Estates in Land Flashcards
What are the present possessory estates>
Interests giving the holder the right to present possession
What is fee simple absolute?
The largest estate recognized by law.
Right to absolute ownership of indefinite/potentially infinite duration freely alienable, devisable, descendible, and dividable
Created by “To A” or “To A and his heirs” (though creates no actual interest for the “heirs” because a living person cannot have heirs)
Fee simple absolute presumed absent express contrary intent
What are the defeasible fees?
Fee simple estates (of uncertain or potentially infinite duration) which may be terminated on the happening of a stated event
Fee simple determinable
Fee simple subject to a condition subsequent
Fee simple subject to an executory interest
Defeasible fees are all devisable, descendible, and alienable but subject to the stated condition
What is fee simple determinable?
Terminates upon the happening of a stated event, at which point the interest automatically reverts to the grantor
Created by clear durational language (‘as long as” “to A during” etc) [distinguish from language of motive like “for the purpose of’]
Can be conveyed but transferee takes subject to the termination condition
What is the accompanying future interest in a fee simple determinable?
Possibility of reverter in the grantor
This interest is transferable, descendible, and devisable
What is a fee simple subject to a condition subsequent?
An estate in which the grantor reserves the right to terminate an estate on the happening of a stated event. Unlike fee simple determinable, the occurrence of the stated event does not create an automatic termination
Requires durational/conditional language and a clear statement (express reservation) of the right of re-entry (“To A, but if X event occurs, O reserves the right to re-enter and retake.”)
A conveyance with durational language and a power of termination likely to be construed as this because policy disfavors forfeiture
What correlative future interest accompanies a fee simple subject to a condition subsequent?
The right of entry synonymous with the power of termination
Right of entry not transferable inter vivos but devisable and descendible
What is the fee simple subject to an executory interest?
A fee simple estate that terminates automatically at a stated event but automatically forfeits in favor of someone other than the grantor (“To A, but if X occurs, to B”)
What is the accompanying future interest in a fee simple subject to an executory interest?
An executory interest
What conditions on defeasible fees will be struck down for public policy reasons?
If purpose is to penalize marriage or encourage divorce (but not if to give support until marriage or in event of divorce), then struck
If condition struck, then the grantee takes free of restraint
What does devisable mean?
Can pass by will
What does descendible mean?
Can pass by statute of intestacy
What does alienable mean?
Transferable inter vivos
What is a fee tail?
An estate where in heritability limited to lineal heirs (“to A and the heirs of his body”). Largely abolished and attempts to create will create a fee simple
What is a life estate?
Measured by the life or lives of one or more persons. Usually for the life of the grantee but may be defined by the life of another person
“To A for life” or “To A for B’s life”
A = the life tenant
What is a life estate pur autre vie?
A life estate measured by the life of someone other than the grantee, or a life estate which is measured by the life of the grantee after the the grantee transfers the estate to another
What accompanying future interest attaches to a life estate?
In the grantor — a reversion
In a third person (To A for life and then to B) — remainder
Is it possible to create a defeasible life estate?
Though usually indefeasible (ends at death), it is possible to create a defeasible life estate (determinable, subject to condition subsequent, executory interest)
E.g., To A for life so long as; To A for life, but if A does X, to B
What is a life tenant entitled to?
All ordinary uses and profits from land
What is the doctrine of waste?
A life tenant may not do anything that damages the interests of either a remainderman or a reversioner. Future interest holders may sue for damages or injunction against such acts and if they spend money to perform a life tenant’s obligations they are entitled to reimbursement
What are the types of waste?
Voluntary/affirmative
Permissive
Ameliorative
What is voluntary waste?
Actual overt conduct causing a drop in value
How is a life tenant’s exploitation of natural resources on the land limited?
Only in situations where
(1) necessary for repair and maintenance, or
(2) land suitable only for such use
(3) expressly/impliedly permitted by grantor
Open mines doctrine — if mining already begun on land, can continue with the mines already open
What is permissive waste?
Neglect of the land by the life tenant in violation of obligations
What are the life tenant’s obligations with regard to preventing permissive waste?
