Estates Terminology Flashcards
Freehold Estates
have seisin
1) Fee Simple
2) Fee Tail Only transfers to the heirs of the body
3) Life Estate
Non-Freehold Estates
do not have seisin
1) Estate for Years
2) Periodic Estate
3) Estate at Will
4) Estate at Sufferance
Chain of Title
The sequential links between the various owners of a parcel of land.
Devise
Bequest in a will
“Inter vivos”
Between living people
Intestate
To die without a will
“Without Issue”
No kids, grandkids, great grandkids
Kinds of Present Possessory Interest
Fee simple Fee tail Life estate Life estate pur autre vie Fee simple determinable Fee simple on condition subsequent Fee simple on executory limitation
Kinds of Future Interest
Reversion
Possibility of reverter
Right of entry / power of determination
Remainder
Kinds of Remainders
Vested remainder Vested remainder subject to open Vested remainder subject to total divestment Contingent remainder Alternative contingent remainder
Fee Simple Absolute
Words needed: and her heirs
1) Alienable
2) Inheritable
3) Devisable, after the Statute of Wills (1540)
Fee Tail
Words needed: “of his body”
1) Not freely alienable
2) Inheritable in modified way
3) Not devisable
* CAN EXPIRE IF LINE DIES OUT
Life Estate
Words needed: “for life”; “for the life of”
1) Alienable
2) Not inheritable *
3) Not devisable *
* Except for the life estate pur autre vie.
Pur Autre Vie
Life estate for a term of the life of another person.
Termination
An estate for life terminates at the natural death of the person.
Estovers
A tenant for life has right to take reasonable estovers: wood, timber necessary for building, burning, plough and fencing but not to sell. Principle is that he’s entitled to nothing more than what is necessary for the temporary enjoyment of the estate.
Emblements
On death of the tenant for life, his representatives are entitled to his emblements not yet severed from the land, that is the annual crops and immediate fruits of his labor, not the grass and fruits.
Alienation
A tenant for life, unless the contrary be stipulated, has the power of disposing of his entire estate.
Fee Simple Determinable
Words needed: “so long as”; “until”; “while” (statement of the motive is not a condition)
1) Possession is Conditional
2) Estate is indefinitely inheritable
3) Freely alienable
4) Devisable.
5) Possibility of Reverter (Automatic)
Fee Simple on Condition Subsequent
Words Needed: “but if_then”; “provided that”; “on condition”
1) Possession is Conditional
2) Estate is indefinitely inheritable
3) Freely alienable
4) Devisable
5) Right of Entry (power of termination)
Fee Simple on Executory Limitation (Post 1560)
EX: “O to A and his heirs, but if B returns from Rome, then to B and his heirs.”
1) Inheritable
2) Alienable
3) Devisable
Reversion
When O conveys an expirable estate, i.e., a fee tail or life estate. Is alienable and inheritable.
Possibility of Reverter
When O conveys a fee simple determinable. Isn’t alienable by gift or sale (possibly divisible by will), but is inheritable.
Right of Entry
When O conveys a fee simple on condition subsequent. Isn’t alienable, but is inheritable.
Rules for Remainders
1) Only expirable estates could be followed by a future interest in a grantee.
2) The future interest created in B must be capable of taking effect immediately upon the expiration of the preceding estate.
3) The future interest created in B must not take effect before the expiration of the preceding estate.
Vested Remainder
X is a person born and ascertainable
* Alienable, devisable, inheritable
Vested Remainder Subject to Open (Divestment)
A gift to an open class. When the grantee dies, then the class closes.
Contingent Remainder
X is unborn or unascertainable. When a remainderman is unascertainable, those who might become the remainderman are expectancies, not contingent remainders.
* NOT alienable, inheritable and devisable.
Destructibility of Contingent Remainders
At common law a contingent remainder was destroyed if it was still contingent when the life estate came to an end.
Executory Interest
Future interest given to a grantee, the chief distinguishing feature is that it operates to cut short the prior estate. Any future interest in a grantee that is not a remainder is an executory interest.
Shifting Executory Interest
Estate shifts from one grantee to another grantee
EX:”O to A for life, but if A becomes bankrupt, then to B and his heirs.”
Springing Executory Interest
Estate springs from grantor to the grantee
EX:”O to A for life, and one year after As death to B and his heirs.”
Doctrine of Worthier Title (p. 133)
A reversion is worthier than a remainder
Trusts Prior to 1535
Distinction between legal title and equitable title. The equitable title was the beneficiary. The beneficiary went to the Chancellor to make sure that the promise made for the benefits of the property was upheld. The beneficiary never had title at this point; T had legal title.
