Present Possessory Interests Flashcards
Characteristics of a Fee Simple Absolute
Language Required: “To A & his heirs”, “To A”
Duration: Potentially forever
Devisable, descendible, alienable
Does not create a future interest in either the grantor or a 3P
Three Types of Present Possessory Estates
Fee Simple Absolute
Defeasible Fee
- Fee Simple Determinable
- Fee Simple Subject to Conditions Subsequent
- Fee Simple Subject to Executory Interest
Life estate
Three Types of Present Possessory Estates
Fee Simple Absolute
Defeasible Fee
- Fee Simple Determinable
- Fee Simple Subject to Conditions Subsequent
- Fee Simple Subject to Executory Interest
Life estate
What is a Defeasible Fee?
A fee simple with a condition attached
Defeasance = forfeiture
Characteristics of a Fee Simple Determinable
Terminates automatically on the happening of a stated event
Created by clear durational language: “so long as,” “while,” “during,” or “until”
Possibility of reverter (future interest in grantor)
Devisable, descendable, alienable
Characteristics of a Fee Simple Subject to Condition Subsequent
Use of conditional language + explicit right to re-enter (“To Selena, but if Selena ever serves alcohol on
site, Britney reserves the right to re-enter and retake.”)
Grantor has the “power of re-entry”
No automatic termination- the grantor has the RIGHT to re-enter (and must exercise that right)
EXAM TIP: A conveyance with both durational language and a power of termination will likely be construed as
creating a FSSCS because the forfeiture is optional at the grantor’s election rather than automatic.
Characteristics of the Fee Simple Subject to an Executory Interest
“to A, but if X event occurs, then to B.”
Third Party automatically takes if the condition is betrayed
The third party has a “shifting executory interest”
Limitations on Defeasible Fees that Violate Public Policy
Attempts to penalize marriage or encourage divorce are likely void
BUT Attempts to give support until marriage or in the event of divorce will likely be upheld.
What is a Fee Tail?
An estate where inheritability is limited to lineal heirs.
Created by the words: “to A and the heirs of his body.”
Most jurisdictions have abolished the fee tail, and an attempt to create one results in a fee simple
How to Create a Life Estate
“To A for life”
- A is a life tenant
- Measured in lifetime terms (rather than in years)
Life Estate Pur Autre Vie (for the Life of Another)
Measured by a life OTHER THAN the grantee’s (“to A for the life of B”)
The grantor of the life estate has a reversion
- Reverts back to grantor at the end of B’s life
Is it a Reversion or a Remainder?
Reversion: Future interest is held by Grantor
Remainder: Future interest is held by Third Party
Rights and Duties of a Life Tenant
All ordinary uses and profits from land
Do not commit waste
When can a life tenant alter or demolish existing property?
(1) The market value of the future interests is not diminished, and
EITHER:
(2) The remaindermen do not object; OR
(3) A substantial and permanent change in the neighborhood conditions has deprived the property of reasonable productivity or usefulness (e.g., change from residential to 90% industrial).
Compare—Leasehold Tenant
Leasehold tenants remain liable for ameliorative waste even if the neighborhood has changed and the market value of the premises was increased.
Compare—Worthless Property
If the land is practically worthless in its present state, the life tenant may seek a partition sale, the proceeds of which are put in trust with income paid to the life tenant.
Voluntary Waste and Natural Resources
Exploitation of natural resources by a life tenant is allowed when:
(1) necessary for repair or maintenance of the land;
(2) the land is suitable only for such use; or
(3) it’s expressly or impliedly permitted by the grantor.
Open Mines Doctrine: If mining was done on the land prior to the life estate, the life tenant can continue mining ONLY the mines already open.