Life tenant obligated to
- preserve the land and structures in reasonable state of repair
- pay interest on the mortgage (not principal)
- pay ordinary land tax
- pay special assessments for public improvements of short duration
These duties are limited to the extent of the total income or profits generated from the estate since the life tenant acquired ownership, or if none, the fair rental value
Must a life tenant insure the property for the benefit of future interest holders?
No
Is a life tenant responsible to future interest holders for third party tort damage?
No
What is ameliorative waste?
Changes that benefit the property economicallly. All future interest holders must know and consent to such changes (property law honors their reasonable expectations)
When may a life tenant alter or demolish existing buildings?
(1) market value of future interests not diminished, and either
(2) no objection by remaindermen, or
(3) a substantial and permanent change in neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness
What may a life tenant do if property becomes worthless?
Seek a partition sale, proceeds of which will be put in trust with income paid to life tenant
Can a life estate be renounced?
A life tenant who receives it by will or intestacy may — this generally accelerates the future interest
What are future interests?
Present legally protected rights in property representing a right or possibility of future possession of an estate
What are the reversionary interests?
Future interests in the grantor/transferor
Possibility of reverter — accompanies fee simple determinable
Right of entry — a/k/a power of termination , accomplices fee simple subject to condition subsequent
Reversion — accompanies a grant of an interest of lesser duration than the grantor owns
Are reversionary interests subject to the rule against perpetuities?
No, because they are vested
What are the future interests in transferee?
Remainders, either contingent or vested
Executory interests, either shifting or springing
What is a remainder?
A future interest in a third person that can become possessory on the natural expiration of the preceding estate. Cannot divest the prior estate nor follow a time gap after the previous estate. Must be expressly created in the instrument creating the preceding possessory title
What is contingent remainder?
A remainder is contingent if, either
(1) created in an unascertained or unknown person (“To A for life, then to B’s first child” if B does not yet have kids), or
(2) subject to an as yet unmet condition precedent (“To A for life, then to B if B graduates college”)
* if the condition here is unmet, the grantor has a reversion, if it is met before A’s death, then B has an indefeasibly vested remainder
Can a remainder follow a fee simple estate?
Never, because fee simple estates are potentially infinite in duration
What are the types of vested remainder?
Indefeasibly vested
Vested subject to open
Vested subject to total divestment
What is a vested remainder?
A remainder created in an existing, ascertained person and not subject to a condition precedent
What is an indefeasibly vested remainder?
A vested remainder not subject to divestment or diminution
What is a vested remainder subject to open?
A vested remainder created in a class of persons (e.g., “children”) that is certain to become possessory but subject to diminution. Each class member’s share could grow smaller because additional takers could still join the class.
What is a vested remainder subject to total divestment?
A vested remainder subject to a condition subsequent. The taking is not subject to a condition precedent, but their possession or right to future possession could be cut off (subject to complete defeasance) by the occurrence of a condition
E.g., To A for life, then to B, provided that, however, if B dies under the age of 25, to C” Here, B’s vested remainder is subject to complete defeasance by C’s shifting executory interest
What are the policy preferences for remainders?
Favors early vesting — prefers vested remainder subject to divestment over contingent remainder or executory interest
Is a contingent remainder destroyed if does not vest before the preceding estate terminates?
Old rule: yes If it fails to vest before the termination of the preceding freehold estate. E.g., O conveys to A for life, then to B if she reaches 21. If A dies before B turns 21, then B’s remainder is destroyed
New rule: No — in the above example, B’s remainder would be converted to an executory interest, divesting O’s reversionary estate when B turns 21
What is the doctrine of merger for contingent remainders?
When one person acquires all present and future interests in land except a contingent remainder, then the continent remainder is destroyed. Merger does not occur by a single instrument but may occur only where one person later acquires immediately successive estates
What is the doctrine of worthier title?
In inter vivos transfers, a remainder in the grantor’s heirs is invalid and becomes a reversion in the grantor. Usually treated as a rule of construction, meaning that if intent to create a remainder in heirs is clearly manifested , it will be valid. Word “heirs” must be used to apply.
What are executory interests?
Future interests in 3rd parties that either divest a transferee’s pre-existing freehold estate (shifting executory interests) or follow a gap in possession or cut short a grantor’s estate (springing executory interests)
Not vested (thus subject to RAP)
What is the transferability of remainders and executory interests?
