Real Property
Chapter 50
Freehold Estates
• Fee Simple absolute
• Fee Simple Determinable (Qualified Fee)
• Life Estates
– Per autre vie
Fee Simple Absolute
• Absolute: Runs forever; no restraints ;
largest estate permitted by law; holder can
sell, divide, devise, inherit; presumed fee
simple unless language shows intent to
create something else
– A to B, creates fee simple in B, no correlative
future interest in a third party
– To A and his heirs, creates fee simple in A
Fee Simple Determinable
• A qualified fee
• Automatically terminates upon the happening of a
stated event and goes back to the grantor, who
retains a “possibility of reverter” as a future
interest … for so long as, until, while, during…
– O conveys land “to A for so long as no alcoholic
beverages are consumed on the premises.” This gives A
a fee simple, because the estate may last forever if no
one ever quaffs a brew. A can convey his fee simple
determinable to B, B will own the “for so long as”
estate. If A does not convey his estate, on A’s death it
will pass by will or intestacy to his successors. If,
however, someone consumes alcoholic beverages, the
estate automatically comes to an end according to its
own terms and O will immediately and automatically
become the owner of the fee simple (or O’s heirs)
Life Estate
• Usually measured by the life of the grantee. Ends when life
tenant dies. Person who conveys may have a reversion.
• Some life estates have a remainderman
– A conveys “to B for life”. B has a life estate, on his death, land
reverts to A (or successors)
– To A for the life of B (per autre vie)
– To A for life, then to B (remainder)
– Contingent Remainder – Remainder is contingent if a condition
must be satisfied before grantee can be certain of possession: O to
A for life, then to B and his heirs if B is 21 on A’s death. B has a
contingent remainder, O has a reversion; O conveys land in fee
simple to B for life, and on B’s death to C if C survives B. B has a
life estate, C has a contingent remainder and O has a reversion that
will take in present possession at B’s death if C predeceases B.
Also, if you can’t identify by name the person who holds the
remainder, the remainder is contingent: O to A for life, then to A’s
widow. A is married to B. A’s widow has a contingent remainder
because the widow can’t be identified until husband dies. A has a
life estate and could remarry someone other than B.
Vested Remainders
• Vested Remainder
– Can be created in and
held only by an
ascertained person in
being
– Must be certain to
become possessory
(there is no condition
that may operate to
prevent the remainder
from someday being a
present interest)
– To A for life, and on A’s
death to B. A has a life
estate, B has a vested
remainder which is certain
to take place when A dies. If
B dies during A’s lifetime,
B’s remainder passes to
his successors.
• Vested Remainder Subject
to Open
• A vested remainder may
be created in a class of
persons (children,
brothers, sisters) that is
certain to take on the
termination of the life
estate but whose members
are not yet fully known.
• O to A for life, then to A’s
children. A has three
children, B,C,& D. O has
NOTHING; A has a life
estate and B,C & D have
vested remainders subject
to open.
Waste
• The life tenant only has a duty to maintain
the estate and that means continuing the
normal use of the land in its present
condition.
• If the life tenant does more or less, he may
be guilty of waste.
Waste
• Voluntary – Life Tenant can’t take affirmative action
beyond the right of maintenance; may only continue
normal use, any change of use is voluntary waste (if land is
farm land, just farm it) Don’t deplete natural resources.
• Permissive waste – where tenant has failed to maintain,
inaction. Tenant must avoid permissive waste by making
ordinary repairs, no need to replace. Life tenant pays all
taxes and interest on mortgage; remainder man pays on the
principal.
• Ameliorative – A special waste when affirmative action
alters the property but increases the value to it. If changed
conditions have made property relatively worthless in its
current use, life tenant may tear it down without liability to
An old residential mansion is now surrounded by heavy
industry. Life tenant wants to tear down the mansion,
making the underlying land much more valuable for other
uses. Probably can tear it down, even if holder of future
interest objects..
Duties of Tenant
• Pay Rent
• Not commit Waste
• Not obliged to make repairs, unless lease
says otherwise
Landlord’s Duties
• To give Tenant possession of the premises when
lease begins
• To deliver residential premises in a habitable
condition (implied warranty of habitability). If LL
breaches implied warranty, Tenant has two
options: (1) T can move out and end lease; (2) stay
and sue for damages. If uninhabitable,
“constructive eviction”.
• Implied covenant of quiet enjoyment (not to
interfere with tenant’s right of possession, i.e., not
change the locks and lock Tenant out of basement)
Tenant could abandon premises and terminate
lease.
Landlord’s Tort Liability
• At Common Law, ______________ of landlord to
Tenant or to Tenant;s invitees for injuries on the
premises during the life of the lease.
• 4 Situations where LL is LIABLE
• 1. Latent defects – L is under a duty to ____________
latent defects which either L knows or has reason to know
of.
– LL leased a house to Tenant; the house has wooden
stairs that lead to an elevated porch. The steps have a
hidden defect; they are rotten. There is no evidence that
the landlord knew of the defect but landlord had painted
the steps the week before renting to tenant. One day
tenant is using the steps and they collapse, seriously
injuring Tenant. Is LL liable? ________________
– Latent defect is defect the Tenant does not know of
ands a reasonable person in Tenant’s position would
not_____________.
