Present Estates & Future Interests Flashcards
What does devisable mean for estates?
Capable of being passed by will.
What does descendible mean for an estate?
Capable of passing by intestacy.
What does alienable mean for estates?
Capable of transfer inter vivos.
What is a fee simple absolute? What kind of language is needed to create this?
This is absolute ownership of limitless duration. it is freely devisable, descendible, and alienable.
- “To A” or “To A and his heirs.”
What are defeasible fees? What are the types?
Fee simples with a condition attached.
- NOTE: Defeasance = forfeiture.
TYPES:
- Fee Simple Determinable: A grant terminates upon the happening of a stated event and automatically reverts to the grantor after the occurrence of the prescribed event. (“for so long as,” “until,” “while,” “during”). It is devisable, descendible, and alienable.
- Fee Simple Subject to a Condition Subsequent: An estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event, meaning the estate doesn’t automatically terminate—the grantor must take some action (“but if,” “upon condition that,” “provided that”).
- Fee Simple Subject to an Executory Interest: A fee simple estate that terminates upon the happening of a stated event (because it is determinable or subject to a condition subsequent) and then automatically passes to a third party rather than reverting to the grantor or giving the grantor a right to terminate (“to A for so long as . . . , and if not . . . , to B,” “to A, but if . . . , to B”).
If a Fee Simple Determinable and Fee Simple Subject to a Condition Subsequent seem to be conflated, how should you handle it?
Construe in favor of the Fee Simple Subject to a Condition Subsequent because courts really don’t like automatic forfeitures.
What type of interest always follows a fee simple determinable?
A possibility of reverter.
What are the rules of construction for present estates and future interests?
- Words of mere desire, hope, and intention don’t create a defeasible fee.
- Absolute restraints on alienation (inter vivos) on alienation are void.
What is a Life Estate?
A grant that is measured in lifetime terms (not in a term of years) (“To A for life”).
- The donee is a life tenant.
What is a Life Estate Pur Autre Vie?
A life estate measured by a life other than the grantee’s.
What are the rights and duties of a life tenant?
RIGHTS: A life tenant is entitled to the ordinary uses and profits from the land.
DUTIES: A life tenants is prohibited from committing waste, and future interest holders may bring an action to prevent or recover from waste that the life tenant has committed. The types of waste are voluntary waste, permissive waste, and ameliorative waste.
What is Voluntary Waste of a life tenant?
Voluntary Waste: Actual overt conduct causing a drop in value. Exploitation of natural resources (EX: minerals) by a life tenant is generally limited to situations when: (1) it’s necessary for repair or maintenance of the land; (2) the land is suitable only for such use; or (3) it’s expressly or impliedly permitted by the grantor. Under the open mines doctrine, if mining was done on the land prior to the life estate, the life tenant can continue mining—but they’re limited to the mines already open.
What is Permissive Waste of a life tenant?
Permissive Waste: Permissive waste occurs when a life tenant fails to comply with their duties, such as by allowing land to fall into disrepair or by failing to reasonably protect the land (negligence). Examples: Preserve the land and structures in a reasonable state of repair; Pay ordinary taxes on the land based on fair rental value (not FMV); Pay interest on mortgages (not principal); Pay special assessments for public improvements of short duration (improvements of long duration are apportioned
between the life tenant and future interest holder).
What is Ameliorative Waste of a life tenant?
Ameliorative Waste: Unilateral change that benefits the property economically. The life tenant can’t engage in acts that will enhance the property’s value, unless all future interest holders are known and consent. Future interest holders can recover for reasonable expectations and sentimental value. Today, a life tenant may alter or even demolish existing buildings if: The market value of the future interests is not diminished; AND either (1) The remaindermen do not object; or (2) A substantial and permanent change in the neighborhood conditions (for example, change from residential to 90% industrial) has deprived the property in its current form of reasonable productivity or usefulness (problem of being obsolete).
What is a Possibility of Reverter?
This is a future interest that accompanies the fee simple determinable.
What is a Right of Entry / Power of Termination?
This is a future interest that accompanies the fee simple subject to a condition subsequent.
What is a Reversion?
This is a future interest that arises in a grantor who conveys an estate of lesser duration (than what she started with).
What is a Remainder Interest? How were these treated at common law vs. today?
An interest created in a third party which becomes possessory upon the natural expiration of the preceding estate (e.g., life estate or term of years).
- At common law, special doctrines were created to deal with the uncertainties of the remainder interests–these will sometimes be put as an answer choice.
- These common law doctrines have been abolished under modern law.
What is a Contingent Remainder Interest?
A remainder interest is contingent when it is created in an as yet unascertainable taker OR the taker is ascertainable but has been subjected to and has not yet met a condition precedent to them taking.
What is a Vested Remainder Interest? What are the types of Vested Remainder Interests?
A vested remainder is one created in an existing and ascertained person, and not subject to a condition precedent.
There are three types of vested remainders: (1) the indefeasibly vested remainder; (2) the vested remainder subject to total divestment (also known as the vested remainder subject to complete defeasance); and (3) the vested remainder subject to open.
What is a condition precedent?
A condition is precedent if it must be satisfied before the remainderman has a right to possession.
- Appears before language introducing the remainderman.
What is a condition subsequent?
A later stated event after the receipt of an interest that provides the grantor with a right to terminate the estate. 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.
What does it mean when a remainder interest is indefeasibly vested?
The remainderman is certain to acquire the interest–no strings are attached.
What does it mean when a remainder interest is vested subject to complete defeasance?
The remainderman will acquire the interest subject to a condition subsequent. Grantor or heirs will have a right of entry if the condition is triggered.
