Estates in Land Flashcards
Fee Simple Absolute
“O to A”
The holder can sell it, divide it, or devise it; and if she dies intestate, her heirs will inherit it. The fee simple has an indefinite and potentially infinite duration.
Defeasible Fees
Fee simple estates of potentially infinite duration that can be terminated
by the happening of a specified event.
Fee Simple Determinable (and Possibility of Reverter)
O conveys land “to A for so long as no alcoholic beverages are consumed on the premises.”
Defeasible Fee. Also called a determinable fee, is an estate that automatically terminates on the happening of a stated event and goes back to the grantor. (It must be distinguished from the fee simple subject to a condition subsequent, where the grantor must take affirmative steps to terminate the estate of the grantee if the stated event occurs.) It is created by the use of durational, adverbial language, such as “for so long as,” “while,” “during,” or “until.” A fee simple determinable can be conveyed by the owner thereof, but his grantee takes the land subject to the termination of the estate by the happening of the event.
Correlative Future Interest in Grantor—Possibility of Reverter
Defeasible Fee. Because the grantee’s estate may end upon the happening of the stated event, there is a possibility that the land may revert back to the grantor. The interest that is left in a grantor who conveys an estate in fee simple determinable is called a “possibility of reverter.” It is a future interest because it becomes possessory only upon the occurrence of the stated event.
Correlative Future Interest in Third Party—Executory Interest
A possibility of reverter arises only in the grantor, not in a third party. Technically, there is no correlative future interest in a third party with a fee simple determinable. However, a fee simple subject to an executory interest (see below) includes a grant with the same features as above but with a future interest in a third party.
Fee Simple Subject to Condition Subsequent (and Right of Entry)
O, owning Blackacre in fee simple, conveys it “to A and his heirs, on the express condition that the premises are never to be used by A for the sale of liquor, and in the event that they are so used, then O or her heirs may enter and terminate the estate hereby conveyed.” A has a fee simple subject to a condition subsequent. O has a right of entry. If the condition is broken, O has a power to terminate the estate of A by asserting her right of entry.
Failure to Reserve Right of Entry
O conveys land “to A and his heirs, provided that liquor is not sold on the premises.” O has not used words indicating the estate will terminate if liquor is sold on the premises. Nor has O retained a right to reenter. Because the grant does not clearly state an intent of the grantor to retain a discretionary
power to reenter the land if the land ceased to be used for the stated purpose, a court may construe the deed as creating a covenant not to sell liquor or even as giving A a fee simple absolute.
Correlative Future Interest in Grantor—Right of Entry
A right of entry (also known as “right of reentry” or “power of termination”) is the future interest retained by the transferor who conveys an estate on condition subsequent. It is necessary to expressly reserve the right of entry in the grantor; this retained interest does not automatically arise as in the case of a fee simple determinable and possibility of reverter.
Ambiguous Language
O conveys land “to A so long as liquor is not sold on the premises, and if liquor is sold, O has a right to reenter.” The words “so long as” point to a fee simple determinable. The retained right of entry points to a fee simple subject to a condition subsequent. The court can classify the language to create either estate, but the fee simple subject to a condition subsequent is preferred.
Construction of Ambiguous Language
The general policy of courts is to avoid forfeiture of estates. Thus, a conveyance that contains both durational language and a power of termination may be construed as creating a fee simple subject to a condition subsequent, because the forfeiture is optional at the grantor’s election rather than automatic.
Fee Simple Subject to an Executory Interest
A fee simple subject to an executory interest is an estate that, upon the happening of a stated event, is automatically divested in favor of a third person rather than the grantor.
O conveys land “to Church; provided, however, that if the premises shall ever cease
to be used for church purposes, title shall pass to the American Heart Association.”
Church has a fee simple subject to an executory interest in favor of the Heart Association. O does not have a right of entry because no such interest was reserved in the conveyance. The Heart Association’s interest is not a right of entry because that future interest can be reserved only in favor of a grantor. The Heart Association’s future interest is not a remainder because it divests a fee simple. Therefore, it is an executory
interest.
Note: Executory interests are subject to the Rule Against Perpetuities, but the Heart
Association’s interest is valid because of the “charity-to-charity” exception to the Rule.
(See E.1.e.1), infra.)
Fee Simple Subject to an Executory Interest
O conveys land “to Church for so long as the premises are used for church purposes,
and if they shall ever cease to be so used, then and in that event to the American Red
Cross.” Church has a fee simple determinable subject to an executory interest in favor of real property
the Red Cross. O has no possibility of reverter because he has not retained any interest;
he has conveyed away his entire estate in the property. The future interest in the Red
Cross cannot be a possibility of reverter because that interest arises only in a grantor,
and the Red Cross is a grantee. It is an executory interest and not a remainder because it
divests a fee simple. (Further discussion of these points will come later.)
Note: Were it not for the “charity-to-charity” exception to the Rule Against Perpetuities, the executory interest in favor of the Red Cross would violate the Rule.
Conditions and Limitations Violating Public Policy
Conditions and limitations that are designed to prevent the acquisition or retention of an
interest in land generally are struck down if they are contrary to public policy. Striking
such a condition will result in an interest different from that intended by the grantor.
Restraints on Marriage
If the purpose of the condition or limitation is to penalize marriage, it likely
will be struck down. On the other hand, if the purpose is to give support until
marriage, when the new spouse’s obligation of support arises, the condition or
limitation generally is upheld.
