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What does \"Lives in Being\" mean?
Unless other measuring lives are specified, one connected with the vesting of the interest is used.
What is the effect of violating the RAP?
Violation destroys only the offending interest. * *When a void interest is stricken, the interests are classified as if the void interest were never there.
How does the RAP affect an executory interest following a defeasible fee?
There will usually be a violation of the RAP and the executory interest is stricken.
Does an age contingency beyond age 21 in an open class violate the RAP?
Yes.
What is the fertile Octogenarian problem?
A women is presumed capable of bearing children regardless of ages; thus, a disposition of \"to A for life, the A\'s children for life, then A\'s grandchildren in fee\" is invalid, even A is 90.
What is the gift conditioned on administrative contingency problem?
A gift conditioned on some admin contingency (eg, admission to probate) violates the rule because it is possible the administration may take more than 21 years.
What is the rule against restraints on alienation?
Generally, any restriction on the transferability of a fee simple is void.
What are 3 types of restraints on alienation?
1) Disabling restraints - renders attempted transfers ineffective 2) Forfeiture restraints - attempted transfer forfeits interest 3) Promissory restraints - attempted transfer breaches a covenant.
When might restraints on alienation be upheld?
Restraints on fee simple estates for a limited time and reasonable time may be upheld * *Eg, restraint limited to joint life-times of co-owners as a reasonable way to ensure neither will have to reside with a stranger.
Do use restrictions constitute a impermissible restraint?
No.
Can an estate in land be held concurrently by multiple people?
Yes an estate in land can be held concurrently by several persons, all of whom have the right to enjoyment and possession.
What is a joint tenancy?
2 or more people own a single unified interest in real or personal property.
What is the distinguishing feature of a joint tenancy?
When one joint tenant dies the property is free from his concurrent interest (i.e., his survivors do not succeed to it).
What are the 4 common law requirements for creation of a joint tenancy?
The joint tenants must: 1) Take identical interests, 2) At the same time, 3) By the same instrument, and 4) With the same right to possession. * *i.e., interests must be equal in every way, where as tenancy in common need not.
How may a joint tenancy be severed?
1) Inter vivos conveyance - such a conveyance destroys the joint tenancy 2) Contracts to conveyance - If one joint tenant contracts to convey his interest, severance results * *when severance occurs, a tenancy in common results. If there are more than 2 joint tenants, conveyance by one destroys the joint tenancy only to the extent of the conveyor\'s interest.
What is the effect of severance of a joint tenancy?
When severance occurs, a tenancy in common results
Does a granting of a mortgage sever the joint tenancy?
1) Title theory states - treated as a conveyance and severs 2) Lien theory states - does not sever
Does a granting of a lease issued by one joint tenant sever the joint tenancy?
Not in most states.
What is a tenancy by the entirety?
Marital estate akin to joint tenancy. Can only be severed by death, divorce, mutual agreement, or execution by a creditor of both the husband and wife.
What is Tenancy in Common?
A concurrent estate with no right of survivorship. Tenants may hold equal shares. * *Presumption in favor of tenancy in common and presumption of equal shares.
What is the right to possession among co-tenants?
Each has the right occupy the entire premises, subject only to a similar right of the others. * *Parties can make an agreement contrary.
When can a co-tenant bring a possessory action?
Only when he is ousted (i.e., the occupying tenant refuses to permit the other tenant equal occupancy).
How must rents and profits from the property be divided?
1) Co-Tenant can retain profit from own use of property 2) Co-Tenants must split rents from 3rd parties or profits from exploiting the land.
Can a co-tenant encumber his interest (eg, mortgage)?
Yes, but may not encumber other co-tenants.
Can a co-tenant bring an action for partition?
Yes, the court will either divide the property or order it sold and have the proceeds distrusted. * *Not available for tenancy by the entirety.
What are co-tenant\'s duties regarding repairs?
A co-tenant who pays more than his share pro-rata is entitled to contribution from other tenants.
What are co-tenant\'s duties regarding improvements?
There is no right to contribution for the cost of improvements unless there is a partition.
What are co-tenant\'s duties regarding taxes and mortgages?
Contribution can be demanded for taxes or mortgage payments paid on the entire property. * *A co-tenant in sole possession is limited to the extent that expenditures exceed the rental value of his use.
What is a leasehold?
An estate in land, under which the tenant has a present possessory interest in the leased premises.
What are the 4 types of landlord-tenant relationships?
1) Tenancy for years 2) Periodic tenancy 3) Tenancy at will 4) Tenancy at sufferance
What is a tenancy for years?
A tenancy that continues for a fixed period of time. * *Eg, A rents to B for 2 years.
How is a tenancy for years created?
Usually by written lease. (SOF requires writing if the lease is for more than 1 year.)
How is a tenancy for years terminated?
It automatically ends at its termination date.
What is the effect of a breach of covenants in TFY?
In most cases, L reserves a right of entry, which allows him to terminate the lease if T breaches any of the lease\'s covenants.
What is the effect of failure to pay rent in a TFY?
In many jurisdictions, L may (by statute) terminate the lease even in the absence of a reserved right of entry.
What is a Periodic Tenancy?
Tenancy that continues for successive periods until terminated by proper notice by either party.
How is a periodic tenancy created?
1) Express agreement (eg, L leases to T month to month) 2) Implication (eg, L leases to T for $100 per month), or 3) Opp of Law (eg, T remains in possession after expiration and L treats it as a PT)
How is a PT terminated?
Automatically renewed until proper notice is given, usually one full period in advance. (eg, one full month in a month to month lease).
What is a tenancy at will?
Tenancy terminable at the will of either L or T.
How is a TW created?
Express agreement that the lease can be terminated at any time. * *If the lease gives only the L the right to terminate, a similar right will be implied in favor of T.
How is a TW terminated?
Without notice: 1) any party with the power to terminate may do so, or 2) may occur by operation of law (eg, death, waste, etc.)
What is a tenancy at sufferance?
Tenancy that arises when the tenant wrongfully remains in possession after the expiration of a lawful tenancy.
How long does a tenancy at sufferance last?
A tenancy at sufferance lasts only until L takes steps to evict T.
What is the hold-over doctrine?
If a tenant continues in possession after his right to possession has ended, L may; 1) Evict 2) Bind T to a new periodic tenancy.
What will the terms be for a hold-over tenancy?
Generally the terms of the expired tenancy, unless L had already notified T of a rent increase.
What are the exceptions to the holdover doctrine?
L cannot bind T to a new lease if: 1) wrongfully possession only for a few hours or leaving a few items of personal property 2) delay is not T\'s fault (eg, severe illness), OR 3) it is a seasonal lease.
What is a lease?
Contract that governs the landlord-tenant relationship.
Are covenants of the lease independent?
Yes, if one party breaches, a covenant, the other party can recover damages but must still perform.
What are T\'s duties under a tenancy?
1) Duty to repair 2) Duty not to use premises for illegal purpose 3) Duty to pay rent
What is T\'s duty to repair?
Tenant cannot damage or commit waste on the leased premise * *Recall the 3 types of waste: Voluntary, permissive, or ameliorative.
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