Present possessory estates Flashcards
types of present possessory estates
fee simple absolute
defeasible fees
- fee simple determinable
- fee simple subject to condition subsequent
- fee simple subj to executory interest
life estates
- regular life estate
- life estate pur autre vie
what is a fee simple absolute? (distinguishing characteristics
absolute ownership of indefinite or potentially infinite duration
freely transferable / alienable intervivos
devisable by will
descendible through intestacy
“To A and his heirs”
what does A have?
what do A’s heirs have?
A has a fee simple absolute
A has no heirs at this point because a living person has no heirs, only “prospective heirs apparent.” Those people are powerless
three types of defeasible fees
fee simple determinable
fee simple subject to condition subsequent
fee simple subject to an executory interest
what is a defeasible fee?
A fee simple estate that can be terminated / subject to forfeiture upon the happening of a stated event
characteristics of defeasible fees
transferable
devisable by will
descendible through intestacy
subject to an attached condition
specific characteristics of a fee simple determinable
defeasible fee = subject to condition
forfeiture is automatic upon the violation of the attached condition
how is a fee simple determinable created?
DURATIONAL LANGUAGE
“to A so long as …”
“to A while …”
“To A during …”
“To A until …”
*Cannot simply grants that are expressions of motive, like “To A for the purpose of” or “to be used for”
when A conveys to B “so long as blackacre is used as a personal residence” and then B conveys to C, is C subject to the condition?
Yes
when a grantor grants a party a fee simple determinable, what does the grantor have?
+ acronym
FDSPOR - frank Sinatra didn’t prefer Orville redenbacher
possibility of reverter
the estate automatically reverts back to grantor upon violation of condition
characteristics of a possibility of reverter
allows holder to automatically ownership upon the violation of the condition of the fee simple determinable
transferable
devisable by will
descendible by intestacy
what is fee simple subject to condition subsequent
estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event
so the estate does NOT automatically terminate upon the violation of the condition, the grantor must take action
what is the future interest that accompanies a fee simple subject to condition subsequent
what are its characteristics?
right of entry / “power of termination”
“it’s my prerogative’
grantor’s right of entry must be expressly reserved - does not arise automatically
NOT transferable interviews
Maj. rule - devisable by will
descendible through intestacy
how to create/recognize a fee simple subject to condition subsequent
(1) conditional words
“but if”
“provided that”
“upon condition that”
“but if it happens that”
(2) explicit statement of grantor’s right to re-enter
“To A, but if X event occurs, grantor reserves the right to re-enter and retake”
difference between the future interests in fee simple determinable and fee simple subject to condition subsequent
possibility of reverter arises automatically with the creation of a fee simple determinable
right of entry must be expressly reserved
what is a fee simple subject to an executory interest?
characteristics
this is just the name for a fee simple estate that is terminated upon the happening of a stated event (either FSD or FSSCS) and then passes to a third party rather than reverting back to grantor or giving grantor right to terminate
like the FSD - if stated condition is violated, the estate is automatically forfeited in favor of the named third party
future interest that accompanies the fee simple subject to an executory interest
shifting executory interest
forfeiture to the third party’s executory interest is automatic
how is fee simple subject to an executory interest created / recognized
“to A, but if X occurs, then to B.”
A has a fee simple subject to an executory interest
B has a shifting executory interest
limitations on defeasible fees
(1) no absolute restraints on alienation — result is that the language creating such a restraint will be stricken
Ex: “To A so long as she never attempts to sell” = strike the second clause = “To A” is all that is left; A has a fee simple absolute
-
(2) words of mere hope, aspiration, desire, expectation, motivation will not create a defeasible fee
Ex: “To A for the purpose of constructing a day care center,” “To A with the hope that he becomes a lawyer,” and “To A with the expectation that he turns it into a store,” each give A a fee simple absolute)
-
(3) conditions or limitations that violate public policy are struck down and the grantee takes free of the restraint
marriage exceptions:
- a condition whose purpose is to give support until marriage or in the event of divorce, it likely will be upheld
[but a condition penalizing marriage or encouraging divorce is likely going to be struck down]
what is a restraint on alienation
absolute ban on the power to sell or transfer that is not linked to any reasonable time-limited purpose
what future interest accompanies a fee simple absolute
none
what is a fee tail
how is it created
how is it treated by the law
estate where inheritability is limited to lineal heirs
-
“To A and the heirs of his body”
most jurisdictions abolished this - if you attempt to create one, it will create a fee simple
what is a life estate
an estate measured by the life or lives of one or more persons
how is a life estate created
measured in explicit lifetime terms, never in terms of years
“To A for life” - A has a life estate and is known as a “life tenant”
