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property > Present Estates and Future Interest > Flashcards

Present Estates and Future Interest Flashcards

1
Q

What is an heir?

A

the persons whoa re entitled to succeed a decedent’s estate based on the local statute of intestate succession when the decedent has died without a will.

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2
Q

What is intestate succession?

A

Succession at death to the estate of a person who dies without a legally valid will.

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3
Q

What is testate succession?

A

Succession at death to the estate of a person who dies with a legally valid will.

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4
Q

What are devisees?

A

The beneficiaries under a legally valid will.

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5
Q

What are issues / descedants?

A

The surviving children, grand-children, great-grandchildren, and so on, of a decedent.

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6
Q

What is an estate?

A

A means of measuring ownership in terms of time.

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7
Q

What is a present estate?

A

A present possessory interest that entitles its holder to the immediate possession of real property.

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8
Q

What is a future interest?

A

A present non-possessory interest that will or may become a present estate in the future.

Can be held by the transferor or a transferee.

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9
Q

What are the three types of freehold estates?

A
  1. Fee simple
  2. Life estate
  3. Fee tail
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10
Q

What are the four non-freehold estates?

A
  1. Terms of years
  2. Periodic tenancy
  3. Tenancy at will
  4. Tenancy at sufferance
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11
Q

What is a fee simple?

A

The longest possible estate - the duration is potentially indefinite

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12
Q

What are the two key characteristics of a fee simple?

A
  1. Heritability - it can be inherited
  2. Alienability - it can be conveyed to someone else during the owner’s lifetime
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13
Q

How is a fee simple created?

A

It is the default estate, so unless otherwise stated, a fee simple is assumed.

“To A and his heirs.”

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14
Q

What are words of purchase?

A

Words that denote who the transferee of the grant is.

“To A…”

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15
Q

What are words of limitation?

A

Words that denote what estate the grantor is conveying.

“… and his heirs.”

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16
Q

Who inherits a fee simple?

A
  1. Spouse
  2. Issues (after the spouse takes a share)
  3. Ancestors (if the decedent leaves no issue)
  4. Collaterals (brothers and sisters - and their descendants - take first)
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17
Q

What is a collateral in terms of inheritance?

A

All persons related by blood to the decedent who are neither descendants nor ancestors.

Ex: brothers, sisters, nephews, nieces, aunts, uncles, cousins, etc.

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18
Q

What is escheat?

A

When a person dies intestate and without heirs, the person’s property escheats to the state where the property is located.

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19
Q

What is a fee tail?

A

An estate that transfers to the lineal descendants, and expires when all of the lineal descendants have died.

“To A and the heirs of his body.”

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20
Q

What happens when a fee tail ends?

A

Every fee tail has a reversion or remainder.

When the bloodline runs out and the fee tail ends, the land will revert to the grantor, or the grantor’s heirs, by way of reversion.

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21
Q

Where is a fee tail estate still valid?

A
  1. Delaware
  2. Maine
  3. Massachusetts
  4. Rhode Island
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22
Q

Per the Restatement, what kind of estate is created if the wording to create a fee tail is used in a jurisdiction that does not recognize fee tail?

A

A fee simple absolute.

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23
Q

What is a divesting executory interest?

A

A future interest held by a party that is not currently in possession.

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24
Q

What is a life estate?

A

A property interest that last for the duration of the transferee’s life, or the life of a third-party.

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25
Q

What is pur autre vie?

A

When a life estate is measured by the lifespan of a third-party.

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26
Q

What happens when a life estate ends?

A

Every life estate is followed by a future interest:
1. A reversion in the transferor
2. A remainder in a transferee
3. Both

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27
Q

What is a reversion?

A

A future interest retained by the transferor.

The property reverts back to the transferor.

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28
Q

What is a remainder?

A

A future interest in a transferee or remainderman, when the right of the current holder expires.

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29
Q

What is a disabling restraint on alienation?

A

A restraint that withholds from the transferee the power of transferring their interest.

Ex: O conveys Blackacre “to A and his heirs, but any transfer hereafter in any manner of an interest in Blackacre shall be null and void”.

30
Q

What is a forfeiture restraint on alienation?

A

A restraint that provides that if the grantee attempts to transferee his interest, it is forfeited to another person.

Ex: O conveys Blackacre “to A and his heirs, but if A attempts to transfer the property by any means whatsoever, then to B and her heirs”.

31
Q

What is a promissory restraint on alienation?

A

A restraint that provides that the grantee promises not to transfer their interest.

Rare except for in tenant-landlord contexts.

Ex: O conveys Blackacre “to A and his heirs, and A promises for himself, his heirs, and successors in interest that Blackacre will not be transferred by any means”.

32
Q

What are problems with legal life estates?

A
  1. Sale: the life tenant cannot sell the property
  2. Lease: the life tenant can’t lease the property for a period longer than their own life
  3. Mortgages: if may be difficult to obtain a mortgage on a life estate
  4. Waste: the life tenant may act in a way that undermines the interest of a future interest-holder
  5. Insurance: the life tenant has no duty to insure buildings, but if they do, only they receive the insurance payout
33
Q

What is waste in terms of a life estate?

A

When an interest-holder acts in a way that undermines the interest of a future interest-holder.

34
Q

What is the law of waste?

A

The life tenant is forbidden to alter the property in a way that reduces the value of the property as a whole.

35
Q

What are the three categories of waste?

A
  1. Affirmative waste
  2. Permissive waste
  3. Ameliorative waste
36
Q

What is affirmative waste?

