Possessory and Future Interests Flashcards
Which present estates exist?
Fee simple absolute
Defeasible fees
- Fee simple determinable
- Fee simple subject to condition subsequent
- Fee simple subject to executory limitation
Life Estate
These estates include a present possessory interest
Accompanying future interests
- If held by O, then a reversion interest; if held by third party, then remainder interest
How do you create a fee simple absolute and what rights does it include?
To A, or To A and his heirs
Absolute ownership of potentially infinite duration
Devisable, descendible, alienable
No future interest
How do you create a fee simple determinable and what rights does it include?
To A …
So long as; Until; While
Potentially infinite, so long as event does not occur
Alienable, devisable, descendible, subject to condition
Future interest: possibility of reverter (held by grantor)
How do you create a fee simple subject to condition subsequent and what rights does it include?
To A, but if X event happens, grantor reserves the right to reenter and retake
- Grantor must carve out right of entry
Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination
Alienable, devisable, descendible, subject to condition
Future interests: right of entry/power of termination (held by grantor)
- Grantor has the right to, but is not required, to reenter and retake
How do you create a fee simple subject to executory limitation and what rights does it include?
To A, but if X event occurs, then to B
Potentially infinite, so long as stated contingency does not occur
Alienable, devisable, descendible, subject to condition
Future interest: executory interest (held by third party; remainder interest)
- If the condition is broken, the estate is automatically forfeited to executory interest; estate does not automatically terminate upon condition occurring
How do you create a life estate and what rights does it include?
To A for life
To A for the life of B (pur autre vie)
Measured by life of transferee or by some other life (pur autre vie)
Alienable, devisable, descendible if pur autre vie and measuring life still alive
Reversion (held by grantor); Remainder (held by third party)
What two general rules should you know about a life estate?
The life tenant is entitled to all ordinary uses and profits from the land
The life tenant must not commit waste.
What is required to create a defeasible fee?
Specific words of intent to create such an estate
Words of mere desire, hope, or intention are not sufficient and often will create a fee simple absolute
- Courts will not find a defeasible fee unless clear durational language is used
Absolute restraints on alienation are void (a
What are the three types of waste?
Voluntary (affirmative) waste
- Actual, over conduct, such as destruction or a lessening of the property value
- Must not consume or exploit natural resources on the property unless [fill in]
Permissive waste (neglect)
- Occurs when land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land. Synonymous with neglect
- Obligation to repair is to maintain the premises in reasonably good condition
- If life tenant routinely fails to do so, then liable for diminution in value
Ameliorative waste
- Must not engage in acts that will enhance the property’s value unless all future interest holders are known and consent
- Why? To protect future interest holders’ reasonable expectation of land and to honor sentimental value
What is the exception for voluntary waste and natural resources?
PURGE
Prior Use - prior to the grant, the land was used for exploitation
- Prior Use and the Open Mines doctrine - if mining was done on the land before the life estate began, the life tenant may continue to mine, but is limited to the mines that are already open (life tenant must not open any new mines)
Reasonable repairs - the life tenant may consume natural resources for reasonable repairs and maintenance
Grant - the life tenant may exploit if expressly granted to do so
Exploitation - if the land is suitable only for exploitation (i.e. a rock quarry, coal mine; sole purpose is for excavation and exploitation)
What are the three future interests capable of creation in the grantor?
Possibility of reverter - created by a fee simple determinable
Right of entry/Power of termination - created by a fee simple subject to condition subsequent
Reversion - arises in a grantor who transfers an estate of lesser duration than she started with, other than a fee simple determinable or a fee simple subject to condition subseq
What is a remainder?
A future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created
Remainders are either contingent or vested
What are the types of future interests held by transferees?
Contingent remainder
Vested remainder
Executory interests
When is a remainder contingent?
If it (1) is created in an unascertained or unknown person or (2) it is subject to an unmet condition precedent, or both
Example of unascertained or unknown person: To A for life (present possessory life estate) then to B’s first child. A is alive. B, as yet, has no children (contingent on B having children); To A for life, then to B’s heirs. A is alive. B is alive, but a living person has no heirs (they are heirs apparent)
When is a remainder contingent because it is subject to an as yet unmet condition precedent?
