Property Flashcards
Devisable
Can pass by will
Descendible
Can pass by intestacy if holder dies intestate
Alienable
Transferable intervivos (during holder’s lifetime)
What is a fee simple?
1) Absolute ownership of potentially infinite duration; 2) Freely devisable, descendible, and alienable.
Words to create a fee simple
“To A” (or “to A and A’s heirs” but not necessary)
What is the future interest that accompanies a fee simple?
Nothing. O conveys all that O has to A. A’s heirs have nothing because a living person has no heirs. A has everything.
Words to create a fee tail
“To A and the heirs of his body”
What is a fee tail?
Historically, fee tail passed to the lineal blood descendants of grantee no matter what. Today, the attempted creation of a fee tail creates a fee simple absolute.
What is the accompanying future interest of a fee tail?
In O, the interest is a reversion. In a 3d party, the interest is a remainder.
What are the defeasible fees?
1) Fee simple determinable; 2) Fee simple subject to condition subsequent; 3) Fee simple subject to executory limitation
How do you create a fee simple determinable?
Need clear durational language such as: “To A for so long as…”, “To A during…”, “To A until…”
How does a fee simple determinable end?
If the stated condition is violated, forfeiture is automatic.
What is a fee simple determinable?
A devisable, descendible, and alienable interest in land that passes subject to the condition stated.
The Mick Jagger Rule of FSDs
You can’t always get what you want i.e. can’t transfer more than you have (fee subj to condition) w/o forfeiting estate.
What future interest accompanies a fee simple determinable?
FSDPOR: Frank Sinatra Doesn’t Prefer Orville Redenbacher. Fee simple determinable possibility of reverter.
How to create a fee simple subject to condition subsequent?
Grantor must use 1) clear durational language and 2) carve out the right to reenter. “To A, 1) but if X event occurs, 2) grantor reserves the right to re-enter and retake.”
What is the difference between FSD and fee simple subject to condition subsequent?
FSD = automatic forfeiture if condition violated; FSSCS = estate can be cut short at grantor’s option if condition is violated.
What future interest accompanies a fee simple subject to condition subsequent?
Right of entry a.k.a. power of termination.
How to create a fee simple subject to executory limitation?
“To A, but if X event occurs, then to B.”
What is a fee simple subject to executory limitation?
Just like an FSD but if the condition is violated the estate is automatically forfeited to someone other than O.
What future interest accompanies a fee simple subject to executory limitation?
A shifting executory interest.
What are the two important rules of statutory construction for defeasible fees?
1) Words of mere desire, hope or intention are insufficient to create a defeasible fee; 2) Absolute restraints on alienation are void.
What does it mean when we say words of mere desire, hope or intention are insufficient to create a defeasible fee?
Courts favor free use of land. Need clear durational language to have an actionable condition.
What does it mean when we say absolute restraints on alienation are void?
The absolute ban on the power to sell or transfer not linked to a reasonable tie limited purpose is void. If there’s a violation, construe as a fee simple.