Glossary of Property Vocab
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- Military Tenures
- • Knight Service: tenant by Knight Service was required to provide a specified number of met to fight for the King for 40 days each year.
• Grand Serganty: tenant provided services to ensure a splendid court life and pageantry. i.e., carrying royal banner, guarding royal treasure
- Economic Tenure
- • Also called Socage
• Some kind of service was reserved for the overlord to provide subsistence and maintenance.
o Could include: Money rent, 10 days of ploughing, keeping a bridge in repair, or delivering a dish of mushrooms fresh for the king’s breakfast in London.
o Also the memorable, to perform on Christmas Day every year “altogether, and at once, a leap, a puff, and a fart.”
- Religious Tenures
- • Service from the ecclesiastics
o Knight Service
o Saying Mass on Fridays
o Frankalmoign: to pray for the grantor’s soul
- Feudal Incidents
- • Duties and liabilities a Tenant owed his lord in addition to the Services (Tenures)
o Homage and Fealty: tenant swore a binding oath to protect his lord
o Aids: A lord could demand aid from his tenants in a financial emergency; after Magna Carta:
Ransoming of lord from captors
Knighting of eldest son
Marriage of eldest daughter
o Forfeiture: A tenant forfeited his land to the lord if:
breached oath of loyalty
refused to perform feudal services
High Treason: King was entitled to seize land
- Statute Quia Emptores
- • Enacted in 1290
o Prohibited subinfeudation
o Established principle of free alienation
o Existing mense lordships tended to disappear and most land come to be held directly by the crown
- • Identifies the freeholder who is responsible to his land for the duty of service and incidents.
• Can be transferred by: 1) feeoffment or 2) inheritance
• No gaps in seisin; no springing/shifting of seisin
- Feeoffment (Livery of Seisin)
- • Ceremony to transfer seisin
• The grantor gives something symbolic (dirt, sticks) in exchange for grantee’s loyal pledge
• In a time where illiteracy was the norm, such a ceremony would allow the community to remember who now owned the land and thus prevent potential fights over ownership.
- When a person dies without heirs intestate, the property goes to the state
- The giving of lands to the church in exchange for performing church duties (like mass) or praying for the grantor’s soul.
- Life Estate
- Estate that endures for the lifetime of the grantee
- Life Estate Pur Autre Vie
- • Life estate “for another’s life.”
• An interest in land which terminates at the end of a 3rd person’s life (not measured by the grantee’s life).
- Fee Simple
- An estate that can last forever, and will endure until current holder dies without heirs
- Fee Simple Absolute
- • “Fee simple” signifies that it can last forever. “Absolute” means there are no limits on it
• Can be transferred both by will and inter vivos.
• Example: “To A and his heirs”
- Words of Limitation
- • Tells us how long a grant is for
• Example: Words of limitation would be found in the Habendum clause
- Habendum Clause
- • Part of the deed that controls and tells us what the grant transfers, the limiting part of the deed
o Defines the extent of the interest being granted and any conditions affecting the grant.
• Introductory words usually “to have and to hold”
- Words of Purchase
- • Tells us to whom the grant is given
- Fee Tail
- • A possessory interest that may endure forever if the designated bloodline continues
• Example: “To A and the heirs of his body”
• Born out of the desire to limit property to bloodline once property is attained – can only leave it to your children (family property).
• Massachusetts style
o Recognized in common law form, except that the tail can be “docked” by inter vivos transfer
• Texas style
o Fee tail abolished. Any language attempting to create a fee tail will be construed as granting a fee simple absolute
• Oklahoma style
o If the grant contains a “gift over,” it will be recognized as a valid restriction for the life of the initial grantee (who holds a fee simple subject to executory limitation), but
o Upon the death of the initial grantee the transfer ripens into a fee simple absolute if the grantee dies with issue.
o If the grantee dies without issue, the executory interest takes a fee simple absolute
o If the grant does not contain a “gift over,” the grant is treated as a fee simple absolute
• Florida style
o Grantee takes a life estate, and issue take a remainder in fee simple absolute.
