Present Possessory Interests Flashcards
Fee Simple Absolute
“To A” or “to A and his heirs”
Limitless duration
Freely descendible, devisable and alienable
Fee Simple Determinable (FSD)
“To A for so long as…” or “to A while…” or “to A during…” or “to A until…”
If proscribed condition is betrayed then forfeiture to grantor is AUTOMATIC
Only associated future interest is “possibility of reverter”
Both the FSD by the grantee and the POR by the grantor are freely devisable, descendable, and alienable
Fee Simple Subject to Executory Interest (FSSEI)
“to A, but if X event occurs, then to B”
Instead of going to grantor upon violation of the condition it goes to a 3rd party; upon violation, it AUTOMATICALLY goes to the 3P
The 3P’s stake is called “shifting executory interest”
Fee Simple Subject to Condition Subsequent (FSSCS)
“Upon condition that…” or “provided that…” or “but if…”
Created by conditional language and grantor’s right to re-enter
Associated future interest is “right of entry”; if condition is violated, than the grantor is the RIGHT to re-enter, but they do not have to exercise (unlike FSD where the reversion to grantor is automatic”
Right of entry is (by most courts) not transferrable inter vivos but is descendible/devisable
Rules of Construction for Defeasible Fees
Words of desire, hope, or intention do NOT created a defeasible fee (FSD, FSSCS, FSSEI)
Absolute restraints on alienation are void (ex. “to A so long as she never attempts to sell”); if there is an absolute restraint, then the grantee will have FSA and grantor has no future interest
Conditions violating public policy are void (e.g., penalizing marriage or encouraging divorce are not ok)
Life Estate
“to A for life…”
Explicit lifetime terms (of the grantee) and not a term of years
Life Estate Pur Autre Vie (Life of Another)
Life estate measured by the life of someone other than the grantee
If future interest is held by the grantor, then it’s a “reversion”; if it’s held by a 3P, then they have a “remainder”
If A conveys to B during their life estate, then B’s interest is measured by A’s lifetime and is life estate pur autre vie
Duties of Life Estate Tenant (Voluntary Waste)
Must not commit “voluntary waste”
a) aren’t supposed to deplete natural resources but:
- open mines doctrine –> voluntary waste includes exploiting natural resources, but the “OMD” states that if mining was done on the land prior to the life estate, then life tenant
Duties of Life Estate Tenant (Permissive Waste)
Must not commit “permissive waste”
- a) Preserve land/structure in rxble state of repair
- b) pay interest on the mortgage
- c) pay ordinary taxes for income/profits generated from the land; if no profits, then just needs to pay taxes on the fair RENTAL value
- d) pay for special assessments
Duties of Life Estate Tenant (Ameloriative Waste)
Must not commit “ameliorative waste” unless:
a) market value of the future interests is not diminished; or
b) future interest holders do not object; or
c) substantial/permanent neighborhood changes made it so the property in its current form is no longer useful/productive (e.g., neighborhood went from residential to 90% industrial)
A life tenant is entitled to all ordinary uses and profits of the land, but he cannot lawfully do any act that would injure the interests of the remainderman
