present estates and future interests

Question 1

present posessory estates

Answer 1

Estates in land are possessory interests in land.

These interests may be possessory now (present estates), or they may become possessory in the future (future interests).

Question 2

devisable

Answer 2

capable of passing by will

Question 3

descendible

Answer 3

capable of passing by intestacy (no will)

Question 4

alienable

Answer 4

capable of transfer inter vivos

Question 5

fee simple absolute

Answer 5

Devisable, descendible, alienable

Question 6

defeasible fees

Answer 6

fee simple with condition addition

If proscribed stated violation is violated/betrayed, forfeiture (defeasance) is automatic

words of mere desire, hope, aspiration, or expecation, or motivation are insufficient to render an estate a defeasible fee

fee simple determinable, fee simple subject to condition subsequent, fee simple subject to an excutory interest

Question 7

fee simple determinable

Answer 7

termiantes automatically on happening of stated event

Created by clear durational language: “so long as,” “while,” “during,” “until”

devisable, descendible, alienable
* but condition follows

paired with Possibility Of Reverter: held by. grantor, automatic

Fee Simple Determinable Possibility Of Reverter aka Frank Sinatra Didn’t Prefer Orville Redenbacher

Question 8

fee simple subject to condition subsequent

Answer 8

Use of condition language + explicit right to re-enter (power of termination) if condition is betrayed

no automatic termiantion, grantor’s perogative

Question 9

fee simple subject to an executory interest

Answer 9

“To A, but if X event occurs, then B”
* Third party, not grantor, takes if condition betrayed

Question 10

life estate

Answer 10

“to A for life”

A life tenant can transfer the life estate to anyone, and the holder of the future interest has no say in the matter
* they are then on hook for LT’s obligations

O has a reversion but if 3P holds future interest, remainder

Question 11

absolute restraints on alienation (power to sell or transfer)

Answer 11

void if lack durational language

effect: language of condition is striken; grantor retains

Question 12

life estate “pur autre vie”

Answer 12

measured by a life other than the grantee’s (for example, “to A for the life of B”)

Question 13

waste

Answer 13

LTs cannot commit waste (hurt future interest holders)

Question 14

voluntary waste

Answer 14

actual overt conduct causing drop in value

Natural resources: gen a LT cannot consume or exploit natural resources on the property (like timber, minerals, or oil)
* but open mines doctrine: if mining was done on site before the life tenancy began, the LT may continue to mine but is limited to mines already formed

Question 15

permissive waste

Answer 15

neglect; failure to take reasonable measures to protect land
* Have to keep the land and structures in reasonable state of repair
* and pay ordinary taxes and interest on mortgages

Question 16

ameliorative waste

Answer 16

unilateral change that enhances value

LT can alter or even demolish existing buildings if:
* market value of future interests is not diminished AND either
* the remaindermen do not object; or
* substantial and permeant change in the neighborhood conditions has deprived the property in its current form of reasonable productivity of usefulness

Question 17

possibility of reverter

Answer 17

future interest in transferor

accompanies FSD

alienable: can be sold or given away

Question 18

right of entry/power of termination

Answer 18

transferor interest
accompanies FSSCS

Question 19

reversion

Answer 19

transferor interest
accompanies when grantor conveys estate of lesser duration

Question 20

remainder

Answer 20

3P/transferee future interst

becomes possessory upon natural expiration of preceding estate: tag along waiting until natural end of other term

usually attached to life estate or term of years e.g. “to A for life, then to B”

must be expressly created

Question 21

vested remainder

Answer 21

three types: indefeasibly vested remainder, Vested remainder subject to complete defeasance (aka total divestment), and Vested remainder subject to open

Question 22

contingent remainder

Answer 22

A remainder is contingent if: (1) it’s created in unborn or unascertained persons, or (2) it’s subject to a condition precedent, or both.
* cond precednet = must do this in order to succeed in taking posession

In other words, a remainder may be contingent as to person or as to event.

(1) e.g. “to A for life, then to B’s first child”
(2) e.g. “to A for life, then, if B graduates from college, to B”

Question 23

indefeasibly vested remainder

Answer 23

certain to acquire, no strings/conditions attached e.g. “to A for life, remainder to B”

not subject to divestment or diminution

Question 24

Vested remainder subject to complete defeasance (aka total divestment)

Answer 24

Subject to condition subsequent

Comma rule: When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent, and you have a vested remainder subject to complete defeasance
* “To A for life, then to B” –> VR
* “provided, however, that if B dies under the age of 25, to C.” –> B has VRSCD

Question 25

Vested remainder subject to open

Answer 25

Creates in class of takers, at least one already qualified to take but subject to diminution

“to A for life, then to B’s children” –> part of the class is sitll open

class closes whenever some member of the class can demand possession/distribution of their shares– rule of convenience
e.g. class closes at A’s death or B’s death –> If more children are born after B dies, they do not get anything (late arrival)

Question 26

executory interest

Answer 26

cutting short prior taker

shifting EI: follows defeasible fee, cuts short someone other than grantor
* e.g. “to A, but if B returns from Canada, to B and his heirs”

springing EI: cuts short grantor
* e.g. “to A, if and when she becomes a lawyer”

Question 27

rule against perpetuities

Answer 27

Certain kinds of future interests are void if there’s any possibility they might vest more than 21 years after a person alive at the time of the grant has died

steps:
1. determine future interest: only applies to contingent remainders, exec interests, and certain vested remainders subject to open (does not apply to any future interest capable of creation in the grantor or IVR, VRSTD)
2. what has to happen for future interest holder to take?
3. find measuring life: Look for a person alive at the date of the conveyance whose life and/or death is relevant to what has to happen for future interest holder to be able to take
4. Will we know for sure within 21 years of the death of that relevant measuring lifetime if that future interest holder can take or not
* if yes –> conveyance is good
* if no –> future interest is void under RAP

Question 28

executory interest w/o time limit

Answer 28

void under RAP

effect: strike the offensive language re EI and then RAP doesn’t apply to future interests capable of creation in the grantor

Question 29

Reform of RAP

Answer 29

1. wait and see: validity determined per facts as they come to be
2. Uniform Statutory RAP: provides alternative 90-year vesting period
3. Cy Pres: court can redraft “as near as possible” to grantor’s intent