- Shifting Executory Interests
- • Arise from grantee to grantee (3rd party)
- Springing Executory Interests
- • Arise from grantor to grantor
- Future Interests of Grantor
- • Possibility of reverter
• Right of re-entry
- Future Interests in Grantee
- • Vested Remainder
• Contingent Remainder
• Executory Interest
- • A future interest remaining in the grantor (or in the successor in interest of a testator) who transfers a vested estate of a lesser quantum than that of the vested estate which he has
• Property returns to the original grantor – usually when bloodline runs out or the contingency is not met by the grantee
• If there is a contingent remainder, then there is a reversion
• If you haven’t given away the “forever” then you have a reversion.
- Possessory Interest
- • Whoever has the “keys to the cottage” has the possessory interest
• Example: “To A and the heirs of his body”
- Contingent Remainder
- • Future interest given to grantee
• Contingent if:
(1) given to unascertained person or
(2) made contingent upon some event occurring other than natural termination of preceding estates (i.e. subject to condition precedent)
- Vested Remainder
- • if the property doesn’t go to unascertained persons and is not subject to a condition precedent, then it’s a vested remainder
• when a contingency is met, the interest vests (for example: if the contingency was upon B’s 21st birthday, when B turns 21 his future interest will become a vested interest)
- Alternative Contingent Remainders
- • A remainder in which the disposition of property is to take effect only if another disposition does not take effect
• Example: “To A for life, then to A's children and their heirs, but if at A's death he is not survived by any children, then to B and her heirs.”
o A’s children have a contingent remainder in a fee simple absolute. B has an alternative contingent remainder in a fee simple absolute followed by a reversion.
- • Persons who survive the decedent and are designated as intestate successors under the state's statute of decent
• While the decedent lives, there are no heirs. Heirs are determined after the death of the decedent
- • The descendants of the decedent
• Not limited to children; can include nieces, nephews, etc.
- • The predecessors of the decedent
• By statute parents usually take as heirs if the decedent leaves no issue
- • All persons related by blood to the decedent who are neither issues nor ancestors are collateral kin
• If the decedent leaves no spouse, no children, & no parents, the property passes to decedent's siblings and their issue
• Rules governing passage to those beyond siblings are rather complicated
- • The act of giving property (usually real property) by will
- • The act of giving property (usually personal property) by will
- Per Stirpes
- • “By the root” or representation – each branch of the inheriting family inherits an equal share of the estate
• As opposed to equal distribution amongst survivors (per capita)
• Example: A’s will specifies that his estate is to be divided among his children per stirpes. A has three children, B, C, and D. B is already dead, but has left two children (grandchildren of A), named B1 and B2. When A's will is executed, under a per stirpes division, C and D each receive one-third of the estate, and B1 and B2 each one sixth, because their "branch" of the family has received one equal share.
- Per Capita
- • Each of the named beneficiaries should inherit equal shares of the estate.
• As opposed each branch of family inheriting an equal share of the estate (per stirpes).
• Example: A’s will specifies that his estate is to be divided among his children per capita A has three children, B, C, and D. B is already dead, but has left two children (grandchildren of A), named B1 and B2. When A's will is executed, under a per capita distribution, each of the surviving descendants B1, B2, C, and D would have received one quarter of the estate.
- • A disclaimer (disclaimer of interest) is a written document voluntarily signed by an heir to an estate in which the said heir does not accept (disclaims) the part of the estate of a deceased person which the heir is entitled to receive.
- Docking the Tail
- • Type of fee tail that may endure forever if the designated bloodline continues, but pursuant to Massachusetts’ law the tail can be docked by inter vivos transfer.
• Example: In Massachusetts, O conveys “to A and the heirs of her body.” A dies leaving her only child B as her sole heir. B dies without having had children, devising all her property to C.
o There are no heirs to the body therefore fee tail terminates, reversion to O.
o The attempt to devise all of the property to C has no effect on the fee tail, because the fee tail terminates automatically when you die without issue, so it makes a will void (no property to be transferred).
