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Real Property > Estates in Land > Flashcards

Estates in Land Flashcards

1
Q

Defeasible Fees - Definition

A

A fee simple estate of potentially infinite duration that can be terminated upon the occurrence of some specified event

  • i.e. present fee estate vested in some person, who may lose the fee interest upon the occurrence of some event
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2
Q

Defeasible Fees - Language

A

Requires clear words of intent for the fee estate to be forfeited

  • words of desire, hope, or aspiration are insufficient
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3
Q

Defeasible Fees - 3 Types

A

1) Fee Simple Determinable

2) Fee Simple subject to Condition Subsequent

3) Fee Simple Subject to an Executory Interest

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4
Q

Fee Simple Determinable - Definition

A

A fee simple estate that automatically terminates and reverts back to the grantor upon the happening of a given event or condition

  • e.g. “to A for so long as he practices law”
  • If A stops practicing law, property automatically reverts back to grantor
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5
Q

Fee Simple Determinable - Characteristics (3)

A

1) Automatic Forfeiture: Upon occurrence of the given event or condition, the grantee automatically forfeits the estate

2) Potentially Infinite: Duration can be infinite so long as the event or condition does not occur

3) Transferable: The fee estate is alienable, devisable, and descendible, subject to the condition

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6
Q

Fee Simple Determinable - Creation

A

Requires clear durational language

  • i.e. phrases such as “for so long as” “while” “during” “until” etc.
  • Words of desire, hope, or aspiration are insufficient
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7
Q

Fee Simple Determinable - Accompanying Future Interest

A

Possibility of Reverter

Grantor retains a possibility of reverted (i.e. the property may revert back to grantor, but only if the event or condition occurs)

  • Only inheritable: grantor’s possibility of reverted must descent to grantor’s intestate heirs; attempted lifetime transfer or devise is void
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8
Q

Fee Simple Subject to Condition Subsequent - Definition

A

A fee simple in which grantor retains the power to terminate grantee’s estate upon the happening of a given event or condition

  • e.g. “to A, but if he wins the lottery, grantor reserves the right to reenter and retake”
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9
Q

Fee Simple Subject to Condition Subsequent - Characteristics (3)

A

1) Forfeiture Not Automatic: if the event or condition occurs, grantee still retains title until grantor exercises his reentry right
- this is what distinguishes fee simple subject to condition subsequent from a fee simple determinable

2) Potentially Infinite: Duration can be infinite so long as the event or condition does not occur

3) Transferable: Alienable, devisable, and descendible, subject to the occurrence of the given event or condition

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10
Q

Fee Simple Subject to Condition Subsequent - Creation

A

Clear durational language must carve out a right of reentry for grantor

  • i.e. it must be explicit that grantor has the right to retake upon occurrence of the event or condition
  • Words of desire, hope, or aspiration are insufficient
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11
Q

Fee Simple Subject to Condition Subsequent - Accompanying Future Interest

A

Right of Reentry

  • Grantor retains right of reentry
  • Only Inheritable: grantor’s right of entry must descent to grantor’s intestate heirs; attempted lifetime transfer or devise is void
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12
Q

Fee Simple Subject to an Executory Interest - Definition

A

A fee simple that automatically transfers to a third party upon the happening of a given event or condition

  • e.g. “to A, but if A is ever arrested, then to B”
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13
Q

Fee Simple Subject to an Executory Interest - Characteristics (3)

A

1) Automatic Forfeiture: upon occurrence of the event or condition, estate automatically transfers to a third person
- similar to a fee simple determinable, but ownership automatically transfers to a third person, but ownership

2) Potentially Infinite: Duration can be infinite so long as the event or condition does not occur

3) Transferable: Alienable, devisable, and descendible, subject to the occurrence of the event or condition
- Absolute restraints on alienation are void

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14
Q

Fee Simple Subject to an Executory Interest - Creation

A

Clear durational language is required

  • E.g., “To A, but if A get married, then to B”
  • Words of desire, hope, or aspiration are insufficient
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15
Q

Fee Simple Subject to an Executory Interest - Accompanying Future Interest

A

Shifting Executory Interest

  • The third party holds the shifting executory interest
  • Transferable: third party’s interest is alienable, devisable, and descendible
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16
Q

Life Estate - Definition

A

An interest that lasts only for the life of the interest holder

  • e.g., O grants “to A for life”, A has a life estate and is the life tenant (LT) until she dies
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17
Q

Life Estate - Defeasibility

A

Can be defeasible like free estates

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18
Q

Life Estate - Ownership Rights

A

LT has all ownership rights but must maintain property and make reasonable repairs; LT cannot commit waste

