Ex: O conveys Blackacre to A for life, then to A's children. At the time O makes this grant, A has three children, B, C and D.
A: Life Estate
B,C, and D: Vested remainder subject to open. It is vested bc there are no conditions subsequent and there are ascertainable takers.
It is subject to open to allow for the birth of future siblings who classify as class members by satisfying the class description.
O has NOTHING bc at the moment conveyance was made they had vested remainder.
On the facts of this hypo, this class closes on A's death bc, when A dies, A cannot have any more children and the property will be distributed to A's children in fee simple.
Even if all of A's children are dead when A dies, Blackacre will go to their estate.
Ex: Testator's will devises Blackacre "to A's children." At the time the will is executed, A has two children, B and C. After the will is executed and before the Testator dies, A has another child, D, and one of the other children, B dies. Then the Testator dies. Finally, 2 years after Testator's death, A has another child E.
General Rule: Under a rule of convenience (means you apply this rule unless facts show other intent of T), the class CLOSES for a class gift whenever any class member is entitled to a distribution. THe rule of convenience is a rule of construction, not a rule of law.
B will NOT share bc the rule is: Members of a class who predecease the T are eliminated. Their gift lapses (unless anti-lapse statute applies).
C will share. D will share bc the general rule is that once the class is established, when the will is executed, the class remains open - to accommodate those who come later and satisfy the class definition.
E will not share because under the Rule of Convenience, the class closes when the T dies. Therefore, later born children lose out unless they were in gestation at the time of the T's death.
"To A for life, and on her death to such of her children as attain the age of 35." A is 60 and has two children age 30 and 25. Under common law rule, here is what might happen: A might give birth to a child Then A's other two children might die before attaining age 35l then A might die before the afterborn attained his 14th bday (35-21). THEN, the afterborn's interest would vest remotely (more than 21 years).
"To A for life, then to such of A's children as attain the age of 21." Here, the relevant measuring life is A. All of A's children are going to attain the age of 21, if at all, within 21 years after A's death.
T's will devises her residuary estate "to such of my nephews and nieces as attain the age of 21." At the time of T's death, she has two brothers and six nephews and nieces, all of who are under age 21. Is the gift valid under the rule? It depends. Specifically, it depends on whether T's parents are living. The relevant measuring lives are T's brother and sisters, bc all of T's nephews and nieces will attain age 21, if at all, within 21 years after their parents death. If T's parents are dead, her two brothers are all the brothers she is ever going to have; and T's nephews and nieces will be the children of these brothers. The disposition is valid. But if T's parents are alive, they might have another child, a brother or sister of T not alive at T's death. Then T's two brothers and six nephews and nieces who were alive at Ts death might die. Then the newborn brother might have a child who lives to attain 21-more than 21 years after any life in being. Bc this might happen, the disposition is invalid under the Rule.
Tenant Fails to Pay Rent:
-At common law, the LL could sue for damages; however, the LL was only allowed to collect the amount that was in arrers (i.e. due and payable) and the LL COULD NOT terminate the lease. Today, however, ALL states allow the LL to sue for damages and to terminate the lease, thereby evicting the tenant from the property.
Tenant Unjustifiably Abandons: 2 options:
-LL ACCEPTS tenants offer of abandonment: LL may elect to treat the abandonment as the T's offer of SURRENDER of the leasehold, which the LL accepts by retaking the premises and thereby terminating the lease. Tenant has NO FURTHER rent obligation.
-LL RELETS the premises, holding the T liable for ANY DEFICIENCY: In an effort to mitigate damages, the LL may elect to re-let the premises on the tenant's account and hold the tenant liable for any deficiency. Under modern majority rule, the LL MUST make a reasonable effort to relet the property in order to mitigate the tenant's damages.
FL Law: 3 OPTIONS: One additional option:
- In the case of a residential lease - if the T abandons and the LL does NOT retake the leased premises, then then the LL may standby and do nothing and continue to hold the T liable for rent as it comes do. However, if the LL elects to retake the lease premises, then FL follows the majority rule and the LL will be subject to a duty to mitigate the T's damages.
