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Present estates and future interests > Present possessory estates > Flashcards

Present possessory estates Flashcards

1
Q

types of present possessory estates

A

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

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2
Q

what is a fee simple absolute? (distinguishing characteristics

A

absolute ownership of indefinite or potentially infinite duration

freely transferable / alienable intervivos

devisable by will

descendible through intestacy

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3
Q

“To A and his heirs”

what does A have?

what do A’s heirs have?

A

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

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4
Q

three types of defeasible fees

A

fee simple determinable

fee simple subject to condition subsequent

fee simple subject to an executory interest

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5
Q

what is a defeasible fee?

A

A fee simple estate that can be terminated / subject to forfeiture upon the happening of a stated event

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6
Q

characteristics of defeasible fees

A

transferable

devisable by will

descendible through intestacy

subject to an attached condition

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7
Q

specific characteristics of a fee simple determinable

A

defeasible fee = subject to condition

forfeiture is automatic upon the violation of the attached condition

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8
Q

how is a fee simple determinable created?

A

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”

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9
Q

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?

A

Yes

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10
Q

when a grantor grants a party a fee simple determinable, what does the grantor have?

+ acronym

A

FDSPOR - frank Sinatra didn’t prefer Orville redenbacher

possibility of reverter

the estate automatically reverts back to grantor upon violation of condition

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11
Q

characteristics of a possibility of reverter

A

allows holder to automatically ownership upon the violation of the condition of the fee simple determinable

transferable

devisable by will

descendible by intestacy

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12
Q

what is fee simple subject to condition subsequent

A

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

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13
Q

what is the future interest that accompanies a fee simple subject to condition subsequent

what are its characteristics?

A

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

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14
Q

how to create/recognize a fee simple subject to condition subsequent

A

(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”

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15
Q

difference between the future interests in fee simple determinable and fee simple subject to condition subsequent

A

possibility of reverter arises automatically with the creation of a fee simple determinable

right of entry must be expressly reserved

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16
Q

what is a fee simple subject to an executory interest?

characteristics

A

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

17
Q

future interest that accompanies the fee simple subject to an executory interest

A

shifting executory interest

forfeiture to the third party’s executory interest is automatic

18
Q

how is fee simple subject to an executory interest created / recognized

A

“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

19
Q

limitations on defeasible fees

A

(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]

20
Q

what is a restraint on alienation

A

absolute ban on the power to sell or transfer that is not linked to any reasonable time-limited purpose

21
Q

what future interest accompanies a fee simple absolute

A

none

22
Q

what is a fee tail

how is it created

how is it treated by the law

A

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

23
Q

what is a life estate

A

an estate measured by the life or lives of one or more persons

24
Q

how is a life estate created

A

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”

25
Q

what is a life estate pur autre vie / how created

A

(1) measured by a life other than the grantee’s life

[ to A for the life of B]

or

(2) the life tenant conveys their life estate to another – that person has a life estate for the length of the original tenant’s life

[“O to A for life.” Then A sells her interest to C. C has a life estate pur autre vie in A’s life]

26
Q

what is the future interest that accompanies a life estate

A

reversion if held by the grantor

remainder if held by a third party

27
Q

explain doctrine of waste:

  • in general - to what is a life tenant entitled

-types of waste

-what duties does a life tenant have in general toward the land

-what happens if those duties are violated

A

(1) a life tenant is entitled to all ordinary uses and profits from the land

(2) a life tenant must not commit waste

(3) Three types of waste: Voluntary, permissive, ameliorative

(4) duties: life tenant cannot do anything that injures the interests of a remainder man or holder of the reversion

(5) if life tenant injures future interest holder’s interests, that future interest holder may sue for damages or to enjoin such acts – or, if they spend money to perform the life tenant’s obligations, they are entitled to reimbursement

28
Q

what is affirmative/voluntary waste?

what about w/r to natural resources

A

voluntary waste = actual, overt conduct that causes a drop in value to the estate

-

a life tenant may exploit natural resources (like minerals) when
(1) necessary for repair or maintenance of the land
(2) the land is suitable only for such use
or
(3) it is expressly or impliedly permitted by the grantor

…. otherwise it may be voluntary waste

open mines doctrine –if mining was done on the land prior to the life estate, life tenant can continue mining, but they are limited to the mines already open

29
Q

what is permissive waste

A

permissive waste is the waste the occurs when life tenant fails to comply with her duties, i.e., neglect.

Ex: allowing land to fall into disrepair, failing to reasonably protect the land

30
Q

duties of a life tenant re: not neglecting the land

A

(1) preserve the land and structures in a reasonable state of repair

(2) pay ordinary taxes on the land
- limited to extent of the total income or profits generated from the land since life tenant acquired ownership
- if life tenant is in possession of the land, duty to pay taxes is limited to the extent of the greater of the income or profits and the reasonable rental value of the land
- if no income or profit, duty to pay all ordinary taxes only to the extent of the premises’ fair RENTAL value (not fair market value)

(3) pay interest on mortgages (not principal)

and

(4) pay special assessments for public improvement of short duration
[improvements of long duration are apportioned between the life tenant and future interest holder]

31
Q

is a life tenant obligated to insure the premises for the benefit of the remainder man?

A

no

32
Q

is a life tenant responsible for damages caused by a third party tortfeasor?

A

no

33
Q

what is ameliorative waste

life tenant’s duties re: increasing property value

what kind of ameliorative waste can be done

A

ameliorative waste is a change that benefits the property economically

-

life tenant cannot enhance property’s value unless all future interest holders are known AND consent

[property law respects their expectations and sentimental value]

-

life tenant may alter or even demolish existing buildings IF:

(1) market value of the future interests is not diminished AND, EITHER

(a) the remaindermen do not object

OR

(b) a substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness [ex: change from residential to 90% industrial]

34
Q

ameliorative waste - leasehold tenant duties

A

liable for ameliorative waste even if neighborhood has changed and market value has increased

35
Q

what happens when life estate land is practically worthless in its present state?

A

life tenant may seek a partition sale, proceeds will be put in trust with income paid to life tenant

36
Q

explain renunciation of life estate

A

if a life estate who receives the estate by WILL or INTESTACY renounces their interest, the future interest following the life estate is generally accelerated so that it becomes immediately possessory

Present estates and future interests (3 decks)

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