ESTATES IN LAND Flashcards
What can a Remainder of do…?
Cut short or divest a preceding estate prior to its normal expiration.
**Future interests that cut short a preceding estate or follow a gap after it are called Executory Interest.
What is an Executory Interest?
It a future interest that cuts short a preceding estate or follows a gap after it.
In a Fee Simple Subject to Condition Subsequent, if the conveyance contains the appropriate phrase ‘upon condition that…’, but does Not have a re-entry clause, what will the courts do?
Most modern courts will likely treat the condition as simply establishing a covenant on the part of the grantee to obey the restriction. If he does not, all the grantor can get is money damages. (Eman 47)
Example of a Fee Simple Subject to Executory Limitation
O conveys Blackacre to “A and his heirs, but if the property is used for other than residential purposes, then to B and his heirs.” A holds a fee simple subject to an Executory limitation in favor of B. If either A, or one that receives the property from him, uses the property for commercial purposes, then title automatically passes to B or (if B is dead), his heirs. (Eman 48)
Fee Simple Subject to Executory Limitation - Death without Issue
One common kind of fee simple subject o Executory Limitation centers around the dearth with use of the original grantee.
- O conveys ‘to A and his heirs but if A dies without children then to B and his heirs. ‘. A has a Fee Simple Subject to Executory Limitation and B has an Executory interest which will become possessory only if A dies without surviving children. (Eman 48)
Is there such thing as a Defeasible Life Estate?
The fee simple is not the only estate that may be defeasible. It is possible to have a Defeasible Life Estate.
Ex. To B, for as long as she shall remain my widow, then to my son C’. This would create a life estate determinable, by analogy to the fee simple determinable. (Eman 49)
Life Estate
The estate is one which lasts for the lifetime of a person. (Eman to)
Example of Life Estate Per Authenticator Vie
O grants to ‘A for the life of B, then to C in fee simple.’ (Eman 50)
Can Life Estates be created by operation of law?
Yes. Dower and curtesy. For instance, a surviving spouse at common law gained the right of dower (for the widow) or curtesy (for a widower). Dower and curtesy are in essence life estates. (Eman 50)
A Life Estate can be Defeasible
A life estate can be defeasible like a fee simple such that the life estate ends before the life tenant dies if the limiting event occurs.
What is Hostile Possession?
Hostile possession is simply not Permissive possession.
Ouster of a co-tenant is required to find a hostile possession. (Bk 660)
Characteristics of a Fee Simple Absolute
- Freely Alienable
- Freely Divisible (devise by will)
- Freely Descendable
**Absolute Ownership (infinite duration). (BARBRI)
Heirs Apparent
A living person has no heirs! They can only be apparent heirs.
Is there a future interest in Fee Simple Absolute?
There is no Future Interest to accompany a Fee Simple Absolute = Powerless !!! (BARBRI)
What is a Defeasible Fee?
A Defeasible Fee is a Fee Simple…with a catch!!!
Fee Simple Determinable Characteristics
- Clear durational language.
- If stated condition is violated…that’s it! AUTOMATIC FORFEITURE!
- Freely Alienable **But the condition will tag along!
- Freely Divisible. **But the condition will tag along!
- Freely Descendable. **But the condition will tag along!
What is the future interest of a Fee Simple Determinable?
Possibility of Reverter
Fee Simple Subject to Condition Subsequent
+ Clear durational language
+ Clear statement of Right of Re-Entry = Power of Termination
+ Can be cut short at Grantor’s option aka Prerogative!
Language = if ‘this’ ever happens’
What is the future interest of a Fee Simple Subject to Condition Subequent
Right of Re-entry (Power of Termination)
Fee Simple Subject to Executory Limitation
+ Future interest goes to a 3rd party
+ The future interest is called: Shifting Executory Interest
+ Automatic forfeiture if condition is breached
+ Goes to other than ‘O’ theGrantor
What is the Future Interest to a Fee Simple Subject to Executory Interest called?
A Shifting Executory Interest
2 Important Rules of Construction with all Defeasible Fees
+ Words of mere hope, aspiration, desire or intentions are Inadequate to encumber an estate as a Defeasible Fee (because courts loath restrictions)
***Courts will interpret as a Fee Simple Absolute if all wording is Not included. **
Restraint on Alienation
Absolute Restraints on Alienation are Unenforceable. It is an absolute ban / an absolute prohibition on the power to sell or xfer that is NOT linked to a reasonable time limit purpose.
Ex. “To A as long as she never attempts to sell.”
**Cross out the Restriction and you are left with: A Fee Simple Absolute, because this is what the court will interpret!!
*But a Restraint on Alienation linked to a reasonable time limit purpose IS valid.
Ex. ‘To A so long as she does not attempt to sell within the next 18 months.’ = Reasonable time limit.
How are Life Estates measured?
Must be measured in explicit Lifetime terms and Never in terms of years.
Ex. ‘To A for Life’