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19
Q

Life Estate - Accompanying Future Interest (2)

A

Reversion or Remainder

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20
Q

Life Estate - Reversion

A

Future Interest in grantor when a life estate does not provide for disposition of property to a 3rd party

  • e.g. O “to A for life”; A is the LT, O has a reversion (i.e. Property reverts back to O when A dies)
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21
Q

Life Estate - Remainder

A

Future Interest following a life estate that identifies a third person (i.e. the 3rd party has a remainder)

  • e.g., O “to A for life, then to B”; A is the LT, B has a remainder (i.e., when A dies, property goes to B)
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22
Q

Life Estate - Life Estate Pur Autre Vie (P.A.V.)

A

A life estate measured by the life of someone other than the LT

  • e.g. O grants “To A for the life of B”; A is the LT, holding the property until B dies, at which point property reverts back to O

Transfer of Life Estate: Creates a life estate p.a.v. held by transferee (e.g. LT transfers life estate to B; B holds a life estate that reverts to the grantor O when the LT dies)

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23
Q

Doctrine of Waste - Definition

A

A life tenant (LT) cannot commit acts that constitute an unreasonable use of land and/or injure the interests of a future interest-holder

  • Doing so constitutes waste, of which there are three types
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24
Q

Doctrine of Waste - 3 Types

A

1) Affirmative (Voluntary) Waste

2) Permissive

3) Ameliorative

25
Q

Doctrine of Waste - Affirmative (Voluntary)

A

LT cannot consume or exploit natural resources on the land except:

a) Where necessary for repairs of maintenance of land,

b) When grant expressly gives the right to exploit, or

c) if lan was used for exploitation of resources prior to the grant

26
Q

Doctrine of Waste - Affirmative (Open Mines Doctrine)

A

If exploitation occurred before the LE, LT may only extract from already-open mines

27
Q

Doctrine of Waste - Permissive Waste

A

Harm to property due to LT neglect; LT has duty to repair/maintain property up to the extent of income or profits derived from the land or its rental value

  • Includes paying taxes, interest on encumbrances, etc.
  • Future interests holders who assume LT’s obligations are entitled to reimbursement
28
Q

Doctrine of Waste - Ameliorative Waste

A

LT acts that economically benefit the land prohibited under common law, but now usually permitted in most modern jurisdictions

29
Q

Remainder - Definition

A

A future interest in a 3rd person (other than grantor) that arises immediately upon the termination of a preceding life estate

  • e.g., “to A for life, then to B” — A has a life estate, B has a remainder
30
Q

Remainder - Characteristics (Creation, Transferability, Divestment)

A

1) Creation: Expressly created in the same conveyance in which the preceding estate is created

2) Transferable: Alienable, devisable, and descendible

3) Cannot cut off or divest an interest held by a prior transferee

31
Q

Remainder - 2 Types

A

1) Vested
2) Contingent

32
Q

Remainder - Vested: 3 Types

A

1) Indefeasibly vested remainders
2) Vested remainder subject to total divestment
3) vested remainder subject to open (class gift)

33
Q

Vested Remainder - Definition

A

A remainder that automatically becomes possessory upon the natural expiration of the preceding estate

34
Q

Vested Remainder - Limitations (2)

A

Vested Remainders Cannot:

A) Be subject to any condition precedent, or

B) Vest in an unknown or unascertained person

35
Q

Vested Remainder - Indefeasibly VR

A

Becomes possessory immediately upon termination of the prior estate

  • e.g. “to A for life, then to B”
36
Q

Vested Remainder - VR Subject to total divestment

A

Subject to some condition subsequent, such that the remainderman could be divested after taking possession.

  • e.g. “to A for life, remainder to B; but if B weds, to C”
37
Q

Vested Remainder - VR Subject to open (class gift)

A

Remainder vested in described class of takers, at least one of whom is capable of taking possession (i.e. by virtue of being alive)

  • e.g. “to A for life, remainder to children of B and their heirs”

B has one child, who has a vested remainder subject to open (B may have more children)

38
Q

Vested Remainder - VR Sub to Open (Open vs Closed Class)

A

Class stays open to allow for furture members and closes when no new members can be created

39
Q

Vested Remainder - VR Sub to Open (Rule of Convenience)

A

Class closes whenever any member can call for distribution of her share, after-born class members get nothing

40
Q

Contingent Remainders - Definition

A

A remainder will be contingent if it is either:

a) subject to condition precedent, or
b) created in favor of an unascertained or unborn person

