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Reference Guide

Property Law - Reference Guides

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LAW 253

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l e a r n • r e f e r e n c e • r e v i e w permacharts TM PProperty Law ESTATES DESTRUCTIBILITY PERPETUITIES • At common law, a contingent remainder was destroyed if it had not • Rule voids any contingent interests which could possibly vest or become a vested remainder when supporting estates ended fail to vest more than 21 years after end of life in being at • Merger of a preceding estate into a vested future interest led to the creation of interest destruction of any intervening contingent remainders • Contingent remainders must either become vested remainders • All other future interests were indestructible or fail • Executory interests must take possession or fail in less than that DOCTRINE OF WORTHIER TITLE time • A remainder subject to open must be closed and vested as to • At common law, an inter vivos gift of future interest to the heirs of the every member within the time period or else the entire class gift grantor was void is void • A testamentary devise of an estate to a person who would otherwise • Exception includes interests given to charities take the same by descent if the testator had died intestate was also void QUALIFIED ESTATES EXECUTORY INTEREST • An estate is determinable if condition is incorporated into its • If defeasible estate is conveyed to grantee and property goes to third person upon occurrence of event, then future interest in third person is duration called a shifting executory limitation • It is subject to condition subsequent if grant states that upon occurrence of a specified event it may be reclaimed by the • Future interest which goes directly from grantor to third person in the grantor future is called a springing executory interest • If title is to pass to a third person rather than revert to the grantor, then estate may be subject to an executory limitation FREEHOLD • No established termination date REMAINDER • At common law, owner of freehold estate is said to have seisin • Fee simple estate created by grant to a person and heirs • Future interest created in a third person • Takes effect upon natural termination of preceding estate • Inheritance does not end on grantee’s death • Vested if given to an established person and subject to no • Fee tail estate created by grant to person and heirs of the body condition precedent, other than natural termination of the prior • Inheritance by grantee’s lineal descendants interest • Life estate created when grant did not include any words of inheritance • Contingent if taker is unknown or there is a condition precedent • Ends upon death of grantee or whomever was used as the measuring life • Defeasible when subject to subsequent conditions, when it may be divested NON-FREEHOLD REVERSION • All have ascertainable termination dates • Include tenancy for a term, periodic tenancy, and tenancy at will • Future interest retained by grantor whenever he or she gives away estates smaller than held • Estates without additional provision for termination are absolute • It takes effect only upon natural termination of the prior estate FUTURE INTERESTS • Always vested, although it may be subject to divestment, with no special creating language • If owner of an absolute estate conveys away determinable estate, then • Grantor may retain both a reversion and a possibility of reverter he or she retains a possibility of reverter or a power of termination when he or she conveys an estate • If owner conveys an estate subject to a condition subsequent, then he or which is both defeasible and smaller than estate held she retains a power of termination SHELLEY’S CASE MARITAL ESTATES • At common law, if a freehold estate was given to a person and a Dower Common law right of wife to life estate in one-third of all remainder was given to the heirs, then the remainder was treated as being in the ancestor over the heirs property of which her husband had been seised at some time during marriage and which was inheritable by her issue • Remainder might become vested rather than contingent and Curtesy At common law, upon marriage, a husband acquired legal may also merge with the preceding freehold estate life estate in all property of which his wife was seised • Rule does not apply when one interest was legal and the other equitable DEEDS Contents Must be signed by the grantor • Wording must indicate intent to transfer title to property • It must identify the grantee and suitably describe the property • Parol evidence may resolve descriptive ambiguities • For internal inconsistencies, monuments prevail over courses and distances, which prevail over names and quantities Delivery Deed passes title only when delivered • Grantor manifests intent that completed legal act has occurred • If grantor intends title of Deed to pass in the future, then there is no delivery, except where deed transfers future interest in the land and it is delivered with an unconditional present intent • In two party transactions, an attempted conditional delivery of deed means either that there is no delivery or that title passes absolutely and without condition 1 PROPERTY LAW • A-853-2 www.permacharts .com © 2003-2013 Mindsource Technologies Inc. permachartsTM l e a r n • r e f e r e n c e • r e v i e w EASEMENTS • Nonpossessory interest in land which someone else possesses CREATION OF EASEMENT • Holder is dominant tenant and land is the dominant tenement • An easement may be granted to another person or reserved by a • Person subject to easement is servient tenant, holding a servient grantor of land over land being granted tenement • When one part of land is already burdened for another’s benefit, • Appurtenant when land benefits; gross when a person benefits