Ownership, Defeasible Fees, Life Estates, Future Interests

Question 1

Fee Simple

Answer 1

The largest possessory estate; capable of lasting forever. No future interest associated with a fee simple.

This is the default estate.

Ex. “O to A and her heirs”

Question 2

Fee Simple Determinable

Answer 2

Limited by specific durational language (e.g., while, during, so long as)

Ex. “O conveys Blackacre to Anna so long as the land is used as a farm.”

Question 3

Fee Simple Subject to Condition Subsequent

Answer 3

Limited by specific conditional language (e.g., provided that, on the condition that, but if)

Ex. “O conveys Blackacre to Anna, but if the land is not farmed, O may re-enter and re-take the property.”

Question 4

Possibility of Reverter

Answer 4

Future interest held by a grantor following a fee simple determinable.

Interest vests automatically after the durational period ends.

Ex. “O conveys Blackacre to Anna and her heirs, so long as the land is used as a public park.” O has the possibility of reverter.

Question 5

Right of Entry (aka Power of Termination)

Answer 5

Future interest held by the grantor following a fee simple subject to condition subsequent.

Does not vest automatically; it must be reclaimed (go to court to exercise right).

MUST say that grantor has the right to re-enter!

Ex. “O conveys Blackacre to Anna and her heirs, but if the land is not used as a public park, O can re-enter and re-take.” O has a right of entry, and O must exercise right.

Question 6

Fee Simple Subject to Executory Interest

Answer 6

Will end upon the happening of an event and he future interest will vest in a third party (i.e., someone other than the grantor)

The future interest is held by a transferee and not the grantor.

Ex. “O conveys Blackacre to Anna and her heirs, but if liquor is served on the premises, to Ben and his heirs.” Ben has the executory interest.

Question 7

Executory Interest

Answer 7

Future interest that will cut short, or terminate, an earlier interest.

Ex. “O conveys Blackacre to Anna and her heirs, but if liquor is ever served on the premises, then to Ben and his heirs.” Anna has a Fee Simple Subject to An Executory Interest.

Question 8

Divest

Answer 8

The word for terminating a prior interest.

Question 9

Life Estate

Answer 9

Present estate that is limited by a life.

A life estate terminates when the measuring life ends.

These are transferable, but the transferred estate will still end upon the death of the named life estate.

These CANNOT be passed via will or intestate succession.

Ex. “O conveys Blackacre to Anna for life.”

Question 10

Life Estate Pur Autre Vie

Answer 10

A life estate measured against the life of someone else.

Ex. “O conveys Blackacre to Anna for Ben’s life.”

Question 11

Reversion

Answer 11

If possession of the land goes back to the grantor after the life estate ends, then the grantor retains a reversion.

Ex. “O conveys Blackacre to Anna for life.” When Anna dies, O retains a reversion, and the estate goes back to O.

Question 12

Remainder

Answer 12

If possession of the land goes to a third party after the life estate ends, then the third party takes a remainder.

Ex. “O conveys Blackacre to Anna for life, then to Ben.” Ben has a remainder.

Question 13

Affirmative Waste

Answer 13

Waste caused by voluntary conduct, which causes a decrease in value.

Question 14

Permissive Waste

Answer 14

Waste caused by neglect toward the property, which causes a decrease in value.

Question 15

Ameliorative Waste

Answer 15

Special situation where a life tenant or other person in possession changes the use of the property and actually increases the value of the property.

Question 16

Vested Remainder

Answer 16

An interest that is given to an ascertained grantee (someone who can be identified) and not subject to a condition precedent (there is no condition that must be satisfied in order for the interest to vest).

Ex. “O conveys Blackacre to Anna for life, then to Ben.” Ben is an ascertainable grantee and there is no condition, so Ben has a vested remainder.

Question 17

Contingent Remainder

Answer 17

If the remainder is NOT both ascertained and there is no condition, then it is a contingent remainder.

Ex. “O conveys Blackacre to A for life, then to A’s firstborn grandchild.” At the time A doesn’t have any grandchildren. Therefore, the grandchild is not ascertainable and they have a contingent remainder.

Question 18

Vested Remainder Subject to Open (aka Subject to Partial Divestment)

Answer 18

Vested remainder in a class gift and full class membership is unknown.

At least one person in the class must be vested for it to be vested subject to open; if no one in the class has vested, the remainder is contingent.

RAP applies to a vested remainder subject to open.

Ex. “O conveyed Blackacre to Anna for life, then to Anna’s children who reach 21.” Anna has three kids - Ben is 25, Carmen is 18, and David is 15. Ben’s interest is a vested remainder subject to open because Carmen and David might make is to 21.

Question 19

Rule of Convenience

Answer 19

A class-closing mechanism to avoid application of RAP to a class gift.

If the grant does not have an express closing date, the Rule of Convenience closes the class when any member of the class becomes entitled to immediate possession.

Question 20

Doctrine of Worthier Title

Answer 20

Prevents against remainders in a grantor’s heirs. Creates a presumption of a reversion to the grantor.

Ex. “O conveys to Anna for life, then to my heirs.” O retains a reversion under the doctrine of worthier title.

Question 21

Rule in Shelley’s Case

Answer 21

Prevents against remainders in a grantee’s heirs. Uses the doctrine of merger to create a fee simple.

Ex. “O conveys to Anna for life, then to Anna’s heirs.” Anna has a Fee Simple Absolute under the rule in Shelley’s case.

Question 22

Springing Executory Interest

Answer 22

Divests the grantor

Ex. “O conveys Blackacre to Anna for life then to Ben for one year after Anna’s death.” Ben has a springing executory interest because the interest goes back to the grantor for one year after Anna’s death before going to Ben.

Question 23

Shifting Executory Interest

Answer 23

Divests the grantee

Ex. “O conveys Blackacre to Anna, but if the land is used for commercial purposes, to Ben.” Ben has a shifting executory interest because he divests Anna, a grantee.

Question 24

Rule Against Perpetuities

Answer 24

“Any interest must vest, if at all, not later than 21 years
after a life in being at the creation of the interest”

Rule #1: “Any interest” means contingent remainders,
executory interests, and vested remainders subject to
open.

Rule #2: “Must vest if at all” means that the contingent
interest must vest or fail to vest within the time period of
the rule to be valid. We don’t care which one as long as
we have a final answer

RAP never applies to a future interest in the grantor

Contingencies for unnamed grandchildren other than turning 21 are almost always invalid

When in doubt, open terms violate the rule (like children, grandchildren, widow) and naming specific people does not

An executory interest is always void under RAP if the event that will make the executory interest possessory is not
subject to a time limit