Vested remainders: fully transferable, descendible, and devisable.
Contingent remainders and executory interests: not transferable inter vivos at common law, but most courts allow now. Descendible and devisable provided survival is not a condition
What are class gifts?
Class = group of persons with a common characteristic, share of gift is determined by # in class
May be vested subject to open (if at least one member actually exists)
May be contingent (all members unascertained)
What is the rule of convenience?
Absent express contrary intent, a class closes when some member of the class can call for distribution of their share of the gift. those in gestation at time of class close are included
Is survival of a class member to the time of closing a requirement to share in the future gift?
No, unless survival an express condition (“to A for life and then to his surviving children”). Terms like widow, issue, heirs and next of kin are also construed to imply survivorship
What is a trust?
Fiduciary relationship with respect to specific property (res) wherein the trustee holds legal title to the property subject to enforceable equitable rights in a beneficiary. Created by settlor, who must own property at the time of trust creation and have intent to create the trust.
How does the Rule Against Perpetuities apply to trusts?
Applies to the equitable future interests of beneficiaries
How are trusts created?
By will (testamentary trust), inter vivos transfer of the trust res, or inter vivos declaration that settlor is holding property in trust. Must be in writing.
What is a charitable trust?
Must have charitable purposes. Different rules:
(1) must have indefinite beneficiaries
(2) may be perpetual (RAP inapplicable)
(3) cy pres doctrine, allowing court to choose alternative charity when settlor’s purposes impossible
What is the rule against perpetuities?
No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. Any possibility that interest might vest more than 21 years after life in being, interest is void.
What is the 4 step RAP analysis?
1 - which future interests have been created by the conveyance and does RAP apply?
2 - if it does, what has to happen for the future interest holder to take?
3 - Find the measuring life – person whose lives/deaths are relevant to what has to happen for the future interest holder to take
4 - will we know for sure within 21 years of a measuring life whether the future interest holders can take
What future interests are subject to RAP?
Applies to: contingent remainders, executory interests, vested remainders subject to open
Does not apply to the future interests capable of creation in the grantor, to indefeasibly vested remainders or vested remainders subject to complete defeasance
When does RAP period begin to run?
Wills – date of testator’s death
Deeds – date of delivery
irrevocable trust – date created
revocable trust – date it becomes revocable
When does an interest vest for purposes of RAP?
When it becomes possessory or becomes an indefeasibly vested remainder or vested remainder subject to total divestment
What is the consequence of RAP violation?
destroys only the offending interest
What always fails RAP?
- executory interest following defeasible fee (“to A for so long as no liquor is consumed on the premises, then to B”) –> will be valid only if the condition is specific to the fee holder or expressly limited to perpetuities period
- gift to open class conditioned on members surviving beyond 32
What is the fertile octogenarian rule?
A woman is conclusively presumed to be capable of bearing children regardless of age or medical condition
What is the bad as to one bad as to all rule?
If the interest of any class member may vest too remotely, the whole gift fails.
What is the rule against restraints on alienation?
Generally any restriction on transferability of legal interest is void.
Types –
(1) disabling restraint – attempts at transfer ineffective – always void
(2) forfeiture restraint – attempt at transfer results in forfeiture
(3) promissory restraint – attempt at transfer breaches covenant
(last two may be void depending)
What restraints are allowed on fee simple estates?
All absolute restraints on fee simple estates are void
Forfeiture or promissory restraints for a limited time and reasonable purpose may be upheld
What restraints are allowed on a life estate?
Forfeiture or promissory ok, disabling restraint void
What restraints are allowed on life estates?
Usually valid to the extent that restraints on present interests of the same type are valid
What are the types of concurrent estate?
Joint tenancy
Tenancy by the entirety
Tenancy in common
What is a joint tenancy?
Two or more own with a right of survivorship – the joint tenant’s share automatically goes to the surviving tenants upon a tenant’s death (so cannot be devised or inherited).
How is a joint tenancy created?
