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Property > Present Possesory Estates > Flashcards

Present Possesory Estates Flashcards

0
Q

First issue

A

Children

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1
Q

Whiten rule

A

A person cannot create a new type of inheritance through their will

E.g. “Will giving granddaughter and her heirs on her fathers side”

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2
Q

Intestate ; no issue or collateral -who gets property?

A

Escheats to the state

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3
Q

Defeasible fees

A

Potentially infinite estates that can terminate upon the happeneing of a specific event

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4
Q

Transferability of a reverter or right of reentry -common law view

A

Reverter and right of reentry are inheritable, but not transferable by WILL or INTER VIVIOS conveyence

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5
Q

Transferibilty of reverter/ right of reentry - modern trend

A

Reverter and reentry are transferable inter vivos

MINORITY: only reverter transferable - mahrenholz

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6
Q

When does SLIM start running for defeasible estates

A

1) at the end of the determinable fee; or

2) condition occurs –allowing reentry

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7
Q

Fee simple defeasible

A

A fee that can end if

  1. No more heir; or heirs and
  2. Fee simple determines; or
  3. Condition subsqeuent; or
  4. Executory limitation
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8
Q

Fee simple determineable

Grantor retains _________.

A

Possibility of reverter

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9
Q

Fee simple determinable - reverter?

A

Automatically terminates on the happening of a stated event - reverts to grantor

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10
Q

Language of fee simple

A

Durational:

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11
Q

“So long as …”

A

Fee simple determinabke

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12
Q

“While used for..”

A

Fee simple determinable

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13
Q

“During the continuance of said school”

A

Fee simple determinable

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14
Q

“To A for school purposes; otherwise revert”

A

NOT fee determinable

if “only “included the yes

“only” + [condition] ; otherwise revert = fee simp. Determinable

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15
Q

Do you have to explicitly state right of reverter in deed

A

No, arises automatically

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16
Q

Reverter definition

A

Future intrest in tranferor and his heirs, becomes possessory upon occurence of stated event

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17
Q

Fee simple subject to condition subsequent.

Grantor retains ______.

A

Rght of reentry

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18
Q

Right of reentry

A

Grantor retains power to terminate if occurence. Estate continues UNTIL grantor excersises this right

NOT AUTOMATICALLY

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19
Q

“To A , but if land ceases to be used for church, grantor retains right of reentry”

A

Fee simple subject to condition subsquent

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20
Q

”..provided, however, that when the premises cease to be used as a church”

A

Fee simple subject to condition subsequent

21
Q

“On condition that the premises..”

A

Fee simple subject to condition subsequrnt

22
Q

Fee simple subject to executory intrest

A

Transferor creates a future intrest in a 3rd party rather than himself

23
Q

LE

A

Estate under no fixed time, but cannot last longer than grantees life

24
Q

Life Estate pur autre vie

A

) A life estate for which the measuring life — the life whose duration determines the duration of the estate — is someone’s other than the possessor’s.

25
Q

Every life estate is followed by __________; either _______ or ______.

A

A future intrest ; either

  1. Reversion to transferor; or
  2. Remainder to transferee
26
Q

Ambigious languge in conveyence presumed to be

A

A fee simple SEE white

27
Q

Rules against direct restraints on alienation: 4 policy reasons

A
  1. Avoids unmarketability
  2. Avoids impossibilty of sale- perpetuating concetraion of $
  3. Encourages iproving land if you own it
  4. Avoids unjust immunity from grantees creditors
28
Q

“O conveys Blackacre to A and her heirs but and transfer after is null and void”

A

Disabiling restraint - void

29
Q

“O conveys Blackacre toA and his heirs, but if A trys to tranfer, then to B and her heirs”

A

Forfeiture restraint- void

30
Q

“A promises not to transfer his life estate,” not enforcable by contract remedy

A

Promisory restraint

31
Q

There are six factors to determine if a restraint on alienation is reasonable:

A
  1. Type of price (fixed or not fixed; courts prefer non-fixed)
  2. Purpose: Is it a legitimate purpose, or not? (courts prefer legitimate)
  3. Equal bargaining power of the parties
  4. Duration (a time limit to the restraint is preferred)
  5. Limit to the number of persons to which transfer is prohibited
  6. A restraint that increases the value of property is more reasonable.
32
Q

Restraint against alienation: fee simple

A

Fee Simple If a fee simple was conveyed, all restrictions are meaningless and unenforceable.

33
Q

Rst: direct rule against alienation

A

Absolute restraints on fee simple forbidden; partial restraints (“limiting conveyence to certain ppl”) ok

34
Q

Fee Simple Absolute (FSA) (no future interests associated)

Features

A

A.Total right/absolute(ish) ownership.
B.FSAs are devisable, inheritable, and alienable.
C.No future interests are associated with the property that can cut short ownership.
—Created by a grant “to A” or “to A and his heirs.”
D.Court infers the “and his heirs” part if it’s not included.