• By docking the tail and placing the property temporarily in the hands of lawyer’s secretary (strawman), then you are cutting off the fee tail and original owner can then hold it as a fee simple absolute.
• The public policy behind the MA style is that the person who made the transfer would then suffer the loss.
- Freehold Estates
- • Land held in fee simple, as opposed to leasehold (leased land). You own the property and the land on which the property sets.
• Types of estates: Leasehold, Freehold, Term of Years.
• Fee Simple, Fee Tail, Fee Simple Conditional, Fee Simple Determinable, Fee Simple on Condition Subsequent, Fee Simple subject to an Executory Interest, Life Estate and Qualified Fees
- Inter Vivos
- • A transfer made while living (as opposed to distinguished from a transfer made by will).
• Example: A, B, & C have a joint tenancy with a 1/3 interest each. C gives her interest (1/3) to C1 inter vivos thus changing her portion from joint tenancy to a tenancy in common as C1 does not share the 4 unities. A & B still have a joint with relation to each other, they each share a 2/3 interest, but now have a joint tenancy in common with relation to the 1/3 that C1 is holding. C1’s interest can not be devised via will because it’s a tenancy in common, but A & B’s joint tenancy is still only transferred inter vivos.
- Executory Interest
- • An executory interest is a future interest, held by a third person, that can take effect only by divesting another’s interest
• Grantee’s future interest in the land, which begins upon some condition or occurrence of some event rather than upon the end of a natural interest.
o There are shifting executory interests (divests grantees) and springing executory interests (divests grantors)
- Hypothecate (Reverse Equity Loan)
- • To pledge property as security or collateral for a debt without delivery of title or possession.
• Usually used in situations of land-rich, cash-poor (elderly law).
• Example: Assuming your mother owns her land out-right you can go to the bank and arrange a loan to supplement your mother’s income by $1,000 a month. In each month that your mother lives, the mortgage increases (if she lives 6 years you’d have a $72k mortgage against the property. Once mom dies, the heirs receive the property burdened by the mortgage and they can sell the property to pay off that mortgage.
o PROS: Land remains in family, heirs get to sell later at increased value, and mom gets to keep an income stream
o CONS: Look at the property value relative to the life expectancy.
• Court proposed this solution in Baker v. Weedon.
- Necessity Clause
- • There must be "necessity" to order a judicial sale. Only if the income from the property is insufficient to pay taxes and maintain the property could a court order a sale.
• Example: Baker v. Weedon – property in that case generated just enough money each year to pay the taxes and maintenance (no economic waste)
• "Necessary for the best interest of all the parties" rule: Deterioration and waste of the property is not the exclusive and ultimate test to be used in determining whether a sale of land affected by a future interest is proper, but also that consideration should be given to the question of whether a sale is necessary for the best interest of all parties, that is, the life tenant and the contingent remaindermen.
- Fee Simple Defeasible
- • An estate that ends either because there are no more heirs of the person to whom it is granted or because a special limitation, condition subsequent, or executory limitation takes effect before the line of heirs runs out.
• Types: Fee Simple Determinable, Fee Simple Subject to…
- Fee Simple Determinable
- • Fee so limited that it will end automatically when a stated event happens.
• Example: “to Albert and his heirs while the property is used for charitable purposes”
• Future Interest: possibility of a reverter in the grantor OR an executory interest in a 3rd person
• Buzzwords: “So long as”, “As long as”, “During”, “While”, “Unless”, “Until
• Aka: fee simple on a special limitation (will expire by this limitation if it occurs)
- Fee Simple Subject to Condition Precedent
- • Contingent – have to wait to see if condition occurs before the act can follow through
• Buzzwords: “if”
• Example: “I’ll give you this book if you amjure the course.” You have to achieve the highest grade before the book is given (the transfer takes place).
- Fee Simple Subject to Condition Subsequent
- • Divesting – does not automatically terminate but may be cut short or divested at happening of a particular event.
