Present Possessory Estates

Question 1

what is a present possessory estate?

Answer 1

an interest that gives the holder the right to present possession

Question 2

what are the three categories of present possessory freehold estates?

Answer 2

1) fee simple absolute
2) defeasible fees (3 types)
3) life estate

Question 3

what is a fee simple absolute?

Answer 3

absolute ownership of indefinite or potentially infinite duration

Question 4

what language creates a fee simple absolute?

Answer 4

“to A” or “to A and his heirs”

Question 5

in the absence of express contrary intent, what interest is presumed to be conveyed by the language “to A”?

Answer 5

fee simple absolute (“to A” is enough)

Question 6

what are the FSA’s distinguishing characteristics?

Answer 6

freely transferable, devisable, and descendible

Question 7

what is the accompanying future interest to an FSA?

Answer 7

NOTHING (a living person can have NO heirs, won’t have an interest until grantee dies and then it will be present, not future)

Question 8

what is a defeasible fee?

Answer 8

fee simple estate that can be terminated upon the happening of a stated event (subject to the risk of forfeiture)
**TLDR = fee simple with a catch

Question 9

what is a fee simple determinable?

Answer 9

estate that terminates upon the happening of a stated event and AUTOMATICALLY reverts to the grantor

Question 10

what language creates a fee simple determinable?

Answer 10

durational language such as “to A for so long as…” or “to A during…”, etc

Question 11

how may fee simple determinables be alienated (if at all)?

Answer 11

transferable, devisable, and descendible BUT always subject to the stated condition (grantee takes subject to estate being terminated by the specified event)

Question 12

in a fee simple determinable, when the stated condition occurs, when does forfeiture happen?

Answer 12

AUTOMATICALLY

Question 13

what is the accompanying future interest to a fee simple determinable?

Answer 13

possibility of reverter in the grantor

Question 14

can a possibility of reverter be transferred, devised, or descended?

Answer 14

yes to all three

Question 15

what is a fee simple subject to a condition subsequent?

Answer 15

an estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event (DOESN’T automatically terminate! grantor must take some action!)

Question 16

what language creates a fee simple subject to a condition subsequent?

Answer 16

(2 main ingredients)
1) conditional language – “but if”, “provided that”, “on the condition that”, AND
2) an EXPLICIT statement of the grantor’s right to re-enter – “reserves the right to re-enter and re-take”

Question 17

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

Answer 17

a right of reentry (grantor)

Question 18

are rights of reentry transferable, devisable, or descendible?

Answer 18

NOT transferable BUT they are devisable and descendible

Question 19

what is a fee simple subject to an executory interest?

Answer 19

estate that terminates upon the happening of a stated event BUT then passes to a third party (rather than reverting back to grantor)

Question 20

what language creates a fee simple subject to an executory interest?

Answer 20

language that allows a third party to take if forfeiture occurs – “to A, but if X occurs, to B”

Question 21

if the stated event occurs in a fee simple subject to an executory interest, when does forfeiture occur?

Answer 21

AUTOMATICALLY (goes to 3d party)

Question 22

what is the future interest that accompanies a fee simple subject to an executory interest?

Answer 22

a shifting executory interest in the third party

Question 23

what kinds of words will NOT create a defeasible fee?

Answer 23

words of desire, hope, or general intention/motive (courts need clear, durational language to enforce a defeasible fee)

Question 24

what are the three types of defeasible fees?

Answer 24

1) fee simple determinable
2) fee simple subject to a condition subsequent
3) fee simple subject to executory interest

Question 25

are absolute restraints on alienation of a fee simple valid?

Answer 25

NO (so long as they are not linked to any reasonable, time-limited purpose)

Question 26

will conditions or limitations that violate public policy remain with the estate?

Answer 26

NO (grantee takes free of those conditions)
**NOTE = conditions that penalize things (like marriage, divorce) tend to be invalid, but conditions that encourage things/give support are usually upheld

Question 27

what is a life estate?

Answer 27

an estate measured by the life or lives of one or more people (NOT by a term of years)

Question 28

what language creates a typical life estate?

Answer 28

language that measures the estate by the life of the grantee/life tenant – “to A for life”

Question 29

what is a life estate pur autre vie?

Answer 29

an estate measured by the life of someone OTHER than the grantee – “to A for the life of B”

Question 30

what estate will result when a life tenant conveys their life estate to another?

Answer 30

a life estate pur autre vie
**EXAMPLE = A transfers life estate to B, B has life estate for the life of A

Question 31

what are the accompanying future interests to a life estate? (2)

Answer 31

for grantor = reversion
for 3d party = remainder

Question 32

what is the doctrine of waste?

Answer 32

life tenant has a right to all ordinary uses and profits from the land, BUT has a duty not to commit waste (voluntary, permissive, ameliorative)

Question 33

can the life tenant act in a way that injures the interests of a remainderman or holder of a reversion? (future interests)

Answer 33

NO (if they do, future interest holders can sue for damages/reimbursement)

Question 34

in what limited circumstances may a life tenant exploit the natural resources of the land? (3)

Answer 34

1) exploitation necessary for repair or maintenance of the land,
2) land is suitable only for such use
3) it’s expressly permitted by the grantor

Question 35

what is the open mines doctrine?

Answer 35

if mining was done on the land prior to the life estate, the life tenant can continue mining BUT they’re limited to only the mines already OPEN (no new, unopened mines)

Question 36

what are the general duties of a life tenant?

Answer 36

1) preserve the land and structures in a reasonable state of repair
2) pay ordinary taxes on the land
3) pay interest on mortgages (not principal), and
4) pay special assessments for public improvements of short duration

Question 37

if there’s no income or profit from the land, what will the life tenant’s tax duty be based on?

Answer 37

the premises’ fair rental value (usually less than FMV)

Question 38

is the life tenant required to insure the premises for the remainderman?

Answer 38

NO

Question 39

is the life tenant liable for damages caused by a 3d party tortfeasor?

Answer 39

NO

Question 40

when can a life tenant engage in acts that will enhance the property value? (ameliorative waste)

Answer 40

only when all future interest holders are known and consent

Question 41

under what circumstances may a life tenant alter or even demolish buildings?

Answer 41

1) market value of the future interests is NOT diminished, AND
2) EITHER…
– remaindermen do NOT object, or
– a substantial and permanent change in the neighborhood conditions has deprived the prop in its current form of reasonable productivity/usefulness

Question 42

will leasehold tenants remain liable for ameliorative waste?

Answer 42

yes EVEN IF the neighborhood has changed and the market value was increased

Question 43

what may a life tenant do if the land is practically worthless in its present state?

Answer 43

may seek a partition sale (proceeds put in trust with income paid to life tenant)