Estates in Land Flashcards
Defeasible fees
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 many lose the fee interest upon the occurrence of some event
* Language: requires clear words of intent for the fee estate to be forfeited
-Words of desire, hope, or aspiration are insufficient
Three types:
1) Fee simple determinable
2) Fee simple subject to condition subsequent
3) Fee simple subject to an executory interest
Fee simple determinable
A fee simple estate (property) 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
Fee simple subject to condition subsequent
A fee simple in which grantor retains the power to terminate grantee’s estate upon the happening of a given event or condition -Grantor must take action to terminate; does not occur automatically
-E.g. “to A, but if he wins the lottery, grantor reserves the right to reenter and retake”
Fee simple subject to an executory interest
A fee simple (property) that automatically transfers to a third party (i.e. someone other than grantor) upon the happening of a given event or condition
-E.g. “To A, but if A is ever arrested then to B”
Fee simple determinable-Characteristics
- Automatic forfeiture: upon occurrence of the given event or condition, the grantee automatically forfeits the estate
- Potentially infinite: duration can be infinite so long as the event or condition does not occur
- Transferable: the fee estate is alienable, devisable, and descendible subject to the condition
Fee simple determinable-Creation
Requires clear durational language
-Phrases such as “for so long as,” “while,” “during,” “until,” etc.
-Words of desire, hope, or aspiration are insufficient
Fee simple determinable-Accompanying future interest
- Accompanying future interest = possibility of reverter
- Grantor retains a possibility of reverter
-I.e. the property may revert back to grantor, but only if the event or condition occurs - Transferability: grantor’s possibility of reverter is transferable inter vivos, devisable by will, and descendible to grantor’s intestate heirs
Fee simple subject to condition subsequent-Characteristics
- 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 - Potentially infinite: duration can be infinite so long as the event or condition does not occue
- Transferable: alienable, devisable, and descendible, subject to the occurrence of the given event or condition
Fee simple subject to condition subsequent-Creation
- 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 the occurrence of the event or condition
- Words of desire, hope, or aspiration are insufficient
Fee simple subject to condition subsequent-Accompanying future interest
- Accompanying future interest = right of reentry
- Grantor retains right of reentry
- Transferability: in most states, grantor’s right of entry is not transferable inter vivos but devisable by will and descendible to grantor’s intestate heirs
Fee simple subject to an executory interest-Characteristics
- Automatic forfeiture: upon occurence 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, NOT grantor - Potentially infinite: duration can be infinite so long as the event or condition does not occur
- Transferable: alienable, devisable, and descindible, subject to the occurrence of the event or condition
-Absolute restraints on alienation are void
Fee simple subject to an executory interest-Creation
- Clear durational language is required
- E.g. “To A, but if A gets married, then to B”
- Words of desire, hope, or aspiration are insufficient
Fee simple subject to an executory interest-Accompanying future interest
- Accompanying future interest = shifting executory interest
- The third party holds the shifting executory interest
- Transferable: third party’s interest is alienable, devisable, and descendible
Life estate
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
* Defeasibility: can be defeasible like fee estates (e.g. determinable, subject to condition or executory interest) or indefeasible
* LT has all ownership rights but must maintain property and make reasonable repairs; LT cannot commit waste
Life estate-Accompanying future interest
Reversion or remainder
* Reversion: future interest in grantor when a life estate does not provide for disposition of property to a third 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)
* Remainder: future interest following a life estate that identifies a third person (i.e. the third 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)
Life estate pur autre vie (p.a.v.)
A life estate measured by the life of someone other than 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.v. held by transferee (e.g. LT transfers life estate to B; B holds a life estate that reverts to the grantor O when LT dies)
Doctrine of waste
A life tenant 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 3 types
Aff mative (voluntary) waste
LT cannot consume or exploit natural resources on the land except:
a) Where necessary for repairs or maintenance of land,
b) When grant expressly gives the right to exploit, or
c) If land was used for exploitation of resources prior to the grant
-Open mines doctrine: if exploitation occurred before the life estate, LT may only extract from the already-open mines
Permissive waste
Harm to property due to LT neglect
* LT has a 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 encumberances, etc.
* Future interests holders who assume LT’s obligations are entitled to reimbursement
Ameliorative waste
LT acts that economically benefit the land
-prohibited under common law, but now usually permitted in most modern jurisdictions
Remainder
A future interest in a third 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
Remainder-Characteristics
- Creation: expressly created in the same conveyance in which the preceding estate is created
- Transferable: alienable, devisable, and descendible
- Cannot cut off or divest an interest held by a prior transferee
Vested remainder
- A remainder that automatically becomes possessory upon the natural expiration of the preceding estate
- Limitations: vested remainders cannot:
a) Be subject to any condition precedent, or
b) Vest in an unknown or unascertained person - Three types:
1) Indefeasibly vested remainders
2) Vested remainder subject to total divestment
3) Vested remainder subject to open (class gift)
Indefeasibly vested remainder
Becomes possessory immediately upon termination of the prior estate
-E.g. “to A for life, then to B”
