Present Possessory Estates

Question 1

Fee Simple Absolute

Answer 1

1. “To A” or “To A and his heirs”
   -Infinite duration
2. Devisable, descendible, and alienable
3. No accompanying future interest
   -A living person has no heirs, only heir apparents

Question 2

Defeasible fees

Answer 2

Fee simples with a condition attached
-Defeasance = forfeiture
-Therefore, defeasible fees are potentially infinite but can be terminated upon the happening of a stated event

Three types:
-Fee Simple Determinable
-Fee Simple Subject to Condition Subsequent
-Fee Simple Subject to an Executory Interest

Question 3

Fee Simple Determinable

Answer 3

1. Created by durational language
   -Terminates upon the happening of a stated event and automatically reverts to the grantor (estate automatically forfeited -disfavored by courts)
   -“To A for so long as . . .”
2. Devisable, descendible, and alienable
3. Accompanied by possibility of reverter (future interest)
   -Automatically reverts back to grantor upon happening of a stated event
   -Devisable, descendible, and alienable

Question 4

Fee Simple Subject to Condition Subsequent

Answer 4

1. Created by conditional words + express grantor’s right to re-enter
   -Grantor reserves the right to terminate the estate upon the happening of the stated event (estate not automatically forfeited)
   -Sloppy drafting lead to FSSCS b/c policy disfavors forfeiture of estates
   -“To A, but if X event occurs, grantor reserves the right to re-enter and retake”
2. Devisable, descendible, and alienable
3. Accompanied by right of entry (future interest)
   -Right of grantor to terminate the estate upon the happening of the stated event
   -Also called a power of termination
   -Devisable and descendible

Question 5

Fee Simple Subject to an Executory Interest

Answer 5

1. Third party will take upon forfeiture of a stated event
   -Automatic forfeiture
   -“To A, but if X event occurs, then to B”
2. Devisable, descendible, and alienable
3. Accompanied by shifting executory interest (future interest)
   -Cuts grantee’s ownership short in favor of third party

Question 6

Rules of construction for defeasible fees

Answer 6

Courts disfavor restrictions on free land use and won’t find a defeasible fee unless there is clear, durational language needs
-Words of desire, hope, or intent will not create a defeasible fee
-Absolute restraints on power to sell or transfer are void
-Conditions and limitations violating public policy are void
>i.e., conditions cannot penalize marriage, but can give support until marriage or in event of divorce

Question 7

Life estate

Answer 7

1. A life estate is measured by the life or lives of one or more persons
   -Not in terms of years
   -“To A for life”

Question 8

Life estate pur autre vie (life of another)

Answer 8

A life estate measured by a life other than the grantee’s
-If A, the holder of a life estate, conveys their interest to B, B has a life estate for the life of A
-To A for the life of B