Estates in Land Flashcards
Provide the language to create, the duration, the transferability, and the future interest for the following:
Fee Simple or Fee Simple Absolute
Language to Create: “To A and his heirs.” “To A.”
Duration: Absolute ownership, of potentially infinite duration.
Transferability: Devisable, descendible, alienable.
Future Interest: None.
Provide the language to create, the duration, the transferability, and the future interest for the following:
Fee simple determinable
Language to Create: “To A so long as…” “To A until…” “To A while…” (Language providing that upon the happening of a stated event, the land is to revert to the grantor.)
Duration: Potentially infinite, so long as event does not occur.
Transferability: Alienable, devisable, descendible, subject to condition.
Future Interest: Possibility of Reverter (held by the grantor)
Provide the language to create, the duration, the transferability, and the future interest for the following:
Fee Simple Subject to Condition Subsequent
Language to Create: “To A, but if X event happens, grantor reserves the right to reenter and retake.” Grantor must carve out right of reentry.
Duration: Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination.
Transferability: Alienable, devisable, descendible, subject to condition.
Future Interest: Right of Entry/Power of Termination (held by grantor).
Provide the language to create, the duration, the transferability, and the future interest for the following:
Fee Simple Subject to an Executory Limitation
Language to Create: “To A, but if X event occurs, then to B.”
Duration: Potentially infinite, so long as stated contingency does not occur.
Transferability: Alienable, devisable, descendible, subject to condition.
Future Interest: Executory interest (held by third party).
Provide the language to create, the duration, the transferability, and the future interest for the following:
Life Estate
Language to Create: “To A for life.” “To A for the life of B.”
Duration: Measured by life of transferee or by some other life (pur autre vie).
Transferability: Alienable, devisable, and descendable if pur autre vie and measuring life is still alive.
Future Interest: Reversion (if held by grantor); Remainder (if held by third party)
What are the rules of construction for defeasible fees?
- Words of mere desire, hope, or intention are insufficient to create a defeasible fee. Courts disfavor restrictions on free land use, and thus courts will not find a defeasible fee unless clear durational language is used.
- Absolute restraints on alienation are void. An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to a reasonable time limited duration.
What are the distinguishing characteristics of the life estate from the other estates in land?
The life tenant’s entitlements are rooted in the important doctrine of waste.
1, The life tenant is entitled to all ordinary use and profits from the land.
- The life tenant must not commit waste, i.e. cannot hurt the future interest holders.
What are the thr ee species of waste?
- Voluntary or affirmative waste: this is overt conduct that causes drop in value. The life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals).
- Permissive waste: this is neglect - when the land falls in to disrepair. This is the life tenants obligation to simply maintain the premises in reasonably good repair. The life tenant is also obligated to pay all ordinary taxes on the land to the extent of income or profits from the land. If none, then the life tenant is required to pay all ordinary taxes to the extent of the premises fair rental value.
- Ameliorative waste: the life tenant must not engage in acts that will enhance the property’s value unless all future interest holders are known and consent.
**In NY: **a life tenant may make reasonable improvement unless the remaindermen object, called the “prudent homeowner” rule.
What are the four exceptions to voluntary waste?
Remember PURGE:
- Prior Use: meaning that prior to the grant, the land was used for exploitation. Here, the life tenant may continue to exploit, unless otherwise agreed.
Note: Prior use and the open mines doctrine - if mining was done on the land before the life estate began: the life tenant may continue to mine, but is limited to the mines already open. Thus, the life tenant must not open any new mines.
- Repairs: the life tenant may consume natural resources for repairs and maintenance.
- Grant: the life tenant may exploit if granted that right.
- Exploitation: meaning when the land is only suitable for exploitation. (i.e. Blackacre is a quarry).
What are the future interests capable of creation in the grantor?
- Possibility of Reverter: It accompanies only the fee simple determinable.
- ** The Right of Entry, also known as the Power of Termination:** it accompanies only the fee simple subject to condition subsequent.
- Reversion: A reversion is a fture interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable or a fee simple subject to condition subsequent.
What are the different future interests in transferees?
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Vested Remainder: there are three species of that -
a. the indefeasibly vested remainder;
b. the vested remainder subject to complete defeasance (also known as the vested remainder subject to total divestment), and
c. the vested remainder subject to open. - Contingent Remainder
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Executory Interest: there are two species of this -
a. the shifting executory interest, and
b. the springing executory interest
What is a remainder? What is the difference between vested and contingent remainders?
A remainder is a future interest in a grantee that is capable of becoming possessory upon the expiration of a prior posessory estate created in the same conveyance in which the remainder is created.
A remainder is vested if it is both created in an ascertained person and is not subject to any condition precedent.
A remainder is contingent if it is created in an unascertained person or is subject to a condition precedent, or both.
What is the rule of destructibility of contingent remainders?
At common law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate has ended.
Today however, the destructibility rule has been abolished, and when the life estate ends, it reverts back to the grantor subject to the remaindermen’s now B’s springing executory interest.
What is the Rule in Shelley’s Case?
At common law, the rule would apply to one setting only:
O conveys “to A for life, then, on A’s death, to A’s heirs.” A is alive.
Under the rule, the present and future interests merge, giving A a fee simple absolute.
However, the rule has been abolished, so when O conveys “to A for life, then to A’s heirs:”
A has a life estate.
A’s as yet unknown heirs have contingent remainder.
O has reversion, since A could die without heirs.
What is the Doctrine of Worthier Title?
It is also known as the rule against a remainder in grantor’s heirs. The doctrine is still viable in most states today. It applies when O, who is alive, tries to create a future interest in his heirs.
O, who is alive, conveys “To A for life, then O’s heirs.”
If the Doctrine of Worthier Title did not apply, A has life estate and O’s heirs have contingent remainder, because O is still alive and a living person has no heirs.
Instead, because of the Doctrine of Worthier Title, the contingent remainder in O’s heirs is void. Thus, A has life estate and O has reversion. However, grantor’s intent controls. If grantor clearly intends to create a contingent remainder in his heirs, that intent is binding.
New York has abolished the Doctrine of Worthier Title.
