Present Possessory Estates Flashcards
FSA - How created
To a, or to a and his heirs. A fee simple is presumed in the absence of expressed contrary intent. That is, the common law words of and his heirs are not necessary. Thus, to a is sufficient to create the fee simple absolute.
FSA - distinguishing characteristics
A fee simple absolute is absolute ownership of indefinite or potentially indefinite duration. It is freely transferable, divisible by will, and descendible through intestacy.
FSA - accompanying future interest
None
Defeasible fees - generally
Defeasible fees are fee simple estates, that is they are of uncertain or potentially indefinite duration, that can be terminated upon the happening of a stated event. You can think of a defeasible fee as a fee simple with a condition attached that renders the estate subject to the risk of forfeiture. 
Defeasible fees - FSD
A fee simple determinable terminates upon the happening of a state of event and automatically reverse to the grantor
Remember that statements of motive or purpose do not create a determinable fee. To create a fee simple determinable, words limiting the duration of the estate must be used. Grants such as for the purpose of, and to be used for are merely expressions of motive.
Defeasible fees - FSD - how created
A fee simple determinable is created by durational language, such as: so long as, while, during, or until
Defeasible fees - FSD - distinguishing characteristics
The fee simple, determinable, like all the defeasible fees, is transferable, divisible by will, and descendible through intestacy, but always subject the attached condition. Thus, a fee simple determinable can be conveyed, but the grantee takes subject to the estate’s being terminated by the specified event. Remember, if the stated condition is violated, forfeiture is automatic. 
Defeasible fees - FSD - accompanying future interest - POR
One of the distinguishing characteristics of a fee simple determinable is that the estate automatically reverts back to the grantor upon the happening of the stated event. That reversionary future interest in the grantor is called a possibility of reverter. Whenever a grantor conveys a fee simple determinable, they automatically retain a possibility of reverter. A possibility of reverter is transferable, divisible by will, and descendible by intestacy.
Defeasible fees - FSSCS - generally
A fee simple subject to condition subsequent is an estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event, meaning the estate doesn’t automatically terminate. The grantor must take some action.
Defeasible fees - FSSCS - how created
Look for:
The use of conditional words, such as upon condition that, provided that, but if, and if it happens that
And
An explicit statement of the grantors right to reenter.
Defeasible fees - FSSCS - distinguishing characteristics
Unlike the fee simple determinable, the fee simple subject to condition subsequent is not automatically terminated if the stated condition occurs. The occurrence of the condition gives the grantor the right to cut the estate short at their prerogative. The grantor may choose to terminate or not if the condition occurs.
Defeasible fees - FSSCS - accompanying future interest - right of entry
A right of entry must be expressly reserved. In contrast, with a possibility of reverter, it does not arise automatically. Most courts hold that rights of entry are not transferable inter vivos, but most states agree that they are devisable by Will, and all states agree that they are descendible through intestacy.
A conveyance that contains both durational language, and a power of termination will likely be construed as creating a few simple subject to condition. Subsequent, because the forfeiture is optional rather than automatic. Policy is favors for feature of estates.
Defeasible fees - FSSEI
If a fee simple estate terminates upon the happening of a stated event, because it is determinable or subject to a condition subsequent, and then passes to a third-party rather than reverting to the grantor or giving the grantor of right to terminate, the third-party has an executory interest. 
Defeasible fees - FSSEI - how created
Look for a third-party who will take upon forfeiture of a fee simply estate. Noticed that in such a grant, the third-party takes if the condition occurs and cuts short the future interest’s fee simple estate. 
Defeasible fees - FSSEI - distinguishing characteristics
The estate is just like the fee, simple determinable, only now, if the condition occurs, the estate is automatically forfeited in favor of someone other than the grantor
Defeasible fees - FSSEI - accompanying future interest
The executory interest accompanies the fee simple subject to an executory interest 
Defeasible fees - rules of constructions for defeasible fees - words of desire
Keep in mind that words of desire, hope, aspiration, expectation, or motivation are insufficient to render an estate a defeasible fee. Such language is simply an expression of motive rather than a limit duration, so it is not construed as imposing a condition on the grant. Courts disfavor restrictions on Free land use and will not find a defeasible fee unless clear durational language is used. 
