Free Hold Estates - Estates in Land: Freehold v Non-Freehold Estates Flashcards
Law To Follow
Common Law Rules unless there has been a Majority Change
Types of Freehold Estates
- Fee Simple - including defeasable fees
- Life Estate
- Fee Tail
Fee Simple Absolute (FSA)
- potentially infinate duration
- must be fully alienable
- conditions may be imposed on a fee simple, but any attempt to limit the right of transfer is void
- Rights of First Refusal are VALID form of restraint
- courts will presume FSA was granted unless language shows a clear intent to grant otherwise
Creation of a FSA: Common Law and Majority Change
Common Law required very precise language
- “To A and her heirs”
Majority Approach presumes FSA was granted unless language of the grant shows a clear intent otherwise
Estates with future rights of possession are called:
Future Interests
Non-freehold estates are called:
Landlord-tenant estates
Fee Tail
- almost completely abolished
- at common law this would lock the property into the grantee’s family with language:
- “To A and his bodily heirs”
- Today that language presumes a Fee Simple
Life Estate
- may be granted expressly or arise by implication
- not measured by time, only by Life
- where a life estate is created by implication it is usually created by necessary implication from the terms of Testator’s will
Life Estate Pur Autre Vie
A life estate measured by another
- If the life tenant dies before the measuring life dies, the life estate passes to the estate of the deseaced life tenant and continues in place until the measuring life dies
Life Esates & Restraint Upon Alienation
Modern rules allow a provision that terminates a life estate if the life tenant attempts to convey away the life estate
The Law of Waste & Types of Waste
The general rule is that the life tenant maintains the estate. “Maintain” is the maximum and minum required of the the Life Tenant
Types of Waste:
- Voluntary Waste
- Permissive Waste
- Amerliorative Waste
Voluntary Waste
- Voluntary waste is any affirmative action beyond the right of maintenance that causes harm to the property
- Maintain means life tenant continues the normal use of the land
- Open Mines Doctrine
- Depletion of natural recourses constitutes waste unless consumption of such resources constitutes normal use of the land
Open Mines Doctrine
Depletion of natural recourses constitutes waste unless consumption of such resources constitutes normal use of the land
Permissive Waste
Permissive waste involves the failure to maintain - The Life Tenant must do the following to avoid liability under permissive waste:
- Repairs
- Taxes
- Mortgage Debt
- Insurance
Permissive Waste - Life Tenant’s duty to make Repairs
- LT has obligation to make ordinary repairs, but not to replace
- LTs repair obligation is limited to the rents and profits received from the land
- If there are no rents and profits from the land, then the LTs repair obligation is limited to reasonable rental value of the land if the life tenant is using the land
- If LT is not recieiving income from the land and is not using the land then he has no duty to make any repairs
Permissive Waste - Life Tenant’s duty to pay taxes
- The tenant must pay all taxes on the property
- The obligation to pay taxes is subject to the same limitations as with repairs
- Holder of future interest must make sure the taxes are paid because otherwise a tax sale will eliminate the future interest
- the buyer at the tax sale takes the property free and clear of any future interests