Estate law is concerned with the properties that define (blank)
- Concerned with the properties that define ownership:
Ex. characteristics of time and conditions relating to use; possession and transferability of the land; use of a conveyance of property to control another’s behavior
Historical definition of a freehold estate
Created by the livery of seisin and protected by the royal courts in England → Fee simple absolute, defeasible fees, and life estates
Historic Definition of Non-freehold estates
not created through the process of livery of seisin and were not granted common law protection until much later. Leaseholds are an example
Definition of Alienability
Power to transfer ownership during owner’s lifetime
Definition of Heirs
Nearist blood relative at time of death, not knon until then
Definition of conveyance
Change in ownership of property
Language of Conveyance:
“Words of Purchase”
Identify grantee; Example: “To X”
Language of Conveyance
“Words of Purchase”
Describe type of interest conveyed
Example: “and his heirs” or “in fee simple absolute”
5 Types of Present Estates
- Fee Simple Absolute
- Fee Tail
- Life Estate
- Leaseholds
- Simple Possessory Interest (SPI)
Highest/Most complete estate that can be owned
Fee Simple Absolute
Fee Simple: used to require the phrase “to X and his heirs” but now many state statutes have relaxed this and assumed fee simple unless (blank)
Unless evidence indicates intent to give less
Fee Simple Determinable automatically creates what?
A possibility of reverter
As long as, during, while, unless
CL Fee Tail
How was it born?
Whats the De Dondis Statute
Fee simple conditional → 13th cent. ECL allowed conveyances where the ownership was confined to descent within the family;
Lawyers got around by someone owning a fee simple conditional but selling a fee simple absolute.
Result was the De Donis statute and the classic fee tail was born
• Parent cannot convey more than he owns and a reversion interest with failure of issue!
Fee Tail
A. If family ran out of “issue” (no more descendants of Sam) the property reverts back to…..
B. (Three) Possibilities when issue runs out:
A. Back to the estate of the original grantor
B. Possibilities when issue runs out:
- Grantor might be living, possession would revert to him
- Grantor might not be living, possession would revert to the grantor’s heirs
- Grantor might have transferred his reversion
Modern Fee Tails, What are they today?
In Ohio?
What is the legal effect of fee tails today that were created before the modern law?
Modern Fee Tail: either fee simple or a life estate in first grantee and remainder in fee simple if grantee has issue
O to A and the heirs of her body
We don’t recognize fee tails aymore, now that ^ is just a fee simple
In Ohio, if you create a fee tail today, you create a life estate in A and a reversion in O
These changes in law are only applied prospectively – does not change the effect of any fee tail interest named before the law was created – there are still “fee tails” in existence today
Definition of a Life Estate
Possessory interest that terminates upon the death of the measuring life
divides ownership chronologically
Life Estates:
Transferability is limited by…..
The measuring life of someone
Where the life estate is measured by the lifetime of a person other than the owner of the life estate
Life Estate Pur Autre Vie
If the owner of a life estate transfers his interest, what does the grantee recieve?
Life Estate Pur Autre Vie
Does a life estate holder have the responsibility to pay mortgage interest and real estate taxes?
Yes, both
Doctrine of Waste
What does it apply to?
Life Estates only
What is the function of the doctrine of waste?
Ensures use by life tenant does not go beyond their rights
Life tenant has an obligation in every state now to not damage/waste the property
Reversion/remainder interest holder can sue for damages to the property
Doctrine of Waste:
What is Voluntary waste and what is the effect of Voluntary waste?
What is Permissive waste
Any permanent alteration = ……
• Voluntary waste: any affirmative act.
Effect: allows for double or treble damages
- Permissive waste: acts of omission; life tenants have an affirmative obligation not to allow damages
- Any permanent alteration = waste
Doctrine of Waste:
Is failure to pay property taxes an affirmative act or permissive act?
Considered a permissive act: not acting to care for the estate
Life Estate Tenant Rights and Obligations
- Estovers: ok to consume natural fruits?
- Emblements: right to grow and keep crops?
- Personal Profits: yes or no?
- Commercial Profits: yes or no?