• Future interest: a right of re-entry retained by the grantor OR an executory interest in 3rd party
• Buzzwords: “but if”, “provided, however”, “on condition that”
• Example: “I’ll give you this book but if you fail to amjure the course you must give it to him.
o Here the book is given to you immediately (transferred right away) but can be required to be given away if you don’t achieve the highest grade.
- Right of Re-entry
- • aka power of termination
• Grantor transfers an estate subject to a condition subsequent and retains power to cut short or terminate the estate
• Buzzwords: "on condition"
- Possibility of Reverter
- • Future interest remaining in the grantor or his heirs when a fee simple determinable is created
• All states allow these to be inherited or devised by will, but not all allow inter vivos transfer
• If conveyance says that the property is to revert to the grantor this is a sign of fee simple determinable
- Statute of Uses
- • Provides that any equitable estate is converted into the corresponding legal estate
• Equitable estate is similar to a trust
o Example: "to T and his heirs, to the use of A and his heirs.” T has legal, A has equitable
o Statute of Uses would transform A's equitable fee simple into a legal fee simple thus nullifying T's estate and leaving a legal fee simple in A.
- Fee Simple Subject to an Executory Limitation
- • Provides for the estate to pass to a third party upon the happening of a stated event
• A fee simple that, upon the happening of a state event, is automatically divested by an executory interest in a transferee
- Legal Owner
- • Trustee – has power to sell trust assets and reinvest the proceeds in other assets
• Subject to orders of an equity court
• Equity court enforces trustee’s duty to beneficiaries
- Marital Deduction Trust
- • Permitted a decedent to deduct from his taxable estate all property passing to his spouse
• Spouse was given a general power of appointment enabling spouse to appoint anyone she chooses
• Would be taxable at spouse’s later death.
• If surviving spouse given only a life estate, property didn’t qualify for marital deduction and was taxable in decedent’s estate and not in surviving spouse’s estate
• 1981 – Congress amended estate tax law to permit marital deduction trust in which surviving spouse is given only life estate.
- Chose in Action
- • Personal right
• Example: right of entry – is least transferable of all future interests within grantor – so really more of a personal right.
- Protected interest meaning benefit
- Condition Precedent
- • Condition expressly stated in the instrument
• Must occur before the remainder becomes possessory
• Remainder subject to condition precedent (Contingent remainder)
• “If the conditional element is incorporated into the description of, or into the gift to the person taking the remainder, then the remainder is contingent”
- Remainder Vested Subject to Open
- • A remainder in a class of persons is vested if one member of class is ascertained and no condition precedent exists
• Shares of members are not fixed because more persons can become members of the class but at least one is qualified to take possession
o “to A for life, then to A’s children and their heirs”
A has a child B, B has Vested subject to open because more children could be born, thus does not know exact share until A dies
- Remainder Vested Subject to Partial Divestment
- • A remainder in a class of persons is vested if one member of class is ascertained and no condition precedent exists
• Subject to divestment on the occurrence of a condition subsequent
o “to A for life, then to B, but if B does not survive A, to C”
B has vested remainder subject to divestment
C has executory interest
- Indefeasibly Vested Remainder
- • Certain to become possessory in the future and cannot be divested (no executory interest)
o “to A for life then to B and her heirs” B has indefeasibly vested remainder certain to become possessory upon termination of the life estate
B has vested remainder in fee simple absolute
• Certain to be entitled to retain permanently thereafter the possessory estate so acquired
- Spendthrift Provisions
- • Definition: provision in which donor directs that payments be secure against the claims of creditors so that the beneficiaries cannot use the trust income or assets to secure indebtedness
• When can such provisions be overridden?
o Cannot create a spendthrift trust for yourself.
o Corpus cannot be overridden
o Can reach your interest in a trust; when established for someone else, there are three primary claims that overcome the spendthrift provision:
Taxes related to the trust
Claims for child support
Spousal support (majority of states applies this one)
• A spendthrift provision in a trust is permissible under American law but not permissible under English law
- Destructibility of Contingent Remainders
- • Contingent remainders are destroyed if they do not vest upon the natural or artificial (forfeiture or merger) termination of the life estate.
