Property: Present and Future Interests Flashcards
alienability
All present possessory interests and all future interests are transferable inter vivos and at death (testate and intestate),
except for rights of entry, which are not transferable inter vivos in a majority of jurisdictions.
In addition, all present and future interests are subject to the claims of creditors.
rules of construction
(1) No new (or hybrid) estates will be recognized.
(2) A deed conveys the grantor’s entire estate, unless expressly limited.
(3) A grantor may not convey a greater estate than he or she possesses.
(4) If a conveyance is ambiguous and may reasonably be construed as more than one estate, there is a presumption in favor of the larger possessory estate and a presumption against finding a future interest,
(5) Read and analyze the interests in a conveyance in sequence—from left to right.
Present interest flowchart
- Does the present interest—by its terms—last indefinitely? If so, it’s a FSA.
- Does it potentially last forever but may be cut short by an event? If so, it’s a defeasible fee simple (FSD, FSSCS, or FSSEL).
- Does the present interest end at someone’s death? If so, it’s a life estate.
- Is the present interest measured by a calendar period (e.g., one year)? If so, it’s a lease.
O, the fee simple absolute owner of Blackacre, transfers Blackacre “to A and her heirs.”
A has a
Fee Simple Absolute (FSA)
It is alienable
During life and at death
A’s Heirs have
Nothing
O has
Nothing
O transfers Blackacre “to A.”
A has a
Fee Simple Absolute
fee tail:
O transfers Blackacre “to A and the heirs of his (or her) body.”
DELETE CARD
At common law, A has a
Fee Tail
A’s Lineal Descendants have a
Remainder
O has a
Reversion (which vests in possession if A or any other possessor dies without lineal descendants) (O could also create a Remainder in a third party)
Under modern law, A has a
FSA
A’s Heirs and Descendants have
Nothing
O has
Nothing
Defeasible Fees:
O transfers Blackacre “to A for so long as (or as long as) Blackacre is used for farming.”
A has a
Fee Simple Determinable (FSD)
It is alienable
During life and at death, but subject to Rule 3 on Slide 3
O has a
Possibility of Reverter (which vests automatically if farming is discontinued)
It is alienable
During life and at death
Defeasible Fees:
O transfers Blackacre “to A, but if farming should ever cease on Blackacre, O or his heirs may reenter Blackacre and terminate A’s interest.”
A has a
Fee Simple Subject to a Condition Subsequent (a/k/a Fee Simple Defeasible Upon a Condition Subsequent)
It is alienable
During life and at death, but subject to Rule 3 on Slide 3
O has a
Right of Entry (a/k/a Right of Re-entry and Power of Termination) (which vests upon (1) the discontinuance of farming and (2) O’s demand for re-entry)
It is alienable
At death, but not during O’s life in most jurisdictions
Defeasible Fees:
O transfers Blackacre to A for so long as Blackacre is used for farming; if farming should ever cease on Blackacre, O or her heirs may reenter Blackacre and terminate A’s interest.
A has a
FSSCS
because like here it could be either, you have to choose between FSD and FSSCS
FSSCS wins
O has a
Right of Entry
Defeasible Fees:
O transfers Blackacre “to A, but if A should ever use Blackacre for non-residential purposes, to B and her heirs.”
A has a
Fee Simple Subject to an Executory Limitation (FSSEL) (a/k/a Fee Simple Subject to an Executory Interest)
It is alienable
During life and at death, but subject to Rule 3 on Slide 3
B has a
Shifting Executory Interest (which vests automatically on A’s use of Blackacre for non-residential purposes)
It is alienable
During life and at death
Defeasible Fees:
O transfers Blackacre “to A, but if A should ever use Blackacre for non-residential purposes, to B and her heirs.”
A has a
Fee Simple Subject to an Executory Limitation (FSSEL) (a/k/a Fee Simple Subject to an Executory Interest)
It is alienable
During life and at death, but subject to Rule 3 on Slide 3
B has a
Shifting Executory Interest (which vests automatically on A’s use of Blackacre for non-residential purposes)
It is alienable
During life and at death
Defeasible Fees:
O transfers Blackacre “to A for so long as A uses Blackacre for residential purposes; if A ever uses Blackacre for non-residential purposes, to B.”
A has a
Fee Simple Subject to an Executory Limitation (a/k/a Fee Simple Determinable Subject to an Executory Limitation)
B has a
Shifting Executory Interest
Defeasible Fees:
O transfers Blackacre to A for life and, one year after A’s death, to B and her heirs. Does B have a remainder or an executory interest?
B does not have a remainder because her future interest does not follow “immediately” after the natural termination of A’s life estate.
When A dies, Blackacre will revert to O subject to B’s future interest.
Thus, O has a Reversion in a Fee Simple Subject to an Executory Limitation and B has a Springing Executory Interest which will vest in possession one year after A’s death.
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A for her life, then to B for his life, remainder to C.”
A has a
Life Estate
It is alienable
during A’s life, but subject to Rule 3 on Slide 3
B has a
Remainder in a Life Estate
It is alienable
during B’s life, but subject to Rule 3 on Slide 3
C has an
Indefeasibly Vested Remainder in Fee Simple
It is alienable
during C’s life and at death
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A for her life, then to B for his life, remainder to C.”
A has a
Life Estate
It is alienable
during A’s life, but subject to Rule 3 on Slide 3
B has a
Remainder in a Life Estate
It is alienable
during B’s life, but subject to Rule 3 on Slide 3
C has an
Indefeasibly Vested Remainder in Fee Simple
It is alienable
during C’s life and at death
