Essay Real Property Flashcards
What is an interest that gives the holder the right to present possession?
A present possessory estate
What is a fee simple absolute
The largest estate recognized by law. It can be sold, divided, devised, or inherited and has an indefinite or potentially infinite duration. Today, a fee simple is presumed in the absence of express contrary intent
What is the name of a fee simple estate (i.e., of uncertain or potentially infinite duration) that can be terminated upon the happening of a stated event?
Defeasible fee
What is the fee simple determinable (and possibility of reverter) defeasible fee?
A fee simple determinable terminates upon the happening of a stated event and automatically reverts to the grantor. It is created by durational language, such as “for so long as,” “while,” “during,” or “until.” A fee simple determinable can be conveyed, but the grantee takes subject to the estate’s being terminated by the specified event
Note that statements of motive or purpose do not create a determinable fee. To create a fee simple determinable, words limiting the duration of the estate must be used
Whenever a grantor conveys a fee simple determinable, he automatically retains what?–explain it
He automatically retains a possibility of reverter, which is a reversionary future interest. A possibility of reverter is transferable, descendible, and devisable
What is a fee simple subject to a condition subsequent (and right of entry)?
A fee simple subject to a condition subsequent is an estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event; i.e., the estate does not automatically terminate–the grantor must take some action. The estate is created by use of conditional words, such as “upon condition that,” “provided that,” “but if,” and “if it happens that.”
What is the correlative future interest in grantor–right of entry (of the fee simple subject to condition subsequent)
The right to terminate, reserved by the grantor, is called a right of entry. It must be expressly reserved; in contrast with a possibility of reverter, it does not arise automatically. Most courts hold that rights of entry are not transferable inter vivos, but most states agree they are devisable, and all sates agree they are descendible
If a conveyance contains both durational language and a power of termination, how will it likely be construed?
A conveyance that contains both durational language and a power of termination will likely be construed as creating a fee simple subject to condition subsequent, because the forfeiture is optional at the grantor’s election rather than automatic. (policy disfavors forfeiture of estates)
What is a Fee Simple Subject to an Executory Interest
If a fee simple estate terminates upon the happening of a stated even (because it is determinable or subject to a condition subsequent) and then passes to a third party rather than reverting to the grantor or giving the grantor a right to terminate, the third party has an executory interest
What is a common property condition or limitation that violates public policy
If the purpose of the condition is to penalize marriage or encourage divorce, it likely will be struck down. However, if the purpose is to give support until marriage or in the event of divorce, it likely will be upheld
What is a fee tail
It is an estate where inheritability is limited to lineal heirs. It is created by the words “to A and the heirs of his body.” Most jurisdictions have abolished the fee tail, and an attempt to create one results in a fee simple
Can a life estate be measured by the life or lives of more than one person
yes
Can a life estate be measured b a life other than the grantee’s?
Yes (e.g., “to A for the life of B”). It also results when the life tenant conveys his life estate to another (e.g., if A, the holder of a life estate, conveys his interest to B, B has a life estate for the life of A)
What is the doctrine of waste?
A life tenant may not permanently reduce the value of the estate of the remaindermen and cannot acquire an interest adverse to that of the remaindermen. While a life tenant may be a purchaser at a sale to satisfy an encumbrance, neither the life tenant nor one claiming under him, who allows the property to be sold for taxes or the satisfaction of an encumbrance, can acquire a title adverse to the remainderman or reversioner by purchasing at the sale himself or through an intermediary. In other words, a life tenant cannot allow a mortgage to go into foreclosure and then purchase the property at the foreclosure sale. Such a transaction results in a restoration of the rights of the remainderman, as well as of the life tenant, the life tenant thereby reacquiring his life estate, but no more
In Florida, what is the rule for when a life tenant makes improvements?
IF a life tenant makes improvements, generally he cannot demand that the owner of the remainder pay any part of the cost unless they expressly agreed otherwise. But a life tenant may complete improvements begun by the donor of the estate and demand contribution from the remainderman
What are the rights and duties of the life tenant as it pertains to the doctrine of waste and consequences of not following those duties
A life tenant is entitled to any ordinary uses and profits of the land but cannot do anything that injures the interests of a remainderman or reversioner. A future interest holder may sue for damages or to enjoin such acts, and if she spends money to perform the life tenant’s obligations, she is entitled to reimbursement
What are the rules of affirmative (voluntary) waste?