• Does not apply to executory interests.
• Applies where? Minority rule – still exists in Arkansas.
• Example: O “to A for life, then to B and her heirs if B reaches 21.” If at A’s death B is under the age of 21, B’s remainder is destroyed. Seisin returns to O. It will take a new conveyance to O to give B anything.
- Doctrine of Merger
- • If the life estate and the next vested estate in a fee simple come into the hands of one person, the lesser estate is merged into the larger.
o Example: “To A for life, remainder in B and her heirs.” If A conveys his life estate to B, the life estate and remainder merge, giving B a fee simple.
• Also applies to situation where the life estate was followed by a contingent remainder and a reversion.
o Example: O “to A for life, then to B and her heirs if B survives A.” A conveys his life estate to O; the life estate merges into the reversion, destroying B’s contingent remainder.
• Exception: If life estate and next vested estate are created simultaneously in the same person, they do not merge at that time so as to destroy intervening contingent remainders
- Rule in Shelley’s Case
- • If (1) one instrument (2) creates a life estate in land in A, and (3) purports to create a remainder in persons describes as A’s heirs (or heir’s of A’s body), and (4) the life estate and remainder are both legal or both equitable, then the remainder becomes a remainder in fee simple (or fee tail) in A. (Note: it does not say it is a VESTED remainder).
o In Summary: When an instrument that creates a life estate also purports to create a remainder in persons described as the grantor’s heirs; if both have legal & equitable interests, the conveyance creates a remainder in fee simple absolute. The effect of the rule is to vest the remainder in the grantee and not the grantee’s heirs.
• Applies when? When a grantee gets a life estate and the heirs of the grantee get a remainder.
o Only applies to remainders, not to executory interests.
• Applies where? Arkansas
• Absolute rule of law – doesn’t matter what grantor’s intent was.
• Doctrine of merger may come into play – a life estate in A merges into a vested remainder in fee held by A. However, a life estate cannot merge into a vested remainder in fee simple if there is an intervening vested life estate.
• Example: O “to A for life, then to A’s heirs.” The rule in Shelley’s Case gives A a vested remainder in a fee simple. A’s life estate then merges into the remainder, leaving A with a fee simple in possession. The land is immediately alienable by A and not tied up for A’s lifetime.
- Doctrine of Worthier Title
- • When the land is conveyed during life by a grantor to a person, with a limitation over to the grantor’s own heirs either by way of remainder or executory interest, then there is no future in interest in the heirs but a reversion is retained by the grantor.
• Has both an inter vivos (and contrary to the text – a testamentary branch) so that a gift to the grantor’s heirs which would otherwise be interpreted as a contingent remainder in fee simple absolute is treated as a reversion in the grantor.
• Rule of interpretation – look at what grantor’s intent was.
• Example: O “to A for life, then to O’s heirs.”
o Without Doctrine: A has a life estate and O’s heirs would have a contingent remainder in a fee simple absolute followed by a reversion in O.
o With Doctrine: A has a life estate and the remainder to O’s heirs is void so O has a reversion.
- Rule Against Perpetuities
- • “No interest is good unless it must vest, if at all, not later than 21 years after some life in being or the creation of the interest.”
o Interests subject to the rule – all future non-vested or subject to some sort of condition (i.e. contingent remainders, vested remainders subject to open, executory interests)
o Interest must vest OR be destroyed with certainty
o When is interest created? Decedent dies, trust becomes irrevocable, deed is conveyed.
o Lives in Being: The grantor, anyone named in the grant, any one that can affect the vesting or destruction of the interest.
Example: “To A for life, and then to A’s children.”
• A, O, A’s wife (because she can influence the period in which children can arise), any existing children
If lives in being is a corporation, the rule is automatically 21 years.
o Once we kill off all of the lives in being, the clock starts running.
• Validating life is person that can be identified who proves that the interest will vest or fail within the perpetuities period.
• Grantor is not subject to RAP.
• Apply What Might Happen Test. Imagine contingent interest could possibly vest happen 21 years after the last measuring life; if it can be identified, then RAP applies.
