Estates in Land Flashcards
What is a fee simple absolute?
Fee simple absolute = the ABSOLUTE ownership of potentially infinite duration 1)Language used to create: “To A and his heirs” “To A” 2) Transferability: Devisable (can pass by will) Descendible (will pass via statutes of intestacy if holder has no will) Alienable (capable of inter vivos transfer) 3) Future Interest: NO accompanying future interest
What is a fee tail?
Fee tail = estate where inheritability is LTD to lineal heirs, which lasts as long as there are lineal blood decendants of grantee NOTE: most jx have ABOLISHED fee tails; an attempt to create a fee tail today leads to fee simple absolute 1)Language used to create: “To A and his heirs of his body” 2) Transferability: Passes automatically to grantee’s lineal decendants 3) Future Interest: Reversion (if held by grantor)
What are the 3 defeasible fees?
1) Fee Simple Determinable 2) Fee Simple Subject to Condition Subsequent 3) Fee Simple Subject to Executory Limitation
What is a fee simple determinable? NOTE: NY Distinction
Fee simple determinable = a defeasible fee that terminates upon the occurance of a stated event and AUTOMATICALLY reverts back to grantor NY DISTINCTION: In NY the fee simple determinable is called a Fee on limitation 1)Language used to create: “To A… for so long as [event…] during [event…] while [event…] until [event…] NOTE: words of desire, hope, or intention are INSUFFICIENT to create a defeasible fee 2) Transferability (ALL subject to condition): Devisable (can pass by will) Descendible (will pass via statutes of intestacy if holder has no will) Alienable (capable of inter vivos transfer) NOTE: an absolute (i.e. forever)restraint on alienability as a condition IS void (e.g. “To A so long as she never attempts to sell”) 3) Future Interest: Possibility of reverter
What is a fee simple subject to condition subsequent? NOTE: NY Distinction
Fee simple subject to condition subsequent= a defeasible fee that gives grantor the RIGHT to terminate upon the occurance of a stated event (i.e. must file an ejectment action) NY DISTINCTION: In NY the fee simple subject to condition subsequent is called a fee on condition 1)Language used to create: “To A,… but if [event…], upon condition that [event…], provided that [event…], if it happens that [event…] …grantor reserves the right to reenter and retake” NOTE: words of desire, hope, or intention are INSUFFICIENT to create a defeasible fee 2) Transferability (ALL subject to condition): Devisable (can pass by will) Descendible (will pass via statutes of intestacy if holder has no will) Alienable (capable of inter vivos transfer) NOTE: an absolute (i.e. forever) restraint on alienability as a condition IS void (e.g. “To A so long as she never attempts to sell”) 3) Future Interest: Right of entry/power of termination (held by grantor) NY DISTINCTION: In NY right of reentry is known as right of reaquisition
What is a fee simple subject to executory interest?
Fee simple subject to executory interest= a defeasible fee that terminates upon a stated event and then passes to a third party (vs. reversion to grantor) 1)Language used to create: Fee simple s/t shifting executory interest… “To A,… for so long as [event…], while[event…], during[event…], until[event…] …then to B” Fee simple s/t springing executory interest… To A if and when [even…] NOTE: words of desire, hope, or intention are INSUFFICIENT to create a defeasible fee 2) Transferability (ALL subject to condition): Devisable (can pass by will) Descendible (will pass via statutes of intestacy if holder has no will) Alienable (capable of inter vivos transfer) NOTE: an absolute (i.e. forever) restraint on alienability as a condition IS void (e.g. “To A so long as she never attempts to sell”) 3) Future Interest: The shifting/springingexecutory interest (3d party) [which is subject to the RAP!]
What is a life estate?
Life estate= an estate that is measured by the life of transferee; OR by some other life (pur autre vie) 1)Language used to create: “To A for life” (simple life estate) “To A for the life of B” (life estate pur autre vie) “To A for life, then to B” (B has indefeasibly vested remainder) “To A for life, but if…, to B” (B has contingent remainder) 2) Transferability (IF pur autre vie AND measuring life is still alive): Devisable (can pass by will) Descendible (will pass via statutes of intestacy if holder has no will) Alienable (capable of inter vivos transfer) 3) Future Interest: Reversion (if held by grantor) Remainder (if held by a 3d party)
What is a life tenant’s entitlements and restrictions?
