Estates in Land & Future Interests

Question 1

Fee Simple (absolute)

Answer 1

Duration: forever

Characteristics: Alienable, devisable, descendible

Language: “to A and his heirs” / “O to A” default

Future Interest Grantor: None
Future Interest Grantee : None
3rd Party: None

Question 2

Fee Simple Determinable

Answer 2

Duration: If the stated condition is violated or actualized, forfeiture is automatic. Harsh!

Characteristics:Alienable, devisable, descendible
but always subject to the condition.

Language: “To A for so long as …,” or “To A during …” or “To A until …”

Future Interest Grantor: Possibility of Reverter FSDPOR-Fee Simple Determinable (Frank Sinatra Didn’t Prefer Orville Redenbacher)

Future Interest Grantee : None
3rd Party: None

Question 3

Fee Simple Subject to Condition Subsequent

Answer 3

Duration:
1) grantor must use clear durational language and 2) grantor must explicitly carve out the right to reenter.

Characteristics:
The fee simple subject to condition subsequent endures, even in the presence of a breach of the stated condition, unless and until grantor exercises its right to re-take.

Language: “To A, but if X event occurs, grantor reserves the right to reenter and retake.”

Future Interest Grantor:
Right of entry
(Power of termination)

Future Interest Grantee : None
3rd Party: None

Question 4

Fee Simple Subject to Executory Limitation

Answer 4

Duration: N/A

Characteristics:
If the condition is breached, forfeiture is automatic, but this time in favor of someone other than grantor.
Language: “To A, but if X event occurs, then to B.”

Future Interest Grantor: None
Future Interest Grantee : None

3rd Party:
Cuts short interest of grantee= shifting executory interest.

Question 5

Fee Tail (fee simple conditional)

Answer 5

Duration:
Until original grantee’s lineage dies out

Characteristics:
Not devisable or inheritable

Language:
“to A and the heirs of his body”

Future Interest Grantor: Reversion

Future Interest Grantee : none

3rd Party:
Remainder

Question 6

Life Estate

Answer 6

Duration: Life of grantee

Characteristics:
Alienable during life

Language: “to A for life”

Future Interest Grantor: Reversion

Future Interest Grantee : None

3rd Party:
Remainder/
Executor interest

Question 7

Life Estate “per autre vie”

Answer 7

Duration: Life of 3rd Party

Characteristics:
“per autre vie”(for duration of 3rd party’s life)devisable, descendible too

Language:
“To A for the life of B”

Future Interest Grantor:
Reversion

Future Interest Grantee : None

3rd Party: Remainder

Question 8

Estate for Years

Answer 8

Duration:
Fixed period of time (days, months, years)

Characteristics: N/A
Language: N/A

Future Interest Grantor: Reversion

Future Interest Grantee : N/A
3rd Party: N/A

Question 9

Storke v. Penn Mutal Life Insurance Co. – IL (1945)

Answer 9

FSD/FSSCS
• F: Land conveyed has covenant that alcohol will not be sold on property and if so, will revert to grantor; D has acquired title to land by quitclaim deed (no covenant regarding alcohol in the deed); D has tenant that operates a saloon
o Language “shall immediately revert… to grantors” sounds like fee simple determinable
o However, no durational language, which is typical
• H: For D; When courts have an opportunity to construe as fee simple subject to condition subsequent they want to, so they find it to be FSSCS
o Then because it did not reserve right to entry, it fails
o Court wants to construe this as a covenant – but cannot because it talks about a reversion
• Hierarchy: Where language is ambiguous, courts will assume a covenant (least harsh – no forfeiture, just injunction/damages); if it can’t be a covenant (because reversion) then will construe as condition subsequent; if can’t be condition subsequent, then will call it a fee simple determinable (and order forfeiture)
o Thus: If you want fee simple determinable, must create with explicit language

Question 10

Long v. Long – OH (1976)

Answer 10

Fee Tail
o OH statute functionally made fee tail life estate + fee simple absolute to the heirs of the body
o Donee in tail – second recipient, grantor retains reversion
o Rule: the first donee in fee tail holds vested reversions that are fully descendible, devisable, alienable (thus conveyances to P here were valid)

Question 11

Brokaw v. Fairchild – NY (1929) “Upper East Side”

Answer 11

Life Estate
o F: P seeks ability to tear down house and build high rise; argues ameliorative waste exception (would increase value of the land)
 (See Melms v. Pabst Brewing Co.)= Brewing company tore down mansion that it thought it owned; Rule: A life tenant may commit waste if permanent changes in the surrounding area make the property worthless in its current use or condition and the waste would make the land useful again.
o H: For D – doctrine of waste for estates less than fee simple absolute
 If there are future interests, must maintain property to avoid waste
 ie A life tenant generally has the right to enjoy his land in a reasonable manner, so that the land passes to remaindermen as unimpaired as practically possible. A life tenant uses the land unlawfully if he creates waste.
 Court says not valueless; could rent property for less
 Entitled to reasonable use but demolition is act of ownership + would change return to inheritor at the end of life estate
 Demolition impermissible b/c waste
• Key: permanent change to estate