• Classic Exceptions: The Unborn Widow, The Magic Gravel Pits, The Fertile Octogenarian, The Slothful Executor.
- Create, Kill and Count
- • Method used in applying RAP.
• Example: T “to A for life, and on A’s death to A’s children for their lives, and upon the death of A and A’s children, to B if A has no grandchildren then living.” A and B survive T.
• CREATE a child of A who is not in existence at the time of the grant = C.
• KILL off A and any other of A’s children.
• COUNT 21 years. Say that C lives 25 or 26 years. We don’t know that we have all of the grandchildren at this point, so don’t know for certain if B vests or not – therefore is it INVALID.
- The Unborn Widow
- • “To A and then to A’s widow for her life, and then to A’s grandchildren”, A may (even if A is presently married and has been years) acquire a new wife that has not even been born at the time of the creation of the interest. That intervening contingent remainder in the life estate goes to the unborn widow – since cannot prove with certainty A’s current wife will be A’s widow (A’s wife may die and A may marry some sweet young thing that wasn’t even born at the time of the gift.)
• Strikes grandchildren’s future interest grandchildren’s under RAP.
- The Magic Gravel Pits
- • “To British Petroleum so long as oil is produced on the land, and then to B.” Even if it is a dry hole B’s interest is destroyed because it could magically start gushing oil the next day.
- The Fertile Octogenarian
- • An 80-year-old woman that might give birth to a child would elongate the 21-year period. We presume both men and women are capable of conceiving children until the moment that they die (doesn’t matter age or surgical intervention) so the future interest is destroyed.
• Example: Jee v. Audley
- The Slothful Executor
- • In the law the administration of the decedent’s estate in probate may take more than a generation. Where a future interest is dependent upon efficient administration of a decedent’s estate, it may be defeated by a presumption of inefficiency on the part of those charged with administering it.
- Wait and See Doctrine
- • In regards to RAP. Those looking at the transaction wait until 21 years after the last life in being to see if the interest vested instead of looking at whether the interest could have vested beyond the 21 years after the last life in being.
- Common Law Concurrent Interests
- • There are five: tenancy in common, joint tenancy, tenancy by the entirety, coparceny and tenancy in partnership. (For our purposes focus on first three).
- Tenancy in Common
- • A tenancy by two or more persons, in equal or unequal shares, with each person having the right to the possession of the whole, but with no right of survivorship
• Example: T devises Blackacre to A and B. A and B are tenants in common. If A conveys his interest to C, B and C are tenants in common. If B then dies intestate, B’s heir is a tenant in common with C.
• In modern law, tenancy in common is preferred characterization of simultaneous ownership
- Joint Tenancy
- • A tenancy by two or more persons, in equal shares, with each person having the right to the possession of the whole, but with right of survivorship
• The Four Unities must be present: time, title, interest, possession.
• Hen one joint tenant dies nothing passes to the surviving tenants – the estate continues in survivors freed from the decedent’s interest.
o If it was split between 5 and one died, then in effect redistributed to now split between 4.
• At common law, joint tenancy was preferred characterization of simultaneous ownership.
- Per my et per tout
- • By the share or moiety and by the whole.
• Joint tenants are considered as single owner – each tenant is seised per my et per tout.
- Tenancy in Entirety
- • A joint tenancy that arises between a husband and wife, when a single instrument conveys the realty to both of them, but nothing is said in deed or will about character of their ownership.
• Need Four Unities (time, title, interest, possession) along with marriage.
- • An estate that arises when two or more persons jointly inherit from one ancestor, the title and right of possession being held equally by all.
• Usually in common law where no son to inherit. All of the daughters would take as coparcenors.
- Two-to-Transfer Rule
- • In order to create a valid joint tenancy where one of the proposed joint tenants already owned an interest in the property it was necessary to first convey the property to a disinterested third person (strawman) who then conveyed the title to the ultimate grantees as joint tenants.
o Also used to sever a joint tenancy.
