Real Property Flashcards
Fee simple absolute
The least restrictive present possessory interest.
“To A and her heirs” or “To A”
Fee tail
“To A and the heirs of her body”
The fee tail is not used anymore. Any attempt to create a fee tail creates a fee simple absolute.
Fee simple determinable
Fee simple which automatically comes to an end when a stated event occurs or fails to occur.
The grantor must use clear durational language such as “To A so long as” “To A until”
A fee simple determinable endures until named event occurs, then it
Automatically reverts to grantor.
Nemo Dat rule
A person cannot assign a greater interest than the interest which is possessed.
Fee simple subject to condition subsequent
Grantor must use clear directional language and expressly reserve the right to re-enter, e.g. “To A but if…grantor shall have a right of entry.”
Fee simple subject to executory limitation
Provides for the estate to pass to a third person upon the happenings of the stated event. Grantor must use clear durational language, e.g. “To A but if X occurs, then to B.”
The occurrence of the named event results in automatic termination, i.e. the estate will automatically pass to the third-party.
Is “To A with the hope” or “To A with the expectation” a defeasible fee?
No. To have a defeasible fee, clear durational language is required.
Life estate
Ownership must be measured in terms of lifetime.
“To A for life” “To A for B’s life”
Reverts to grantor unless assigned to third-party remainder.
Rights and duties of life tenant
The life tenant is entitled to all ordinary uses and profits of the land.
Life tenets have a duty not to commit waste.
Life Tenant and Affirmative Waste (voluntary waste)
Any structural change intentionally made to the estate that causes harm to the estate or deplete its resources.
A life tenant has a duty not to consume or exploit the natural resources on the land unless
-if, prior to the grant, the land was used for exploitation, then the life tenant can continue to exploit unless otherwise agreed. (The open mines doctrine permits continued excavation from any mine on the property that is already open but prohibits the opening of new mines.)
-consumption of natural resources is for reasonable repair and maintenance of the property
-Expressly authorized by the grantor OR
-Where land is only suitable for such use.
Life tenant and permissive waste
Permissive waste is the failure to maintain the estate both physically and financially. It requires a failure to make ordinary repairs, pay taxes, or pay interest on the mortgage/encumbrances. Note that the life tenant must maintain the estate both physically and financially only to the extent of the income or profits derived from the land. If the life tenant is using the land herself with no rent, then the life tenant must maintain the estate financially and physically only to the extent of the reasonable rental value of the land. The life tenant has no duty to insure the land.
What is the class closing rule for vested remainder subject open (to A for life, then to the children of B and their heirs).
A class closes under the common law rule of convenience when any member of the class can demand possession. However, under the womb rule, children of B in the womb at A’s death are considered members of the class and will share.
A contingent remainder is
A future property interest that is created in an unascertained person or subject to a condition prescedent. Note: A living person cannot have heirs so a living person’s heirs are unascertained persons.
What is a vested remainder?
Vested remainders are created in an ascertained person and not subject to any condition precedent.
Sub classifications of vested remainders
- Indefeasibly vested remainder “To A for life, remainder to B”
- Vested remainder subject to complete defeasance (Either vested subject to being divested by operation of a condition subsequent or buy an inherent limitation of the estate in remainder) “To A for life, then to B for life, then to C and her heirs.”
- vested remainder subject to open “To A for life, then to the children of B and their heirs.”
What is a condition subsequent property law
A condition that, if it occurs, it will bring the estate to an end. “To A for life, then to B; but if B should die under the age of 40, to C. 
What is a Condition precedent in property law
A condition precedent is an actor event that must exist or her before the remainder vests
What happens if a contingent remainder and land does not vest at or before termination of the preceding freehold estate
“to A for life, then if B marries C to B” and A dies before B marries C
At common law, a contingent remainder and land was destroyed if it did not vest at or before termination of the proceeding freehold estate.
Under modern law, distructability has been abolished. The result is that the grantor or the grantor’s heirs hold the estate subject to B’s springing executory interest. Once the condition president has been satisfied, e.g. B marries C, B will take the estate.
Result of “To B for life, then to B’s heirs” and B is alive.
At common law, the rule in Shelly’s case converted the contingent remainder in B’s heirs into a vested remainder in B. After that, the doctrine of merger operated on the two successive freehold estates placed in the same purchaser and converted them into a single fee simple absolute in B.
Under modern law, the rule in Shelly’s case has been abolished. B=life estate. B’s heirs=contingent remainder, O=reversion.
Result of “To B for life, then to O’s heirs” and O is still alive.
Under the doctrine of worthier title, if a grant for devised by oh well oh it’s alive creates a remainder in the heirs of the grantor, that remainder and owes errors is void.
B=life estate
O=reversion
Executory interest
A future interest in a grantee that, in order to become possessory, must divest or cut short either the prior estate (“shifting”) or spring out of the grantor or her heirs (“springing”) at a future date.
The rule against perpetuities
For a future interest to be valid, the interest must vest, if at all, within 21 years after some life in being at the instrument’s effective date, i.e. the measuring life.
Ask: Will we know for sure whether the interest will vest within 21 years after the measuring life?
What is the fertile octogenarian rule? (RAP)
This rule presumes that anyone even an octogenarian can parent a child, regardless of gender or health.