final flash cards
Present Possessory Estates
Fee Simple Absolute
Fee Tail
Defeasible Fees (3): FSD; FSCS; FSSEL
Life Estate
Fee Simple Absolute
“To A” traditionally “To A and his heirs”
Lasts forever (possibly infinite duration)
Devisable, descendible, & alienable
F.I. Only A has ABSOLUTE ownership b/c heirs only exist at A’s death
Defeasible Fees
Fee Simple Determinable
Fee Simple Subject to Condition Subsequent
Fee Simple Subject to Executory Limitation
Can last forever, but are limited/conditioned
All are alienable, devisable, and descendible
ADD
Alienable - capable of sale or transfer inter vivos
Devisable - can pass by will
Descendible - can pass by statutes of intestacy
Fee Simple Determinable
“To A during” “To A until”
Grantor must use CLEAR durational language
If stated condition is violated or not actualized, forfeiture (termination) is automatic
F.I. Possibility of reverter in O
Fee Simple Subject to Condition Subsequent
“To A, but if X event occurs, grantor reserves right to reenter & retake”
Grantor must use CLEAR durational language AND explicitly carve out the right to reenter
Not automatically terminated & endures even in presence of breach of condition unless & until O exercises right to retake
F.I. O has right of entry and power to terminate (RE/PT)
Life Estate
- “To A for life” 2. “To A for the life of B”
- A has LE, B has LE pur autre vie (for A’s lifetime, not B’s)
- A has LE pur autre vie (for B’s lifetime, not A’s)
Life tenant must not commit waste: affirmative, permissive, ameliorative
F.I. O has reversion, 3rd party has a remainder
Open Mines Doctrine
LE prohibits T from committing waste
This is an exception that allows voluntary waste to deplete natural resources but only if the mine already existed and was open when T took possession (no new mines)
Future Interests for O
There are only 3 F.I. capable of creation in O, the grantor:
Possibility of Reverter
Right of entry / Power of Termination (RE/PT)
Reversion
Possibility of Reverter
Fee Simple Determinable ONLY
Becomes possessory ONLY on termination of FSA
Not subject to RAP
Frank Sinatra Didn’t Prefer Orville Redenbacher
Fee Simple Determinable Possibility of Reverter
Right of Entry / Power of Termination
Accompanies Fee Simple Subject to Condition Subsequent ONLY
Devisable & Descendible
Transferrable inter vivos ONLY when coupled w/ a reversion
Reversion
Things only revert BACK, not forward
When O has transferred lesser estate than they own –>alienable, descendible, devisable
Does not apply to defeasible fees, usually LE
Not subject to RAP
Future Interests for Transferees
F.I. held by someone other than O
Vested Remainder
Contingent Remainder
Executory Interest
Remainder
O NEVER has a remainder
NEVER follows a defeasible fee
NO GAP: Becomes possessory on the natural expiration or conclusion of prior possessory estate –> can never cut short preceding estate
C/L - transferor could not create an estate in a 3rd party to commence in the future
Modern - Follows LE or Term of Years (leasehold)
“To A for life, then to B” “To A for 10 yrs, then B”
must be created at same time as preceding supporting estate
Vested Remainder
Created in born, ascertained person
NOT subject to a condition precedent
3 Types: Indefeasibly, Subject to Partial Divestment, Subject to Total Divestment
Contingent Remainder
Unborn, unascertained person
AND/OR
Subject to condition precedent
“To A for life, then to B’s first child”
“To A for life then to B for life IF HE MARRIES”
Indefeasibly Vested Remainder
Totally Vested
Holder of remainder certain to acquire an estate in the future, no conditions or strings attached
“To A for life, remainder to B”
Vested Remainder Subject to Total Divestment
Holder of remainder exists
Right to possess, time w/ land can be cut short b/c of condition subsequent (NOT precedent)
If condition is alone b/c it is set off by commas, it is subsequent, not precedent
“To A for life, remainder to B, but if B dies under 25, to C.”
Vested Remainder Subject to Partial Divestment
Vested Remainder Subject to Open
Vested in a group, category or class of takers --> at least one qualified to take possession **if no one qualified, it is a contingent R
Open b/c it’s possible for others to enter, even unborn or unascertained
Closed when max membership set
Rule of Convenience
C/L - clear, bright line rule applies unless O specifically drafted otherwise
When any one member of the class has right to possession, the class closes
"To A for life, then to B's children" Class closes at B's death, and rule says at A's death even if B is alive b/c present class members can demand possession
Executory Interest
Unlike a remainder, executory interests cut short another transferee (shifting) or cuts short the grantor (springing)
- cut short preceding present possessory estate or vested future interest
- takes effect after a gap in time
Shifting Executory Interest
Always follows a defeasible fee
Cuts short someone other than O
“To A and his heirs, but if B returns from Europe within next year, then to B”
B is in a position to cut short A’s time with land
Springing Executory Interest
Takes effect by cutting short or divesting O
“To A, if and when he marries”
When A marries, A cuts short O’s otherwise limitless time w/ land
Rule Against Perpetuities
C/L rule that requires interests to vest, if at all, within a stipulated time
Bright line rules:
- A gift to an open class conditioned on members reaching an age beyond 21 will violate the RAP b/c of principle “Bad as to one, bad as to all”
- ->To be valid, C.P. to every members taking will be within the perpetuities period - Many SHIFTING executory interests will violate the RAP if there is no limit on time within which it must vest
4 Steps RAP
- Which future interests have been created by the conveyance?
- -> CR, Exec. Interests, and certain VR subject to open; NEVER applies to reverter - Identify the conditions precedent to vesting of the F.I.
- -> what must happen before they can take - Find a measuring life
- -> is their life or death relevant to C.P. - Will we know w/ certainty, w/in 10 years of death of our measuring life, if our future interest holder(s) can or cannot take?
Reform of C/L RAP
“Wait & See” or “Second Look Doctrine”
–>Wait until measuring life ends, then take 2nd look to gauge validity of future interest
USRAP (Uniform Statutory)
–>Codifies C/L & gives alternative 90yrs
