Estates in Land Flashcards
How is a “Fee Simple Absolute” formed?
“to A” or “to A and his heirs”
What estate does a fee simple absolute convey?
absolute ownership of potential infinite duration
What are a fee simple absolute’s distinguishing characteristics?
- devisable
- descendible
- alienable
What does it mean if an estate is “devisable”?
it can pass by will
What does it mean if an estate is “descendible”?
it will pass by the statutes of intestacy if its holder dies intestate
What does it mean if an estate is “alienable”?
it is transferable inter vivos, or during the holder’s lifetime
Does a fee simple absolute have an accompanying future interest?
NO!
How does one create a “fee tail”?
“to A and the heirs of his body”
What are the distinguishing characteristics of a fee tail?
virtually abolished
Historically, the tail would pass directly to the grantees lineal blood descendants - no matter what
Today, if a party attempts to create a “fee tail” what do they actually create?
A fee simple absolute
Does a fee tail have an accompanying future interest?
In the grantor: a reversion
In third party: remainder
What are defeasible fees?
fee simple estates (uncertain or potentially infinite duration) that can be terminated upon the happening of a stated event
What are the three defeasible fees?
- Fee Simple Determinable- Possibility of Reverter
- Fee Simple Subject to Condition Subsequent - Right of Entry
- Fee Simple Subject to an Executory Interest
How does one create a fee simple determinable?
“To A for so long as…” “To A during …” “To A until…”
grantor must use clear durational language
If the grantee violates the condition created in a fee simple determinable, what result?
forfeiture of the estate is automatic
What are the distinguishing characteristics of a fee simple determinable?
- devisable
- descendible
- alienable
but always subject to the condition
Paul conveys Blackacre “to Ringo so long as the premises are used as a recording studio.” Ringo has:
a fee simple determinable
If Ringo is granted a fee simple determinable conditioned on the premises being used as a recording studio, and conveys the estate to Mick who seeks to convert the recording studio into a bowl-a-rama, may Mick do so?
NO - Not without forfeiting the estate
Can a party convey more than what they started with?
No - you can’t always get what you want
May convey less than what you started with, but cannot convey more
Does a fee simple determinable have an accompanying future interest?
Possibility of Reverter in the grantor
Frank Sinatra conveys Sinatra Place “to Orville Redenbacher, so long as popcorn is never made on the premises.” Classify the interests.
Orville:
Frank:
Orville: fee simple determinable
Frank: possibility of reverter
What does “FSDPOR” stand for?
Frank Sinatra Didn’t Prefer Orville Redenbacher
Fee
Simple
Determinable
Possibility
of
Reverter
How does one create a fee simple subject to a condition subsequent?
“to A, but if X event occurs, grantor reserves the right to re-enter and retake”
- must use durational language; and
- express reservation of the right to re-enter
What are the distinguishing characteristics of a fee simple subject to a condition subsequent?
not automatically forfeited, but can be cut short at the grantor’s option if the stated condition occurs
If a grantee violates the condition subsequent in a fee simple subject to a condition subsequent, what result?
Bobbi Brown - exercise his prerogative
Not automatically forfeited - but can be cut short at the grantor’s option
What are the distinguishing characteristics of a possibility of reverter?
It arises automatically when grantor conveys a fee simple determinable - it is devisable, descendible and alienable
Does a fee simple subject to a condition subsequent have an accompanying future interest?
Yes - the right of entry synonymous with the power of termination
How does one create a fee simple subject to executory limitation?
“to A, but if X event occurs, then to B”
passes to a third party rather than reverting to the grantor or giving the grantor a right to terminate
“To Barry Manilow, but if Manilow ever performs music on the premises, then to Mandy.” Classify the interests.
Manilow: fee simple subject to Mandy’s shifting executory interest
Mandy: a shifting executory interest
What are the distinguishing characteristics of a fee simple subject to executory limitation?
same as fee simple determinable - only now, if condition is broken, the estate is automatically forfeited in favor of someone other than the grantor
If the grantee violates the condition of a fee simple subject to executory limitation - what result?
automatically forfeit in favor of someone other than the grantor
Does the fee simple subject to executory limitation have an accompanying future interest?
Yes - the shifting executory interest
Are words of desire, hope, or intention sufficient to create a defeasible fee?
NO - courts will not find a defeasible fee unless clear durational language is used
“to A for the purpose of constructing a day care center.” Classify the interests.
A: fee simple absolute - not clear durational langage
“to A with the expectation that the premises will be used as a Blockbuster video store.” Classify the interests.
