III. POSSESSORY ESTATES (207-58) Flashcards
four types of possessory estates in land; how are they classified?
fee simple, fee tail, life estate, leasehold; duration
fee simple
estate that has the potential of enduring forever, resembles absolute ownership, gives owner the maximum rights in land
“to A and his heirs” creates a _________
fee simple; traditionally “and his heirs” was required but today “to A” would be sufficient
fee tail
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
“to A and the heirs of his body” creates a _________
fee tail
life estate
estate that will end necessarily at the death of a person (“to A for life”)
fee simple, fee tail, and life estates are ________ estates
freehold bc owner has “seisin” (leasehold estate is non-freehold estate bc owner only has possession)
seisin
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).
estate
interest in land that is or may become possessory (measured by some period of time)
heirs
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!
heirs v devisees
heirs take when decedent leaves no will and devisees (or legatees who are bequeathed personal prop) take under a will
escheat
if fee simple owner dies without a will and without heirs, the fee simple escheats to the state
fee simple determinable
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
fee simple subject to condition subsequent
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
fee simple determinable vs. fee simple subject to condition subsequent - what’s the difference? which do cts prefer?
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
fee simple subject to an executory limitation
fee simple that is automatically divested in favor of a 3rd party (can be of determinable form or subject to condition subsequent)
O → “to school, but if used for any other purposes to A” is a _________ ?
fee simple subject to an executory limitation
pur autre vie
for the life of another
Abeyance
a state of temporary disuse or suspension
numerus clausus principle
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.
Order of inheritance (under modern statutes)
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.
Collaterals
All persons related by blood to the decedent who are neither descendants nor ancestors are “Collateral Kin” (Brothers, sisters, uncles, aunts, etc.)
Issue
children grand-children, etc., all within the first parentela
Fee simple subject to executory limitation
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
O → school, but if used for any other purposes to A: Who has what?
O has nothing, school has a fee simple subject to executory limitation, A has???
inter vivos
between the living
Statute Quia Emptores
established principle that land should be alienable
reasons against allowing restraints
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)
to A and his heirs, but if A attempts to transfer the property by any means, then to B and her heirs
forfeiture restraint - any total restraint on fee simple is void
Other total restraints: disabling, promissory
White v. Brown
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.
Baker v. Weedon
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.
Mahrenholz v. County Board of School Trustees
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.
Mountain Brown Lodge No. 82, Independent Order of Odd Fellows v. Toscano
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
Tenant in demesne
tenant that holds possessory use (seisen) of land
Feudal incidents
Form of inheritance tax that became due on the tenant’s death; avoidance of these led to Statute of Uses
What were two ways that a tenant could transfer possession in land, thus avoiding feudal incidents?
- substitute for himself a new tenant who would hold land from his lord
- 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)
____________ prohibited subinfeudation
Statute Quia Emptores
Affirmative waste
injurious acts that negatively affect property value
Permissive waste
failure to take reasonable care of property
waste
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
estate
An interest in land that may become possessory, measured by some period of time
status is the root word of ____
Root word of estate. A tenant’s status is “tenant of the fee,” “tenant for life,” etc.
Mesne lord
“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.
grand sergeanty
type of knight service that provided a splendid court life and pageantry for the knights, like carrying the royal banner.
socage
Provided subsistence and maintenance for overlords, including money rent.
Frankalmoign
Frank the religious fr…
One possible service by religious tenures, which involved praying for the repose of the grantor’s soul.
Filius nullius
No one wants Fil.
“Child of no one,” a child born out of wedlock, who could not inherit from either parent at common law.
intestate
without a will
