Real Property

Question 1

Present Possessory Estates - Definition

Answer 1

Interest that gives the holder the RIGHT TO PRESENT POSSESSION

Question 2

Present Possessory Estates - Types (6)

Answer 2

1) Fee Simple Absolute
2) Fee Simple Determinable (Defeasible Fee)
3) Fee Simple Subject to Condition Subsequent (Defeasible Fee)
4) Fee Simple Subject to an Executory Interest (Defeasible Fee)
5) Fee Tail
6) Life Estate

Question 3

Fee Simple Absolute

Answer 3

Can be sold, divided, devised, or inherited
Has an indefinite or potentially INFINITE duration

Largest estate recognized by law
Presumed in absence of contrary intent

Question 4

Fee Simple Absolute - Language

Answer 4

“To A and his heirs”

“To A”

Question 5

Fee Simple Absolute - Correlative Future Interest in Grantor

Answer 5

None

Question 6

Fee Simple Absolute - Correlative Future Interest in Third Party

Answer 6

None

Question 7

Fee Simple Determinable (and Possibility of Reverter)

Answer 7

Terminates upon the happening of a STATED EVENT and AUTOMATICALLY REVERTS to the grantor

Type of Defeasible Fee (fee simple estates that can be terminated upon the happening of a stated event)

Question 8

Fee Simple Determinable - Language

Answer 8

“To A and his heirs for so long as. . .”

until. . .”
while. . .”
during. . .”

NOT
"for the purpose of"
"to be used for"
= statements of MOTIVE ≠ create determinable fee
Need words limiting DURATION

Question 9

Fee Simple Determinable - Correlative Future Interest in Third Party

Answer 9

Executory Interest

Question 10

Fee Simple Determinable - Correlative Future Interest in Grantor

Answer 10

Possibility of REVERTER

Question 11

Possibility of Reverter in Fee Simple Determinable

Answer 11

Grantor conveys a fee simple determinable, AUTOMATICALLY retains possibility of reverter (revisionary future interest)

Possibility of Reverter = transferable, descendible, and devisable

Type of Defeasible Fee (fee simple estates that can be terminated upon the happening of a stated event)

Question 12

Fee Simple Subject to Condition Subsequent (and Right of Entry)

Answer 12

Grantor RESERVES RIGHT TO TERMINATE the estate upon the happening of a STATED EVENT

NOT AUTOMATIC, grantor must take some action

Question 13

Fee Simple Subject to Condition Subsequent - Language

Answer 13

“To A and his heirs, but if. . .”
but if. . .”
upon condition that. . .”
provided that. . .”

Question 14

Fee Simple Subject to Condition Subsequent - Correlative Future Interest in Grantor

Answer 14

Right of Entry

Question 15

Fee Simple Subject to Condition Subsequent - Correlative Future Interest in Third Party

Answer 15

Executory Interest

Question 16

Right of Entry in Fee Simple Determinable Subject to Condition Subsequent

Answer 16

RIGHT TO TERMINATE by the grantor = right of entry

Must be EXPRESSLY reserved
DOES NOT arise automatically (unlike reverter)

NOT TRANSFERABLE inter vivos
Most states say are DEVISABLE
All states say are DESCENDIBLE

Question 17

What is a Conveyance That Contains BOTH Durational Language AND Power of Termination?

Answer 17

Likely construed as FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT

Forfeiture is OPTIONAL at grantor’s election, rather than automatic

Policy disfavors forfeiture

Question 18

Fee Simple Subject to an Executory Interest

Answer 18

Terminates upon the happening of a stated event (because it is determinable or subject to a condition subsequent) AND THEN PASSES TO A THIRD PARTY, rather than reverting to the grantor or giving the grantor a right to terminate
Third party has an EXECUTORY INTEREST

Type of Defeasible Fee (fee simple estates that can be terminated upon the happening of a stated event)

Question 19

Fee Simple Subject to an Executory Interest - Language

Answer 19

“To A and his heirs for so long as. . ., and if not. . ., to B”

“To A and his heirs, but if. . .to B”

EXAMPLES
“To A and his heirs for so long as liquor is not sold on the premises; in that event, to B” - B has an executory interest

“Blackacre to XYZ Church but if it is used for anything other than church purposes, then to B” - B has an executory interest

Question 20

Fee Simple Subject to an Executory Interest - Correlative Future Interest in Grantor

Answer 20

Right of Entry

Question 21

Fee Simple Subject to an Executory Interest - Correlative Future Interest in Third Party

Answer 21

Executory Interest

Question 22

Fee Tail

Answer 22

Inheritability is limited to LINEAL HEIRS

Most jurisdictions have abolished fee tail, and an ATTEMPT to create one results in a FEE SIMPLE

Question 23

Conditions and Limitations Violating Public Policy

Answer 23

Conditions or limitations that violate public policy are generally STRUCK DOWN and grantee takes FREE of restraint

If purpose of condition is to PENALIZE MARRIAGE or ENCOURAGE DIVORCE, it will likely be STRUCK DOWN

If purpose is to GIVE SUPPORT until marriage or in the event of divorce, likely to be UPHELD

Question 24

Fee Tail - Language

Answer 24

“To A and the heirs of his body”

Question 25

Fee Tail - Correlative Future Interest in Grantor

Answer 25

Reversion

Question 26

Fee Tail - Correlative Future Interest in Third Party

Answer 26

None (but remainder is possible)

Question 27

Life Estate

Answer 27

Measured by the LIFE or lives of one or more persons

May be created by operation of law (e.g.: dower) or by conveyance

Usually indefeasible
Possible to create life estates that are defeasible in the same way as fee estates

Life estate can be DETERMINABLE, subject to a condition subsequent, AND subject to an EXECUTORY interest
EXAMPLES
“To A for life so long as alcohol is not used on the premises”

“To A for life, but if A is divorced, to B”

Question 28

Life Estates by Marital Right (Legal Life Estates)

Answer 28

Common Law
Dower and curtsy = CL interests of a spouse in real property of other spouse
Interests could NOT be defeated by conveyance or by creditors

Modern (most states abolished CL rule)
Use STATUTORY RIGHT to a PORTION of spouse’s estate

Question 29

Conventional Life Estates - For Life of Grantee

Answer 29

USUAL life estate is measured by the LIFE OF THE GRANTEE

May be implied from LANGUAGE

Question 30

Conventional Life Estates - Life Estate Pur Autre Vie (Life of Another)

Answer 30

Measured by a life OTHER THAN the grantee’s

Also results when a LIFE TENANT CONVEYS his life estate to another

EXAMPLE
“If A, the holder of a life estate, conveys his interest to B, B has a life estate for the life of A”

Question 31

Life Estate (may be defeasible) - Language

Answer 31

“To A for life,” OR “To A for the life of B”
“To A for life, then to B”
“To A for life, but if. . .,to B”

Question 32

Life Estate - Correlative Future Interest in Grantor

Answer 32

Reversion

except in cases i.e.: “To A for life, then to B”

Question 33

Life Estate - Correlative Future Interest in Third Party

Answer 33

Remainder
“To A for life, then to B”

Executory Interest
“To A for life, but if. . ., to B”