severance of parcel may lead to creation of easement by • Profit is involved when there is a right to remove products of the soil implication • Affirmative easement allows holder to engage in otherwise • Former quasi-easement must be apparent, continuous and beneficial unprivileged activity affecting servient tenement • Negative easement allows holder to prohibit servient tenement TRANSFER holder from engaging in otherwise privileged activity Burden Transferred with servient tenement • If servient tenement TYPES OF EASEMENTS is subdivided, then each parcel is subject to burden Benefit Transfer of dominant tenement carries benefit of all Express Language of document controls what dominant tenant easements appurtenant • Subdivision of dominant may do • Where languageis silent, dominant tenant may engage in activities reasonably related to the tenement divides benefit between all lots easement • May not be unreasonably burdensome upon servient tenement • Dominant tenement may PRESCRIPTION TERMINATION OF EASEMENT not be enlarged so as to benefit land which was not initially included • Adverse use of another’s land • Time period expires over an extended period • Properly revoked Implied Existence of statute • Parcel is landlocked • Prescriptive use does not have • Underlying property has Prescriptive Adverse use of someone else’s land • Continuous use to exclude all other activities been destroyed • Other prescription requirements on the property, provided that • End of necessity for which it ServientUse Servient tenant may engage in any activities on land the use has been maintained was created which do not unreasonably interfere with easement long enough • Forfeiture through abuse COVENANTS • A covenant running with the land is a promise which may be STANDING enforced by successors to original covenantee, against successors to • Subdivider has standing to enforce covenants made by grantees in original covenantor, or both deeds to individual lots • A covenant will not run with the land unless it is an enforceable promise between the original parties • Individual owners may enforce covenants in deeds of their neighbors made before they took title • It must be in writing and there must be an intent that it run • Proof of reciprocal burdens, third party beneficiaries, and promises • Present covenants declare grantor to have title to transfer which is of subdivider to restrict retained land free of all burdens, except those expressly or impliedly excluded BREACH OF COVENANT TYPES OF COVENANTS • Present covenants are breached when conveyance is made Present Covenant of seisin • Covenant of good right to convey • Future covenants are breached only when the grantee is injured • Covenant against encumbrances Future Covenant of quiet enjoyment • Covenant of warranty • Future covenants run with the land and may be enforced against • Covenant of further assurances covenant or by remote grantee • Damages may equal amount paid for property, cost of removal, or depreciation of market value caused by encumbrance RUNNING AT LAW • It must touch and concern land TERMINATION OF COVENANT • Lasts as long as it is provided for in original document or permitted • Covenant to pay money may be treated as touching and concerning land where it is payment for performance of an act which touches by statute and concerns land • Destroyed by merger of benefited and burdened parcels, release, • Horizontal privity requires covenantor and covenantee to be in privity abandonment by appropriate parties, or by prescription of estate • Courts of equity will not enforce covenant where changed • Vertical privity requires entire estateof covenantor to pass to successor conditions make the benefit surpassed by the burden MORTGAGES • Security arrangement where obligee may use property given as • Mortgage instrument is secondary to document denoting primary security if obligor fails to perform required obligation obligation, for which the mortgage is given as security Foreclosure Equity courts allow mortgagor to perform late so that forfeiture may be avoided • Mortgagee may go to court to set a time limit for late performance and to have the security sold to satisfy the obligation • Mortgagor may owe a deficiency judgment if the sale does not cover debts Junior Foreclosed and sold subject to senior mortgage • Eliminated by senior foreclosure sale • Junior mortgagee receives any surplus Mortgages from senior sale over mortgagor Transfers Property subject to mortgage is transferred under that mortgage • Transferee may also assume mortgage, along with personal liability on the underlying obligation • Mortgagee’s transfer of property brings the mortgage with it 2 PROPERTY LAW • A-853-2 w w w © 2003-2013 Mindsource Technologies Inc. permachartsTM l e a r n • r e f e r e n c e • r e v i e w CONTRACT OF SALE LANDLORD & TENANT ENFORCEABLE CONTRACT LEASEHOLD ESTATES • Requires intent to be bound and consideration • Non-freehold estate in land gives the tenant a • Tenant possession • Contract must be in writing and describe the present possessory interest separates leasehold from a property, price, and parties • Gives the landlord a future interest in the same license or an easement • Part performance, which consists of purchaser property taking possession and paying part of the price or making improvements on the property, may TYPES OF TENANCIES excuse lack of writing At Will One party is in consensual possession of another person’s land • Courts may impose reasonable time for without any agreement for either termination or payment of rent performance if not specified in the conditions of • May be terminated at any time by either party the contract At Sufferance Once a tenant holds over past the expiration of term • Until the M ARKETABLE TITLE landlord chooses to either treat him or her as a trespasser or a
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