When it appears before the language creating the remainder or is woven into the grant to remainderman
Example: To A for life, then, if B graduates college, to B (B must graduate from college to take; remainder is contingent until then); To A for life, and if B has reached the age of 21, to B (if B attains the age of 21, then it becomes an indefeasibly vested remainder)
What are the three types of vested remainders?
Indefeasibly vested remainder
Vested remainder subject to complete defeasance (AKA vested remainder subject to total divestment)
Vested remainder subject to open
What is an indefeasibly vested remainder?
The holder of the remainder is certain to acquire an estate in the future, with no strings or conditions attached
What is a vested remainder subject to complete defeasance (vested remainder subject to total divestment)?
The remainderman exists and is taking is not subject to any condition precedent. However, his right to possession could be cut short because of a condition subsequent
What rule helps distinguish between a condition precedent (contingent remainder) and condition subsequent (vested remainder subject to complete defeasance)?
- Comma rule - when conditional language follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent (creating a vested remainder subject to complete defeasance)
- To A for life, then to B, provided, however, that if B dies under the age of 25, to C. A is alive and B is 20 years old
- A has a life estate, B has a vested remainder subject to complete defeasance, C has a shifting executory interest
- To A for life, then to B, provided, however, that if B dies under the age of 25, to C. A is alive and B is 20 years old
- If the conditional language appears before the language creating the remainder, it is a condition precedent (contingent remainder)
- To A for life, and if B has reached the age of 25, to B. B is 20
- B has a contingent remainder subject to
- To A for life, and if B has reached the age of 25, to B. B is 20
What is a vested remainder subject to open?
The remainder is vested in a group of takers, at least one of whom is qualified to take possession. But each class member’s share could get smaller because additional takers, not yet ascertained, can still join the class
- To A for life, then to B’s children. B has two children, C and D, which have vested remainders subject to open because B could have more children
When is a class open and when is a class closed?
Open - when others can still join; capable of increasing in size
Closed - when no others can join
Apply the common law rule of convenience - the class closes when any member can demand possession
- To A for life, then to B’s children
- The class closes at B’s death or at A’s death, no matter if B is still alive (because once A dies then the children of B receive the remainder at the time of A’s death)
If a remainder predeceases the life estate holder, then at common law their share goes to their devisees or heirs
What are the two types of executory interests?
Shifting executory interest
Springing executory interest
What is a shifting executory interest?
An interest that always follows a defeasible fee and cuts short someone other than the grantor
- To A, but if B returns from Canada, to B
- To A, but if A uses the land for nonresidential purposes in the next 20 years, then to B
What is a springing executory interest?
An interest that cuts short the interest of the grantor
- To A, if and when he marries
How do you know if you have an executory interest instead of a remainder?
An executory interest follows a defeasible fee while a remainder follows a life estate or term of years
When is a future interest void under RAP?
If there is any possibility, however remote, that the given interest could vest more than 21 years after the death of a measuring life?
What is the four-step process for assessing potential RAP problems?
First, determine which future interested have been created by the conveyance. The RAP potentially applies only to contingent remainders, executory interests, and certain vested remainders subject to open
Second, determine what has to happen for the future-interest holder to take
Third, look for people alive (the measuring life) at the date of the conveyance whose lives and/or deaths are relevant to what has to happen for the future interest holder to take.
Fourth, determine whether you will know for sure within 21 years of the death of a measuring life if the future interest holders can take. If so, the conveyance is good. If not, the future interest is void
- You must know whether the future interest holder will take within 21 years after the death of last measuring life at the creation of the grant
What is the bright-line rule of common-law RAP?
An executory interest with no limit on the time within it must vest violates the RAP
What is the Wait and See/Second Look doctrine?
Under this majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they now exist, at the conclusion of our measuring life
What is the Uniform Statutory Rule Against Perpetuities (USRAP)?
It codifies the common law RAP, and, in addition, provides for an alternative 90-year vesting period
What is the Cy Pres doctrine?
If a given disposition violates the rule, a court may reform it in a way that most closely matches the grantor’s intent, while still complying with RAP
Both Wait and See/Second Look and USRAP apply Cy Pres
Cy Pres gives the court equitable re-drafting powers