A is vested with a fee simple absolute - not clear durational language
If a grantor uses language that creates an absolute restraint on alienation, is the grant valid?
NO - absolute restraints on alienation are void
What is an absolute restraint on alienation?
It is an absolute ban on the power to sell or transfer, that is not linked to a limited time or purpose
O conveys: “To A, so long as she never attempts to sell.” Classify the interests.
A: vested with a fee simple absolute
O: has nothing
O conveys: “To A so long as she does not attempt to sell until the year 2015, when clouds on the title will be resolved.”
A has: fee simple determinable
O has: possibility of reverter
How does one create a life estate?
an estate measured in explicit lifetime terms, and NEVER in terms of years
O conveys: “To A for life.” Classify the interests.
A: life estate
O: reversion
If a grantee possess a life estate, what are they called?
the life tenant
What is a reversion interest?
a future interest in property that means at the end of the life tenant’s lifetime, the estate reverts back to the grantor or the grantor’s heirs
“To A for 50 years, if she lives that long.” Classify the interests.
A: term of years leasehold interest - NOT a life estate
What is a life estate pur autre vie?
A life estate that is measured by a life other than teh grantees
O conveys: “to Madonna, for the life of David Letterman.” Classify the interests.
Madonna: a life estate pur autre vie
O has: a reversion interest - at the end of Letterman’s life, the estate will revert back to O or O’s heirs
A life tenant is subject to what two general rules?
- life tenant is entitled to all ordinary uses and profits from the land
- life tenant must not commit waste - must not do anything to hurt the future interest holders
What are the three species of “waste” a life tenant must be concerned with?
- voluntary or affirmative waste
- permissive waste, or neglect
- ameliorative waste
What is voluntary or affirmative waste?
overt conduct that causes a drop in value - willful destruction
What is the general rule concerning voluntary waste and natural resources and life estates?
the life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals unless one of four exceptions applies (PURGE)
What are the four exceptions to the general rule concerning voluntary waste and natural resources on life estates?
PU: prior use - prior to the grant, the land was used for exploitation (Open Mines Doctrine)
R: repairs - life tenant may consume natural resources for repairs and maintenance
G: grant - the life tenant may exploit if granted that right
E: exploitation - if the land is only suitable to exploit
What is the “open mines doctrine” surrounding voluntary waste and natural resources?
if mining was done on the land before the life estate began: the life tenant may continue to mine, but is limited to mines already open - cannot open new mines
What is the general rule concerning permissive waste, neglect, and life estates?
the life tenant must maintain the premises in reasonably good repair
life tenant has an obligation to pay all ordinary taxes - to the extent of income or profits from the land. If no income or profit, all ordinary taxes to the extent of the premises fair rental value
What is the general rule concerning ameliorative waste and life estates?
the life tenant must not engage in acts that will enhance the property’s value, unless all future interest holders are known and they consent
Does a life estate have an accompanying future interest?
Grantor - reversion
Third party - remainder
List the six categories of future interests
- the possibility of reverter
- the right of entry
- the reversion
- vested remainder
- contingent remainder
- an executory interest
What is the “possibility of reverter”?
It is a future interest that only accompanies a fee simple determinable
FSDPOR
What is the “right of entry” or “power of termination”?
a future interest that only accompanies fee simple subject to a condition subsequent
Bobbi Brown - his prerogative
What is a “reversion” interest?
future 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
O conveys: “To A for life.” Classify the interests.
A: life estate
O: reversion
What are the three forms of vested remainders?
- indefeasibly vested remainder
- vested remainder subject to complete defeasance
- vested remainder subject to open
What are the three forms of future interest that arise when a future interest is held by someone other than the grantor?
- vested remainder
- contingent remainder
- an executory interest
What is a “remainder”?
future interest created in a grantee (3d party) that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created
What does a remainderman always accompany?
a preceding estate of known fixed duration - usually a life estate or term of years
Does a remainderman ever follow a defeasible fee?
No - never! it is patient and polite
When is a remainder vested?
if it is both created in an ascertained person and is not subject to any condition precedent
When is a remainder contingent?
if it is created in an unascertained person OR is subject to a condition precedent or both
“To A for life, then to B’s first child.” A is alive, B, as yet, has no children. What does B hold?
B holds a contingent reaminder
When is a condition a condition precedent?
when it appears before the language creating the remainder or is woven into the grant to remainderman
O conveys “to A for life, then, if B graduates from college, to B.” Classify the interests.
