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
Life Estates and Miscellaneous Interests:
O transfers Blackacre by will “to B, after the death of my spouse A.”
A has a Life Estate (Implied)
B has an
Indefeasibly Vested Remainder in Fee Simple
Life Estates and Miscellaneous Interests: Duties/Rights of a Life Tenant (LT)
a. LT is entitled to all ordinary uses and profits from land (e.g., LT may live on the property and continue to operate a business or farm on the property)
b. But LT must not commit WASTE.
Remaindermen (and holders of reversions) may sue for waste;
holders of executory interests may not.
Vested remaindermen may obtain equitable relief and/or damages; contingent remaindermen may only obtain equitable relief. There are three types of waste.
i. voluntary waste
ii. permissive waste
iii. ameliorative waste
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A for her life, remainder to B’s children.” At the time of the conveyance, B is alive and has one child, C.
A has a
Life Estate
B has
Nothing
C has a
Vested Remainder Subject to Open (or Partial Divestment)
It is alienable
during C’s lifetime and at death, but subject to Rule 3 on Slide 3
Life Estates and Miscellaneous Interests:
O transfers Blackacre to “A for her life, then to B, but if B should not reach the age of 21, to C.”
A has a
Life Estate
B has a
Vested Remainder Subject to Total (or Complete) Divestment (or Defeasance) (read and analyze the interests in a conveyance in sequence—from left to right)
It is alienable
subject to Rule 3 on Slide 3
C has a
Shifting Executory Interest
It is alienable
Life Estates and Miscellaneous Interests:
O transfers Blackacre to “A for her life, then to B, but if B should not reach the age of 21, to C.
A dies before B reached 21
B has a
FSSEL
C has a
Shifting Executory Interest
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A for her life, remainder to B’s children.” B has no children.
A has a
Life Estate
B’s Children have a Contingent Remainder (because no takers exist)
O has a
reversion
It is alienable
during life and at death
If O conveys her reversion to X, X will own a
reversion
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A for her life, remainder to A’s first child to reach the age of 21.” A is alive and has one child, B, who is 20.
A has a
Life Estate
B has a Contingent Remainder (because the exact taker is unknown)
O has a
Reversion
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A for her life, remainder to B if B survives A.” A and B are alive.
A has a
Life Estate
B has a Contingent Remainder (because B’s remainder is subject to a condition precedent) (read and analyze the interests in a conveyance in sequence—from left to right)
O has a
Reversion
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A when A gets married.” A is unmarried.
O has a
FSSEL
A has a
Springing Executory Interest
Life Estates and Miscellaneous Interests:
O transfers Blackacre to “A for the life of B, remainder to C.”
A has a
Life Estate Pur Autre Vie
B has
Nothing
C has an
Indefeasibly Vested Remainder in Fee Simple
If A dies before B,
A may transfer the life estate by will or intestacy
If B dies before A,
C has a FSA
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A for her life, remainder to B.” A sells her interest to B.
B has a
FSA
Why?
Doctrine of Merger
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A for her life or until she remarries, and upon her death or remarriage, whichever first occurs, to C.” A is alive and has not remarried.
A has a
Life Estate Subject to an Executory Limitation
C has two future interests:
- an Indefeasibly Vested Remainder in Fee Simple (in the event A never remarries)
- a Shifting Executory Interest (in the event A remarries)
Note: A restriction on first marriage is generally invalid, but a restriction on remarriage is generally valid.
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A for her life, then to B if she is married when A dies; but if B is not married when A dies, to C. A, B, and C are alive; B is unmarried.
A has a
Life Estate
B has a Contingent Remainder (because B’s interest is subject to a condition precedent). Reading and analyzing the interests in sequence—from left to right—the condition precedent comes before the condition subsequent.
C has a
An alternative Contingent Remainder
Life Estates and Miscellaneous Interests:
O transfers Blackacre “to A for 25 years.” A is alive and is 92 years old.
A has a
Leasehold (Tenancy for Years)
O has a
Reversion