Landlord’s Tort Liability
Continued
• 2. Short Term lease of a furnished dwelling. LL is
liable for defects even if LL neither _________
nor has ___________________ to know of them.
– Tenant rented a furnished two story condo in Ft. Myers
for a short term. The wooden steps were rotten; tenant
was seriously injured. LL lived up north, and hadn’t
been to Ft. Myers in 10 years. LL neither knew or had
reason to know the steps were rotten. Is LL liable?
___________.
– Short Term ___________ months or less.
LL’s Tort Liability – Con’t
• 3. Common areas under Landlord’s control
– If injury is in an area subject to LL’s
control then LL is liable if LL failed to use
reasonable care.
– Tenant was walking down the hallway on the
fifth floor of Desperate Towers, a high rise
apartment building. Tenant slipped on a loose
tile and was seriously injured. Is LL liable?
_____________________
LL’s Tort Liability – Con’t
• Negligent repairs – LL is liable for injury
resulting from LL’s repair of a defect in the
premises, even if LL used all due care in
making the repair.
– Tenant complained to LL of plaster flecking
from the ceiling. LL replastered ceiling using
all due care. That night the entire ceiling
collapased onto tenant’s bed. Is LL liable?
– _____________
Commercial Tenant’s Tort
Liability to Third Parties
• Tenant is always liable to third party invitees for
negligent failure to correct dangerous conditions
on the premises, regardless of whether LL may be
contractually liable or not!!!
– LL leased commercial property to tenant – a store front.
One day tenant was out in front of the store and noticed
a loose tile on a step leading into the store. Tenant was
concerned that a customer might trip on the tile, so
tenant called landlord and said “You promised to repair,
come fix it.” The LL promised to do so but did nothing.
Tenant called several times, but LL did not repair it.
Finally, a customer slipped on the loose tile, was
injured, and sued Tenant. Is Tenant liable? ______
because of tenant’s ___________ in not fixing the tile.
Non-Freehold (Landlord Tenant)
Estates
• Tenancy for Definite Term (a.k.a. Tenanvy
for Years)
• Periodic Tenancy
• Tenancy at Will
• Tenancy at Sufferance
Definite Term
• KEY PHRASE is to remember is :
___________________. – does not have to be for
years.
• Jeff transferred the farm to Tonya for a period
from June 1 1994 to June 5, 1994.
– Tonya’s estate is a ____________________
– Any estate measured by a ______________ period of
time, no matter how short, is a tenancy for years.
– Statute of __________ - Any tenancy for years
_______________ must be in writing. One year oral is
OK; one year and a day oral is NOT.
Periodic Tenancy
• Key word is _______________ -- an ongoing,
continuing, repetitive estate until one party gives
valid notice )e.g., month to month, week to week,
year to year)
• Lorena leased a house to John for 4100 per month,
but the lease was silent as to duration. John paid
the first month’s rent. What tenancy?
____________________
• Termination of periodic tenancy occurs by giving
proper notice. For valid notice:
– _____________ - equal to the period.
Exception: if tenancy is year to year, just 6
months’ notice is required.
Tenancy at Will
• Either party can terminate at any time, without
________________
• Very fragile, rarely used.
• 4 Ways it may terminate
• 1. ______ of either party
• 2. ________ by landlord to someone else
• 3. __________ by the tenant
• 4. ____________ _____ ______ by landlord.
Tenancy at Sufferance
• A ____________ tenant who won’t leave.
• LL can either
– 1. Hold Tenant as a wrongdoing trespasser and
sue to throw Tenant off property and recover
damages for the holdover, or
– 2. Impose new tenancy on Tenant
•
Assignments and Subleases
• Assignment - When T transfers everything and
holds no time back.
• Sublease – When T transfers a portion of the lease
period, holding some time back.
– Landlord leased the farm to tenant for one year on
January 1st. On April 1st, Tenant transferred the
remaining interest to Tenant two. An assignment or
sublease? _____________
– Landlord leased the farm to tenant for one year on
January 1st. On April 1st, Tenant transferred three
months to Tenant two. An assignment or sublease?
_______________
– Use these rules, no matter what the parties (or problem)
calls it!
Assignments: Successive Tenants
• First Tenant remains liable unless there is an
agreement between the parties, assignee
expressly assumes the obligations under the
lease. (novation)
• EX. Landlord leases to Tenant one. Later,
Tenant one assigned to Tenant two. Tenant
two does not pay. Liability of Tenant One?
____________ Tenant Two? ___________
Non-Assignment/Non-Sublease
clause
• “T may not assign or sublet without LL’s
permission.”
• Valid and enforceable? _______
• Violation of clause merely makes the attempted
transfer __________ at the option of the LL and if
LL does nothing, nothing happens!
• Courts do enforce non-assignment clauses, but do
not like them and are very quick to find a waiver.
– Acceptance of rent by LL is permission, constitutes a
waiver.
– Once waived by LL, its waived permanently.
