Present Possessory Estates Flashcards
Estates in Land - Overview
- possessory interests -> can be present or future
- can be freeholds (possession under some legal title or right to hold) or nonfreeholds (mere possession, such as leases)
- DISTINGUISH FROM NONPOSSESSORY INTERESTS (easements, profits, covenants, and servitudes)
Present Possessory Estate - Basics
- an interest that gives the holder the right to present possession
Categories of Present Possessory Estates to Know
- fee simple absolute
- defeasible fee
- life estate
- for each of these, make sure you know a) what language creates it and b) what are its distinguishing characteristics (devisable? descendible? alienable?)
Devisable - Basic Meaning
- capable of passing by will
Descendible - Basic Meaning
- capable of passing by statutes of intestacy if holder dies “intestate” (without a will)
Alienable - Basic Meaning
- capable of transfer inter vivos (during lifetime)
Fee Simple Absolute - Distinguishing Characteristics
- absolute ownership of indefinite/potentially infinite duration
- freely transferable
- devisable by will
- descendible through intestacy
Fee Simple Absolute - Language to Create
- “To A” or “To A and his heirs”
- generally presumed in the absence of express contrary intent -> language of “and his heirs” is not strictly necessary
*note that even if it says “his heirs”, the heirs have 0 interest (a living person technically doesn’t have heirs, just heirs apparent, and A can transfer whenever to somebody else w/o depriving the heirs of anything)
Defeasible Fees - Overall
- fee simples with a catch -> can be terminated upon the happening of a stated event
-> defeasible essentially means capable of forfeiture - these estates are fee simples in the sense that their duration is uncertain + potentially infinite, BUT not absolute b/c there’s some kind of condition that makes the property subject to a risk of forfeiture
Types of Defeasible Fees
3 core ones to note:
- fee simple determinable
- fee simple subject to condition subsequent fee simple subject to an executory interest
Fee Simple Determinable - Basic Concept
- terminates upon the happening of a stated event and AUTOMATICALLY reverts to the GRANTOR
Fee Simple Determinable - Language to Create
- created by durational language
-> “to A FOR SO LONG AS”
-> “to A WHILE”
-> “to A DURING”
-> “to A UNTIL” - need clear durational language -> express language limiting the duration of the estate
- WON’T create with mere expressions of motive or purpose (ex: “for the purpose of” or “to be used for”)
Fee Simple Determinable - Distinguishing Characteristics
- transferable
- devisable by will
- descendible through intestacy
- BUT throughout all of the above, the interest is ALWAYS subject to the attached condition
-> the interest can be conveyed, but whoever takes it does so subject to the estate’s being terminated by the specified event
-> if the stated condition is violated, forfeiture is automatic
Fee Simple Determinable - Accompanying Future Interest
- possibility of reverter
-> held by the GRANTOR - one and only one future interest attached to fee simple determinable
- when grantor conveys fee simple determinable, the grantor AUTOMATICALLY retains a possibility of reverter
-> that possibility of reverter is transferable, devisable by will, and descendible by intestacy
Fee Simple Subject to Condition Subsequent (and Right of Entry) - Basic Concept
- 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
