1. The Present Estates Flashcards
Devisable
The estate can pass by will
Descendible
The estate can pass by intestacy statute if its holder dies intestate.
Alienable
The estate is transferable during the holder’s lifetime.
O conveys “to A” or “to A and his heirs.” A is alive
and well. What do A’s heirs have?
Nothing. A living person has no heirs. While A is alive, he only has prospective heirs.
What is a fee simple determinable called in NY?
Fee on limitation
What language can create a fee simple determinable?
“To A for so long as . . .” “To A during . . .” “To A
until . . .”
What happens if the stated condition in a fee simple determinable is violated?
Forfeiture is automatic
Is a fee simple determinable devisable, descendable, and/or alienable?
Yes to all
What is the accompanying future interest in a fee simple determinable?
The possibility of reverter
What is a fee simple subject to condition subsequent called in NY?
A fee on condition
What kind of language creates a fee simple subject to condition subsequent?
“To A, but if X event occurs, grantor reserves the right to reenter and retake.”
What two requirements are required for a fee simple subject to condition subsequent?
Grantor must:
- Use clear durational language, and
- Carve out the right to re-enter
What is the accompanying future interest with a fee simple subject to condition subsequent? (MBE and NY)
MBE: The right of entry
NY: The right of reacquisition
What language creates a fee simple subject to executory limitation?
“To A, but if X event occurs, then to B.”
How does a fee simple subject to executory limitation differ from a fee simple determinable?
If the condition is broken, the estate is automatically forfeited in favor of someone other than the grantor.
What is an absolute restraint on alienation?
An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to a reasonable, time-limited purpose.
Are absolute restraints on alienation enforceable?
No, they are void, and disregarded.
Reversion
At the end of A’s lifetime, the estate reverts back to O or O’s heirs.
What is a life estate pur autre vie?
A life estate measured by a life other than the grantee’s.
The life tenant is entitled to:
All ordinary uses and profits from the land
The life tenant must not:
Commit waste (must not do anything to hurt the future interest holders)
There are three species of waste:
- Voluntary or affirmative waste
- Permissive waste, or neglect
- Ameliorative waste
Voluntary or affirmative waste
Overt conduct hat causes a drop in value
Does voluntary waste apply to natural resources?
The life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals), unless one of four exceptions applies, remembered by PURGE.
What exceptions allow a life tenant to consume or exploit natural resources?
- Prior Use - Meaning that prior to the grant, the land was used for exploitation
- Repairs - The life tenant may consume natural resources for repairs and maintenance.
- Grant - The life tenant may exploit if granted that right.
- Exploitation - Meaning the land is suitable only to exploit
Open Mines Doctrine:
If mining was done on the land before the life estate began the life tenant may continue to mine, but is limited to the mines already open .
Permissive waste, or neglect occurs when:
The land falls into disrepair.
Permissive waste and the obligation to repair:
The life tenant must simply maintain the premises in reasonably good repair.
Permissive waste and the obligation to pay all ordinary taxes:
The life tenant is obligated to pay all ordinary taxes on the land, to the extent of income or profits from the land. If there is no income or profit, the life tenant is required to pay all ordinary taxes to the extent of the premises fair rental value.
The life tenant must not engage in acts that will enhance the property’s value, unless:
All future interest holders are known, and consent
NY’s rule on ameliorative waste
In NY by statute, a life tenant may make reasonable improvements, unless the remaindermen object.
How do you determine the life estate’s accompanying future interest?
If held by O, the grantor, it is called a reversion.
If held by a third party, it is a remainder