The life tenant… 1) is entitled to all ORDINARY uses and PROFITS from the land 2) must NOT commit “waste” (i.e. something that hurts the future interest holder’s interest)
What are the 3 types of waste that a life tenant can commit? NOTE: NY Distinction
3 types of waste… 1) Voluntary or affirmative waste = overt conduct that causes a drop in value (i.e. willful distruction, consumption of natural resource on property) “PU-R-G-E” EXCEPTIONS… Prior Use, meaning that prior to grant, the land was used for exploitation; life tenant can CONTINUE to exploit (unless otherwise agreed) and subject to Open Mines Doctrine (if mining was done on land, the life tenant can mine from existing mines, BUT NOT new ones) Repairs, meaning the life tenant may consume natural resources for REPAIRS and MAINTANENCE Granted, meaning the life tenant may exploit if GRANTED that right Exploitation, meaning the land is suitable ONLY to exploit (e.g.a quarry) 2) Permissive waste or neglect = this occurs when the land falls into disrepair The life tenant must simply MAINTAIN the premises in reasonably good repair MUSTpay all ordinary TAXES and INTEREST on mtgs (NOT principal) NOTE: if the life tenant fails to pay taxes or interest, the gov’t/mtgee can FORECLOSE on the property, which will CUT OFF the interest to the remaindermen 3) Ameliorative waste = the life tenant must not engage in acts that ENHANCE the property value, UNLESS all future interest holders are KNOWN and CONSENT EXCEPTION: if changed conditions have rendered a piece of property UNIHABITABLE, we will allow a life tenant to tear down that structure and replace (Changed Condition Doctrine) Policy = protects the sentimental value for future interests NY DISTINCTION = In NY via statute, life tenant MAY make reasonable improvements UNLESS remaindermen object
What are the 8 types of future interests?
3 interests created in GRANTOR 1) Possibility of Reverter (ONLY accompanies the fee simple determinable) 2) Right of Entry/Power of Termination (ONLY accompanies the fee simple subject to a condition subsequent) 3) Reversion (ONLY accompanies the life estate) 5 interests created in a TRANSFEREE 4) IndefeasiblyVested Remainder(ONLY accompanies the life estate OR term of years) 5) Vested Remainder s/t Complete Defeasance(ONLY accompanies the life estate OR term of years) 6) Vested Remainder s/t Open(ONLY accompanies the life estate OR term of years) 7) Contingent Remainder (ONLY accompanies the life estateOR term of years) 8) Executory Interest (ONLY accompanies fee simple subject to executory limitation)
What is a remainder AND what are the 4 types?
Remainder = a future interest created in a grantee that is capable of becoming posessory on the natural expiration of the preceeding estate (i.e. it can NEVER cut short the preceeding estate) ONLY follows a life estate OR a term of years A remainderman is “patient and polite” TYPES: (i) contingent remainder; (ii) indefeasibly vested remainder; (iii) vested remainder s/t complete defeasance; AND (iv) vested remainder s/t open
What is acontingent remainder? NOTE: NY Distinction
Contingent remainder = a remainder that is created in (i)an UNACERTAINED/UNBORN person;(ii) is subject to a CONDITION PRECEDENT; (iii) or BOTH Unacertained/unborn e.g. =”To A for life, then to B’s first child (TBD)” Condition precedent e.g. = “To A for life, then, IF B graduates from college, to B” If B graduates college while A is alive, then B’s contingent remainder BECOMES an indefeasibly vested remainder If the contigency never occurs, the original GRANTOR has a reversion NOTE: contingent remaiders are OPEN TO the Rule Against Perpetuties NY DISTINCTION: NY has abolished the distinction b/t an EXECUTORY INTEREST and a CONTINGENT REMAINDER. Instead BOTH are called remainders s/t a condition precedent
What is the Rule of Destructability of Contingent Remainders? NOTE: NY Distinction
TheRule of Destructability of Contingent Remainders… HISTORICALLY at common law: a contingent remainder was DESTROYED if it was still contingent at the time the preceeding estate ended TODAY: the Rule has been abolished; if still contingent at end of preceding estate, then grantor (or his heirs) hold the estate subject to a springing executory interest NY DISTINCTION: the Rule has been ABOLISHED in NY
What is the Rule in Shelley’s Case? NOTE: NY Distinction
TheRule in Shelley’s case… Applies ONLY to this type of contingent remainder: “To A for life, then, on A’s death, to A’s heirs” A is alive. HISTORICALLY at common law: the present and future interests would MERGE giving a fee simple absolute (in order to promote alienability) This rule was applied EVEN IF it went against the grantor’s intent TODAY: the Rule has been abolished; A would have a life estate and A’s heirs would have a contingent remainder NY DISTINCTION: the Rule has been ABOLISHED in NY
What is the Doctrine of Worthier Title? NOTE: NY Distinction
TheDoctrine of Worthier Title… Applies when: the GRANTOR tries to create a future interest in his OWN heirs “To A for life, then to O’s heirs” This is a contingent remainder b/c O is still alive (AND HAS NO HEIRS) The Doctrine would make the contingent remainder in GRANTOR’s heirs VOID (i.e. A would have a life estate and O would have a reversion) BUT, grantor’s intent CNTRLS (i.e. if he INTENDED-with a clear stmt-to create a contingent remainder in his heirs, then it shall exist) NY DISTINCTION: the Doctrine has been ABOLISHED in NY