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UBE - Real Property JRH > 1. Present Estates > Flashcards

1. Present Estates Flashcards

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1
Q

What is a present estate?

A

Grantor gives to Grantee interest including the right to ‘present’ ‘possession’
- NOT non-possessory interest (easements/covenants)

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2
Q

What types of possession exist?

A

Freehold possession

  • Legal title
  • Fee/life estate

Non-freehold possession

  • Mere possession
  • Lease
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3
Q

What is a fee simple absolute?

A

Grantee has full possessory rights (present + future)

  • NO restraints
  • ‘To A (and his heirs)’
  • ‘For purpose of’
  • ‘With hope’
  • ‘With expectation’
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4
Q

What is the duration of fee simple absolutes?

A

Indefinite

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5
Q

Are fee simple absolutes transferrable by Grantor?

A 
Freely alienable (can be transferred by)- 
- Intervivos (between the living)
- Devise (by will)
- Descend (by NO will)
NO restrictions
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6
Q

What is a defeasible fee?

A

Grantee’s interest may be terminated by the occurrence of an event.

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7
Q

What is the duration of defeasible fees?

A

Potentially infinite duration.

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8
Q

What is a determinable fee/fee simple determinable?

A

1) Terminates upon specified event
- ‘To A for as long as’
- ‘To A during’
- ‘To A while’
- ‘To A until’

2) Possibility of reverter
- Estate automatically reverts back to Grantor
- NOT expressly stated

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9
Q

Is a fee simple determinable transferrable?

A

By Grantor (possibility of reverter)

  • Conveyance
  • Devise (by will)
  • Descend (by NO will)

By Grantee

  • Conveyance (subsequent Grantee takes subject to estate’s termination by specific event
  • Devise (by will)
  • Descend (by NO will)
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10
Q

What is a fee simple subject to condition subsequent?

A

1) May terminate upon specified event
- ‘To A upon condition that’
- ‘To A provided that’
- ‘To A but if’
- ‘To A if it happens that’

2) Grantor must exercise ‘right of entry’ (future interest)
- Estate does NOT automatically revert back to Grantor
- Expressly stated
- ‘Grantor may enter and terminate the state hereby conveyed’

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11
Q

What happens if the Grantor does not expressly reserve his right of entry?

A

Estate becomes covenant/easement

Estate becomes fee simple absolute to Grantee

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12
Q

How may Grantor waive his right of entry?

A

Express agreement (forfeiture)

Conduct
- NOT inaction

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13
Q

Is a right of entry transferrable?

A

NO conveyance

Devise (by will)

Descend (by NO will)

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14
Q

What is the difference between a fee simple determinable and a fee simple subject to condition subsequent?

A

Fee simple determinable

  • If condition is breached => Estate automatically reverts back to Grantor
  • Possibility of reverter (NOT expressly stated)
  • Conveyable
  • Waiver NOT allowed

Fee simple subject to condition subsequent

  • If condition is breached => Estate NOT automatically revert back to Grantor
  • Right of entry (expressly stated)
  • NOT conveyable
  • Waiver allowed
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15
Q

What happens if a conveyance appears both as a fee simple determinable and fee simple subject to condition subsequent?

A

Courts will likely construe it as fee simple subject to condition subsequent
- Policy disfavours automatic forfeiture of estates

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16
Q

What is a fee simple subject to executory interest?

A

1) May terminate upon specified event
- ‘To A as long as’
- ‘To A but if’

2) Automatically passes to TP (executory interest)

17
Q

What is a life estate?

A

Grantee’s (Life Tenant) interest may be terminated upon the life of Life Tenant/another party

18
Q

Are life estates transferrable?

A

Conveyance

Devise (by will)

Descend (by NO will)

19
Q

What are the types of life estates?

A 
Life estate (for life of Grantee)
- 'To A for life'

Life estate pur autre vie (for life of another)
- ‘To A for life of B’

20
Q

What is the duration of life estates?

A

Indefeasible

  • Life estate (for life of Grantee) => Terminates upon Grantee’s death
  • Life estate pur autre vie (for life of another) => Terminates upon Another’s death

Defeasible

  • Terminates upon specified period
  • Terminates upon specified no. years (estate for years)
21
Q

What happens if the life tenant dies?

A

Life estate

  • Estate reverts back to Grantor
  • Estate passes to remaindermen

Life estate pur autre vie (Life tenant dies before other party)

1) Grantor names ‘special occupant’
2) Estate is;
- Transferrable to named ‘special occupant’
- Devisable (by will)
- Descendible (by NO will)

22
Q

What is the Life Tenant’s rights to the estate?

A

Ordinary uses + profits of land

23
Q

What is the Life Tenant’s duties to the estate?

A

NOT commit waste/injure interests of;

  • Remaindermen
  • Reversioner (Grantor)
24
Q

What are the Remaindermen/Reversioner’s rights if Life Tenant breaches his duties to the estate?

A

Sue Life Tenant for damages
- UNLESS Remainderman is NOT ascertained => Impound damages for future distribution to remaindermen once ascertained

Enjoin (prevent) Life Tenant’s actions

Claim reimbursement from Life Tenant
- If Remainderman/Reversioner spent money to perform Life Tenant’s obligations

25
Q

What type of waste must Life Tenant not commit?

A

Voluntary/Affirmative waste (NOT consume/exploit natural resources)

  • UNLESS necessary for repair/maintenance of land
  • UNLESS land is suitable (ONLY for such use)
  • UNLESS consented (expressly/impliedly)
  • UNLESS mine is already open for use (ONLY for such use) (Open Mines Doctrine)

Permissive waste (make repairs/pay carrying charges)

  • Pay interest on mortgages (NOT principal - Original sum - Remaindermen must pay)!!!
  • Pay taxes (ordinary) (to extent of income/profit UNLESS NONE)
  • Preserve land in reasonable state of repair (NOT improve even if wise to do so)
  • NOT insure for Remaindermen’s benefit
  • NOT liable for TP damages (tort) (modern view) (liable under common law)

Ameliorative waste (NOT change use of land that economically benefits value of land)

  • UNLESS (1) alter/demolish does NOT diminish future interest market value + (2) (a) Remaindermen do NOT object OR (b) substantial permanent change towards neighbourhood deprives property in current form of ‘reasonable productivity or usefulness’
  • Leasehold tenants remain liable (even if NO value diminished)
  • UNLESS land value is worthless => Life Tenant can request judicial partition sale => Place proceeds in trust => Life Tenant receives income
26
Q

What happens if the measuring life in a life estate pur autre vie dies before the life tenant?

A

Estate reverts back to Grantor

Estate passes to remainderman (fee simple)

27
Q

What happens if the life estate is transferred?

A

Transferee takes subject to Grantee’s life (NOT Transferee’s life)
- After Grantee’s death => Life estate transfers to Grantor/Remaindermen

28
Q

Can life tenant grant their land as collateral to an existing creditor for an outstanding mortgage? What can remaindermen do?

A

NO (seen as waste)

Remaindermen can sue LT

  • Damages
  • Injunction
29
Q

What are creditor’s remedies if life tenant defaults on an existing mortgage?

A

Sue life tenant personally for profits
- LT is entitled to profits

NOT sue remaindermen personally

UBE - Real Property JRH (29 decks)

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