Concurrent Ownership
• 1. Joint Tenancies
• 2. Tenancies in Common
• 3. Tenancy by the Entireties
Joint Tenancies
• Two characteristics: (1) right of ______________;
(2) Right to ________
• In 1968, 21 acres of the Everglades are conveyed
to John, Paul, George and Ringo as joint tenants
with the right to survivorship. Then in 1980, John
is murdered. Now, Paul, Ringo and George each
own ____________; John’s estate gets
_________.
• New facts: Sometime after 1968, John and Paul
have a falling out and Paul’s wife, Linda, tells him
to get out of the common ownership. What can
Paul do? _______________
Sublease: Successive Tenants
• Original tenant continues to be liable to landlord
because of _____________; sublessee not liable.
– LL leased the farm to student tenant for one year
starting September 1st. In May, student transferred
June, July, and August to tenant two. During these three
months, no one pays rent to the LL. LL wants to sue
Tenant two (student has graduated and moved up
north). Can LL recover against Tenant two?
_____________________________________
Creation of Joint Tenancy
• Requires the ‘four unities” of ________,
___________, __________ and ______________.
• 1. _______- - all interest must have vested at
______ ________ _________.
• 2. _________ - the grant to all JT’s must have
been by the same _____________.
• 3. ___________ - all JT;s must take the same
________ and same ________ interest (John,
Paul, George and Ringo all got ________ each)
• 4. __________ - all must have ___________
rights of possession.
Destruction of Joint Tenancy
• A ________, a voluntary destruction, or a
_________, an involuntary destruction, such as a
________________ ____________.
– A ________, one JT transfers his interest, turning it into
a _____________, with the other JT’s continuing to
hold their interests in Joint Tenancy. EX. In 1971,
Ringo deeds his ¼ interest in the Joint tenancy to a
buyer. A _______ occurs, and the buyer of Ringo’s
joint tenancy gets a ___________. John, Paul and
George hold their interests as ___________.
– A __________ may also terminate a joint tenncy.
– Suppose Ringo had business problems and a creditor
sought to reach his interest in joint tenancy, No
severance until a ___________ _____. A creditor’s
judgment lien is not enough.
Tenancies-in-Common
• No right of _________________.
• Tenant’s have equal rights of ___________.
• ____________ - Requirement that each co-tenant may
have to account to another for a share of profits the cotenant received.
• Co-tenants do not have a right to contribution for
improvements or non-necessary repairs, but money spent
can later be recouped at sale of property.
– Jim and Bill own farm in Georgia as tenants in
common. Jim moved to Washington; Bill did 4 things
on the farm: built a house, fixed the roof of the barn,
made mortgage payments, paid taxes. Does Jim have to
contribute to these?
– Building house (improvements) __________________
– Fixing barn (repairs) _______________
– Mortgage payments __________
– Paying taxes _______________-
Tenancies in Entireties
•
•
•
•
•
Husband and wife ONLY
Parties may not sever during marriage
Divorce terminates tenancies in entireties
No right to devise, sell, mortgage.
No levy by creditors.
Easements
• KEY CONCEPT: __________________
• Definition: An easement is a non-possessory
interest in land involving a right of _________.
• Binding on successive landowners, irrevocable
• Two types:
– ____________ - when the easement directly benefits
the use and enjoyment of a _______ piece of land.
There are always two pieces of property, a burdened
property (servient parcel) and a benefited property
(dominant estate) EX. Mia owns lot A fronting on the
beach. Woody owns lot B, directly behind lot A. Woody
buys an easement from Mia that would allow him to
walk across her lot to get to the beach.
– ___________ - Where there is one piece of property,
usually commercial. Ex’s: RR tracks, utility lines
Creation of easements
• _________ easement. Must comply with the statute of
frauds. Must be executed like a deed.
• Easements by _____________. Look for situations where
someone sells off a piece of his property to someone else,
that person fails to make a reservation of an easement,
however its reasonably necessary that the previous owner
continue his previous use.
– EX. In January of 1993, Bill took a job on the east coast and
decided to sell off part of his Arkansas farm. He sold the front half
by the highway; previously he had used a road on the portion sold
to get to his farmhouse on the back half of the property. Bill’s deed
makes no provisions. George, new owner, refuses to recognize
Bill’s right to use the road. Bill still has an n inconvenient route he
could use to get to his property. Can Bill continue to use the road
across the land sold to George? __________. Easement by
______________.
– EX. What if Bill’s land is landlocked, and no other
access to his property? Easement by ________.
Easements by Prescription:
Adverse Possession
• Dolly and Tammy owned adjoining lots in a
subdivision. Every day, for 20 years, Dolly drove
over part of Tammy’s lot to get to Dolly’s garage.
One day, tammy tried to fence Dolly off. Can
Tammy do it? _________________
• 4 Requirements
• 1. Use must be _______
• 2. Use must be ________, and ___________.
• 3. Use must be __________
• 4. Use must be without owner’s ____________
Licenses
• A license is a limited privilege of use and
______ a property interest, it is only a
__________ right and is revocable at the
will of the licensor.
• Ex’s - Tickets
Profits
• A profit gives the right to go onto land and
take a _________ _________ away
(timber, coal, etc.)