Defeasible fees - rules of constructions for defeasible fees - absolute restraints on alienation
Keep an eye out for conditions that report to restrict the transfer is ability to transfer a fee simple. An absolute restraint on alienation is an absolute ban on the power to sell or transfer that is not linked to any reasonable time-limited purpose. Under the rule against restraints on alienation, such absolute restraints on alienation of a fee simple are void. 
Defeasible fees - rules of constructions for defeasible fees - conditions and limitations violating public policy are void
Conditions or limitations that violate public policy generally are struck down, and the grantee takes free of the restraint. If the purpose of the condition is to penalize marriage or encourage divorce, it will likely be struck down. However, if the purpose is to give support until marriage, or in the event of divorce, it likely will be upheld.
Fee tail
Fee tail is an estate where inheritability is limited to lineal heirs. Language: A and heirs of his body. Most jurisdictions have abolished the fee tail, and an attempt to create one results in a fee simple.
Life estate - generally
A life estate is one measured by the life or lives of one or more persons, not by a set number of years.
Life estate - how created - for life of grantee
The life estate is an estate that must be measured in explicit lifetime terms, and never in terms of years. The usual life estate is measured by the life of the grantee
Life estate - how created - life estate pur autre vie
Measured by a life other than a grantee. It also resolves when the life tenant conveys their life estate to another.
Life estate - accompanying future interest
If the future interest is held by the grantor, it is called a reversion. If held by a third-party, it is called a remainder. 
Life estate - distinguishing characteristics - doctrine of waste - generally
The life tenant is entitled to all ordinary uses and profits from the land.
The life tenant must not commit waste of any type.
A life tenant thus can’t do anything that injures the interest of the remaindermen or holder of the reversion. If future interest holder may sue for damages or to enjoin such acts, and if they spend money to perform the life tenets obligation, they are entitled to reimbursement. 
Life estate - distinguishing characteristics - doctrine of waste - affirmative waste
Actual, overt conduct that causes a drop and value.
Natural resources: a life tenant depleting a properties. Natural resources could constitute voluntary waste. Thus, exploitation of natural resources, like minerals by a live tenant is generally limited to situations when: 1) necessary for repair or maintenance of the property, 2) The land is suitable for only such use, or 3) it’s expressly or implied permitted by the grantor.
Under the open mines doctrine, if mining was done on the land prior to the life estate, that life tenant can continue mining. But they are limited to the mines that are already open. 
Life estate - distinguishing characteristics - doctrine of waste - permissive waste
Permissive waste occurs when the life tenant fails to comply with their duties, such as by allowing land to fall into this repair or by failing to reasonably, protect the land. You can think of permissive waste as synonymous with neglect. 
Life estate - distinguishing characteristics - doctrine of waste - permissive waste - duties of a life tenant
A life tenant is obligated to:
Preserve the land and structures in a reasonable state of repair
Pay ordinary taxes on the land. Note that the duty to pay taxes is limited to the extent of the total income or profits generated from the land since the life tenant acquired ownership. Or, if the tenant is in possession of the land herself, to the extent of the greater of the income or profits and the reasonable rental value of the land. If there is no income or profit, the life tenant is required to pay all ordinary taxes only to the extent of the premises, fair rental value.
Pay interest on mortgages, not principal
Pay special assessments for public improvements of short duration. Improvements of long duration, our portion between the life, tenant and the future interest holder.
Note that a tenant is not obligated to insure the premises for the benefit of remaindermen and is not responsible for damages caused by a third-party tortfeasor
Life estate - distinguishing characteristics - doctrine of waste - ameliorative waste
Ameliorative waste is a change that benefits the property economically. Note that today a tenant may alter or even demolish existing buildings if:
The market value of the future interest is not diminished.
And either:
The remaindermen do not object
Or
A substantial and permanent change in the neighborhood conditions has deprived the property of its current form of reasonable productivity or usefulness.
Life estate - distinguishing characteristics - doctrine of waste - ameliorative waste - compare: leasehold tenant
Leasehold tenants remain liable for ameliorative waste, even if the neighborhood has changed in the market value of the premises has increased.
Life estate - distinguishing characteristics - doctrine of waste - ameliorative waste - compare: worthless property
If the land is practically worthless and its present state, the life tenant may seek a partition sale, the proceeds of which are put in interest with income paid to the life tenant.
Life estate - renunciation of life estate
If a life tenant 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. 
