III. POSSESSORY ESTATES (207-58)

Question 1

four types of possessory estates in land; how are they classified?

Answer 1

fee simple, fee tail, life estate, leasehold; duration

Question 2

fee simple

Answer 2

estate that has the potential of enduring forever, resembles absolute ownership, gives owner the maximum rights in land

Question 3

“to A and his heirs” creates a _________

Answer 3

fee simple; traditionally “and his heirs” was required but today “to A” would be sufficient

Question 4

fee tail

Answer 4

potential of enduring forever but will necessarily cease if and when the first fee tail tenant has no lineal descendants to succeed him in possession

Question 5

“to A and the heirs of his body” creates a _________

Answer 5

fee tail

Question 6

life estate

Answer 6

estate that will end necessarily at the death of a person (“to A for life”)

Question 7

fee simple, fee tail, and life estates are ________ estates

Answer 7

freehold bc owner has “seisin” (leasehold estate is non-freehold estate bc owner only has possession)

Question 8

seisin

Answer 8

A freehold tenant has “seisen”. A person seised of land was responsible for the feudal services and feudal incidents upon his death. The law does not permit an abeyance of seisen (why we get rules like the Rule Against Perpetuities).

Question 9

estate

Answer 9

interest in land that is or may become possessory (measured by some period of time)

Question 10

heirs

Answer 10

persons who survive the decedent and are designated as intestate successors under the state’s statute of descent; a living person does not have any heirs… yet!

Question 11

heirs v devisees

Answer 11

heirs take when decedent leaves no will and devisees (or legatees who are bequeathed personal prop) take under a will

Question 12

escheat

Answer 12

if fee simple owner dies without a will and without heirs, the fee simple escheats to the state

Question 13

fee simple determinable

Answer 13

a fee simple that is defeasible that automatically ends when some specified event happens, may endure forever; use words limiting the duration

grantor has possibility of reverter

Question 14

fee simple subject to condition subsequent

Answer 14

a fee simple that is defeasible that does not automatically terminate but may come to an end on the happening of the stated event

grantor has right of entry

Question 15

fee simple determinable vs. fee simple subject to condition subsequent - what’s the difference? which do cts prefer?

Answer 15

fee simple determinable automatically reverts back to grantor while fee simple subject to condition subsequent gives grantor right of entry upon stated event

cts prefer fee simple subject to condition subsequent on the ground that the forfeiture is optional at the grantor’s election and not automatic

Question 16

fee simple subject to an executory limitation

Answer 16

fee simple that is automatically divested in favor of a 3rd party (can be of determinable form or subject to condition subsequent)

Question 17

O → “to school, but if used for any other purposes to A” is a _________ ?

Answer 17

fee simple subject to an executory limitation

Question 18

pur autre vie

Answer 18

for the life of another

Question 19

Abeyance

Answer 19

a state of temporary disuse or suspension

Question 20

numerus clausus principle

Answer 20

No new types of estates may be created: Existence of unusual property rights increase externality costs and may put it out of the power of the owners to convey a clear title.

Question 21

Order of inheritance (under modern statutes)

Answer 21

Under modern statutes of descent classes of kindred are usually preferred as heirs in the following manner: first issue; and if no issue, then parents; and if none, then collaterals.

Question 22

Collaterals

Answer 22

All persons related by blood to the decedent who are neither descendants nor ancestors are “Collateral Kin” (Brothers, sisters, uncles, aunts, etc.)

Question 23

Issue

Answer 23

children grand-children, etc., all within the first parentela

Question 24

Fee simple subject to executory limitation

Answer 24

upon happening of state event, estate is automatically divested in favor of third person (not the grantor); can be of determinable form or subject to condition subsequent

Question 25

O → school, but if used for any other purposes to A: Who has what?

Answer 25

O has nothing, school has a fee simple subject to executory limitation, A has???