• From English common law when feoffment ceremony with livery of seisin – idea that feoffer (grantor) had to hand dirt to grantee (feoffee). One could not feoff himself because handing oneself a dirt clod is ungainly.
• Example: Riddle v. Harmon
- 4 Unities of Real Property
- • Must have all four in order to have a joint tenancy.
o Time: acquire interest at the same time.
o Title: acquire title by same instrument
o Interest: have equal, undivided interests
o Possession: have a right to possession of the whole (at time of creation)
• Absence or severance of all 4 destroys the joint tenancy and creates a tenancy in common.
• Most common method to sever joint tenancy is to have one party convey all of his/her interest to a 3rd party.
- • The privilege of each tenant to transform a concurrently held estate into separate estates
• Types: Partition in Kind and Partition by Sale
• Note: only available to joint tenancy and tenancy in common, not to tenancy by the entirety
- Partition in Kind
- • Division of tenants’ land by creating separate parcels.
• Common Law: partition in kind preferred over partition by sale.
o Unless: 1) the land’s physical attributes make division impracticable or inequitable and 2) interests of all the parties is better promoted by Partition by Sale
- Partition by Sale
- • Division of the proceeds from the sale of tenants’ land as one lot.
• Today this is preferred by most jurisdictions over partition in kind (belief that this is the fairest way)
o Even though preferred, partition by sale can be extremely unfair (resembling a takeover) if one party has a lot more buying/borrowing power than the other.
- • A monetary award is given after partition in kind for the adverse impact one of the party’s use has on the others use.
• Example: Delfino v. Vealencis – the old lady was ordered to pay $26,000 owelty because her garbage hauling business was going to adversely effect other party’s desired use for residential development.
- • The wrongful exclusion of someone (specifically a co-tenant) from property. Applies in cases where one cotenant moves onto the property that used to be used for rental income.
• Example: Spiller v. Mackereth
• Majority rule: “non liability for mere occupancy” – there must be a denial of the cotenant’s right to re-enter (a.k.a. adverse possession)
• Minority rule: liability for occupancy when rent is demanded.
- • At common law wife has a dower in all freehold land
(i) if which her husband seised during marriage
(ii) which is inheritable by issue born of the marriage
o Dower was a life estate in 1/3 of each parcel of qualifying land
• Dower attaches to land at the moment of marriage, if the land is then owned or thereafter when the land is acquired it is incomplete until the husband dies
o If wife predeceases husband or they are divorced the incomplete dower is extinguished
o If wife survives husband she becomes entitled to her dower in possession
- • Life estate in all freehold land wife received during marriage that was inheritable by the issue of husband and wife if issue of the marriage were born alive
o Men were not protected until they produced offspring
o Women were protected at the time of marriage
• At his wife's death, a widower was at common law entitled to a life estate in each piece of the wife's real property if certain conditions were fulfilled, was entitled to all personal property
- Modern Elective Share (aka Forced Heir’s Share)
- • "Forced share" or "modern elective share" legislation gave surviving spouse an elective forced share in all property (real and personal) that the decedent spouse owned at death (typically 50%)
• Surviving spouse not only entitled to support (dower and curtsey) but to an ownership share in the decedent spouse's property
• Elective forced share usually applies only to property that the decedent spouse owns at death usually does not apply to property held in joint tenancy or life insurance proceeds
• In many state the surviving spouse can set aside gifts made with the intent to defeat the elective share
- Deferred Community Property
- • One spouse does not receive a property interest in the other spouse's property during marriage but only at the other spouse's death
- Community Property
- • Earnings of each spouse during marriage should be owned equally in undivided shares by both spouses
o Basic assumption is that both the husband and wife contribute equally to the marital success of the marriage and thus each should get to own an equal share of the property acquired by joint efforts
• Includes: earnings, rents, profits, and fruits of the earnings
• Property acquired and possessed during marriage is presumed to be community property unless the strong presumption can be overcome by a preponderance of the evidence
- American Common Law
- Hold all property in separate ownership
- American Community Property
- Hold property acquired from earnings as a community property and inherited property as separate property
- Universal Community Property
- Hold all their property from whatever source as community property
- Separate Property
- • Property that is acquired before marriage and property that is acquired during marriage by gift, devise, or descent.
