Property - Interests in Land & Duties Flashcards
A grant “to A and his heirs” or “to A” will create a
fee simple absolute
If O conveys a fee simple absolute to A, A’s heirs have
nothing. Only A has absolute ownership (and note that A doesn’t even have heirs until dead)
A grant “to B and the heirs of his body” will create a
fee tail
Today an attempted creation of a fee tail will instead create a
fee simple absolute
The three types of defeasible fees are
- Fee Simple Determinable
- Fee Simple Subject to Condition Subsequent
- Fee Simple Subject to Executory Interest
A grant “to B for so long as….” “to B during…” “to B until…” will create a
fee simple determinable.
Grantor must use CLEAR DURATIONAL language.
If the stated condition is violated on a fee simple determinable, forfeiture occurs
automatically.
The accompanying future interest to a fee simple determinable is a
possibility of reverter
which, remember, happens automatically upon violation of the condition
A conveyance “to B, but if X event occurs, grantor reserves the right to reenter and retake” creates a
Fee simple subject to condition subsequent
grantor must use CLEAR DURATIONAL language and must EXPLICITLY carve out a grantor’s right of reentry upon condition
The accompanying future interest to a fee simple subject to a condition subsequent is a
right of entry (i.e. power of termination)
Between a fee simple determinable and a fee simple subject to a condition subsequent, a court will prefer ______ because ______
fee simple subject to a condition subsequent, because we prefer the grantor to have to reassert their rights in order to regain the estate (instead of automatic reverter). We hate to reward people who sleep on their rights!
A grant “to B, but if X event occurs, then to C” creates a
fee simple subject to executory limitation
A fee simple subject to an executory interest is just like a fee simple determinable except
that when the condition is broken, the estate automatically forfeits in someone OTHER than the grantor
The accompanying future interest to a fee simple subject to an executory interest is a
shifting executory interest
A defeasible fee cannot be created with mere words of
hope, desire, or intention.
The court will presume it’s a fee simple (because we hate restrictions on land) with precatory words unless clear durational language is used
An absolute restraint on alienation is not permitted unless it is
linked to a reasonable time-limited purpose
An attempt to convey land with a restraint on alienation will create
a fee simple absolute
example: “to A so long as he never sells” will create a fee simple for A
The accompanying future interests to a life estate are
a reversion, if held by grantor; a remainder, if held by a third party
A life tenant is entitled to all ordinary
profits and uses of the land
The life tenant must not commit any of the three types of waste, which are
- ) voluntary/affirmative waste
- ) Permissive waste/neglect
- ) Ameliorative waste (unless all future interest holders are known and consent)
Voluntary waste occurs when a life tenant consumes or exploits natural resources on the property, unless one of these four exceptions apply:
PURGE
Prior Use
Repairs and Maintenance
Granted that right
Exploitation (land suitable only for exploitation)
The cornerstone of a life tenant’s obligation is to
maintain the premises in reasonably good repair
A life tenant is obligated to pay all ordinary taxes on income or profits from land, and if there is no income the life tenant must pay ordinary taxes to the extent of
the premises’ fair rental value
The life tenant must not engage in acts that will enhance the property’s value unless
all future interest holders are known and consent. (remember, “making it better” is still ameliorative waste and improvements can be in the eye of the beholder)
Whenever a grantor conveys less of a property interest than what they hold (i.e. holds in fee simple but conveys life estate), the future interest that arises is a
reversion*
*unless fee simple determinable or fee simple subject to condition subsequent
A remainder is a future interest created in a
grantee (someone other than grantor)
A remainderman always accompanies a preceding estate of
known, fixed duration.
remember: a remainderman is patient and never cuts short someone else’s estate like an executory interest would
A remainderman NEVER follows a
defeasible fee
A remainder is vested if it is both
- created in an ascertained person, AND
2. is not subject to any condition precedent
A remainder is contingent if it is
- created in an unascertained person, OR
- subject to a condition precedent, OR
- BOTH.
A condition is a condition precedent when the conditional language appears
before the language creating the remainder or is woven into the grant to the remainderman
If a remainder is created in an ascertained person and is not subject to fulfillment of a condition precedent (or it was but the condition was fulfilled) it now becomes an
indefeasibly vested remainder
At common law under the Destructability Rule, if a contingent remainder was still contingent at the time the preceding estate ended, the contingent remainder
was destroyed. So O/O’s heirs would just take in fee simple absolute.
Today, under modern law, if a contingent remainder is still contingent at the time the preceding estate ended,
O or O’s heirs hold the estate subject to B’s springing executory interest. Then once B’s remainder is vested, B takes.
The Rule in Shelley’s Case has been virtually abolished, so under modern law a grant “to A for life, then to A’s heirs” creates
a life estate for A and contingent remainders for A’s as-yet-unknown heirs, with a reversion in O (since A could die without heirs)*
*Shelley’s Case would have just merged A’s interests into a fee simple absolute
Under the Doctrine of Worthier Title, a grant by O “to A for life, then to O’s heirs” conveys
a life estate to A but NOTHING to O’s heirs (because O can’t create future interests in his own heirs who can’t even exist until he’s died).
*We like this doctrine because we don’t like O to be able to tie up his land like that. This is just a rule of construction though, and the grantor’s intent controls, so evidence will be allowed that he intended to create a future interest in his own heirs
In a jurisdiction WITHOUT the Doctrine of Worthier Title, O’s (who is alive) conveyance “to A for life, then to O’s heirs” will grant
a life estate to A and a contingent remainder in O’s heirs (since O is still alive, he can’t have heirs yet).
*courts typically prefer NOT to do this because we don’t like restraints on land
O’s grant “to A for life, remainder to B” gives B an
indefeasibly vested remainder*
*If B predeceases, his future interest passes by will or intestacy
A remainderman who is ascertained and whose taking is NOT subject to a condition precedent but whose right to possession could be cut short because of a condition subsequent has a
vested remainder subject to complete defeasance
If conditional language appears before the language creating a remainder, the condition is a
condition precedent
The accompanying future interest to a condition precedent is a
contingent remainder
O’s grant “to A for life, then to B’s children” where B has two children creates this type of future interest in B’s children
vested remainders subject to open
A class closes whenever
any member can demand possession*
*exception: the womb rule - a kid in utero won’t be shut out
An executory interest is a future interest created in a third party, which is not a remainder and which takes effect by either
- cutting short some interest in another person (“shifting”), OR
- in the grantor and his heirs (“springing”)
A shifting executory interest always follows a _________ and cuts short someone other than a ____________
defeasible fee; grantor
The Rule Against Perpetuities potentially applies ONLY to
- contingent remainders,
- executory interests,
- certain vested remainders subject to open
The Rule Against Perpetuities NEVER applies to
- any future interest in O, the grantor,
- to indefeasibly vested remainders, or
- vested remainders subject to complete defeasance
The guiding question to ask when assessing validity under the RAP is
will we know, with certainty, within 21 years of our measuring life whether our future interest holders can or cannot take?
The common law RAP is ALWAYS violated by a gift to an open class that
is conditioned on all members surviving to an age beyond 21 (“bad as to one, bad as to all”)
