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Property Law > Present Estates > Flashcards

Present Estates Flashcards

1
Q

What are the four categories of present (freehold) estates?

A
  1. Fee simple absolute
  2. Fee tail
  3. The Defeasible Fees (3 types)
  4. The Life estate
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2
Q

What three questions do the bar examiners expect us to know about each estate?

A
  1. What language will create the estate?
  2. What are the estate’s distinctive features?
  3. Which future interests does the estate have? (If any)
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3
Q

What are the three questions to ask when determining an estate’s characteristics?

A

Ask if the estate is:

  1. Devisable (can it pass by will?),
  2. Descendible (will it pass by intestacy, i.e., without a will?), AND
  3. Alienable (transferrable inter vivos, i.e., during holder’s lifetime).
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4
Q

What language creates an estate in fee simple absolute (FSA)?

A

“To A” OR

“To A and his heirs”

(i.e., “to his heirs” is no longer needed)

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5
Q

What does it mean for an estate to be DEVISABLE?

A

A devisable estate can pass by WILL

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6
Q

What does it mean for an estate to be DESCENDIBLE

A

A descendible estate will pass by the statutes of INTESTACY (i.e., without will)

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7
Q

What does it mean for an estate to be ALIENABLE?

A

Alienable land can be transferred INTER VIVOS, i.e., can be sold while holder is alive

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8
Q

What are the distinguishing characteristics of FSA?

A

FSA = Absolute ownership

  1. Freely devisable
  2. Descendible
  3. Alienable
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9
Q

What are the future interests accompanying conveyance in FSA?

A

None

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10
Q

What is the “Bruce Willis” rule of property?

A

A living person has no heirs.

(Living people only have prospective heirs)

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11
Q

How can a fee tail be created?

(rarely tested)

A

“To A and the heirs of his body”

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12
Q

What was the distinguishing feature of a fee tail?

A

Historically, It passed to blood descendants no matter what

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13
Q

What now happens when a grantor tries to create a fee tail?

A

Property is interpreted to be FSA

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14
Q

What was the future interest of a fee tail?

A

IF the land went back to the grantor: REVERSION

IF the land went to a 3d party: REMAINDER

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15
Q

How should you think of a defeasible fee?

A

Like an FSA, but with a catch

e.g., “To A for as long as…” “To A until…”

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16
Q

What are the three types of defeasible fees?

(MBE)

(NY)

A
  1. Fee simple determinable [NY: FEE ON LIMITATION]
  2. Fee simple subject to condition subsequent
  3. Fee simple subject to executory limitation
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17
Q

How is a fee simple determinable [NY: Fee on limitation] created?

(3 examples)

A

Clear durational language, e.g.,

  1. To A for so long as . . .
  2. To A during . . .
  3. To A until . . .
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18
Q

NY QUESTION

What is a fee simple determinable called in NY?

A

Fee on limitation

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19
Q

What happens if the stated condition of a Fee Simple Determinable is violated?

A

Automatic forfeiture

20
Q

What are the distinguishing characteristics of FSD?

A

Like FSA: Devisable; Descendible; Alienable

BUT, always subject to the condition

21
Q

What is the “Mick Jagger” rule of property?

A

You can’t always get what you want

(You cannot transfer an interest you do not possess)

22
Q

What future interests accompany a FSD?

A

Possibility of reverter

(i.e., Fee Simple Determinable with Possibility of Reverter)

Frank Sinatra Doesn’t Prefer Orville Redenbacher!

23
Q

What is reverter?

A

Property reverts to original grantor or his heirs or assigns

24
Q

What language creates a FS subject to condition subsequent?

(2 elements)

A
  1. Grantor uses clear durational language AND
  2. Carves out the right to reenter
    e. g., “A to B, but if X event occurs, A reserves the right to reenter and take”
25
Q

NY QUESTION

What does NY call a FS subject to condition subsequent?

A

Fee on condition

26
Q

What is the future interest that accompanies a FSSCS?

(And what is it called in NY?)

