This is an extract of our Bar Prep document, which we sell as part of our Real Property Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Real Property Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
REAL PROPERTY OUTLINE FREQUENTLY TESTED: mortgages, landlord/tenants, competing claimants ESTATES IN LAND Present Possessory Interests
? Fee Simple Absolute = full interest + heirs. Presumed.
? Defeasible = terminates upon event happening o Fee Simple determinable: durational language. Upon event, automatic termination, reverts to grantor. o Fee Simple Subject to Condition Subsequent: conditional language + language of right of reentry (without right of reentry - it becomes of FSA + K obligation). o Fee Simple Subject to Executory Interest: durational or conditional, but automatically passes to third party upon event. o Fee Tail: limits ownership to lineal descendants. No longer exists ? treated as fee simple absolute. o When Ambiguous: Covenant preferred over defeaseible estate; FSSCS preferred over FSD
? Life Estate: for duration of life. Pur Autre Vie - measured by life of someone other than possessee o Duties: to repair (for future interests), to pay mortgage interest to the extent of profits earned on property, to pay taxes,
? Term Estate: not free hold. Not measured by lfe. Essentially a landlord/tenant relationship. Future Interests
? Possibility of Reverter: future interest created in grantor. Automatic in FSD. Strict common law: not freely transferrable, had to pass to grantor's heirs. Under modern law: grantor can freely transfer possibility of reverter through sale, gift, will.
? Right of Reentry: future interest created when grantor creates a FSSCS. Must be spelled out in conveyance. Upon happening of event, grantor must exercise steps to retake the property. Not transferrible under CL, but transferrible under modern, majority law.
? Reversion: future interest in grantor, whenever grantor fails to transfer property in perpetuity. Gap filler. No transferrible under CL, but freely transferrible under modern majority.
? Executory Interest: future interest created in interest of third party that cuts short preceding estate before it would've naturally terminated. This applies to any interest created in third party that follows granting of fee, because fee estate has potential to last forever. Freely transferible. o Shifting: prop passes from one third party to another o Springing: prop passes from grantor to third party
? Remainder: follows from natural termination of preceding estate. (A to B for life, then to C). o Contingent Remainder: not vested. (A to B for life, then to oldest child of C then living). o Vested Remainder: 1) created in ascertainable person; 2) no condition preceent to third party taking other than termination of preceding estate. (A to B for life, then to C). o Vested Remainder Subject to Condition Subsequen/Complete Divestment: can be lost after you get it. (A to B for life, remainder to C, so long as liquor is never served on premises). o Vested Remainder Subject to Open/Partial Divestment: class gifts.
? Class opens in inter vivos conveyance the moment the conveyance is made. Class opens in testamentary conveyance the moment the testator dies.
? Class closes as soon as one member of the class becomes entitled to immedieate possession. (Rule of Convenience).
CL, but Abolished in majority JXs
? Doctrine of Destructiability of Contingent Remainders: contingent remainder destroyed by: 1) failure to vest by natural termination of prior vested estate; 2) merger (when person winds up owning present an dfuture interest); 3) holder of present possessory estate surrenders his interest before contingent remainder vests
? Rule in Shelley's Case - when "to A for life, remainder to hers of A" - A gets fee simple and A's heirs take nothing by virtue of the grant itself Doctrine of Worthier Title: descent over devise. Waste (voluntary, permissive, ameliorative)
? Fee estate owner can do whatever they want.
? Life or term estate: cannot devalue property for future interest holders
? Open Mine Doctrine
? Ameliorative Waste: under common law, not allowed. Modern law, okay if: 1) market value of land is not impaired AND 2) improvement permitted by remainderman OR change to nature of property or neighborhood justifies the improvement.
? Who has standing to sue? Vested remainderman can sue for damages or injunction. Contingent remainderman can only sue for injunction. Restraints on Alienation - attempt to restrict grantee's ability to transfer.
? Total restraint okay on less than a fee, but not a fee.
? Partial restraint: purchase option, right of first refusal - both valid if reasonable. Rule Against Perpetuities: only applies to future interests (executor, contingent remainder, vested remainder subject to open) and restraints on alienation (purchase option, right of first refusal). If you can create an interpretation under the facts that someone can claim interest more than 21 years after everyone currently alive is dead, future interest crossed out.
? Charity-to-Chairty rule: shifting executor interest in fee okay when both parties are charities (even though they automatically violate RAP)
? Wait and see test: 90 years Concurrent Estates
? Joint Tenancy = co tenants own undivided interest in whole property and right of survivorship. Presumption under common law. Traditionally required unity of time, title, interest, possession Modern: just interest and possession. Becomes tenancy in common upon severance. Done inter vivos through partition action in equity court, or K of sale. o Majority (Lien Theory): taking out a mortgage will not sever the JT (but foreclosure will) o Minority (Title): mortgage viewed as title to property, severs JT. o If both JTs join in a mortgage, the mortgage will not affect the joint tenancy. If only one mortgages his interest, the effect depends on whether JX follows title or lien theory.
? Tenancy in common = each co tenant owns undivided interest in whole property, no right of survivorship. Presumption under modern law. Only requires unity of possession.
? Tenancy by the Entirety = not recognized in community property. JT between spouses. Severs upon divorce.
? Rights of cotenants: possess whole property, profits to cotenant producing profit (unless ouster)
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