Exploitation of natural resources (e.g,. minerals) by a life tenant is generally limited to situations when: (i) necessary for repair or maintenance of the land; (ii) the land is suitable only for such use; or (iii) it is expressly or impliedly permitted by the grantor. Under the open mines doctrine, if mining was done on the land prior to the life estate, the life tenant can continue mining–but is limited to the mines already open
What are a life tenants four obligations as it pertains to permissive waste
A life tenant is obligated to: (i) preserve the land and structures in a reasonable state of repair; (ii) pay interest on mortgages (not principal); (iii) pay ordinary taxes on the land; and (iv) pay special assessments for public improvements of short duration (improvements of long duration are apportioned between the life tenant and future interest holder). Permissive waste occurs when a life tenant fails to do so. However, this duty is limited to the extent of the total income or profits generated from the land since the life tenant acquired ownership (or, if the life tenant is in possession of the land herself, to the extent of the greater of the income or profits and the reasonable rental value of the land). A life tenant is not obliged to insure the premises for the benefit of remaindermen and is not responsible for damages caused by a third-party tortfeasor
What is ameliorative waste, and in what three situations is it allowed?
Ameliorative waste is a change that benefits the property economically. This waste was actionable at common law, but now a life tenant may alter or even demolish existing buildings if:
(i) The market value of the future interests is not diminished; and either
(ii) the remaindermen do not object; or
(iii) a substantial and permanent change in the neighborhood conditions (e.g., change from residential to 90% industrial) has deprived the property in its current form of reasonable productivity or usefulness
What happens if a life tenant who receives the estate by will or intestacy renounces his interest?
The future interest following the life estate is generally accelerated so that it becomes immediately possessory
What is the duration of the limit that Florida imposes on reverters and rights of entry?
A Florida statute limits the duration of reverters or forfeiture provisions to 21 years from the date of the deed conveying the realty
Is a future interest giving its holder the right or possibility of future possession of an estate considered present, legally protected right to property?
yes
What is the difference in alienability between a fee simple determinable’s and a fee simple subject to condition subsequent’s future interest?
Fee Simple Determinable: the possibility of reverter is transferable, descendible, and devisable
Fee Simple Subject to Condition Subsequent: the right of entry is descendible and devisable, but some courts hold not transferable inter vivos
What is a reversion
It is the estate left in a grantor who conveys less than she owns (e.g., O conveys “to A for life”; O has a reversion). It arises by operation of law; it does not have to be expressly reserved. A reversion is alienable, devisable, and inheritable. Its holder can sue for waste and for tortious damage to the reversionary interest
What is a remainder
It is a future interest in a third person that can become possessory on the natural expiration of the preceding estate. It cannot divest a prior estate, and it cannot follow a time gap after the preceding estate. A remainder must be expressly created in the instrument creating the preceding possessory estate. Examples:
1) O conveys “to A for life, then to B and his heirs”; B has a remainder.
2) O conveys “to A for life, then to B and his heirs one day after A’s death”; B does not have a remainder (Because there is a gap).
What is an indefeasibly vested remainder?
A vested remainder is one created in an existing and ascertained person, and not subject to a condition precedent. The remainderman has a right to immediate possession upon normal termination of the preceding estate. An indefeasibly vested remainder is a vested remainder that is not subject to divestment or diminution
What is a vested remainder subject to open?
This is a vested remainder created in a class of persons (e.g., "children") that is certain to become possessory, but is subject to diminution--e.g., by the birth of additional persons who will share in the remainder as a class. Example: O conveys "to A for life, then to children of B." A and B are living and B has one child, C. C has a vested remainder subject to open.
What is a vested remainder subject to total divestment?
This is a vested remainder that is subject to a condition subsequent.
Example: O conveys “to A for life, then to B and his heirs; but if B dies unmarried, then to C and his heirs.” B has a vested remainder subject to complete divestment by C’s executory interest.
What is a contingent remainder?
Contingent remainders are those created in unborn or unascertained persons, or subject to a condition precedent