PRESENT ESTATES Flashcards
WHAT ARE THE 4 CATEGORIES OF FREEHOLD ESTATES?
- FEE SIMPLE ABSOLUTE
- FEE TAIL
- DEFESEASIBLE FREES (3 TYPES)
- LIFE ESTATE
3 THINGS YOU MUST KNOW WITH REGARDS TO EACH OF THE ESTATES
- WHAT LANGUAGE WILL CREATE THE ESTATE?
- DISTINGUISHING CHARACTERISTICS:
IS THE ESTATE –>
DEVISABLE (pass by will),
DESCENDIBLE (pass by the statutes of intestacy if its holder dies intestate; without a will),
ALIENABLE (tansferable intervivos or during the holders lifetime)
- WHICH FUTURE INTERESTS, IF ANY, IS THE ESTATE CAPABLE OF?
GENERAL NOTE: You may convey less than what you started with, but you can’t convey more. (Mick Jagger Rule: You can’t always get what you w-a-a-ant)
3 QUESTIONS:
- WHAT LANGUAGE WILL CREATE THE FEE SIMPLE ABSOLUTE?
- WHAT ARE THE CHARACTERISTICS?
- WHICH FUTURE INTERESTS, IF ANY, IS THE ESTATE CAPABLE OF?
- CREATING LANGUAGE:
“To A” or “To A and his heirs”
*Today C/L words “and his heirs” are not needed. “To A” suffices to create FSA
- DISTINGUISHING CHARACTERISTICS:
*Absolute ownership of potentially infinite duration
DEVISABLE, DESCENDIBLE, ALIENABLE
- FUTURE INTERESTS:
NO accompanying future interests
3 QUESTIONS:
- WHAT LANGUAGE WILL CREATE THE FEE TAIL?
- WHAT ARE THE DISTINGUISHING CHARACTERISTICS?
- WHICH FUTURE INTERESTS, IF ANY, IS THE ESTATE CAPABLE OF?
- WHAT LANGUAGE WILL CREATE THE FEE TAIL?
“To A and the heirs of his body”
- WHAT ARE THE DISTINGUISHING CHARACTERISTICS?
*Virtually abolished, never tested. Historically, the fee tail would pass directly to: grantees lineal blood descendants; no matter what
*Today, attempted creation of fee tail creates instead: FSA (DEVISABLE, DESCENDIBLE, ALIENABLE)
- ACCOMPANYING FUTURE INTERESTS?
Grantor: Reversion
3rd Party (Someone Other than Grantor): Remainder
WHAT ARE THE 3 TYPES OF DEFEASIBLE FEES?
- FEE SIMPLE DETERMINABLE
- FEE SIMPLE SUBJECT TO A CONDITION SUBSEQUENT
- FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION
NOTE: ALL defeasible fees are DEVISABLE, DESCENDIBLE, ALIENABLE (BUT always subject to the condition)
3 QUESTIONS:
- WHAT LANGUAGE CREATES FSD?
- DISTINGUISHING CHARACTERISTICS?
- WHICH FUTURE INTERESTS, IF ANY, IS THE ESTATE CAPABLE OF?
FSD = Frank Sinatra Doesn’t Prefer Orville Redenbacher
- WHAT LANGUAGE CREATES FSD?
“To A for so long as…”, “To A during….”, To A until…”
*Grantor must use clear durational language.
*If stated condition is violated, termination is automatic.
- DINSTINGUISHING CHARACTERISTICS?
DEVISABLE, DESCENDIBLE, ALIENABLE BUT ALWAYS SUBJECT TO THE CONDITION
- ACCOMPANYING FUTURE INTERESTS?
Grantor: Possibility of Reverter
3 QUESTIONS:
- WHAT LANGUAGE CREATES FSSCS?
- DISTINGUISHING CHARACTERISTICS?
- ACCOMPANYING FUTURE INTERESTS?
- WHAT LANGUAGE CREATES FSSCS?
“To A, but if X event occurs, Grantor reserves the right re-enter and retake.”
*Grantor must use clear durational language AND carve out the right to re-enter (power to terminate)
- DISTINGUISHING CHARACTERISTICS?
*DEVISABLE, DESCENDIBLE, ALIENABLE
*NOT automatically ended
*Can be short at the Grantor’s option IF the condition occurs
- ACCOMPANYING FUTURE INTERESTS?
Grantor: Right of Re-entry (power of termination)
3 QUESTIONS:
- WHAT LANAGUAGE CREATES A FSSEL?
- DISTINGUISHING CHARACTERISTICS?
- ACCOMPANYING FUTURE INTERESTS?
- WHAT LANGUAGE CREATES A FSSEL?
*“To A, but if X event occurs, then to B.”
Ex: “To Barry Manilow, but if Manilow ever performs music on the premises, then to Mandy.”
B= Fee Simple Subject to M’s shifting executory interest
M= A shifting executory interest
- DISTINGUISHING CHARACTERISTICS?
*DEVISABLE, DESCENDIBLE, ALIENABLE
*Just like FSD only now, if condition broken, the estate is automatically ended in fave of someone other than Grantor
- ACCOMPANYING FUTURE INTEREST?
3rd Person (other than Grantor): Shifting Executory Interest
2 IMPORTANT RULES OF CONSTRUCTION CONCERNING DEFEASIBLE FEES
- Words of mere desire, hope, or intention are insufficient to create a defeasible fee.
*Courts disfavor restrictions on free use of land. Thus, courts WILL NOT find a defeasible fee UNLESS clear durational language is used
- Absolute restraints on alienation are void.
*An absolute restraint on alientation is an absolute ban on the power to sell or transfer, that is not linked to a reasonable time limited purpose.
3 QUESTIONS:
- WHAT LANGUAGE CREATES A LIFE ESTATE?
- DISTINGUISHING CHARACTERISTICS?
+Waste (3 types +any exceptions)
- ACCOMPANYING FUTURE INTEREST?
- WHAT LANGUAGE CREATES A LIFE ESTATE?
*“To A for life”
*This is an estate that must be measured in explicit lifetime terms and NEVER in term of years (that would be a leashold)
**Life Estate Pur Autre Vie: A life estate measured by a life other than the grantee’s (Ex: To A for the life of B)
- DISTINGUISHING CHARACTERISTICS?
*ONLY ALIENABLE
2 General Rules:
a. The life tenant is entitled to all ordinary uses & profits from the land
b. the life tenant must not commit waste (must not harm future interest holders)
WASTE:
Voluntary/Affirmative: Overt conduct that decreases value
Rule: Life tenant must not consume or exploit natural resources on the property (timer, oil, minerals) UNLESS 1 of 4 EXCEPTIONS applies: PURGE
Prior Use: prior to the grant, the land was used to exploit (NOTE: Open Mines Doctrine - If mining was done on theland before the life estate began the life tenant may continue to min but is limited to the mines already open. (May not open new mines)
Repairs: Life tenant may consume natural resources for repairs and maintenance.
Grant: Life tenant may exploit if granted that right
Exploitation: the land is suitable ONLY to exploit.
Permissive Wast/Neglect: Life Tenant allows land to fall into disrepair.
–Life tenant must simply maintain the premises in reasonable good repair
–Life tenant is obligated to pay all ordinary taxes on the land, to the extent of income or profits from the land. IF no income or profit, the life tenant is required to pay all ordinary taxes to the exentent of the premises fair rental value.
Ameliorative Waste: Life tenant must not engage in acts that will enhance the property’s value, UNLESS all future interest holders are known and consent
- ACCOMPANYING FUTURE INTERESTS?
Grantor: Reversion
3rd Party (person other than Grantor) : Remainder
