Estates in Land

Question 1

What is a fee simple determinable, how is it created, and what is the corresponding future interest?

Answer 1

A fee simple determinable is a defeasible fee that terminates upon the happening of a stated event. It is created by express durational language such as “for as long as”, “while”, “during”, or “until”. It comes with a possibility of reverter (interest reverts automatically to grantor).

Question 2

What happens when a life estate is conveyed to someone else?

Answer 2

The transferee holds a life estate pur autre vie, measured by the life of the transferor.

Question 3

Under the doctrine of voluntary waste, when can a life tenant exploit natural resources on the land?

Answer 3

The life tenant must not overtly destroy or harm the land. The life tenant can exploit resource only when 1) necessary for repair or maintenance, 2) land is suitable only for such use, 3) permitted by the grantor

Question 4

What are a life tenant’s responsibilities under the doctrine of permissive waste?

Answer 4

The life tenant must 1) preserve the land in a reasonable state of repair, 2) pay interest on mortgages, 3) pay taxes on the ordinary rental value of the land.

Question 5

What are a life tenant’s responsibilities under the doctrine of ameliorative waste and what are the exceptions?

Answer 5

The life tenant must not make improvements to the land unless 1) the market value of the future interest is not diminished, or 2) remaindermen do not object, or 3) it is reasonable or necessary to do so. These are different for a leasehold tenant, who must not commit ameliorative waste regardless.

Question 6

What is a remainder and what interests does it accompany?

Answer 6

A remainder is a future interest in a third person that becomes possessory upon the natural expiration of the previous estate. A remainder is a future interest that follows a life estate, and NEVER a fee simple.

Question 7

What is an indefeasibly vested remainder?

Answer 7

A remainder that will vest in an existing and ascertained person, not subject to any condition precedent.

Question 8

What is an vested remainder subject to open?

Answer 8

A remainder that will vest in a class of persons that is certain to become possessory but is subject to diminution.

Question 9

What is a vested remainder subject to total divestment/complete defeasance?

Answer 9

A remainder that will vest subject to a condition subsequent.

Question 10

What is a contingent remainder?

Answer 10

A remainder that will vest in unborn or unascertained persons, or subject to a condition precedent.

Question 11

What is an executory interest?

Answer 11

A FUTURE interest held by a third party that divests a grantee’s preceding estate (shifting executory interest) or divests a grantor’s preceding estate or follows a gap in possession (springing executory interest).

Question 12

Are remainders and executory interests transferable inter vivos, by will, or by intestacy?

Answer 12

Yes. Remainders and executory interests are freely transferable.

Question 13

What is the rule of convenience?

Answer 13

For vested remainders subject to open, the class of persons CLOSES once any member of the class can take possession or call for distribution of his share.

Question 14

What is the Rule Against Perpetuities?

Answer 14

No interest is valid unless it must vest, if at all, no more than 21 years after the end of some life in being (measuring life) at the creation of the interest.

Question 15

When does the perpetuities period for RAP start to run?

Answer 15

For wills, upon the death of a testator (person who makes the will). For deeds, upon delivery.

Question 16

What types of interests does RAP apply to?

Answer 16

Executory interests, contingent remainders, and vested remainders subject to open.

Question 17

What happens if RAP is violated?

Answer 17

The future interest that violates RAP (that is uncertain to vest 21 years after the end of the measuring life) is void. Other interests created in the same instrument remain valid.

Question 18

What type of interests always violates RAP?

Answer 18

1) Executory interests following any defeasible fee, unrestricted by a time period or to the fee holder.
2) A gift that is conditioned upon class members surviving beyond 21.

Question 19

True or false: for RAP purposes, a very old woman is deemed fertile until she dies

Answer 19

True. She is fertile and capable of creating currently unascertained people even if she is very old or ill.

Question 20

What are the three types of restraints on alienation (transferability)?

Answer 20

1. Disabling restraints: prohibit any type of transfer. Disabling restraints are generally void.
2. Forfeiture restraints: upon transfer, the interest is forfeited.
3. Promissory restraints: upon transfer, some covenant is breached.

Question 21

Generally, restraints on alienation are void. When can restraints on alienation be valid?

Answer 21

Forfeiture restraints and promissory restraints may be upheld if they are for a reasonable purpose and for a limited time.

Question 22

What is required to create a joint tenancy?

Answer 22

1) Cotenants must take at the same time
2) Cotenants must take title by the same instrument
3) Cotenants must take equal interests
4) Cotenants have the same right to possession
5) Clear expression of the right of survivorship

Question 23

What happens if a document purporting to create a joint tenancy lacks a clear expression of the right of survivorship?

Answer 23

A tenancy in common arises.

Question 24

Are joint tenancies descendible?

Answer 24

No. Joint tenancies carry the right of survivorship. Once a joint tenant dies, the interest goes to his cotenant(s)

Question 25

How are joint tenancies severed generally?

Answer 25

By one joint tenant’s unilateral conveyance of interest to a third party. The third party is now a tenant in common with the other joint tenants. The courts are split on whether a conveyance by ALL joint tenants severs a joint tenancy.

Question 26

What is a tenancy by the entirety and what are the only ways it can be severed?

Answer 26

A tenancy held by spouses married to each other. Only death, divorce, mutual agreement, or execution by a joint creditor can sever a tenancy by the entirety.

Question 27

Must a joint tenant share rent income with other joint tenants?

Answer 27

Yes, rent collected from third parties must be shared with the joint tenants.

Question 28

Can contribution be compelled for repairs in a joint tenancy?

Answer 28

Yes, a joint tenant is entitled to contributions from other joint tenants if they are notified of the repairs

Question 29

Can contribution be compelled for improvements in a joint tenancy?

Answer 29

No. Generally, a joint tenant is not entitled to contributions from other joint tenants. But, if rent is being received by the tenant who made the improvements, the tenant may reduce the rent paid out to other joint tenants by the costs of the improvement.

Question 30

Can contribution be compelled for taxes/joint mortgages in a joint tenancy?

Answer 30

Yes.

Question 31

How can joint tenants end their joint tenancy together?

Answer 31

1) Through voluntary agreement
2) Partition in kind: separate property among joint tenants
3) Partition by sale and division of proceeds

Question 32

Are restrictions on partitions in kind valid?

Answer 32

Yes, if they are limited to a reasonable time after creation of joint tenancy.