Present Possessory Estates Flashcards
Estate
an interest in real property that is presently or may become possessory
Fee Simple Absolute
largest possible estate in land, denoting all possible rights that a person may have in that parcel of land, including:
(a) unimpeded right to sell or convey all or part of the property; and
(b) unimpeded right to devise the property
Termination: Owner dies without a will or heirs, and property escheats to state; otherwise may last in perpetuity
EG: O conveys “to A and his heirs”
Defeasible Estate
an estate that may terminate before its maximum duration has run
Includes: fee simple determinable, fee simple subject to a condition subsequent, fee simple subject to executory interest, fee tail
Fee Simple Determinable
terminates automatically on the happening of a named future event
created by durational language: for so long as; during; while; or until
termination: terminates automatically on happening of a named future event
EG: “to A for so long as liquor is not served on the premises”
fee simple subject to a condition subsequent
this estate may be cut short of the state is retaken by the grantor on the happening of a named future event
created by conditional language: provided however; however if; but if; on condition that; in the event that
note: if language is ambiguous, courts interpret the grant as an attempt to create a FSSCS
termination: power of termination must be expressly reserved to the grantor
EG: “A to B, provided that in the event the premises are not used for educational purposes, then A has the power to terminate B’s estate”
Fee Simple Subject to Executory Interest
estate that is automatically divested in favor of a third person on the happening of a named event
created by either durational or conditional language
subject to the RAP
termination: occurs on the happening of an event that terminates the estate
EG: “A to B so long as B farms the property during his lifetime and, if he does not, then to C.”
Fee Tail
an estate that descended to grantee’s children only
common law (disfavored today)
EG: “A to B and the heirs of his body.”
Life Estate
last for the duration of the grantee’s life
can be made defeasible
EG: “A to B for life.”
Life Estate Pur Autre Vie
duration of the estate is measured by the life of someone other than the grantee
EG: “A to B for the life of C.” As long as C is alive, B owns the property.
Non-Freehold Estate
Term Estate. An estate that is limited in duration (basically a landlord-tenant relationship)
EG: “A to B for 50 years”; “A to B for 1 year.”
Reversionary Interest
future interest retained by the grantor when the grantor transfers less than a fee interest to a third person
a fee simple determinable automatically creates a possibility of reverter (no special language needed)
EG: “A to B for life.” A has given a life estate to B but has not provided for who is going to own the land after B dies. The property will return to A after B dies.
Possibility of Reverter
future interest in the grantor that follows a determinable estate
creation: a fee simple determinable automatically creates a possibility of reverter; no special language needed
not subject to RAP
EG: “A to B so long as B farms the land” creates a possibility of reverter in the grantor.
Power of Termination
future interest in the grantor when the grantor attempts to create a FSSCS or a defeasible life estate
creation: not automatic; must be spelled out in the conveyance or it does not exist
not subject to RAP
EG: “A to B, provided that B uses the premises for residential purposes, but if he does not do so, A may retake and re-enter.” If B ever stops using the premises for residential purposes, A or A’s heirs can enter and retake the property.
Executory Interest
future interest in a third person that cuts short the previous estate before it would have naturally terminated
subject to RAP
EG: : “A to B so long as liquor is not served on the premises in B’s lifetime. If liquor is served on the premises in B’s lifetime, the property will pass to C.” C has an executory interest.
Shifting Executory Interest
interest that cuts short a prior estate created by the same conveyance.
interest passes from one grantee to another
EG: “A to B so long as B completes law school by age 30. If B fails to do so, then to C.” Shifts the property from grantee B to grantee C.
Springing Executory Interest
interest that follows a gap in possession or divests the estate of the transferor
interest passes from a grantor to a grantee
EG: “A to B for life. Then 20 years after B’s death, to C.” B has a life estate. When B dies, the property reverts back to the grantor, A. 20 years later, the property transfers to C. A’s reversion would be in fee.
Remainder
future interest created in a third person that is intended to take effect after the natural termination of the preceding estate
EG: “A to B for life, then to C.” C has a remainder.
Contingent Remainder
any remainder that is not vested
subject to RAP
EG: “A to B for life, then to the oldest child of C then living.” This would be a contingent remainder because we do not know who the oldest child is going to be until B dies.
Vested Remainder
vested at the point that it is (1) created in an ascertainable person; and (2) not subject to any condition precedent, other than termination of the preceding estate
Vested Remainder Subject to Total Divestment
remainder that is presently vested but may be terminated on the happening of a future event
EG: “A to B for life, remainder to C, so long as liquor is never served on the premises.” C has a vested remainder but could lose it by serving liquor on the premises.
Vested Remainder Subject to Open
remainder that has been made to a class and has at least one member who is ascertainable who has satisfied any conditions precedent to vesting, but may have other members join the class later
EG: “A to B for life, then to the children of C.” As soon as C has a child, that child is an ascertainable person and there is no condition to their taking other than the termination of the preceding estate (B’s death). Child would have a vested remainder, but it is subject to open because as other children of C are born, they will also share in the gift.
Waste
An act that adversely affects the future interest.
The possessor of a life estate or a leasehold interest has the right to possess, use, and enjoy the property during the duration of his estate. However, he may not do anything that adversely affects the future interest that follows the life estate.
Voluntary Waste
life tenant cannot intentionally or negligently damage property. If they do, they are liable for the damage
Permissive Waste
life tenant must take reasonable steps to avoid damage. Failure to do so constitutes permissive waste, and the life tenant will be liable
Ameliorative Waste
life tenant makes improvements to the land
Modern law: A life tenant is now allowed to commit ameliorative waste if:
* Market value of the remainderman’s interest is not impaired; and
* It is permitted by the remainderman OR a substantial and permanent change in the neighborhood justifies the improvement