A

Right of entry AKA Right of termination

(NY: Right of reacquisition)

27
Q

What are the distinguishing characteristics of FSSCS?

A
  1. It is NOT automatically terminated, BUT
  2. It may be terminated at grantor’s OPTION if the stated condition occurs
    (i. e., Grantor may terminate if condition is triggered, but may not)
28
Q

How is a FS subject to executory limitation (FSSEL) created?

(2 steps)

A
  1. Grantor uses clear durational language AND
  2. Conveys the land to a different party if a stated condition met
    e. g., “To A, but if X event occurs, then to B.”
29
Q

What are the distinguishing characteristics of a FS subject to executory limitation?

A

If condition broken, estate is automatically forfeited in favor of someone other than the grantor

(Otherwise just like a fee simple determinable)

30
Q

What is the future interest accompanying a FS subject to executory limitation?

A

Shifting executory interest

31
Q

What kind of language must be used when creating a defeasible fee?

What is not allowed in creating a defeasible fee?

A
  1. Must use clear durational language (Words of mere desire, hope, intention, or mere expectation are insufficient)
  2. Absolute restraints on alienation are void
32
Q

What happens if an effort to create a defeasible fee fails?

A

FSA

33
Q

What constitutes an absolute restraint on alienation?

A

Power to transfer not linked to a reasonable time or limited purpose

34
Q

How is a life estate created?

A

Must be measured in explicit lifetime terms AND Never in terms of years (“The romantic estate”)

e.g., “To A for life”

35
Q

What is the person who receives a life estate called?

A

The life tenant

36
Q

What are the distinguishing characteristics of a life estate? (2)

A
  1. Life tenant is entitled to all ordinary uses and profits from the land AND
  2. The life tenant must not commit waste (harm future interest holders)
37
Q

What are the future interests accompanying a life estate?

(Reversion vs. Remainder)

A

Reversion IF “A to O for life”

Remainder IF “A to O for life, then to B”

38
Q

What is a life estate pur autre vie (PAV)?

A

Life estate measured by a life other than the grantee’s

(e.g., “O to A for the life of B”)

39
Q

What are the three types of “waste”?

A
  1. Voluntary or affirmative waste
  2. Permissive waste
  3. Ameliorative waste
40
Q

What is voluntary/affirmative waste?

A

Overt conduct that causes a drop in value (willful destruction)

41
Q

What is the rule for voluntary waste of natural resources?

A

Must not consume or exploit natural resources on the property

(BUT see “PURGE” exceptions!)

42
Q

What are the PURGE exceptions to waste of natural resources?

(PU/R/G/E)

A

In general, you cannot commit waste in the land. BUT waste may be permissible IF…

  1. Prior Use (land was used for exploitation before the grant—BUT see open mines doctrine)
  2. Repairs (may consume natural resources for repairs and maintenance)
  3. Grant (may exploit if granted that right)
  4. Exploitation (land is suitable only to exploit)
43
Q

What is the Open Mines Doctrine w/r/t the prior use exception to the prohibition against waste?

What is the limitation on the open mines doctrine?

A

If mining was done on the land before life estate began, life tenant may continue to mine

BUT this exception is limited to the mines already open! (i.e., may not open new mines)

44
Q

What is permissive waste?

A

The land is allowed to fall into disrepair (must maintain the estate in reasonably good repair)

45
Q

What is the rule for permissive waste and paying taxes?

A

Must pay all ordinary taxes to extent of income or profits OR If no income, must pay ordinary taxes to extent of fair rental value

46
Q

What is ameliorative waste?

A

May not engage in acts that will enhance property’s value UNLESS ALL future interest holders are known and explicitly consent

[N.B. See NY rule/exception!]

47
Q

NY QUESTION

What is the NY rule for ameliorative waste?

A

By statute, life tenants may make reasonable improvements UNLESS remaindermen object

(e.g., Life tenant may make the types of changes that a reasonable fee simple holder would make)

Property Law (9 decks)

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