B: contingent remainder
O: reversion
A: life estate
If the condition precedent occurs while a third party holds a contingent remainder - what result?
the contingent remainder is automatically transformed into an indefeasibly vested remainder
Historically, 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 ended
Today, what is the Rule of Destructibility of Contingent Remainders?
the rule has been abolished
if B is under 21 when A dies, O or O’s heirs hold the estate subject to B’s springing executory interest - and when B reaches 21 he will take the estate
Historically, what is the Rule in Shelley’s Case?
When a grantor grants a life estate to A and a fee simple absolute to A’s heirs, the present and future interests merge giving A a fee simple absolute
Today, what is the Rule in Shelley’s Case?
The rule has been virtually abolished - if O conveys “to A for life, then to A’s heirs” A has a life estate and A;s heirs have contingent remainders and O has a reversion interest.
What is the Doctrine of Worthier Title?
if O, who is alive, tries to create a future interest in his heirs - “To A for life, then to O’s heirs”
The doctrine renders the grant to O’s heirs void - and gives A a life estate and O a reversion interest
If the grantor of an estate would like to create an interest in his future heirs after granting a life estate to A, will the Doctrine of Worthier Title prohibit this?
No - if O makes it clear through language in the grant that he wants his heirs to inherit
the grantor’s intent controls
What is an indefeasibly vested remainder?
The holder of the remainder is certain to acquire an estate in the future, with no strings attached
What is a vested remainder subject to complete defeasance?
remainderman’s taking is not subject to any condition precedent - however, his right to possession could be cut short because of a condition subsequent
What is the “Comma Rule”?
when conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent and you have a vested remainder subject to complete defeasance
when conditional language appears before the language creating the remainder, the condition is a condition precedent, and you have a contingent remainder
O coneys: “To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C.” A is alive. B is 20 years old. Classify the interests.
A: life estate
B: vested remainder subject to complete defeasance
C: shifting executory interest
O: reversion
What is a vested remainder subject to open?
remainder is vested in a group of takers (category or class), at least one of whom is qualified to take
O conveys: “to A for life, then to B’s children.” A is alive. B has two children, C and D. What do C and D have?
vested remainder subject to open
How can one tell when a class is closed?
The common law rule of convenience - closes whenever nay member can demand possession
What is an executory interest?
future interest created in a transferee which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or in the grantor or his heirs (springing)
What is a shifting executory interest?
a future interest that always follows a defeasible fee and cuts short someone other than the grantor
What is a springing executory interest?
a future interest that cuts short the grantor or his heirs
O conveys: “To A, but if A uses the land for nonresidential purposes at any time during the next 20 years, then to B.” Classify the interests.
B: shifting executory interest
A: fee simple subject to B’s shifting executory interest
O conveys: “To A, if and when he marries.” A is unmarried
A: springing executory interest
O: fee simple subject to A’s springing executory interest
What is the Rule Against Perpetuities?
certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life
What does the RAP potentially apply to?
- contingent remainders
- executory interests
- certain vested remainders subject to open
What does the RAP not apply to?
- any future interest in O, the grantor
- indefeasibly vested remainders
- vested remainders subject to complete defeasence
“To A for life, then to A’s children.” A is alive. She has no children. Is this subject to the RAP and if so does it satisfy?
- unborn children have contingent remainders
- A must die leaving a child
- A will serve as the measuring life
- we will know at the instant of A’s death if A has left behind a child or not
What are the two bright line rules concerning the RAP?
- a gift to an open class that is conditioned on the members surviving beyond the age of 21 violates the RAP
- Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP
If a condition precedent to every class member’s taking will be met by some of the class and will occur within the perpetuities period - is it valid?
NO = Bad as to one, bad as to all
if it is possible that a disposition might vest too remotely with respect to any member of the class, the entire class gift is void
Will a gift from one charity to another violate the RAP?
no - charity to charity does not violate
“To the American Red Cross, so long as the premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA.” Classify the interests.
ARC: fee simple subject to the YMCA’s valid shifting executory interest
YMCA: shifting executory interest (normally invalid under the RAP)
How does the “wait and see” or “second look” doctrine work to reform the RAP?
validity of any suspect future interest is determined on the basis of the facts as they now exist, at the end of the measuring life
ends the “what if” parade of horribles
How does the Uniform Statutory Rule Against Perpetuities work to reform the common law RAP?
codifies the common law RAP and, in addition, provides for an alternative 90 year resting period
What is the “cy pres doctrine”?
as near as possible - if a given disposition violates the RAP, a court may reform it in a way that most closely matches grantor’s intent while still complying with the RAP
Under modern reform, if a condition is contingent on someone reaching an age past 21, can the court reduce the contingency back to 21 years?
