Fee simple Flashcards
Out of which estate did the fee simple grow
The life estate
Two characteristics of the fee simple.
Heritable, alienable.
Whence the principle of alienability?
Historically, Quia Emptores 1290.
Today, s.9(4) LCLRA 2009.
Two kinds of modified fee simple?
Determinable fee simple.
Conditional fee simple (subject to a condition subsequent or condition precedent)
5 conditions/determining events which the courts tend to find objectionable
MARNS
Restrictions on MARRIAGE;
ALIENATION;
RESIDENCY;
NAME and arms clauses; SECTARIAN, religious or ethnic conditions.
3 cases which demonstrate the principle of alienability
Re Lunham
Re McDonnell
Re Dunne
Re Lunham
Grant of a fee simple subject to a proviso that the land would revert
to the grantor if the grantee subdivided the land without consent.
Held: Void
-> The holder of a fee simple has every right to sell the land or any part
thereof.
Re McDonnell
Bequeath all his property in trust to his son on the condition that he behaved himself to the satisfaction of the exectors, if not then to his other son in trust.
Held: condition too vague for any court to enforce.
Re Dunne
Bequest subject to the condition that the property not be sold to the “Meredith Families of O’Moores Forest.”
Void for three reasons:
1. Vague–who are the Merediths of O’Moore Forest?
2. Restricts alienation.
3. Public policy: courts will not perpetuate old feuds.
Which Acts made up the Land Purhcase Scheme?
Labourer’s Acts 1883-1965.
What words indiciate it is a determinable fee simple?
Anything within the semantic range of a natural end or a continual state of affairs: during, while, as long as, until.
What words indicate if it is a conditional FS?
Semantic range of artificial cutting off: but if, unless, on condition that, provided that, if it happen that.
Differences between determinable and conditional.
- In determinable, estate ends if event transpires; in conditional, the grantor only gets a right of entry for conditiona broken.
- If determining event is void, the whole gift fails (grantor gets a resulting trust in his favour); if the condition is void, the grantee takes free of the condition.
- Determinable fee simple may not be the subject of a giftover; conditional can behind a trust.
Re Johnston
Property was left to a minor on condition that he reside on the property with his aunt. The aunt did not want him to live there.
Held void on public policy grounds: Law will not encourage a pattern of gift giving that is designed to separate underage children from the care of their parents.
Public policy on conditions restricting marriage
– You cannot leave land to someone no condition that they will never get married.
There is a constitutional right to marriage, and a total restraint on marriage is not legal.
– Although old case law often allowed land to be granted on condition that someone did not alienate the land to someone of a particular religion. However, very few post 1937 authorities work in this way. Very unlikely that a court would uphold this today.
Re: DeVere’s Will Trusts
Name and arms clauses.
Held: void. Law is not concerned with triviality. No common law way of changing your name.
Re Burke’s Estate
– Re Burke involves a gift in a will on the assumption that the recipient was continuing to be a Roman Catholic.
Held: too vague. Not up to a judge to decide. Tend to be read as void as a result.
Better drafted versions will try to outsource the uncertainty–provide a test by which the question of someone’s religion can be determined. Yet tolerance for these types of condition is waining rapidly. Tests associated with religion are generally too vague to be enforceable.
Re McKenna
McKenna left land on a religious test, inviting the local religious leader to certify whether someone was or was not a good practising protestant, instead of the court.
Can the possibility of a revertor be a giftover?
No. No giftover for detereminable fee simples.
A conditional fee simple may be the subject of a giftover behind a trust. That’s all the detail we went into.
Requirements for a deed
PPP.
And see s.64 for formalities.
Words of limitation
Common law rules on what language creates a fee simple, fee tail etc.
Contained in the habendum clause in a will or deed.
How to pass a fee simple
to A and his heirs.
Words of limitation for a fee tail?
To the heirs of his body; to the heirs male/female of his body.
Words of limitation for a life estate
to A; to A forever etc.
Words of limitation for FS after Conveyancing Act 1881
“to A in fee simple”
– Equity looks to substance and not to form.
What’s the Rule in Shelley’s case
Applies when wording is: “to A for life, remainder to A and his heirs.”
–> Initially appears to be two estates: a life estate and a fee simple thereafter.
–> Rule in Shelley’s Case says it is just one estate: a fee simple. The “for life” are read as “words of purchase” not “words of limitation.”
–> Carried through in s.67.
Words of limitation after 2009
Abolished (s. 67). Assume that the grantor intended to pass the full interest they had until the contrary is proven.
Attempts to retrospectively abolish the rule in Shelley’s case.
Re Robson
The High Court of Northern Ireland held a gift of property to A “whilst
remaining unmarried” to be a valid determinable interest in spite of the suggestion of the words that a restraint
was intended. Otherwise determinable gift would fail. Was interpreted as providing for the grantee until marriage, rather than restricting their marital freedom.
Duggan v Kelly
Restrictions on marrying a Catholic were held to only apply to a minority, so that at the age of majority they could marry as they pleased.
Re Tuck’s Settlement Trust (English)
The estate had to be passed down to the son provided, he married a Jewish wife: this was valid.
The UK Equal Status Act 2000 provides that prohibition on discrimination does not apply to estates and interests in premises that are disposed of by will or gift.