• All property that is not community is separate (aka: individual property)
• In Idaho, Louisiana, Texas and Wisconsin, the income from all property (separate as well as community) is community property. In the other states, the income from separate property retains its separate character.
• Separate property can unintentionally become community property if separate and community property commingle.
• In most states husbands and wives acting with each other’s consent can transmute community property into separate property and vice versa.
- Common Law Property
- • Property titled to one spouse or acquired by one spouse individually during marriage.
• Note: A tenancy in common or a joint tenancy can be created between husband and wife in community property states. These concurrent estates are permitted as separate property, but husband and wife cannot simultaneously hold property both as community property and as a tenancy in common or a joint tenancy. The following cotenancies as they relate to each other have different characteristics from community property:
o Tenancy in common or a joint tenancy can exist between any two or more persons, whereas community property can only exit between husband and wife.
o Unlike tenants in common or joint tenants, neither spouse acting alone can convey his or her undivided one-half share of community property, except to the other spouse. However, a tenant in common or joint tenant acting alone can convey his or her undivided interest to a third party, can change the form of the estate, and has the right to partition. All of these rights are unavailable to an owner of community property acting alone.
o Each spouse has the power to dispose by will of one half the community property at death, with no survivorship feature, as with joint tenancy. If a spouse dies intestate, his or her share of the community property passes to the surviving spouse. In recent years, several community property states have adopted statutes with a right of survivorship in the surviving spouse.
o When one spouse dies, the entire property receives a stepped up tax basis for federal income tax purposes. There is a considerable income tax advantage in holding property as community property rather than in a common law concurrent ownership form.
• In common law states, the property is owned by the person who generates it, subject to a claim by the spouse at the time of marital dissolution and subject to a support obligation.
- Inception of Right Rule
- • The character of the property is determined at the time the spouse signed the contract of purchase. The house is that respective spouse’s separate property.
• The community is entitled only to a return of community payments plus interest.
- Time of Vesting Rule
- • Title of said property does not pass to the wife until all the installments are paid, and hence the property is community property.
- Pro rata sharing rule
- • The community payments “buy in” a pro rata (proportionately, according to an exact rate) share of the title.
- Non-Freehold Estate
- • Tenancies or leaseholds
• Leaseholders didn’t hold seisin and therefore did not have certain political rights.
• As opposed to freeholders who had access to the king’s courts and had greater political rights.
- Term of Years
- • Lasts for some fixed period of time – the end date is set prospectively.
• Can be a month, a year, or 3,000 years.
• At common law there was no limit on number of years permitted. Since it can be determined at the outset of the agreement when it ends, no notice of termination is required (both parties know when it is going to end).
• Notice of termination can be modified by the agreement in the lease and in some states it has been modified by statute.
• The death of landlord or tenant has NO effect on the duration.
- Periodic Tenancy
- • A set time period within it that repeats automatically absent notice that it is not going to repeat automatically.
• At common law if it was a year to year period, then a half year’s notice would have to be given. The notice must termination the tenancy on the final day of the period.
• Statutes in many states have shortened the notice period because they find it overly burdensome. Most states allow 30 day notices.
• The death of landlord or tenant has NO effect on the duration
- Tenancy at Will
- • No fixed period that endures so long as both landlord and tenant desire.
• At common law, if lease says tenancy can be terminated by one party then it is necessary to allow the other party to terminate the tenancy as well. Tenancy at will ends when one party terminates it.
• Modern notice of termination is usually 30 days or time equal to interval between rent payments.
• The death of landlord or tenant will effectively end the tenancy.
- • When a tenant remains in possession after termination of the tenancy.
• Under common law, a landlord dealing with a holdover can:
(1) evict tenant (with damages – usually double the rent)
(2) consent (express or implied) to the creation of anew tenancy.
• Example: Crehale & Polles, Inc. v. Smith
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