35
Q

Life Estate (LE) (future interest can be reversion or remainder)

A

Exists for the life of the grantee, who has the right to possess and use the land.
-However, the grantee can only grant what he owns. Therefore, he only has the right to alienate the life estate.
Therefore, if A, the grantee, sells his life estate to B, B’s right terminates upon the on A’s death.

36
Q

Doctrine of Waste

A

Future interest holder can seek damages or injunctive relief when the life tenant commits waste by interfering with the future interest.

37
Q

Permissive waste- ).

A

A.occurs when the life tenant fails to take reasonable steps to preserve or protect the property.
B.Repairs, taxes, etc. are the responsibility of the LE holder.
C.Mortgage costs are shared between LE holder (pays interest) and remainderman (pays principle

38
Q

Permissive waste remedies

A

Remedies:
1. Future interest holder can pay for repairs, taxes or mortgage interest and obtain a lien on the property.
Then, he can eventually foreclose on the lien if the life tenant doesn’t pay.

39
Q

Affirmative waste

A

occurs when the life tenant intentionally or negligently makes or wants to make permanent changes to the land that devalues the future interest or changes the essential character of the property.

40
Q

Remedies of affirmative waster

A

Remedies:
1.Court can order an injunction to enjoin the LE holder from making the major changes.
2.Court can order a partition. This means the property is sold and proceeds are divided amongst the remaindermen and the LE holder.
However, partition must be in the best interest of all the parties.

41
Q

Fee Simple Determinable (FSD) (future interest = possibility of reverter; automatic to grantor)

A

FSD is a defeasible interest in property. This means it is subject to a condition and can be forfeited if that condition is violated.

42
Q

Intent to create a FSD is shown by the language used in the grant:

A

A grant “to A so long as the property is not used as a commercial establishment.”
Must use words showing duration such as “so long as” or “until.”

43
Q

Fee Simple Subject to a Condition Subsequent (FSSCS) (future interest = right of entry/power of termination; not automatic)

A

A FSSCS is also a defeasible interest that is subject to a condition.

44
Q

Grant “to A on condition that A not use alcohol,” for example.

A

Fee simple subject to condition subsequent

45
Q

Words showing condition include: “on condition that,” “provided that,” “but if,” etc.

A

FSSCS

46
Q

Ambigious language in conveyence..

A

If unclear, courts prefer FSSCS, not FSD, because it requires action by the future interest holder to get the property back.

47
Q

Fee Simple Subject to Executory Limitation (FSSEL) (future interest = executory interest, automatic to 3rd party, grantor has no interest)

A

)
Hybrid FSD/FSSCS, except 3rd party automatically receives the present interest when the condition occurs, not the original grantor.

48
Q

Rules of Construction

A

Restrict defeasance by giving the courts more discretion.
Policy Issue: Tension between trying to give meaning to the original transaction and the actual/efficient use of the property.
Process:
1.First, court inquires whether the language is “precatory,” or denotes only a wish or desire. This is legally unenforceable. (“to be used as”)
2.Second, court asks whether it is clearly a condition. If not, court construes the language as a covenant because this allows more room for the court to shape equitable relief. This is because PP does not want to tie up land for inefficient use.
A covenant is a legally enforceable promise to do or refrain from doing something with some land (“the parties agree”, etc.).
Ex. Fitzgerald v. Modoc County (p.153) P conveyed property to the County “to be used as and for a county high school.” County sold land to a private party instead.
Court held that these types of conditions were not favored by courts.
Therefore, because grant language did not explicitly express that this was a condition, it is considered to be, at the most, a covenant.
Merely indicating a purpose for the conveyance is not enough. The actual intent must be expressed clearly in the deed.
Ex of when the rules of construction are applied harshly against the grantor.
Remedy for breach of covenant is damages or injunction. (Liability Remedy).
Damages are usually nominal and equitable defenses apply.
Violation of a condition, on the other hand, results in forfeiture. (Property Remedy).
3.Finally, courts express preference for FSSCS over FSD because it requires action by future interest holder to get property back, it doesn’t just automatically force forfeiture.

49
Q

the grantor conveys land “to grantee and his or her heirs, but if the premises are used for commercial purposes other than the sale of antiques, then the grantor has the right to reenter and repossess the property.”

A

Fee simole subject to condition subsequent

50
Q

Aienability of LE?

A

A life estate is alienable, and therefore, the life tenant can convey his or her estate. The grantee of the life tenant would thereby be given an estate pur autre vie. The life tenant is unable, however, to convey an estate that is greater than his or her own. His life is measuring life.

51
Q

Open Mines Doctrine

A

Depletion of natural resources is waste unless the normal use of the land was to deplete them

Property (12 decks)

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