The four unities: time, title, interest, possession
These interests must be equal in every way: they must take identical interests at the same time by the same interest with the same right of possession
The language must have a clear expression of the right of survivorship (“to A and B as joint tenants with the right of survivorship”) –> on the bar if you are told they are joint tenants, assume a right of survivorship
How is a joint tenancy transferable?
Cannot devise/inherit but can transfer inter vivos
How do you sever a joint tenancy?
“SAP”
Severance and sale – joint tenant may sell or transfer inter vivos and may do so without the others’ knowledge or consent (because this disrupts the 4 unities, the transferee will be a tenant in common)
*a conveyance by one if there are only 2 tenants destroys the entire joint tenancy
Partition
What are the three types of partition?
Voluntary agreement
Partition in kind (judicial action physically dividing the property if property is susceptible to physical division)
Forced sale (judicial action forcing sale and dividing proceeds)
What is a tenancy by the entirety?
Only between married partners, who each have an undivided interest in the whole estate and a right of survivorship
In states recognizing this, it is presumptive where there is any conveyance to married partners absent clear language to the contrary
What are the rules applicable to tenants by the entirety?
Creditors of one spouse cannot touch a tenancy by the entirety for satisfaction of a debt
Neither spouse can unilaterally convey the interest to a 3rd party
When does the tenancy by the entirety terminate?
Death, divorce, mutual agreement, execution by a joint creditor
Cannot terminate by involuntary partition
What is a tenancy in common?
Each tenant owns an individual part of the property proportionate to their interest in it (not equal necessarily)– but each has a right to possess the whole. There is no survivorship right, so each interest is devisable, descendible, and alienable
What are the rights and duties of co-tenants?
Possession – each has a right to possess all portions but no right to exclusive possession (if a co-tenant claims right to exclusive possession they have ousted the other)
Rents and profits – right to retain profits from own use but must share net rents from third parties and net profits from land exploitation
Encumbrance – may encumber their own interest but not the interests of other co-tenants
Partition remedy – any co-tenant has. right to judicial partition subject only to restraints for a reasonable time
Contribution – any co-tenant who pays more than her pro rata share of necessary repairs is entitled to contribution from co-tenants if she notified them of the need for repairs; no right of contribution for improvements; contribution for taxes/mortgage paid on entire property
Fair dealing – confidential relationship exists among co-tenants
What is adverse possession and what are the elements?
Possession for a statutorily prescribed period of time can ripen into title if the requirements are met.
Requirements: C - Continuous (uninterrupted for statutory period) O - Open and notorious A - Actual and exclusive (not shared) H - Hostile (no consent)
When may an adverse possessor gain title to an entire parcel where they only occupied it in part?
An adverse possessor who actually occupies a reasonable portion of the parcel and occupation is under color of title (a doc that purports to give title but does not actually do so, then they are deemed to have constructive possession of the entire parcel
Can more than one person take title to the same parcel by adverse possession?
yes they take as tenants in common
What satisfies “hostility” for adverse possession?
possession without permission regardless of intent
When is possession by a co-tenant adverse?
Not usually adverse unless co-tenant ousts other tenant(s) or makes an explicit declaration of exclusive dominion
What is presumed when a grantor stays in possession after her conveyance to grantee?
Presumed to be there with permission (same for tenant overstaying)
When does a possessor enter with a claim of right?
when they reasonably believe that the property belongs to them (belief usually based on invalid deed). possession based on a claim of right under invalid title this is hostile/adverse
When can an adverse possessor tack their own possession onto preceding periods of adverse possession?
When they are in privity with the predecessor adverse possessors
What is the effect of the true owner’s disability on the statute of limitations for adverse possession?
If the true owner is under a disability to sue when the cause of action first accrues (minority, imprisonment, or insanity, usually), then the statute of limitations does not begin to run until their disability is removed. Not applicable to disabilities of the owner arising after the cause of action first accrues.
What is the effect of adverse possession on future interests?
Statute of limitations does not run against the holder of a future interests until that interest becomes possessory
If the future interest is a right of entry, then the statute does not begin to run until the right is actually asserted by the grantor
What are the effects of a covenant in the true owner’s deed on an adverse possessor?
If the adverse possessor uses the land in violation of the covenant for the statutory period, they take free of the restriction. If their use complied, then they take subject to the restriction