A

Waste that arises from voluntary injurious acts that have more-than-trivial effects.

37
Q

What is permissive waste?

A

Waste that arises from a tenant’s failure to act.

A failure or neglect to maintain and care for the property.

Ex: lack of property maintenance, neglecting ordinary repairs, failing to pay taxes, etc.

38
Q

What is ameliorative waste?

A

Waste that arises from substantial changes to the property by a tenant that increase, rather than decrease, the market value of the land.

39
Q

What considerations are required in evaluating waste?

A
  1. Age of the property
  2. Age of the life-tenant

NEED TO REVIEW THIS / UPDATE IT.

40
Q

What is a fee simple absolute?

A

A fee simple that cannot be divested, nor will it end upon the occurrence of any future event.

41
Q

What is a fee simple defeasible?

A

A fee simple that will terminate, prior to its natural end point, on the occurrence of some specified future event.

42
Q

What is the purpose of a fee simple defeasible?

A

To control the use of the land after it is transferred.

43
Q

What are the three types of defeasible fees simple?

A
  1. Fee simple determinable
  2. Fee simple subject to a condition subsequent
  3. Fee simple subject to an executory limitation
44
Q

What is a fee simple determinable?

A

A fee simple that will automatically expire when a stated event occurs.

45
Q

What language creates a fee simple determinable?

A

Durational language.

Ex: while, during, until, for as long as, so long as, etc.

46
Q

What is a fee simple subject to a condition subsequent?

A

A fee simple that does not automatically terminate, but can be cut short (divested) at the transferor’s election when a stated event occurs.

47
Q

What language creates a fee simple subject to a condition subsequent?

A

Conditional language.

Ex: provided that, on the condition that, if, etc.

48
Q

What is a fee simple subject to executory limitation?

A

When a grantor transfers what appears to be a fee simple subject to a condition subsequent, and in the same instrument creates a future interest in a third-party rather than himself.

An executory interest that follows a fee simple subject to a condition subsequent.

49
Q

What language creates a fee simple subject to executory limitation?

A

The same conditional language as a fee simple subject to a condition subsequent… PLUS a third-party transferee.

50
Q

What happens when a stated event occurs with a fee simple subject to an executory limitation?

A

Title immediately/automatically transfers to the third-party when the stated event occurs. (Same as the fee simple determinable.)

51
Q

What happens if an executory interest follows a fee simple determinable?

A

It is still called a fee simple determinable.

52
Q

Can a fee simple subject to an executory limitation be self-created by the grantor?

A

Yes. For example, they can convert their fee simple absolute into a fee simple subject to executory limitation.

O conveys “to B, if B reaches the age of 30.”

53
Q

What future interests are retained by the transferor?

A
  1. Reversion
  2. Possibility of reverter
  3. Right of entry
54
Q

What is a reversion? Which estate does it follow?

A

A life estate.

The interest left in an owner when he carves out of his estate a lessor estate, and does not provide who is to take the property when the lessor estate expires.

Ex: O conveys “to A for life.” O has a reversion.

55
Q

What is a possibility of reverter? Which estate does it follow?

A

A fee simple determinable.

When an owner carves out of his estate a determinable estate of the same quantum.

Usually a fee simple determinable carved out of a fee simple absolute.

It automatically vests when the condition fails.

56
Q

What is a right of entry? Which estate does it follow?

A

A fee simple subject to a condition subsequent.

When an owner transfers an estate subject to a condition subsequent, and retains the power to cut short or terminate the estate.

It does NOT vest automatically when the condition fails.

57
Q

What are the future interests in transferees?

A
  1. Remainder (vested or contingent)
  2. Executory interest
58
Q

Who can retain a remainder?

A

ONLY the transferee, never the transferor.

59
Q

What is the difference between a remainder and an executory interest?

A

A remainder takes possession as soon as the prior estate ends, whereas an executory interest divests a prior estate.

60
Q

What is a remainder? Which estate does it follow?

A

A life estate.

A future interest that is transferred to the transferee or a remainderman.

The right to own and possess the land after the fixed interest of current holder expires.

O conveys “to A for life, and then to B.”

61
Q

What are the two types of remainders?

A
  1. Vested
  2. Contingent
62
Q

What is a vested remainder?

A

A remainder to an ascertained person AND which is not subject to a condition precedent.

63
Q

What is an indefeasibly vested remainder?

A

A remainder that is certain to become possessory in the future and cannot be divested.

“To A for life, and then to B and his heirs.”

64
Q

What is a contingent remainder?

A

A remainder given to an unascertained person OR that is contingent on some event occurring other than the natural termination of the preceding estate.

AKA: a remainder subject to a condition precedent.

65
Q

What is an alternative contingent remainder?

A

When the same property is subject to two contingent remainders with opposite conditions precedent such that one of them will always take effect.

66
Q

What is a technical reversion?

A

The type of reversion that follows an alternative contingent remainder.

The reversion has no legal significance.

67
Q

What is an executory interest? What estate does it follow?

A

A fee simple.

A future interest in a transferee that can take effect ONLY by divesting another interest

O conveys “to A and his heirs, but if A dies without issue surviving him, to B and her heirs.”

68
Q

What is a shifting executory interest?

A

An executory interest that divests or cuts short some interest in another transferee.

69
Q

What is a springing executory interest?

A

An executory interest that divests or cuts short the transferor.

70
Q

What is the Rule Against Perpetuities?

A

No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.

71
Q
A

property (4 decks)

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