Temporally subdividing private possession present possessory estates Flashcards
Fee Simple Absolute
“To A and his heirs”
• Presumptive form of ownership
• Fully Alienable – any restraints on alienation are void
o Restraints:
Disabling restraint - “any attempted transfers are void”
Forfeiture restraint - “if you try to transfer this land, your brother gets it instead”
Promissory restraint - “recipient promises not to transfer land”
Fee Tail
“To A and the heirs of his body”
• Historical rule that has since been dissolved – FSA now
Life Estate
– “To A for life”
• Estate lasts for the duration of A’s life
Pur autre vie
life estate measured by the life of someone else
Leasehold (“Tenancy of Years”)
To A for 10 years”; doesn’t include actual ownership
Fee Simple Determinable (FSD)
Automatically ends when a stated event happens
Look for durational words – “so long as” “until” “during”
Future Interest in Transferor – Possibility of reverter
Life estates are FSD because life ending is definite
Fee Simple Subject to Condition Subsequent (FSSCS)
May terminate at the transferor’s choice when a stated condition happens
• Look for conditional words – “but if” “provided” “on condition of”
• Future Interest in Transferor – Right of re-entry
Fee Simple Subject to Executory Limitation (FSSEL)
Automatically ends when a stated event happens but creates a future interest to a third party rather than in the transferor
• Look for conditional words and identification of third party
• Future Interest in Transferor – none because it transfers to the third party
Waste
o Traditional Rule – Present possessor cannot use the land in a way that unreasonably interferes with the interest of future owners
o Modern Rule (Wood v. Woodrick – barn case) – Can make substantial change but may be subject to compensation to the future owners for loss of value
Open Mines Doctrine
Not waste only if the extraction was going on when the future interest was created
Waste Consideration
Nature of Interest – probable duration of PPI, certainty of FI
Nature of Conduct
• Affirmative Waste – certain liability; intentional conduct leading to reduction of value
• Permissive Waste – possible liability; negligent conduct leading to reduction of value
• Ameliorative Waste – likely no liability; intentional conduct leading to increase of value
Possibility of Reverter
future interest owned by a transferor in a fee simple determinable (FSD)
Right of Re-Entry
future interest owned by a transferor in a fee simple subject to condition subsequent (FSSCS)
Reversion
what an owner possess when they transfer a vested non-fee interest that is less than the whole estate they posses
Only applies in life estates, tenancies of years, and contingent remainders
Rule Against Perpetuities Step by Step
- Does RAP even apply?
• Contingent remainders, and
• Executory interest, and
• Vested remainder subject to open (where the class is not fully determined) - Pick a measuring life that is most likely to validate the interest.
• Must be someone in being at the time of transfer
• Pick life that has control over the interest - Isolate the vesting/failing condition.
- Apply the RAP. Can #3 happen more than 21 years after the end of life in #2?
• If yes – then the interest can vest too remotely.
• If no – then you have found a validating life. - Eliminate the invalid interest.
Policy for RAP
Prohibits remote vesting and dead hand control of property
RAP Tips and Tricks
o Most common violations of RAP relate to gifts that vest when children reach a certain age
“O to A’s children who reach the age of 25”
o Fertile octogenarians and precocious toddlers
En ventre sa mere – gestational children born alive can be a validating life
En ventre sa Frigidaire – exclude frozen embryos
o Shifting executory interest following fee simple subject to executory limitation
“O to A unless the land is used for a school, then to B”
o Springing executory interest where the conditional precedent may never happen
“O to A upon completion of the new subway line”
o Unborn widow trap
“O to A life, then to A’s widow for life, then to A’s widow’s children”; A is married to B by they have no children at time of conveyance. B has a child from a preexisting marriage.
Don’t know whose A’s widow is going to be, may not necessarily be B
o Slothful executor
“O to A, then to B when A’s will is probated.”
o Group gifts where some members are vested
“O to A for life, then to A’s children” A is alive and has one child at the time of conveyance.
Rule of Convenience
Group gift problems is solved the RoC, which uses the measuring life (ML) to validate all interests within the closed class
• Implication – becomes a “wait and see” if the interests meet the conditions. But the RoC keeps the interests from failing
Prevents divesting of some vested remainders subject to open
Class interest closes either
• Naturally, usually on death (e.g., O to B for life, to the A’s children); or
• As soon as estate preceding future interest expires (e.g. O to A for life, then to B’s children)
For the purposes of RAP analysis, a class gift closes either naturally or as soon as the estate preceding the remainder expires.
• To A for life, then to B’s children. B has one child, C.
o The class gift is open for now
o The class will close upon B’s death or A’s death
o This affects future interest in that C’s interest will remain vested and any future born children of B will vest, but none will vest after A’s death – even if B is still alive then.
RAP & Charities
The RAP does not apply to gifts to charities, but only if the possessory interest and the RAP-vulnerable interest are both to charitable foundations
o “O to the Red Cross unless they provide services to Albania, in which case to Doctors without Borders”
RAP & Wills
The moment of conveyance in a wills context is taken to be the moment that the will becomes effective – ie the testators death
o A will states, “T gives his land to A for life, then to B’s children who survive T.” The conveyance is analyzed at the moment of T’s death, the interests do not change
