Present Estates Flashcards
The three categories of freehold estates
- The Fee Simple Absolute
- The Defeasible Fees (of which there are three types); and
- The Life Estate
Devisable
Estate that is able to pass by will
Descendible
Estate that will pass by the statutes of intestacy if its holder dies intestate
Alienable
Transferable inter vivos, i.e. during the holder’s lifetime
The examiners expect us to know three things about each category of freehold estates:
- What language creates the estate
- The estate’s distinguishing characteristics (devisable, descendable, and/or alienable)
- What future interests the estate is capable of
Language to create the Fee Simple Absolute
“To A” or “To A and his heirs.”
[Today, those common law words “and his heirs” are not needed. Thus, “to A” suffices to create the fee simple absolute.]
Fee Simple Absolute’s distinguishing characteristics
Absolute ownership of potentially infinite duration. It is freely alienable, devisable, and descendible.
a.k.a. grand prize estate.
Future interest accomanying a fee simple absolute estate
- None.
- While A is alive, he has only prospective heirs.
- They are powerless.
Definition of defeasible fees
Three types of fee simple (“to A”) with a catch or condition attached that renders the estate subject to the risk of forfeiture.
[To be defeasible means to be capable of forfeiture.]
The three types of Defeasible Fees
- fee simple determinable
- fee simple subject to condition subsequent
- fee simple subject to executory limitation
How the fee simple determinable is created
“To A so long as . . .” “To A during . . .” “To A until . . .” Look for clear durational language.
e.g. “To A for so long as she remains a lawyer,” or “To A during the tenure of the Obama administration” or “To A until prayer returns to the public schools.”
What happens when the stated condition of a fee simple determinable is violated
Automatic forfeiture occurs
SoL timing for grantor to assert right after violation of Fee Simple Determinable
- The statute of limitations for purposes of exercising the future interest begins to run immediately once the stated condition is violated.
- VA SoL: 10 years from date of breach
Distinguishing characteristics of all the Defeasible Fees
(i.e. FS Determinable, FS Sub. to CS, and FS Sub. to EL)
devisable, descendible, and alienable, but always subject to the condition.
Fee Simple Determinable’s accompanying future interest
The possibility of reverter
What grantor must do to create a FS subject to condition subsequent
1) use clear durational language and
2) explicitly carve out the right to reenter.
Language to create a Fee Simple Subject to Condition Subsequent
- “To A, but if X event occurs, grantor reserves the right to reenter and retake.”
- [e.g. “to Alec, but if junk food is ever consumed on the premises, grantor reserves the right to reenter and re-take.”]
What happens to the Fee Simple Subject to Condition Subsequent when the condition is violated.
Estate is not automatically terminated, but it can be cut short at the grantor’s option if the stated condition is violated.
SoL for grantor to assert right after violation of Fee Simple Subject to Condition Subsequent
SoL does not begin to run until grantor does something to assert its right.
VA SoL: 10 years from date condition is breached
Future interest of Fee Simple Subject to Condition Subsequent
The right of entry, synonymous with the power of termination
i.e. grantor can terminate estate whenever he wants
Definition of the Fee Simple Subject to Executory Limitation
Fee simple where a third party, not the grantor, will take in the event of the stated condition’s breach and the holder of the FS automatically forefeits.
Language to create the Fee Simple Subject to Executory Limitation
To A, but if X event occurs, then to B.
Fee Simple Subject to Executory Limitation
Result of Breach
If the condition is breached, forfeiture is automatic in favor of someone other than grantor.
Fee Simple Subject to Executory Limitation
Accompanying Future Interest
Shifting Executory Interest
Two Requirements for Creating Valid Defeasible Fees
- No words of hope/desire. Must use clear durational language
- No absolute restraints on alienation (right to sell or transfer)
How the life estate must be measured
- must be measured in explicit lifetime terms, and never in terms of years.
Creation language of the life estate
“To A for life.”
Interest created by:
“To A for 50 years, if she lives that long” or “To A for life, but in no event more than 10 years”
Leasehold, not life estate because they both create the term of years.
life estate pur autre vie
A life estate measured by a life other than the grantee’s
The Life Estate
Accompanying Future Interest
If held by grantor, reversion. If held by a third party, remainder.
What a life tenant is entitled to as it pertains to the land.
- The life tenant is entitled to all ordinary uses and profits from the land.
The life tenant is barred from doing this to the property.
The life tenant must not commit waste (three types)
The three types of waste
- voluntary
- permissive, and
- ameliorative
Voluntary waste
actual, overt conduct that causes a drop in value.
Permissive waste
Occurs when land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land; synonymous with neglect.
Permissive waste and the obligation to repair
The life tenant must simply maintain the premises in reasonably good repair
Permissive waste and the obligation to pay all ordinary taxes
- If tenant receives income or profits from the land:
- must pay all ordinary taxes based on Blackacre’s fair value
- If no income or profits:
- Must pay taxes on the basis of Blackacre’s fair rental value (much less than market value)
Ameliorative Waste
The life tenant must not engage in acts that will enhance the property’s value, unless all future interest holders are known and consent
Reason for prohibition of ameloriative waste
Because property law honors the future interest holders’ reasonable expectations and sentimental value.
VA law on the Doctrine of Waste
- If waste was a result of wanton misconduct:
- Double damages for any person injured due to another person committing waste on his land
- This also applies to waste committed by joint tenants and leasehold tenants.
How the Fee Tail is created
“To A and the heirs of his body.”
Fee Tail in Modern Times
It is virtually abolished in the United States today. Historically, it would pass directly to grantee’s lineal blood descendants, no matter what.
Today, the attempted creation of a this creates the fee simple absolute instead.
VA law on the Fee Tail
VA has abolished this present estate type.
