Possessory Estates

Question 1

Possessory Estate

Answer 1

possessory estate is a legal interest that confers on its owner the right to present possession of some thing.

The party that has the right to enjoy possession NOW.

Question 2

future interest

Answer 2

is a legal interest that exists in the present but does not entitle the owner to possession until some point in the future.

Question 3

reversion

Answer 3

retained future interest – an unqualified right to future possession retained by the party who created the possessory interest that precedes it

Question 4

Kinds of Possessory Interests

Answer 4

1. Fee Simple Absolute
2. Finite Estate (ToY or Life Estate)
3. Tenancy
4. Defeasibles

Question 5

Finite Estate

Answer 5

Limited Time (Toy or Life Estate)

Question 6

Fee Simple Absolute

Answer 6

The most complete interest in land that the law will recognize. It has no inherent end – it can go on forever.

Is implied when it says, “. . . and his heirs.”

Question 7

Term of Years

Answer 7

lasts for a specified number of years.

Any land held as a term of years must also be subject to a future interest in some other person.

Question 8

Life Estate

Answer 8

a present possessory interest that lasts for the life of the named individual. The life estate terminates by operation of law upon the owner’s death

• Any land held by a life tenant must also be subject to a future interest in some other person.
• Cannot unreasonably interfere with the expectations of the future interest holder.

Question 9

Defeasible

Answer 9

to put a condition on

Question 10

Waste Doctrine

Answer 10

one owner cannot use property in a manner that unreasonably interferes with the expectations of others.

Question 11

Three Types of Waste

Answer 11

1. Affirmative Waste
2. Permissive Waste
3. Ameliorative Waste

Question 12

Affirmative Waste

Answer 12

refers to acts of the holder of the possessory estate, such as erecting or demolishing a structure, or extracting non-replenishing natural resources that diminish the value of the property in question.

Question 13

Permissive Waste

Answer 13

refers to the omissions of the holder of the possessory estate, such as failing to pay property taxes, or failure to make needed repairs. It’s essentially a question of negligence – did the occupant fail to take reasonable care of the property?

Question 14

Ameliorative Waste

Answer 14

occurs when a possessory interest holder substantially changes the property but increases the value of the land.

• most states have adopted a “changed circumstances” ruling – a possessory interest holder can make substantial alterations to the property if the alterations are necessitated by a change in conditions surrounding the parcel.

Question 15

Defeasible Tree Q1: Who holds the future interest?

Answer 15

Original Grantor: fee simple determinable or a fee simple subject to condition subsequent.

Someone other than the grantor: fee simple subject to executory limitation.

Question 16

Defeasible Tree Q2: (2) How are the rights of the possessory interest holder cut off, automatically or by the grantor’s choice?

Answer 16

Automatic: Fee Simple Determinable

Choice: fee simple subject to condition subsequent

Question 17

Fee Simple Determinable Words

Answer 17

words of duration as the limitation for the defeasible fee (i.e., “until,” “so long as,” “while,” and so forth).

Question 18

Fee Simple Subject To Condition Subsequent Words

Answer 18

words of condition phrases such as “but if,” “provided that,” “however, if,” “on condition that,” and so forth.

Question 19

FSSTCS vs. FSD

Answer 19

Fee simple subject to condition subsequent does NOT automatically end by operation of law upon the satisfaction or failure of the relevant condition.

Rather, if there are conditional words, the future interest holder must take some affirmative step to assert her rights.

Question 20

Future interests that follow a fee simple absolute:

Answer 20

A fee simple absolute goes on forever, and, therefore, has no corresponding future interest.

Question 21

Future Interest following Finite Estate (ToY/LE)

Answer 21

Reversion or Remainder.

If a future interest following the life estate is held by the original grantor, then you have a reversion.

If the future interest is held by someone other than the grantor, then the future interest is a remainder.

Question 22

2 Kinds of Remainder

Answer 22

1. Vested
2. Contingent

Question 23

Contingent Remainder

Answer 23

Refers to something that might or might not come to pass.

If a problem contains a contingent remainder, it means that the holder of the future interest might not get possession of the land, even after the owner of the life estate dies.

Question 24

Vested Remainder

Answer 24

Remainder is vested if it:

(1) is created in a person who is born (alive)

(2) is created in a person who is ascertainable, AND,
We can put a name to the person who holds the remainder

(3) is not subject to a condition precedent (other than the natural expiration of the preceding estate).

Question 25

Future Interests of Fee Simple Determinable

Answer 25

Possibility of Reverter

Question 26

Future Interests of Fee Simple Subject to Condition Subsequent

Answer 26

Right of Entry

Question 27

Future Interests of Fee Simple Subject to Executory Limitation

Answer 27

Executory Interests

Question 28

Types of Executory Interest

Answer 28

1. Springing 2. Shifting

Question 29

Springing Executory Interest

Answer 29

Divests or cuts short a possessory estate held by the grantor.

Question 30

Shifting Executory Interest

Answer 30

Divests an estate held by someone who is not the grantor.

Question 31

Barbie conveys Dreamhouse to Ken as long as he marries and does not divorce.

Answer 31

Ken has a fee simple determinable. Barbie has a possibility of reverter in fee simple absolute.

Question 32

Barbie conveys Dreamhouse to Ken, but if he smokes ganja, Barbie has the right to reenter and retake possession.

Answer 32

Ken has a fee simple subject of condition subsequent. Barbie has a right of entry in fee simple absolute.

Question 33

Barbie conveys Dreamhouse to Skipper and her heirs, if Skipper is married.

Answer 33

Barbie has possessory interest. Skipper has a springing executory interest in fee simple absolute.

Question 34

Barbie conveys Dreamhouse to Ken but if Ken does bong hits with Lindsey Lohan, then to Skipper.

Answer 34

Ken has fee simple subject to executory limitation. Skipper has a shifting executory interest in fee simple absolute.

Question 35

O conveys land to A for life, then to B for life, then to C and his heirs

Answer 35

A has a life estate. B has a vested remainder in life estate. C has a vested remainder in fee simple absolute

Question 36

If the instrument of conveyance does not specifically list who owns the future interest following a life estate...

Answer 36

the presumption is that the grantor has a reversionary interest (i.e., the property will revert back to the grantor at the end of the life estate)

Question 37

AP - Breaking Continuity

Answer 37

Continuity is lost when the true owner asserts possession before the trespasser’s adverse possession ripens into title.

Question 38

Total Restraints on Alienability

Answer 38

reverts to fee simple absolute.

Question 39

Partial Restraints okay IF:

Answer 39

Partial Restraint is okay if, given the totality of the circumstances, the restraint is considered reasonable. How long is the restraint? What is the policy goal? How many potential buyers? Etc.