1. Present Estates Flashcards
What is a present estate?
Grantor gives to Grantee interest including the right to ‘present’ ‘possession’
- NOT non-possessory interest (easements/covenants)
What types of possession exist?
Freehold possession
- Legal title
- Fee/life estate
Non-freehold possession
- Mere possession
- Lease
What is a fee simple absolute?
Grantee has full possessory rights (present + future)
- NO restraints
- ‘To A (and his heirs)’
- ‘For purpose of’
- ‘With hope’
- ‘With expectation’
What is the duration of fee simple absolutes?
Indefinite
Are fee simple absolutes transferrable by Grantor?
Freely alienable (can be transferred by)- - Intervivos (between the living) - Devise (by will) - Descend (by NO will) NO restrictions
What is a defeasible fee?
Grantee’s interest may be terminated by the occurrence of an event.
What is the duration of defeasible fees?
Potentially infinite duration.
What is a determinable fee/fee simple determinable?
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
Is a fee simple determinable transferrable?
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)
What is a fee simple subject to condition subsequent?
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’
What happens if the Grantor does not expressly reserve his right of entry?
Estate becomes covenant/easement
Estate becomes fee simple absolute to Grantee
How may Grantor waive his right of entry?
Express agreement (forfeiture)
Conduct
- NOT inaction
Is a right of entry transferrable?
NO conveyance
Devise (by will)
Descend (by NO will)
What is the difference between a fee simple determinable and a fee simple subject to condition subsequent?
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
What happens if a conveyance appears both as a fee simple determinable and fee simple subject to condition subsequent?
Courts will likely construe it as fee simple subject to condition subsequent
- Policy disfavours automatic forfeiture of estates
What is a fee simple subject to executory interest?
1) May terminate upon specified event
- ‘To A as long as’
- ‘To A but if’
2) Automatically passes to TP (executory interest)
What is a life estate?
Grantee’s (Life Tenant) interest may be terminated upon the life of Life Tenant/another party
Are life estates transferrable?
Conveyance
Devise (by will)
Descend (by NO will)
What are the types of life estates?
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’
What is the duration of life estates?
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)
What happens if the life tenant dies?
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)
What is the Life Tenant’s rights to the estate?
Ordinary uses + profits of land
What is the Life Tenant’s duties to the estate?
NOT commit waste/injure interests of;
- Remaindermen
- Reversioner (Grantor)
What are the Remaindermen/Reversioner’s rights if Life Tenant breaches his duties to the estate?
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
What type of waste must Life Tenant not commit?
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
What happens if the measuring life in a life estate pur autre vie dies before the life tenant?
Estate reverts back to Grantor
Estate passes to remainderman (fee simple)
What happens if the life estate is transferred?
Transferee takes subject to Grantee’s life (NOT Transferee’s life)
- After Grantee’s death => Life estate transfers to Grantor/Remaindermen
Can life tenant grant their land as collateral to an existing creditor for an outstanding mortgage? What can remaindermen do?
NO (seen as waste)
Remaindermen can sue LT
- Damages
- Injunction
What are creditor’s remedies if life tenant defaults on an existing mortgage?
Sue life tenant personally for profits
- LT is entitled to profits
NOT sue remaindermen personally
