Estates/Property Interests

Question 1

If the language in the conveyance is ambiguous, do courts prefer a FSSCS or a FSD?

Answer 1

Courts typically adopt a preference for the fee simple subject to a condition subsequent over a fee simple determinable.

Question 2

Can the right of reentry of a FSSCS be waived?

Answer 2

Yes. The owner may waive this right, but the mere failure to assert it does not constitute a waiver.

Question 3

What is a fee tail?

Answer 3

A fee tail is a freehold estate that limits the estate to the grantee’s lineal blood descendants by specific words of limitation (e.g., ) “heirs of the body”). The fee tail estate has been eliminated in most states; it is treated as a fee simple absolute estate.

Question 4

Are defeasible fees alienable? descendible? devisable?

Answer 4

All of the above.

Question 5

Is a life estate alienable? descendible? devisable? What is an exception?

Answer 5

A life estate is fully transferable during the life of the person by whom the life estate is measured. But because the interest terminates at the death of the person by whom the life estate is measured, a life estate measured by the grantee’s life is generally neither devisable nor descendible (but see life estate pur autre vie).

Question 6

Whose life is the “measuring life” of a life estate?

Answer 6

Measuring life is generally the grantee’s life, but can also be the life of someone other than the grantee (“life estate pur autre vie”).

Question 7

When the measuring life survives the owner of the life estate, what happens to the estate?

Answer 7

The life estate may be devised by the owner or inherited by the owner’s heirs.

Question 8

1. Who is responsible for paying property taxes: a life tenant, or the holder of a future interest?
2. When the non-responsible party pays the property taxes because the responsible party fails to do so, what can the non-responsible party do?

Answer 8

1. Since property taxes are imposed on an annual basis, they are an assessment only against the life estate, not against future interests in the property. Generally, these taxes are a personal obligation of the life tenant only to the extent that she receives a financial benefit from the property:
   a) When the life tenant does not occupy the property and instead rents in out to a third party, her financial benefit = the amount of the rents collected.
   b) When the life tenant occupies the property, her financial benefit = the fair market rental value of the property.
2. When the holder of a future interest pays the taxes because the life tenant fails to do so, the holder can bring an action against the life tenant personally to recoup his payment of those taxes only to the extent of the life tenant’s personal benefit from the property. Any excess can only be recovered through a foreclosure action against the life tenant’s property interest.

Question 9

What are a life tenant’s duties with respect to the property?

Answer 9