Estates in Land Flashcards
Estates in Land - Gral
- Directly related with the language used in each conveyance - As gral rule: all present interests in land are accompanied by future interests in same land EXCEPT for fee simple absolute interest
Estates in Land - Types (3)
1) Fee simple: present estate of potential infinite duration (absolute or defeasible) 2) Fee tail: to keep possession in the family 3) Life Estate: for duration of persons life (the either reversion/remainder)
Fee Simple Interest - Gral
- present estate of potential infinite duration - Can be non-defeasible (absolute) or defeasible depending on whether future interest can affect current interest or nor
Fee Simple Absolute
- Default system - Infinite and freely inheritable and transferable - “ To A” / “To A and his heirs”
Defeasible Fee Simple - Gral
- Interest terminates bc no more heirs or upon certain event - not enough from grantor to “wish”) - Future interest is either for grantor (“reverter”) or for 3rd person (“executionary interest”).
Defeasible Fee Simple - Types (3)
1) Determinable: automatic 2) Subject to subsequent condition: exercise of right of reentry 3) Subject to executory interest: future interest passes to 3rd party and not grantor
Defeasible Fee Simple - Determinable
- Automatic termination - reverts back to grantor - Usually to prevent undesired uses - Reverter right as future property interest can be transferred intervivos/will/intestacy - Grantee retains until event or if condition fails - “ To A as long as”, “..while”, “… until”
Defeasible Fee Simple - Subject to condition subsequent
- Also subject to condition but No automatic forfeiture - Requires affirmative step from grantor to re-take property: exercise right of reentry (waived if not exercised in reasonable time) - Future right of entry as future property interest can be transferred only at death (will or intestacy) - “To A but if X grantor might reentry and take premises”, “To A provided that…”
Defeasible Fee Simple - Subject to Executory Interest
- Automatic - Future interest passes to 3rd party (REMAINDER) not back to grantor) - 2 types of executory interest: a) Shifting: From 1 grantee to another: “To A in fee simple but if does X then to B” b) Springing: Reverts to grantor and then to new grantee on later time or condition: “TO A in fee simple but if A does X then one day later to B”
Fee tail - Gral
- To keep property within the family - Modern rule: abolished in order to protect free- transferability - DEEMED as fee simple absolut - “ To A and the heirs of his body” - When executory interest (“ To A and the heirs of his body, but if A dies w/o issue (children) then to B”) - few states would give B a fee simple absolut
Life Estate - Gral
- For the duration of someone’s life (‘named person” - Non inheritable but transferable - With death of measuring life - termination reverts/remainds - Types of life measure: grantee, per autre vie, dower+ courtesy - Types of remainder: vested, vested and open, contingent or under POA - Doctrine of waste - Only type of interest that is Ok to restrain its alienation
Life Estate - Types of measure of life (3)
1) Grantee’s life: “To A for life” - measure remains even if A transfers right to B 2) “Per autre vie”: 3rd party’s life: “To A for B’s life”. If A dies before B, the right passes to A’s heirs for the remain of B’s life” 3) Dower (for widow) and Courtesy (for widower): for surviving spouse when no children from marriage (Has to be expressly created)
Life Estate Future Interest - Gral rule
- If silence: Automatically reverts back to grantor - If in provision: can go 3rd person - Remainder (vested or contingent) - Always created at time of grant to present interest - “To A for life”
Life Estate Future Interest - Vested Remainder
- automatically to 3rd party - Vested at time of creation of life estate when 1) language not conditional + b) grantee of remainder ascertained - Future interest by B is transferable, inheritable and devisable - “To A for life, then to B” (A has life estate and B has vested remainder)
Life Estate Future Interest - Vested Remainder Subject to Open
- Gift to class of people - requires for 1 member of class to vest interest , but remainder is open if person(s) can join or leave the class” - “To B for life, then to the children of A” - closes at time of death of grantee.
Life Estate Future Interest - Contingent Remainder-
- When a) grantee of remainder unascertainable OR b) potential future interest subject to some condition precedent before vesting - Future interest is not vested hence not transferable, inheritable, or devisable - “To A for life, remainder to B if B married before A’s death”
Life Estate Future Interest - Power of attorney
- Grantee with right to pick remainder 3rd party - If not exercised - it becomes reversion - Not subject to RAP - “To A for life upon his death to those whom he may designate”
Difference btwn Executory interests and remainder
1) No possible gap btwn life estate and future estate for remainder 2) Remainder only for life estate
Life Estate - Doctrine of Waste
- Address conflict between life estate and future interest - Duty of present T not to decrease value of future interest (reversion and/or remainder) - i.e. to pay for taxes, make ordinary repairs (no improvements required)
Life Estate - Doctrine of Waste - Types of waste
1) Physical: consume/sell non-renewable resources (coil, oil, mineral), deterioration w/o repair (Not waste: to crop-harvest property, reasonable cut of timber) 2) Economic: Encumber but tot affect future interest (not waste to mortgage to present interest, lease)
CL Remainder Rules - Destructibility of Contingent Remainder
- Contingent remainder must be vested prior or upon termination of preceding estate - If not destroyed - reverts back to grantor - “To A for life, remainder to B’s children alive at B’s death” and all of B’s children die before B.
CL Remainder Rules - Doctrine of Merger
- Same person holds life estate and future interest (reversion or remainder) - Creates fee simple absolute - “To Z for life”, and then A conveys reversion tight to Z.
CL Remainder Rules - Shelley’s Case
- “To A for life, and then to A’s heirs” - CL old rule: When individual with free-hold estate and remainder to his own heirs - Heirs get nothing, individual with fee simple absolut. - Modern rule: Abolished shelly’s rule. A with life estate and heirs with contingent remainder.
CL Remainder Rules - Doctrine of worthier title
- CL rule followed by most states - Person can not grant/devise to his heirs, same interests they would take by inheritance -i.e. A grants “to B for life, remainder to A’s heirs”. - B has life estate, B has reversion in fee simple absolut
Void Types of Restraints on alienation of fee simple interest (3) (“A” always end up with fee simple absolut)
1) Disabling:”To A, but A shall not have power to transfer w/o my consent” 2) Forfeiture: “ To A, but if A attempts to transfer w/o my consent, the land shall automatically revert back to me” 3) Promissory: “To A, but A promises and covenants not to transfer the land without my consent”
Allowed Types of Restraints on interest (3)
1) Use restriction 2) Right of first refusal 3) For life states restraint on alienation is permitted: “to A for life, but A prohibited to convey her interest to other than B”
Rule Against Perpetuity (RAP) - General
- Prevents grantor to establish restriction of transferability of interest by using invalid contingent future interest
Rule Against Perpetuity (RAP) - Contingent future interest Invalid when:
- Doesn’t revert to grantor within 21 years of death of some life measure existing at time of creation of the interest -