41
Q

Contingent Remainders - Subject to Condition Precedent

A

Remainder’s taking is contingent on the prior occurrence of some event or condition

  • Once the event or condition occurs, the interest automatically becomes an indefeasibly vested remainder
  • e.g. “to A for life, then to B and his heirs when B gets married”

If B is unmarried at the time of the conveyance, A has a life estate, B has a contingent remainder (b/c marriage in case B is not married when A dies; if B gets married he has an indefeasibly vested remainder

42
Q

Contingent Remainders - Subject to Unborn or Unascertained Persons

A

A remainder created in favor of unborn or unascertained persons (i.e. remainder is contingent on grantee being born or ascertained)

  • e.g. “to A for life, then to B’s heirs”

if B, remainder is contingent b/c/ heirs of B cannot be ascertained until B dies

43
Q

Rule of Destructibility - Common Law

A

At common law, a contingent remainder is destroyed if it remains contingent (i.e. the condition is not satisfied) when the preceding estate ends

-e.g. O grants “to A for life, then to B once he goes to law school”; A dies and B has not gone to law school

At common law B gets nothing upon A’s death

44
Q

Rule of Destructibility - Modern Rule

A

Gives a reversion to grantor or grantor’s estate until grantee satisfies the condition

45
Q

Merger (Shelley’s Rule) - Common Law

A

Arises when a conveyance attempts to give a life estate to granteee with a remainder to grantee’s intestate heirs . At CL, the 2 estates merge

  • e.g. O grants “to A for life, then to A’s heirs” and A is alive; at common law, remainder merges and A has a fee simple absolute
46
Q

Merger (Shelley’s Rule) - Modern Rule

A

A has a lifes estate and his heirs have contingent remainders; O has a reversion because A could die without heirs

47
Q

Doctrine of Worthier Title

A

Arises when grantor creates a life estate in another but creates a future interest in grantor’s heirs

  • e.g. O grants “to A for life, then to O’s heirs”

Under the doctrine, the contingent remainder in O’s heirs is void; A instead has a life estate and O has a reversion

48
Q

Executory Interests - Definition

A

A future interest in a third party that takes effect by cutting short some interest (Shifting or Springing)

  • Includes any Future interest that is not a remainder
  • Lack standing to sue for waste
49
Q

Executory Interests - What to Look For

A

Indicated by phrases like “but if,” “then to” “for so long as”

50
Q

Executory Interests - Transferability

A

Devisable, descendible, and usually transferrable

51
Q

Executory Interests - Shifting

A

Always follows a defeasible fee or vested remainder subject to total divestment

  • Cuts short someone other than the grantor

-e.g. “to A, so long as the property is used for storage. But if used for any other purpose, to B”

A has a fee simple subject to an executory interest

B has a shifting executory interest – if A stops using the property for storage, A’s interest is cut short (not grantor’s)

52
Q

Executory Interests - Springing

A

Cuts short a present interest held by the grantor or grantor’s estate

  • e.g. “to A, if and when he gets married”

A has an executory interest

Grantor has a fee simple subject to an executory interest; if A gets married, possession springs from grantor to A

53
Q

Rule Against Perpetuities - Definition

A

No property interest is valid unless it must vest, if at all, no later than 21 years after the death of a lifein being at the time the interest was created

i.e. a future interest is void if there is any possibility, no matter how remote, that it will vest more than 21 years after the death of the measuring life

54
Q

Rule Against Perpetuities - Measuring Life (Definition)

A

A life “in being” when the interest was created whose actions during life, at death, or within 21 years after death determine whether a future interest satisfies RAP

55
Q

Rule Against Perpetuities - What Interest does it apply to? (3)

A

1) Contingent Remainders
2) Open class gift
3) Executory Interest

56
Q

Rule Against Perpetuities - Analyzing a Conveyance Subject to the RAP

A

1) Determine the interest being granted

2) Apply RAP to any future interest that is a contingent remainder, an open class gift, or an executory interest

3) If conveyance violates RAP, strike only the violating future interest

— What remains = the new conveyance

57
Q

Special Considerations Regarding the RAP - Rights of first refusal & RAP

A

Contingent interests in property (i.e. options and rights of first refusal) violate RAP if they could possibly be exercised outside the time period allowed by RAP

58
Q

Special Considerations Regarding the RAP - Class Gift & RAP

A

For class gifts to satisfy RAP, class must be closed with all conditions precedent satisfied for every member

59
Q

Special Considerations Regarding the RAP - Charity-to-Charity Exception

A

RAP does not apply to conveyances from one charity to another

Real Property (10 decks)

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