Question 26

inter vivos

Answer 26

between the living

Question 27

Statute Quia Emptores

Answer 27

established principle that land should be alienable

Question 28

reasons against allowing restraints

Answer 28

make property unmarketable, perpetuate concentration of wealth, discourage improvements in land, prevent creditors from reaching land (bc they rely on owner’s property as security)

Question 29

to A and his heirs, but if A attempts to transfer the property by any means, then to B and her heirs

Answer 29

forfeiture restraint - any total restraint on fee simple is void

Other total restraints: disabling, promissory

Question 30

White v. Brown

Answer 30

AJ isn’t clear

Testatrix’s apparent testamentary restraint that her house not be sold did not evidence a clear intent to pass only a life estate. The law presumes that a fee simple interest was conveyed.

Question 31

Baker v. Weedon

Answer 31

Weedon the widow

Holding: Court said judicially imposed sale of entire property was unnecessary; it should only be ordered when in the best interest of all parties (life estate and future interest holders) and necessary to prevent waste (i.e. income from land cannot support tax payments); court says sale would be unfair to grandchildren who expect value to increase rapidly in subsequent years. Court remands case for lower court to determine how much land should be sold to put proceeds in trust such that plaintiff is provided for.

Question 32

Mahrenholz v. County Board of School Trustees

Answer 32

Assuming school board violated use provision of determinable fee, question is whether π have land (from reversionary interest holder’s transfer to them prior to re-entry but after use provision was violated).

Common Law Rule: Possibility of reverter or rights of re-entry are only inheritable (cannot devise them or convey them inter vivos); however both can be released, giving the fee estate holder a fee simple absolute (not really a conveyance).

Modern Statutes: Today most states allow for transfer of rights of entry and possibilities of reverter during life.

Question 33

Mountain Brown Lodge No. 82, Independent Order of Odd Fellows v. Toscano

Answer 33

Court strikes down restriction on alienation (second clause) but upholds use restriction (first clause); essentially, lodge can only sell land to person who will let them use it (has fee simple subject to condition subsequent)

Facts: Toscanos granted land to plaintiffs for their use and benefit only; the deed also said that if land is not used by the second party or is sold or transferred, it will revert to the grantors or their heirs

Question 34

Tenant in demesne

Answer 34

tenant that holds possessory use (seisen) of land

Question 35

Feudal incidents

Answer 35

Form of inheritance tax that became due on the tenant’s death; avoidance of these led to Statute of Uses

Question 36

What were two ways that a tenant could transfer possession in land, thus avoiding feudal incidents?

Answer 36

1. substitute for himself a new tenant who would hold land from his lord
2. subinfeudation: tenant could add new tenant at bottom of feudal ladder and become a sense lord; the new tenant in demesne became responsible for the feudal services (Statute Quia Emptores prohibited subinfeudation)

Question 37

____________ prohibited subinfeudation

Answer 37

Statute Quia Emptores

Question 38

Affirmative waste

Answer 38

injurious acts that negatively affect property value

Question 39

Permissive waste

Answer 39

failure to take reasonable care of property

Question 40

waste

Answer 40

conduct by the life tenant that permanently impairs the value of the land or the interest of the person holding title or having a subsequent estate in the land

Question 41

estate

Answer 41

An interest in land that may become possessory, measured by some period of time

Question 42

status is the root word of ____

Answer 42

Root word of estate. A tenant’s status is “tenant of the fee,” “tenant for life,” etc.

Question 43

Mesne lord

Answer 43

“intermediate lord” – lord to those who stand below him and tenant to those above. Tenant-in-chief can be a mesne lord, but king cannot.

Question 44

grand sergeanty

Answer 44

type of knight service that provided a splendid court life and pageantry for the knights, like carrying the royal banner.

Question 45

socage

Answer 45

Provided subsistence and maintenance for overlords, including money rent.

Question 46

Frankalmoign

Answer 46

Frank the religious fr…

One possible service by religious tenures, which involved praying for the repose of the grantor’s soul.

Question 47

Filius nullius

Answer 47

No one wants Fil.

“Child of no one,” a child born out of wedlock, who could not inherit from either parent at common law.

Question 48

intestate

Answer 48

without a will