EXAMPLE
O conveys land “to A, but if she marries, to B.” Absent any evidence as to O’s
motive, the condition subsequent will be struck down, leaving A with a fee simple
absolute.
COMPARE
O conveys land “to A for her support until she marries.” Because O intends to
give A support only until the burden of support shifts to A’s spouse, A’s fee simple
determinable is valid.
Provisions Involving Separation or Divorce
Conditions and limitations meant to encourage separation or divorce are invalid.
On the other hand, conditions and limitations meant to give support in the event of
separation or divorce generally are valid.
EXAMPLE
O conveys land “to A, provided that he divorces his current spouse within one
year; if he does not, to B.” Absent any evidence as to O’s motive, the condition
subsequent will be struck down, leaving A with a fee simple absolute.
Fee Tail
Typically created by the words “to A and the heirs of his body,” limited inheritance
to lineal descendants of the grantee. If no lineal descendants survived at the grantee’s death,
the property either reverted to the grantor or her successors or passed to a designated remainderman. Today, most United States jurisdictions have abolished the fee tail and have enacted
statutes under which any attempt to create a fee tail results in the creation of a fee simple
Life Estate
An estate for life is an estate that is not terminable at any fixed or computable period of time,
but cannot last longer than the life or lives of one or more persons. It may arise by operation
of law or may be created by an act or agreement of the parties.
Life Estate For Life of Grantee
The usual life estate is measured by the life of the grantee and is called simply
a life estate. It may be indefeasible (so that it will end only when the life tenant
dies), or it may be made defeasible in the same ways that fee estates can be defeasible (e.g., determinable, subject to a condition subsequent, subject to an executory interest). In such a case, the estate may end before the life tenant dies if the
limiting condition occurs.
1) O conveys “to A for life.” In this case, A has an estate in the land for as long as
he lives. On his death, the land reverts to O, the grantor.
2) “To A for life, then to B.” This is a life estate because it is measured by the life
of A and is not terminable at a fixed period of time.
3) “To A for life, but in no event for more than 10 years.” This is an estate for
years and not a life estate because the estate in A will end in 10 years (i.e., a fixed
time period).
4) “To A for 10 years if he lives so long.” This is also an estate for years and not a
life estate because the estate in A will end in 10 years.
5) “To A for life or until she remarries.” This is a life estate subject to a limitation,
but nevertheless a life estate. The estate in A will not end at any fixed or computable time period. It can be termed a “life estate determinable,” and is analogous to
the fee simple determinable discussed above.
6) “To B and C after the life of A.” A has an implied life estate.
Life Estate Pur Autre Vie (Life of Another)
A life estate measured by the life of someone other than the life tenant. Such an estate can be created directly by the grantor, e.g., “to A for the life of B.” A’s estate ends when B dies. It can also be created indirectly, as where the grantor conveys “to B for life,” and B later conveys his interest to A. A owns an estate measured by B’s life; it ends when B dies.
Doctrine of Waste
A tenant for life is entitled to all the ordinary uses and profits of the land; but he
cannot lawfully do any act that would injure the interests of the person who owns the
remainder or the reversion. If he does, the future interest holder may sue for damages
and/or to enjoin such acts.
Affirmative (Voluntary) Waste—Natural Resources
As a general rule, a life tenant may not consume or exploit natural resources on the
property (e.g., timber, minerals, oil). Exceptions to this rule allow exploitation in
the following circumstances:
(i) In reasonable amounts where necessary for repair and maintenance of the
land;
(ii) When the life tenant is expressly given the right to exploit such resources in
the grant;
(iii) When prior to the grant, the land was used in exploitation of such natural
resources, so that in granting the life estate the grantor most likely intended
the life tenant to have the right to exploit (but see “open mines doctrine,”
below); and
(iv) In many states, where the land is suitable only for such exploitation (e.g., a
mine).
Note: There is a vague “reasonableness” limit on the amount of oil or coal a life
tenant can remove from the property.
Open Mines Doctrine
If mining (extraction of minerals) was done on the land before the life estate
began, the life tenant may continue to mine the property—but is limited to
the mines already open. The life tenant may not open any new mines. There
is a trend away from this limitation, applying instead the rule in (iii), above,
to all natural resources, including minerals.
Under the modern view, life tenants are not responsible to remaindermen (as
they were at common law) for damages caused by third-party tortfeasors. The
life tenant’s action against such third parties is limited to the damages to the
life estate
The life tenant is under no obligation to insure the premises for the benefit of
a remainderman. However, both the life tenant and the remainderman have an
insurable interest.
Permissive Waste
Absent a contrary provision in the instrument creating the life estate, a life tenant
has a duty to make repairs to the property to keep it from being damaged by the
weather, and to pay certain carrying charges (e.g., mortgage interest, property
taxes, and special assessments for public improvements). Failure to make required
repairs or pay required carrying charges constitutes permissive waste. A future
interest holder who expends funds in satisfaction of the life tenant’s obligations (e.g., pays the property taxes to avoid a tax foreclosure sale) is entitled to
reimbursement and may compel the life tenant’s contribution or even subject the
estate to a lien for the amount expended.
Duties of Life Tenant
A life tenant is obligated to preserve the land and structures in a reasonable
state of repair (to the limited extent stated above). This duty is considered
in light of the condition of the land and structures at the commencement of
the tenant’s life estate. The tenant is under no obligation to make permanent
improvements on the land, no matter how wise it might seem to do so.
