Present Possessory Interests Flashcards
Three types of present possessory interests
1) Fee simple absolute
2) Deffeasible fee (three types)
3) Life estate
Devisable definition
Capable of passing by will
Descendible definition
Capable of passing by intestacy (no will)
Alienable Definition
Capable of transfer inter vivos (during lifetime)
Fee Simple Absolute (how to create and distinguishing characteristics and accompanying future interests)
“To A” or “to A and his heirs”
Absolutle ownership of indefinite or potentially infinite duration.
Freely devisable, descendible and alienable.
No accompanying future intersest (b/c a living person has no heirs, just propsective heirs)
Defeasible fees definition and TYPES
Fee simples with a condition attatched (defeasance = forfeiture)
1) Fee simple determinable
2) Fee simple subject to condition subsequent
3) Fee simple subject to an executory interests
Fee simple determinatble
Terminates AUTOMATICALLY on happening of stated event
Created by clear durational language: “so long as”, “while”, “during”, “until”
Devisable, descendible, alienable
Fee simple determinable future interests
Possibility of Reverter - future interest in grantor.
Reverts to grantor automatically if condition failed.
Fee Simple Subject to Condition Subsequent
Use of conditional language PLUS explicit right to re-enter
“upon condition that; provided that; but if; if it happens that”
NO AUTOMATIC TERMINATION. Grantor has prerogative.
Fee Simple SUbject to Condition SUbsequent Future Interests
Right of entry (for grantor) SYNONYMOUS WITH THE POWER OF TERMINATION
Fee Simple SUbject to an Executory INterests (incl future interest)
To A, but if X event occurs, THEN TO B.
Third party, not grantor, takes if condition betrayed.
AUTOMATIC forfeiture.
Future interest: shifting executory inters
Words of mere desire, hope, intention
Do NOT create a defeasible fee. Courts prefer not to encumber fee simples.
Must be clear durational language
Absolute Restraints on Alienation
are VOID.
An absoltue ban on power to sell or transfer not linked to some reasonable time limited purpose.
Repugnant to public policy/
Conditions and Limitations violating public policy
VOID.
Conditions Peanlizing marriage or encouraging divorce are stricken.
But if the purpose is to GIVE SUPPORT until marriage or in the event of a divorce, that’s usually okay.
Life Estate
An estate measured in LIFETIME terms, never in terms of years.
“To A for life”
