property law possessory and future interests supplement Flashcards
Created by durational language—for so long as, during, until, or while.
EXAMPLE: “O to A for so long as liquor is not served on the premises.”
Terminates automatically on happening of a named future event. The estate returns to the grantor.
Fee simple determinable
Created by conditional language (provided however, however if, but if, on condition that, or in the event that) to occurrence of a condition that will terminate estate.
Power of termination must be expressly reserved to the grantor.
EXAMPLE: “A to B, provided that in the event the premises are not used for educational purposes, then A has the power to terminate B’s estate.”
EXAMPLE: “A to B, but if B stops using the premises for residential purposes, then A may reenter and retake the estate.”
EXAMPLE: “A to B for life, on condition that B uses the land for recreation, but if he fails to do so, A may re-enter and retake the estate.”
Fee Simple Subject to a condition subsequent
o If the language is ambiguous, courts interpret the grant as an attempt to create a FSSCS (fee simple subject to a conditional subsequent) ; though, this often fails and the grant becomes a fee simple absolute for lack of a specific power of termination; Why do the courts do this?
avoiding a forfeiture of the fee simple estate.
NOTE: why? Courts disfavor forfeitures.
EXAMPLE: “O to A; provided, however, that liquor may not be served on the premises.” Without the power of termination stated in the grant A has ____ _______ ________ and can sue O on the broken covenant for any damages.
fee simple absolute
EXAMPLE: “A to B so long as B farms the property during his lifetime and, if he does not, then to C.”
EXAMPLE: “A to B on condition that B gets married. If B dies without marrying, the property will pass to C.”
are examples of what type of possessory interest?
fee simple subject to an executory interest
o Fee Tail
Common law
Modern law:
Common law: An estate that descended to grantee’s children only. (intended to keep in the family, mostly male)
EXAMPLE: “A to B and the heirs of his body.”
Modern law: Fee tails are disfavored and are treated in most jurisdictions as fee simple absolutes.
EXAMPLE: “A to B for the life of C.” As long as C is alive, B owns the property.
If B dies before C, it becomes part of B’s estate and will continue so long as C is still alive.
EXAMPLE: “A to B for the lives of C and D.” Under the majority interpretation, if the conveyance has more than one measuring life, it is interpreted as lasting until the death of the survivor.
are examples of?
“Life estate pur autre vie” = The duration of the estate is measured by the life of someone other than the grantee. “for the life of another”
What are the main two types of Future interests?
Grantor future interests
and
Grantee Future interests
o Possibility of Reverter = A future interest in the grantor that follows a determinable estate. Give an example
EXAMPLE: “A to B so long as B farms the land” creates a possibility of reverter in the grantor.
Creation: a fee simple determinable automatically creates a possibility of reverter; no special language needed. (silent reversionary interest; by operation of law)
the rule against perpetuities does not affect or apply to Grantor future interests. why?
because the grantor’s power of termination has already vested
Grantee future interest
EXAMPLE: “A to B for life, then to C.” C has a ______.
remainder
EXAMPLE: “A to B for life, then to the oldest child of C then living.” would be what type of Grantee future interest and why?
This would be a contingent remainder because we do not know who the oldest child is going to be until B dies. There is a condition precedent to that person taking – they must be alive when B dies.
Vested Remainder is vested at the point that it is:
if the 2 elements of a vested remainder are not satisfied, then it is a __________ ___________.
- Created in an ascertainable person; and
- Is not subject to any condition precedent, other than termination of the preceding estate.
contingent remainder
EXAMPLE: “A to B for life, then to C
Does C have a vested remainder? Why or why or why not?
Yes C has a vested remainder because C is an ascertainable person and there is no condition precedent to his or her taking other than the termination of the preceding estate (when B dies).
• Vested Remainder Subject to Total Divestment
o A remainder that is presently vested but may be terminated on the happening of a future event.
EXAMPLE: “A to B for life, remainder to C, so long as liquor is never served on the premises.” C has a vested remainder but could lose it by serving liquor on the premises.
