise presumptively because of marriage?
Yes
No
If the Joint Tenancy is severed by sale, partition, or title-theory mortgage, the ownership reverts to
Generalized future interest
Is the interest in a transferor or a transferee?
Transferor
Transferee
Reversion
Possibility of
Reverter
Right of Re-Entry
Remainder
Executory
Interest
Does the interest cut short the interest of another?
Yes
No
Will O regain the property ONLY if some condition is violated?
"O conveys to A for life"
O has a reversion.
A reversion is created when an estate of lesser quantum is conveyed, and in certain to expire. Fully alienable
Does O automatically regain interests in the land? No if he only has a right to claim.
Yes
No
Yes
No

ONLY follows a fee simple determinable.
Only follows fee simple subject to a condition subsequent
Created in an unascertained person and/or condition subsequent attached
Servitudes
Adverse Possession
Has the possession been continuous for the statutory period?
Has possession been open and obvious (so as to put the true owner on notice)?
Has there been actual and exclusive possession (as opposed to constructive)?
Patrick v. Goolsby: on 40 of 100 acres, only gain 40 acres actually possessed
Has possession been hostile, as required by jurisdiction (Objective, Good-Faith, or Aggressive)?
Van Valkenburgh v. Lutz
Mannillo v. Groski: build steps on neighbors land; court eliminates aggressive requirement
Yes
Yes
Yes
No Adverse Possession
Adverse
Possession
Yes
No
No
No
No
Guarantees and Rights Associated with Interests
Future Interest
Transfer of Present Interest
Leasehold
Servitudes
Cause of action for damages or injunction in the event of waste by the present interest holder.
Affirmative Waste: voluntary and avoidable
Permissive Waste: waste occurring from negligence
Ameliorative Waste: raises value of land but by using it in a way that was not intended
Covenants
of Title

Warranties
General Warranty
Special Warranty
Warranties title against all defects, whether the defect of title occurred before or after the grantor took title
Contains warranty only from grantor's own acts but not other
MUST be included in the purchase contract
ALSO must be in the purchase contract:
Purchase price
Legal description (address)
Good title
Date of transfer of possession
Signature of parties
Future Covenants
Present
Covenants

Covenants
of Quiet Enjoyment
Covenants
of Further Assurances
Covenants
of General Warranty
Covenants
of Right to Convey
Covenants
of Seisen
Covenants
Against Encumbrances
Grantor warrants that he owns the estate that he purports to convey
Grantor warrants that he has the right to convey the property
Grantor warrants that there are not encumbrances on the property
Guaranteed when the contract is signed
Guarantees for after the conveyance
Grantor warrants grantee will not be disturbed in possession ans enjoyment of the property be assertion of a superior title
Warranties title against all defects, whether the defect of title occurred before or after the grantor took title
Grantor promises he will execute any other documents required to perfect title conveyed
Exceptions to Caveat Leasee
Implied Warranty of Habitability
Constructive Eviction
In the case of a terrible/awful breach by landlord, a tenant is relieved of rent obligations, despite remaining on premises.
Tenant Beware: take the premises as they are.
(Also note the Fair Housing Act)
Implied duty to keep the premises habitable
Abstain from fraudulent representation of the leased property
Maintain things the landlord promised or volunteer to do
To be told about latent defects that the landlord knows about or have them remedied
Abate from immoral conduct and other nuisance that affect the leased premises
A cause of action (in residential property in some jurisdictions) for non-substantial breach. Tenant no longer needs to leave to have a cause of action, and damages with be the loss of value as a portion of rent.
Legal Covenants
Easements
Is the easement strictly between neighboring parcels of land?
Easement Appurtenant
Will be created by necessity when one parcel is landlocked and must cross a neighbor's land to access a road, but can be created other ways
Easement
In-Gross
Yes
No
Benefits a person and burdens land.
Affirmative Easements
Negative Easements
Allows a person to do something on the burdened land
Imposes a restriction on the servant tenant not to do something
Intangible, incorporeal interest. NOT possessory interest.
Created by "granting" or "reserving" a a right-of-way; or by converting a license to an easement under estoppel; or by implication of necessity; or by implication of prior use; or prescription; or through Public Trust Doctorine.
If there are conditions attached
Easement Appurtenant Determinable
"O grants A an easement so long as the land is used for farming"
Profit
Sub-surface interests. Things that apply to easements generally apply to profits.
License
Permission created by the owner/occupant that allows another to do some act that would otherwise be trespass.
Generally revocable (where easements are not)
Did the landowner intend to create a license?
Intent License
Where the intent of the landowner was clearly to create a license in another
Yes
No
What did the landowner intend to create, but failed in someway to fully effectuate?
Failure-to-Comply License
Impermissibly Created Irrevocable Interest License
Landowner attempted to create an easement, but failed to comply with one or more requirements, so a license is creates as a fallback
Easement
Other irrevocable interest
Landowner attempted to crease an irrevocable interest that is not allowed by law, so an license is created as fallback
A promise that runs with the land. Intangible interest.
There must be notice, and the promise must Touch and Concern the land.
Easements
Ways to retain or claim an easement
Express language "grant" or "retain"
License coverts through estoppel
Implication by Prior Use
Implication by Necessity
Percription
Through Public Trust Doctrine
But also ways to end them:
Set term of easement ends or condition for defeasement occurs
Abandon (affirmatively)
Release the easement right to the burdened-estate holder
Dominant and servant estate merge
Servant-estate holder is forced beyond reasonable to change behavior
Necessity ends
Unwillful destruction by servant estate holder
Condemnation by government
Estoppel
No
Was the promise made at the time of the conveyance of the land?
Was there horizontal privity (a relationship between the original parties of the conveyance that relates to the land e.g. grantor/grantee, lessor/lessee)
Was there vertical privity?
burden: entire interest must be convyed
benefit: some interest must be conveyed
Can sue for damages and injunction. If you satisfy real covenants then you satisfy requirements for equitable servitude
You can sue for injunctions. The requirements are less than real covenants.
Real Covenants
Equitable
Servitudes
No
No
Yes
Yes
Yes
No
Real Covenants
The benefit will run whenever there was originally horizontal privity; the promise touches and concerns the land; there was actual or constructive notice; and there was vertical privity conveying some interest.
The burden will run only if there was originally horizontal privity; the promise touches and concerns the land; there was actual or constructive notice; and the full interest is conveyed through vertical privity.
Is horizontal or vertical privity is not met, and if the promise was not made at the time of conveyance...
Equitable Servitude
You can still sue for an injuction under an equitable servitude, but not for the monetary damages you could get under real covenants
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