Yes
What are the three forms of concurrent ownership of an estate?
- joint tenancy
- tenancy by the entirety
- tenancy in common
What is the definition of a joint tenancy?
2 or more owners with the right of survivorship
What are the distinguishing characteristics of a joint tenancy?
- right of survivorship - 1 joint tenant dies and his share automatically goes to the surviving joint tenants
- alienable - you have the right to transfer to another BUT not devisable or descendible
How do you create a joint tenancy?
the four unities must be met and the grantor must clearly express the right of survivorship
What are the four unities required to create a joint tenancy?
- T (at the same time)
- T (by the same title - same instrument)
- I (identical shares)
- P (rights to possess the whole)
How can a joint tenant sever the joint tenancy?
- Sale
- Partition
x. and - Mortgage
Can a joint tenant sell or transfer her interest during her lifetime, and if so must she inform the other joint tenants of her intent?
Yes she can sell or transfer even secretly
What effect if a joint tenant sells or transfers her interest during her lifetime?
severs the joint tenancy as to the seller’s interest and the buyer therefore becomes a tenant in common
if there are more than two joint tenants to start with, the joint tenancy remains intact as between the other, non-transferring joint tenants
In equity, a joint tenant’s mere act of entering into a contract for the sale of her share will lead to what result?
it will sever the joint tenancy as to the contracting party’s interest under the doctrine of “equitable conversion”
What are the three variations of Severance and Partition of a joint tenancy?
- by voluntary agreement
- by partition in kind
- by forced sale
How do joint tenants sever through voluntary agreement?
The parties take a peaceful end to the relationship and sever however they would like
How do joint tenants sever by partition in kind?
court action for physical division of property if in the best interest of all parties
How do joint tenants sever by forced sale?
court action if in the best interest of all where land is sold and proceeds are divided proportionally
What is the rule concerning severance and mortgages when dealing with a joint tenancy?
title theory of mortgages (minority) - one joint tenant’s execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that now encumbered share
lien theory of mortgages (majority) - joint tenant’s execution of a mortgage on his or her interest will NOT sever the joint tenancy
How does one create a tenancy by the entirety?
married partners with right of survivorship - arises presumptively in any grant to married partners unless stated otherwise
If a creditor of only one spouse attempts to touch a tenancy by the entirety - will this be found to be valid?
no - cannot touch this
Can a tenant to a tenancy by the entirety unilaterally convey her share?
no - neither tenant, acting alone, can defeat the right of survivorship by a unilateral transfer to third parties
How does one create a tenancy in common?
two or more owners with no right of survivorship
In a tenancy in common does a co-tenant have a right to possess the whole?
Yes - each co-tenant owns an individual part and each has a right to possess the whole
Can a co-tenant in a tenancy in common transfer or sell her rights?
Yes - each interest is devisable, descendible, and alienable; there are no survivorship rights in a tenancy in common
If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed what?
wrongful ouster
Absent ouster, is a co-tenant in exclusive possession liable for rent to the other co-tenants?
No - not liable to others for rent
If a co-tenant leases the estate to a third party - in whole or in part - are the other co-tenants entitled to rent from that third party?
Yes - co-tenant who leases all or part of the premises to a third party must account to his co-tenants, providing them their fair share of the rent income
If a co-tenant possess the land independent and exclusive of the other co-tenants can she claim adverse possession?
No - unless she has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the exclusion of others (missing hostility requirement)
What are a co-tenant’s responsibilities with respect to the estate’s carrying costs?
each co-tenant is responsible for his or her fair share of carrying costs (such as taxes and mortgage interest), based upon her undivided share
What is a co-tenant’s responsibility with respect to repairs?
the repairing co-tenant enjoys a right to contribution for reasonable and necessary repairs provided that she has told the other of the need
What is a co-tenant’s responsibility with respect to “improvements”?
during the life of the co-tenancy, there is no right to contribution for “improvements”
At partition, what is a co-tenant’s responsibility with respect to “improvements”?
improving co-tenant is entitled to a credit, equal to any increase in value caused by her improvements
“improver” bears full liability for any drop in value she caused
What is a co-tenant’s responsibility concerning waste?
must not commit waste through voluntary, permissive, or ameliorative acts
Who has a right to bring an action for partition?
joint tenants or tenants in common can bring an action for partition at any time during the life of the tenancy
