Real Property Flashcards
What is a Present Possessory Estate?
An interest that gives the holder the right to PRESNT possession.
What is a Fee Simple Absolute?
The largeste estate recognized by law. It can be sold, divided, devised, or inherited and has an indefinite or potentially infinite duration.
What is presumed int he absence of express contrary intent in a grant of real property?
Fee Simple Absolute
What are the different typed of defeasible fees?
Fee SImple Determinable
Fee Simple Subject to Condition Subsequent
Fee Simple Subject to an Executory Interest
Fee Tail
Life Estate
What are the words of creation for a Fee Simple Determiniable?
For so long as
While
During
Until
Must limit the DURATION
Note: Expressions of motive do not count!!!
What is the correlative future interest in the grantor of a Fee Simple Determinable?
Possibility of Reverter
This is AUTOMATICALLY retained
It is transferable, descendible and devisable
What are the words of creation for a Fee Simple Subject to Condition Subsequent?
Upon condition that
Provided that
but if
If it happens that
The language reserves the right of the grantor to terminate the estate upon the happening of a stated event.
What is the correlative furture interest in the grantor of a Fee Simple Subject to Condition Subsequent?
Right of Entry
It must be EXPRESSLY RESERVED
Transferable Inter Vivos? Court Split
Most States = Devisable
Descendible
If a conveyance contains both duration language and a power of termination, what kind of Present Possessory Estate is presumed?
Fee Simple Subject to a Condition Subsequent because the forfeiture is OPTIONAL at the grantor’s election rather than automatic.
Policy disfavors forfieture of estates
What are the words of creation for a Fee Simple Subject to an Executory Interest?
The Language of a Fee Simple Determinable and a Fee Simple Subject to Conditon Subsequent, but instead of future interest in the grantor, future interest is in a THIRD PARTY.
What are the words of creation for a Fee Tail?
To A and the Heirs of his body
An attempt to create this will result in a Fee Simple
What are the words of creation for a Life Estate?
Measured by the life or lives of one or more persons.
This need not be the life of the grantee.
Life Estate Pur Autre Vie
Life Estate measured by the life of another
This also results when the Life Tenant conveys their interest in a life estate to another.
Can a Life Estate be defeasible?
Yes, follow same rules as a Fee Simple.
Future interest in a Life Estate?
To A for Life = Reversion to the Grantor
To A for life, them to B = Remainer in B
To A for life, but if…., to B = Reversion in Grantor, Executory Interest in B
May a future interest holder sue for damages or to enjoin acts that may damage their future interest?
Yes
Exploitation of Natural Resources by a life tenant is generally limited to situations:
1) Necessary for repair or maintenance of the land
2) If the land is suitable only for such use
3) It is expressly of impliedly permitted by the Grantor
What kind of Waste is this?
Affirmative (Voluntary) Waste
*Open mines doctrine* = If mining was done on the land prior to life estate, the life tenant can continue mining but only on the mines that are already open
What 4 conditions must a tenant meet to not commit permissive waste of the property?
1) Preserve the land and structures in a reasonable state of repair
2) Pay interest on mortgages (BUT NOT PRINCIPAL)
3) Pay ordinary taxes on thge land
4) Pay special assessments for public improvements of short duration
When is Ameliorative Waste okay for the Tenant to engage in?
1) The market value of the future interests is not diminished, and EITHER
2) The remaindermen do not object; OR
3) A substantial and permanent changes int he neighborhood conditions (e.g. changes from residential to 90% industrial) has deprived the property in its current for f reasonable productivity or usefulness.
When a life tenant renunciates their interest, who gets the keys?
Generally the future interest following the life estate.
What is a reversionary interest?
How does it arise, law or expressly reserved?
Can holder sue for Waste?
An interest left in a grantor who conveys less than they own.
Arises by law does not have to be expressly reserved
Alienable
Devisable
Inheritable
Holder can sue for waste and tortious damage to their reversionary interest.
Are reversionary interests subject to the Rule Against Perpetuities?
NO! They are vested already!
What possessory interest may a Remainder never follow?
Fee Simple
Because a remainder cannot “cut short” a preceding estate
What are the requirements for a remainder?
How does a remainder arise? Law or Created?
A future interest in a 3rd person;
that can become possessory on the natural expiration of the preceding estate;
It cannot divest a prior estate;
and it cannot follow a time gap after the preceding estate
Must be expressly created in the instrument creating the preceding possessory estate.
Indefeasibly Vested Remainder
Created in an existing and ascertained person, and not subject to a condition precedent.
Right to immediate possession upon normal termination of the preceding estate.
Not subject to divestment or diminution
Vested remainder subject to open
A vested remainder created in a class of persons that is certain to become possessory
subject to diminution (birth of additional children)
to A for life, then to t he children of B. A and B are living and B has one child, C. C has a vested remainder subject to open.
Vested remainder subject to total divestment
Vested remainder that is subject to a condition subsequent
To A for life, then to B and his heirs; but if B dies unmarried, then to C and his heirs.
A = LE
B = Vested Remainder subject to complete divestment by
C = Executory Interest
When language is ambiguous, go with this rather than contingent remainders or executory interests.
When are contigent remainders created?
Subject to a Condition Precedent
Unborn or Unascertained Persons
When does the doctrine of merger come into play?
When one person later acquires immediately successive estates.
If the life estate and the next vested interest were created by the same instrument, there is NO MERGER!
Can a contingent remainder be destroyed?
Not in most states.
To A for life, then to B if she reaches 21. If A dies before B reaches 21, B’s interest would be converted to an executory interest upon A’s death because it will divest O’s reversionary estate when B turns 21.
Common law = yes they can be destroyed
What is the Rule in Shelley’s Case?
If the same sintrument created a life estate in A and gave the remainder only to A’s heirs, the remained was not recognized, and A took the life estate and the remainder.
Abolished in most states.
What is the Doctrine of Worthier Title?
A remainder in the grantor’s heirs is invalid and becomes a reversion in the grantor.
This is treated as a rule of construction only.
What is a Shiting Executory Interest?
An interest that DIVESTS a transferee’s preceding freehold estate
To A for life, then to B and his heirs; but if B predesceases A, then to C and his heirs.
C has a shifting executory interest because it divests a transferee’s preceding estate.
What is a springing executory interest?
An interest that either follows a gap or cuts short a grantor’s estate
To a And his heirs when A marries B
A has a springing EI because it cuts short the grantor’s estate.
Are Executory interests subject to Rule Against Perpetuities?
NO! They are vested.
Also not destructible
Are vested remainders transferable?
Descendible?
Deviasable?
YES YES YES
Are Contigent remainders transferable?
Descendible?
Devisable?
Common law not transferable inter vivos, most courts today hold they are freely transferable
Yes
Yes
Provided survival is not a condition to the interest’s taking
Are executory interests transferable?
Descendible?
Devisable?
Common law not transferable inter vivos most courts hold they are freely transferable.
Yes
Yes
Proved survival is not a conditoon to the interest’s taking.
Are future intersts that are transferable subject to invountary transfer?
YES! Reachable by creditors
Class Gift
Class gift of a remainder may be:
Vested subject to open (Where at least one group member exists) or
Contingent (Where all group members are unascertained)
When does the class close under the rule of convenience.
In the absence of express contrary intent, a class closes when one member of the class can call for distritbution of their share of their share of the class gift.
