Possessory Estates in Land

Question 1

What is a possessory estate?

Answer 1

A possessory estate in land gives the possessor the right to physically enter and possess the land.

Question 2

What are the types of estates?

Answer 2

1. Fee simple absolute
2. Defeasible fees (fee simple determinable and fee simple subject to condition subsequent/executory limitation)
3. Life estate
4. Term of years
5. Fee tail

Estates have a real existence apart from the land

Question 3

What is fee simple absolute? How is it conveyed?

Answer 3

Estate in land that may last forever. There is nothing in this transfer that establishes that it will end based upon any future event. Historically, conveyed by “O to A and his heirs.” Now, “O to A”, and his heirs may be included but has no legal effect.

Question 4

What is a defeasible estate?

Answer 4

A fee simple defeasible may last forever, or it may come to an end upon the happening of an event in the future.

Question 5

What future interest is retained in the transferor in a fee simple determinable? How does it operate?

Answer 5

Possibility of reverter; Operates as a reversion automatically upon the occurrence of a condition

O to Cooley, so long as used for school purposes.

Question 6

What is the future interest retained by the transferee in a fee simple determinable?

Answer 6

Executory interest

O to Cooley, so long as used for school purposes, if it ceases to be used for school purposes, then to C.

Question 7

What words are used to create a fee simple determinable?

Answer 7

So long as; while; during; and until. Or other words which express a durational aspect.

Question 8

What future interest is retained in the transferor in a fee simple subject to condition subsequent? How does it operate?

Answer 8

Right of entry; Upon the occurrence of the condition, the transferor must elect to take the rights back

O to Cooley, but if it ceases to be used for school purposes, then back to O

Question 9

What is the future interest retained by the transferee in a fee simple subject to condition subsequent? What is another name for this estate?

Answer 9

Executory interest; also correct: fee simple subject to executory limitation

O to Cooley, but if it ceases to be used for school purposes, then to C

Question 10

What words are used to create a fee simple subject to subsequent condition?

Answer 10

But if; provided, however, that; on the condition that. Or other words indicating a condition.

Question 11

Do courts prefer FSD or FSSCS?

Answer 11

FSSCS because there is more certainty for the purchaser, more flexibility for the grantor, and the law tends not to like forfeiture

Question 12

What is a life estate?

Answer 12

An estate in land for the life of a person

O to A for life

Question 13

What is the future interest of the transferor in life estate?

Answer 13

Reversion

Question 14

What is the future interest of the transferee in life estate?

Answer 14

remainder

Question 15

What is life estate per autre vie?

Answer 15

A life estate for the life of another

O to A for the life of B. B has no rights.

Question 16

What is term of years?

Answer 16

Estate in land for some period of time that is measured by the calendar

O to A for 20 years

Question 17

What is a fee tail?

Answer 17

A mechanism for keeping estates in land in the family. Descends to A’s lineal descendants generation after genertion and expires when the bloodline runs out. Once the bloodline runs out, the property reverts back to O or O’s heirs if O is dead, unless otherwise specified in the instrument. Largely abolished.

O to A and the heirs of his body.

Question 18

Issue

Answer 18

Means descendants, offspring. They take the exclusion of all other kindred depending on relevant statutory provisions.

Question 19

Ancestors

Answer 19

Those who came before the decedent. Generally, ancestors take if the decedent leaves no issue or spouse.

Question 20

Collaterals

Answer 20

All people related by blood who are neither descendants nor ancestors. If the decedent leaves no spouse, issue, or parents, the brothers and sisters (and their descendants by representation) take.

Question 21

Escheat

Answer 21

If a person dies intestate with no heirs, the property escheats to the state

Question 22

What is a restraint on alienation?

Answer 22

Something that keeps someone from being able to sell or transfer property so land cannot be put to productive use and likely will not be improved upon. If a will puts a restraint on the alienation of property, it is declared void.

White v. Brown: the don’t sell my house holographic will case

Question 23

What is the doctrine of waste? In what context is it seen?

Answer 23

The purpose of the doctrine of waste is to avoid uses of property that fail to maximize the property ‘s value. It arises in the context of co-ownership and of life estate owners with remainder.

Question 24

Affirmative waste

Answer 24

Arises from voluntary acts, which result in liability for damages which are more than trivial. If a substantial change is made that increases the property’s value, it is not considered waste.

Question 25

Permissive waste

Answer 25

Arises out of negligence, the failure to take reasonable care. Damages may be assessed.