Estates and Present Interests Flashcards
Types of Freehold Estates
(1) Fee Simple
(2) Defeasible Fees
(3) Fee Tail [not tested]
(4) Life Estate
Fee Simple
Owner holds title to the land and may use, sell, or rent the land at will
(1) Present possessory interest
(2) No future interest is created
(3) Freely Alienable
(4) Devisable
(5) Descendible
Fee Simple Language
“Owner to X”
“Owner to X and her heirs”
“Owner to X forever and ever”
“Owner to Corp. X, its successors, and assigns”
Note: if a conveyance or devise is ambiguous, presume fee simple
Types of Defeasible Fees
(1) Fee Simple Determinable
(2) Fee Simple Subject to a Condition Subsequent
(3) Fee Simple Subject to Executory Limitation
Defeasible Fees In General
May terminate upon the occurrence of some future event or condition
Fee Simple Determinable
(1) Future interest is retained in the transferor and her heirs
(2) Possibility of Reverter
(3) Freely alienable
(4) Devisable
(5) Descendible
Possibility of Reverter
(1) Estate is AUTOMATICALLY terminated by the holder of the future interest upon the occurrence of some future event/condition
(2) Becomes possessory when the event/condition occurs
Applies to Fee Simple Determinable
Fee Simple Determinable Language
“During, so long as, until, while, etc.”
“O conveys to X and her heirs UNTIL Alaska secedes from the United States”
Fee Simple Subject to Condition Subsequent
(1) Future interest retained in the transferor and her heirs
(2) Right of Entry/Power of Termination
Right of Entry/Power of Termination
(1) Estate MAY BE terminated by the holder of the future interest when the event/condition occurs
(2) Could become possessory when the event/condition occurs
Applies to Fee Simple Subject to Condition Subsequent
Fee Simple Subject to Condition Subsequent Language
“But if, on condition that, provided that, provided however, etc.”
“O conveys to X and her heirs BUT IF Alaska secedes from the United States, THEN Y has the right to re-enter and reclaim the land”
Fee Simple Subject to an Executory Limitation
(1) Future interest is created in a 3dp [Springing or Shifting Interest]
(2) AUTOMATICALLY terminates and transfers to the 3dp
Springing Interest
Divests the transferor
“To X when she marries”
Shifting Interest
Divests the transferee
“O conveys to A and her heirs UNTIL Alaska secedes from the United States, THEN to B and her heirs”
Fee Simple Subject to an Executory Interest Language
Same as Fee Simple Determinable and Fee Simple Subject to a Condition Subsequent
“O conveys to X and her heirs SO LONG AS Alaska does not secede from the United States, THEN to Y and her heirs”
Note: if a deed grants land for an ambiguous purpose, presume a fee simple determinable
Life Estate
Lasts for the duration of the tenant’s life
(1) Future interests created: Reversion and Remainder
(2) Freely alienable
(3) NOT devisable
(4) NOT Descendible
Reversion
“Owner X to Y for life”
When Y dies, the land will revert back to X
Applies to Life Estates
Remainder
Capable of becoming possessory and do not divest any prior estate
“Owner X to Y for life, then to Z”
When Y dies, the land will go to Z as a fee simple estate
ONLY applies to Life Estates and Term of Years
Life Estates: Doctrine of Waste
A life tenant may use real property for present purpose as a reasonable owner would, but is not permitted to reduce the value of the land
Waste must inflict “substantial pecuniary damage” [SPD]
Imposes a duty to… [RAP HI]
(1) Repair the premise
(2) avoid making Altercations of any kind
(3) Pay property taxes
(4) avoid Harming the property
(5) maintain property Insurance
Exceptions to the Doctrine of Waste
(1) Open Mines Doctrine
Minerals can be extracted even if it reduces the value of the property
Can only be used if the minerals were being extracted when the future interest was created
(2) Mature Trees Doctrine
Mature trees can be cut and sold
Can only be used if the removal of the trees is consistent with good forestry practices
Types of Waste
(1) Voluntary Waste
Results from affirmative act that significantly reduces the value of the property
Ex: Demolishing a house
(2) Permissive Waste
Results from a failure to take reasonable care to protect the estate
Ex: Failing to make minor repairs or to pay property taxes
(3) Ameliorative Waste
Results from an affirmative act that leads to a substantial change in the property and increase its value
Ex: Building a swimming pool