Every land sale K contains an implied warranty that the seller will delivery marketable title to the buyer AT THE CLOSE of escrow.
Marketable title is title that a reasonably prudent buyer would accept, which means minor defects do not matter since they do not present a significant threat of litigation. Ex: Can encroach 1/4 inch but not 6 ft.
To satisfy this warranty, seller must provide buyer with three things:
1) Proof of title - give buyer some tangible evidence of title.
2) Title free of Encumbrance - Seller must give buyer title free of encumbrances - that is, no easements, no restrictive covenants, no mortgages, no options, etc. other than those that have been previously disclosed to the buyer. Zoning is NOT treated as an encumbrance on title; however, violations of a zoning ordinance DO constitute an encumbrance on title. Generally speaking, violations of housing or building safety do NOT constitute an encumbrance. Generally speaking, mortgages are treated as encumbrances, however, a mortgage that will be satisfied out of the proceeds of the sale of the property is NOT an encumbrance.
3) Valide Legal Title as of DATE of closing: Seller must give buyer valid legal title on the day of closing. If the day before closing the buyer finds out that the seller dos not have legal title to the property under the K, the buyer cannot rescind.
If buyer determines that seller's title is not marketable, the buyer must notify the seller of any defect in title AND allow the seller a reasonable time to cure the defect, even if that means postponing the day of closing.
Under this doctrine, the courts say that the Grantor gave an implied covenant that title will be conveyed to the grantee. Therefore, that grantee can sue to compel the transfer of title from the grantor.
Subsequent sale to a BFP: Sale to a BFP will cut of the rights of an earlier grantee and therefore will cut off that grantee's right to rely on the Estoppel by deed doctrine.
Ex: Kato conveys Blackacre to Lance, but Kato does not own Blackacre. Some 5 months after Kato purported to transfer title to Lance, the true owner of Blackacre, Grandpa, conveys title to Kato.
What is the effect as to Lance's interest of the transfer of title of Blackacre to Kato by true owner?
Under the Estoppel by Deed doctrine, there is an IMPLIED covenant that Kato (the grantor) will transfer good legal title to Lance (the grantee).
Assume that shortly after Kato gets title from Grandpa, the true owner, Kato conveys to Marcia, a BFP who had no knowledge of the earlier claim of Lance. Now who owns Blackacre - Lance, Kato, Grandpa or Marcia? The BFP Marcia keeps Blackacre. Although the Estoppel by Deed Doctrine will give the right of title to Lance as the earlier grantee, the later sale to the BFP cut off that right, leaving Lance with no remedy against the BFP.
General Rule: A BFP is a purchaser for value who takes without notice.
Purchaser for value:
-Unless there is an explicit claim of fraud, ANY consideration that is out of pocket (ie. more than a mere peppercorn") is enough to be considered value.
-Bargain Basement Sale: if the purchaser pays way below FMV, the purchaser still qualifies as purchaser "for value."
-One who purports to take property as an heir, devisee, or donee cannot be a BFP (since they give no value) and therefore cannot prevail over the claim of an earlier grantee.
- HOWEVER, they can take under the shelter rule exception. Anyone (even heirs, donees or devisees) can shelter under the rights of BFP. Ex: C can shelter under the rights of B, who is a true BFP bc B paid value and took without notice of the earlier conveyance to A.
Three Kinds of Notice:
1) Actual Notice: If the subsequent purchaser had actual notice of the prior unrecorded conveyance, then the subsequent purchaser is not a BFP. There is the shelter rule exception however and therefore anyone (even those who actually knew of the earlier conveyance) can shelter under rights of BFP.
2) Record Notice: Record notice is constructive notice arising from the record. In order to impart record notice, a deed must be recorded in the buyer's direct chain of title- so that a subsequent purchaser can find it.
3) Inquiry Notice: In order to be a BFP who takes without notice, the subsequent purchaser must examine the land and make inquiry as to any unexplained uses or possessions. The subsequent purchaser will be charged with notice of whatever such a physical inspection would reveal.