Division of Ownership Flashcards
Estates
Present Interest
right to possess property now
Future Interest
right to take possession in the future; may be conditioned on certain circumstances
For example - O to A for life(present), then to B(future).
Will terms: Intestate
Person dies without a will
Testate
Dies with a will
Estate
“Estates” are those interests in land that give the owner a right to POSSESS the land.
Heirs
People entitled by law to inherit property if owner dies without a will. (defined at death - not later)
Devisees
People entitled to real property under a will.
Note: heirs and devisees could be the same people
Testator / testatrix
a person leaving a valid will.
Escheat
If person dies intestate without heirs, property will escheat to the state.
Fee Simple
A present estate that could potentially last forever.
Four types of Fee Simple
(1) Absolute;
(2) Determinable;
(3) Subject to Condition Subsequent; and
(4) Subject to Executory Limitation
Life estate
Estate for a duration of one’s lifetime.
*Note: Measuring life does NOT have to be the life of owner of life estate., e.g., O to A for the life of B.
Fee simple Absolute
fee simple with no future interest.
Ex. O to A (and future heirs)
Reversion
A future interest retained by a GRANTOR of a life estate and other “less-than-fee-simple” estates.
Fee simple determinable
˗ fee simple with a future interest that reverts automatically to the grantor on the happening of a stated event.
˗ future interest is possibility of reverter
˗ words of duration
- most harsh
Ex., as long as, during, while, until.
Fee simple subsequent to condition subsequent
˗ fee simple with a future interest that grantor can choose to exercise on happening of event.
˗ future interest is right of reentry (or right of entry or power of termination).
E.g., O to A, but if used for nonresidential purposes, O shall have the right of entry.
(On condition that, but if, provided that)
Fee simple subject to executory limitation
˗ fee simple with a future interest held by someone other than grantor.
˗ third party’s future interest is executory interest.
- only future interest that divests
˗ E.g., O to A, so long as used for residential purposes, then to B.
(words of duration or condition)
Life estate - two types of FI
(1) Contingent remainders
(2) Vested remainders
Contingent Remainders
remainders that
(1) take effect only upon an event that is not certain to occur OR
(2) go to a person (or persons) who cannot yet be ascertained.
Vested Remainders
Remainders granted to people who are identifiable (ascertained) at the time of the conveyance AND with no conditions that must be met before the future interest becomes possessory (other than the end of the life estate).
- Ex., O to A for life, and then to B. This remainder is vested.
But if condition for B to get it, then remainder is contingent. - Ex. O to A for life, and then to B if B gets married.
Three types of Vested Remainders
(1) Absolutely Vested Remainder = not subject to change.
(2) Vested Remainder Subject to Open = vested in some individuals but may be divided with others later.
(3) Vested Remainder Subject to Divestment = vested remainder that can be lost IF condition occurs. e.g., “O to A for life, then to B, but if B marries a lawyer, the property shall then revert to O.”
Laches
May prevent the holder of a right of entry from waiting too long to assert her right of entry; laches prevents recovery when an unreasonable delay in asserting legal rights unfairly prejudices another. (if you sit on your rights too long, the court might not find in favor for you)
Defeasible fees
where present interests can be terminated by specific events other than the death of the current owner. These events often trigger a future interest that may be held by either the grantor or a third party.
Wood v. Board of County Commissioners of Fremont County (RULE) (warranty deed for the purpose of constructing and maintaining a county hospital.)
The creation of a fee simple determinable or subject to a condition subsequent requires clear and explicit language in the deed, and cannot have any ambiguities.
The court in that case determined that the language was precatory language. “Precatory language” means this language was a statement of purposes not intended to be legally binding
Principle of a clear deed
- Timing is everything, i.e. time is money.
- Avoid chaos amongst the parties
Edwards v. Bradley (RULE)(grandma created life estate for daughter)
You can’t make rules that stop someone from selling or giving away property they own completely, but you can make those rules for property they only have for their lifetime.
Common Rules on ambiguities in Deeds
- Courts often try to figure grantor’s actual intent and look at surrounding circumstances.
- Courts may have a strong preference for construing the language to avoid messing up present / future interest.
- What does the Court weigh? Expectations of the current possessor and there’s also expectations of the one doing the giving.
