Present Estates

Question 1

The three categories of freehold estates

Answer 1

1. The Fee Simple Absolute
2. The Defeasible Fees (of which there are three types); and
3. The Life Estate

Question 2

Devisable

Answer 2

Estate that is able to pass by will

Question 3

Descendible

Answer 3

Estate that will pass by the statutes of intestacy if its holder dies intestate

Question 4

Alienable

Answer 4

Transferable inter vivos, i.e. during the holder’s lifetime

Question 5

The examiners expect us to know three things about each category of freehold estates:

Answer 5

1. What language creates the estate
2. The estate’s distinguishing characteristics (devisable, descendable, and/or alienable)
3. What future interests the estate is capable of

Question 6

Language to create the Fee Simple Absolute

Answer 6

“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.]

Question 7

Fee Simple Absolute’s distinguishing characteristics

Answer 7

Absolute ownership of potentially infinite duration. It is freely alienable, devisable, and descendible.

a.k.a. grand prize estate.

Question 8

Future interest accomanying a fee simple absolute estate

Answer 8

• None.
• While A is alive, he has only prospective heirs.
• They are powerless.

Question 9

Definition of defeasible fees

Answer 9

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.]

Question 10

The three types of Defeasible Fees

Answer 10

1. fee simple determinable
2. fee simple subject to condition subsequent
3. fee simple subject to executory limitation

Question 11

How the fee simple determinable is created

Answer 11

“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.”

Question 12

What happens when the stated condition of a fee simple determinable is violated

Answer 12

Automatic forfeiture occurs

Question 13

SoL timing for grantor to assert right after violation of Fee Simple Determinable

Answer 13

• 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

Question 14

Distinguishing characteristics of all the Defeasible Fees

(i.e. FS Determinable, FS Sub. to CS, and FS Sub. to EL)

Answer 14

devisable, descendible, and alienable, but always subject to the condition.

Question 15

Fee Simple Determinable’s accompanying future interest

Answer 15

The possibility of reverter

Question 16

What grantor must do to create a FS subject to condition subsequent

Answer 16

1) use clear durational language and
2) explicitly carve out the right to reenter.

Question 17

Language to create a Fee Simple Subject to Condition Subsequent

Answer 17

• “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.”]

Question 18

What happens to the Fee Simple Subject to Condition Subsequent when the condition is violated.

Answer 18

Estate is not automatically terminated, but it can be cut short at the grantor’s option if the stated condition is violated.

Question 19

SoL for grantor to assert right after violation of Fee Simple Subject to Condition Subsequent

Answer 19

SoL does not begin to run until grantor does something to assert its right.

VA SoL: 10 years from date condition is breached

Question 20

Future interest of Fee Simple Subject to Condition Subsequent

Answer 20

The right of entry, synonymous with the power of termination

i.e. grantor can terminate estate whenever he wants

Question 21

Definition of the Fee Simple Subject to Executory Limitation

Answer 21

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.

Question 22

Language to create the Fee Simple Subject to Executory Limitation

Answer 22

To A, but if X event occurs, then to B.

Question 23

Fee Simple Subject to Executory Limitation

Result of Breach

Answer 23

If the condition is breached, forfeiture is automatic in favor of someone other than grantor.

Question 24

Fee Simple Subject to Executory Limitation

Accompanying Future Interest

Answer 24

Shifting Executory Interest

Question 25

Two Requirements for Creating Valid Defeasible Fees

Answer 25

1. No words of hope/desire. Must use clear durational language
2. No absolute restraints on alienation (right to sell or transfer)

Question 26

How the life estate must be measured

Answer 26

• must be measured in explicit lifetime terms, and never in terms of years.

Question 27

Creation language of the life estate

Answer 27

“To A for life.”

Question 28

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”

Answer 28

Leasehold, not life estate because they both create the term of years.

Question 29

life estate pur autre vie

Answer 29

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

Question 30

The Life Estate

Accompanying Future Interest

Answer 30

If held by grantor, reversion. If held by a third party, remainder.

Question 31

What a life tenant is entitled to as it pertains to the land.

Answer 31

• The life tenant is entitled to all ordinary uses and profits from the land.

Question 32

The life tenant is barred from doing this to the property.

Answer 32

The life tenant must not commit waste (three types)

Question 33

The three types of waste

Answer 33

1. voluntary
2. permissive, and
3. ameliorative

Question 34

Voluntary waste

Answer 34

actual, overt conduct that causes a drop in value.

Question 35

Permissive waste

Answer 35

Occurs when land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land; synonymous with neglect.

Question 36

Permissive waste and the obligation to repair

Answer 36

The life tenant must simply maintain the premises in reasonably good repair

Question 37

Permissive waste and the obligation to pay all ordinary taxes

Answer 37

1. If tenant receives income or profits from the land:
   
   • must pay all ordinary taxes based on Blackacre’s fair value
2. If no income or profits:
   
   • Must pay taxes on the basis of Blackacre’s fair rental value (much less than market value)

Question 38

Ameliorative Waste

Answer 38

The life tenant must not engage in acts that will enhance the property’s value, unless all future interest holders are known and consent

Question 39

Reason for prohibition of ameloriative waste

Answer 39

Because property law honors the future interest holders’ reasonable expectations and sentimental value.

Question 40

VA law on the Doctrine of Waste

Answer 40

• 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.

Question 41

How the Fee Tail is created

Answer 41

“To A and the heirs of his body.”

Question 42

Fee Tail in Modern Times

Answer 42

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.

Question 43

VA law on the Fee Tail

Answer 43

VA has abolished this present estate type.