Interests and RAP Flashcards
Fee Simple Absolute
runs forever and is freely alienable
*courts presume FSA unless clear intent shows otherwise (e.g. “To A” and “To A and his heirs” both FSA)
Fee Simple Determinable
Durational; magic words such as “during” or “so long as” or “until”
ends automatically when duration ends (unlike FSStCS)
Fee Simple Subject to Condition Subsequent
conditional; magic words such as “but if” or “however” or “provided”
- does not end automatically like fee simple determinable. Original grantor (the holder of future interest in this case) must take steps to re-enter and -reclaim land (unlike FSD)
Fee Simple Subject to Executory Limitation
No magic words.
Ends automatically upon condition and then is automatically transferred to another grantee (never the original grantor)
Life Estate
Express: “to A for life”
Implied: “to A, and on A’s death, to B”
Life Estate Autra Vie
measuring life is someone other than life tenant (“to A for the life of B”)
if life tenant dies, then passes to life tenant’s estate until the measuring life dies.
Waste- Life tenant
Life tenant must maintain the estate (continuing normal use of the land)
Voluntary Waste
Life tenant liable to holder of the future interest for Permissive Waste:any affirmative act beyond the right of maintenance that cause harm to property
*Open Mines doctrine: if depletion of natural resources, only waste if the depletion was not a normal use of the land.
Permissive Waste:
tenant has failed to maintain the estate (inaction). To avoid, life tenant must:
- Repairs: Keep up with ordinary repairs (not improvements or replacements)
- Taxes: Pay all taxes on property (no insurance required)
- Interest: Pay any interest on the mortgage for the property (future holder of the estate pays principal)
- Life tenant only liable up to amount of income received from the land, or if life tenant is personally using the property, the reasonable rental value.
Ameliorative Waste
Affirmative act substantially increases the property value
If changed conditions have made the property relatively useless in its current use, the life tenant can tear it down without liability to the holder of the future interest.
Future Interests in Grantor
If grantor holds: reversion, possibility of reverter, or right of entry
If grantee holds: remainder or executory interest
Reversion
Interest kept by grantor when subsequent grantees gets less than the grantor had
“O to A for life.” O has reversion. “O to A.” No reversion for O.
Possibility of Reverter
Whenever grantor gives a fee simple determinable to grantee, grantor keeps possibility of reverter
Fee simple determinable ends automatically when the conditions happens.
Right of Entry
Whenever grantor gives a fee simple subject to condition subsequent, grantor keeps right of entry.
FSSTCS does not end automatically when the condition happens. Grantor must re-enter and re-take possession.
Vested Remainder
Nothing stands in way of it becoming possessory on expiration of estate before it
“To Elaine for life, then to George and his heirs.”
Vested Remainder Subject to Open
Same as above, but there is a class of at least one member (but total size is unknown) who will take. Class closing includes those in gestation (10 months or 280 days) at time of distribution.
E.g “To Elaine for life, then to Elaine’s kids.” “To my friend Elaine’s kids.” Class closes when distribution made, subject to gestation principle.
Contingent Remainder
E.g. Condition satisfied, grantee not in existence at time of distribution, or identity of taker is unknown (e.g. can’t identity by name of taker)
E.g. “A to B for life, then to C if C survives B”
Vested Remainder Subject to Divestment
Taker is identified but there is a condition subsequent
E.g. “To A for life, then to B and his heirs; but if B does not marry C, then to D and his heirs.” B has vested remainder subject to divestment
Executory Interest
Cuts short the estate that comes before it; if not remainder, then executory interest
Holder of executory interest cannot sue life tenant for waste
E.g. “A to B for life, then to C; but if C marries D, then to E”
Shifting executory interest: if possible title gotten from another grantee
Springing executory interest: if possible title gotten from grantor
Rule Against Perpetuities
Rule: Interest must vest no more than 21 years after some life in being at the time of creation.
Applies only to contingent remainders, executory interests, and vested remainders subject to open
Look to see whether the interest could vest more than 21 years, not whether it actually did
If transfer is by will (“bequeath”) vs. deed (“give”) it makes a difference.
Exception to RAP (charity-to-charity)
E.g. To Charity A for so long as the premises are used for charitable purposes; and when that ends, then to Charity B”
Both are charities. Valid despite RAP.
