Present Possessory Estates Flashcards
What is a present possessory estate? What are the 3 types (for exam)?
A present possessory estate is an interest that gives the holder right to present possession. The 3 types are:
- fee simple absolute
- defeasible fee (3 kinds)
- life estate
What does it mean for a present possessory estate to be (a) devisable, (b) descendable and (c) alienable?
(a) devisable means it can pass by will
(b) descendible means if the holder dies w/o will (intestate) - pass to state def of heirs
(c) alienable means it transferable during holder’s lifetime
What is a fee simple absolute estate?
“To A” or “to A and his heirs” = absolute ownership of infinite duration. It’s transferable, devisable by will, descendible thru intestacy (owner can transfer, pass down, automatically goes to heirs upon intestacy)
What is a defeasible fee, what are the three types?
A defeasible fee is a type of fee simple (i.e. infinite duration) that can be terminated upon certain event occurring. Three types are:
- fee simple determinable
- fee simple subject to condition subsequent
- fee simple subject to an executory interest
All defeasible fees are transferable, devisable, and descendable.
Note: language must be clearly conditional/durational - mere language indicating desire/intention/motivation will be insufficient to find a defeasible fee
What is a fee simple determinable?
“to A for so long as…”/”to A while…”/”to A during/until…”
A fee simple determinable–indicated with durational language – terminates upon the occurrence of a specific event and immediately reverts to the original grantor.
The fee is transferable/devisable/descendable but will always be subject to the stated condition.
Note: “for the purpose of..” or “to be used for” are merely indicating purpose, NOT fee simple determinable
What is the possibility of reverter?
When an estate interest has the possibility of reverter it means that the interest may revert back to the grantor at some point. (e.g. in a fee simple determinable)
What is a fee simple subject to condition subsequent?
A fee simple subject to condition subsequent is one in which the grantor reserves the right to terminate upon a certain event/condition occurring. So, unlike the fee simple determinable, this does not automatically revert upon the condition occurring, but rather gives the grantor the power to revert once it happens. (called “right of entry”)
Language must have: (1) condition words (“provided that” “if it happens that” “but if”) and (2) an explicit statement of the granters right to re-enter (if event occurs, grantor reserves right to re-enter).
NOT transferable when party is alive, but is devisable by will and descendable intestate.
What is a fee simple subject to an executory interest?
A fee simple subject to executory interest is when the interest will automatically pass to a third party (not the original grantor) upon a condition occurring.
E.g. “to A, but if X occurs then to B”
What is a restraint on alienation? when will it be valid?
A restrain on alienation is s restraint on the transferees ability to transfer the interest not linked to any reasonable/time-limited purpose (e.g. “to A so long as she never attempts to sell”) - these terms will generally be deemed void as invalid.
What sort of conditions/limitations may be limited for public policy reasons on interests of estates?
Conditions penalizing marriage or encouraging divorce.
What is a fee tail? What happens when someone tries to create a fee tail?
Fee tail is when someone limits inheritance to lineal heirs (“heirs of his body”). States generally will re-write this as a fee simple.
What is a life estate? What are the different types of life estates?
A life estate is measure by the life of someone. It can be measured (a) by the life of the grantor or (b) by the life of another. (e.g. “to A for life vs. “to A for the life of B”)
What is a reversion? A remainder?
In a life estate, when the future interest is held by the original grantor = reversion.
When future interest is held by a third party = remainder
What duties does a life tenant have wrt to the land/estate?
Life tenant is entitled to all ordinary uses and profits from the land, BUT, tenant must not commit waste, i.e. (a) voluntary waste, (b) permissive waste, and (c) ameliorative waste.
(a) voluntary/affirmative waste = actual, overt conduct that causes drop in value, e.g. depleting natural resources
(b) permissive waste = neglect of duties that allows land to drop in value/disrepair
duties include:
– preserve land in reasonable state of repair
– pay ordinary taxes on land (but when no income/profit comes from land, then taxes based on rental not market value)
– pay interest on mortgages
– pay special assessments for public improvements of short duration
(c) ameliorative waste = change that benefits the property economically - can not do this unless all future interest holders consent
Note: NOT required to insure premises or pay damages for third party tortfeasors
May a future interest holder sue a life tenant for failure of duties?
Yes - for damages or injunction. AND, entitled to reimbursement for spending money to fulfill tenant duties.