Trusts After 1535
The Statute of Uses defined a new way to make grants (make new statutes). Real property trusts are executed. Transfer of legal rights to the beneficiary. Trustee becomes an agent for the beneficiary.
The Modern Trust: 4 Elements
1) The Grantor
2) The Trustee
3) The Beneficiary
4) The Trust Asset
The Grantor (settlor)
The person who creates the trust
The Trustee
The person who executes the trust (would retain land title if the trust is unexecuted, now often an institution, e.g. a bank). Trustee executes the trust on behalf of the grantor and for the beneficiary.
The Beneficiary
The person who derives the benefits of the trust
The Trust Asset (Corpus)
The body of the trust
§152: Express Trusts
Statute of frauds requires all transactions relating to land to be expressed in writing. Trusts created by will are more frequent. The leading motive for creating a trust is to prevent property from being squandered
§153: Implied Trusts
Those trusts which result from the established doctrines of equity, without any declaration by the parties - upheld to prevent fraud. In most cases, the question whether there be an implied trust or not, depends upon circumstances connected with the consideration of real contracts.
EX: If I purchase land, and take the title in my own name, but you pay the consideration, I become a trustee for you.
Per Stirpes
“By the branch.” Here you have to account for the children and the grandchildren of the grantor. The estate is divided equally among the children and then each of those divisions is divided equally among the grandchildren. Not necessarily an even split between branches.
Per Capita
“By head.” Here the property is divided equally. Per capita is the default in most states.
Gift
A present transfer of property by one person to another without any consideration or compensation
Requirements for a “Gift”
1) Donative intent intent must be to make a present transfer (can even transfer presently for future enjoyment)
2) Delivery (not necessarily of the gift, but of intention to give) - symbolic or constructive are allowable, e.g. deposit box key
3) Acceptance willingness to accept the gift
Wills Require:
1) Writing
2) Signed and attested to by 2 witnesses
3) Witnesses may not be beneficiaries
Codicil
An addendum (like a p.s.) that is just as enforceable as the will itself (provided that it is dated and witnessed).
A new will…
…revokes all other wills and codicils. Only the latest one is valid.
Condition of Marriage v. Condition of Divorce
Most states will enforce because require something being done (e.g., marriage*) rather than undone (e.g., divorce**).
- Shapira– Court upheld provision that son marry a Jewish woman
- *Estate of Gerbing
Statutory Share
1) The statutory share maps who gets what in case there is no will or the will is against the statute.
2) Statute sets the minimum that must be left for the spouse and children.
Dower
Historically, husbands had to provide for their future widows, so the wife is entitled to 1/3 of her husband’s estate.
Dower Inchoate
The interest a wife has in her husband’s lands prior to his death and contingent upon him predeceasing her:
1) if husband divorces you when he is alive then this goes away
2) at time of the husbands death the widows interest becomes vested
3) husband can’t leave money to a friend when he dies and not his wife because he should just have divorced her when he was alive, can’t leave her with nothing
* In FL woman has a 30% statutory interest in husband’s share
Estate for Years
A contract for the possession and profits of land for a certain period of time. Must expire within a fixed period of time (a term) that is determined at creation. Therefore, the estate is called a “term,” and the tenant is a “tremor.”
Tenancy at Will
Tenancy has no stated duration and may be terminated at any time by either party. Usually it’s created by implication, with no term stated and no period for paying rent defined (so that the lease is not a periodic one).
Periodic Tenancy
A tenancy that continues for one period to the next automatically, unless either party terminates it at the end of a period by notice. Similar to an estate for years only with a shorter duration of time.
Tenancy at Sufferance
Where a tenant holds over at the end of a valid lease. A tenant at sufferance is not a trespasser because didnt enter without permission. But, he has no interest capable of being transferred or defended. Landlord merely tolerating presence of the tenant, and can either evict the tenant (must be peaceable, landlord does not have a cause for assault or battery), or the landlord can hold the tenant to another term. HOWEVER, without proper notice, LL can’t bring action against the tenant.
Termination of a Tenancy at Will
Events causing termination: A) affirmative notice B) death of either party C) conveyance of the reversion by the landlord D) assignment of interest by the tenant
“but if”
A) “subject to”–executory limitation (goes to third party)
B) remainder–condition subsequent (returns to grantor)
An executory limitation goes to…
…a third party.
A condition subsequent goes to…
…the grantor.
“as long as”
fee simple determinable
On the exam, look for ambiguity in
A) transfer of estate dependent on two or more actions
B) multiple clauses/interested parties that can either be independent or dependent.
“…with an executory limitation”
Automatically executing executory limitation
“…subject to an executory limitation”
Non-automatically executing executory limitation
Reversion/Possibility of Reverter/Right of Entry
LE→ Reversion
D→ Possibility of Reverter
CS→ Right of Entry