- Mortgages: yes or no?
- Government Assesments: yes or no?
- Real Estate Taxes: yes or no?
- Insurance: yes or no?
- Estovers: Ok (domestic use only)
- Emblements: have a right to grow and keep crops
• Personal Profits: OK: for domestic use only
- If commercial, would be consuming the estate, if sold trees cut down for lumber
• Commercial Profits: If commercial cannot consume estate
Would be consuming the estate if sold trees cut down for lumber
- Mortgages OK: obligated to pay interest only. Doesn’t stop bank for foreclosing if someone is not paying principle though
- Government Assesments: Yes
- Real Estate taxes: Yes
- Insurance: No
O – A for life with right of absolute disposal and use
What type of interest does this entail
• It’s a fee simple from the get go. Can sell it. No reversion left after transfer
What is a defeasable fee?
Defeasible Fee: whenever you put a condition on an estate that might cause the estate to terminate
i.e. conditions that can terminate estates
What are the Three Defeasible Fees
- Fee Simple Determinable
- Fee Simple Subject to Condition Subsequent
- Fee Simple Subject to Executor Limitation
Fee simple determinable
What kind of condition?
When does it end?
Creates future interest in who and when?
What words create it?
What happens when condition is violated?
- Includes condition precedent
- Ends automatically upon the happening of an event
- Future interest in grantor at time of conveyance “possibility of reverter” in grantor
• Created by words indicating the ownership is to last only a certain period of time
“during,” “while,” “unless”
• When condition is violated, title automatically shifts to holder of the possibility of reverter, and present estate owner is a trespasser on the property
• Fee Simple subject to condition subsequent
What type of condition?
What happens when condition occurs?
What interest is created in grantor at time of conveyance?
Type of Condition: subsequent
“Provided that.. But if… Upon Condition that….”
When condition occurs two things happen.
(1) allows grantor to reclaim the property but does not automatically regain title,
(2) SOL starts. If grantor does nothing to assert her rights (like bring an action in ejectment) the present estate owner will regain ownership by adverse possession
Future interest is created in grantor at time of conveyance: “Right of entry” “Power of Termination”
• Only when there is a demand to leave does the owner of the right to entry have the right to possession, and only when the present estate owner refuses to leave does she become a trespasser, starting the running of the statute of limitations
Fee simple subject to executor limitation
- What is it
- Type of condition
- Who holds future interest (executory interest)
• “Fee simple with/subject to executory limitation in later grantee”
If right of entry is given to later grantee, you say the present owner has a fee simple “subject to” executory limitation
- “With”: automatic
- “Subject to”: possibility of transfer
- Can include condition precedent or subsequent
- Future interest held by someone other than grantor at time of conveyance
“executory interest”
Future Interests
Does the future interest vest in grantor upon natural termination?
What is a reversion?
- If reserved for grantor in conveyance…
- Reversion: Future interest created in a grantor that will vest in possession upon natural termination of preceding estate; name stays the same even if ownership of this interest goes to another person
Does the future interest vest in grantee upon natural termination?
What is a remainder?
- If somebody other than grantor is specified within conveyance…
- Remainder: vests in someone other than grantor upon natural termination of the preceding estate
What is a contingent remainder?
What is always created?
What are they subject to
Will vest upon the occurrence of a condition
There is ALWAYS a reversion after a contingent remainder
Subject to condition precedent OR
Owned by an unascertained party OR
Both the above
If two contingent remainders…
- Alternative contingent remainder?
Executory Interest?
• 2nd future interest has a condition precedent, but the name depends on the first remainder title
- Alternative contingent remainder: Contingent remainder comes first
- Executory interest: VRSTCD comes first
Definition: Future interest in grantee that will vest in possession by cutting short the preceding estate or destroying the preceding future interest upon some event or condition
What happens when interest transfers upon some condition that cuts short preceding estate…
In grantor?
In grantee?
Shifting & Springing.
In grantor
• Assumption of a possibility of reverter
(vests automatically when condition occurs)
- Immediately, statute starts to run for adverse possession and trespassing
- Express right of re-entry → power of termination
(vests after condition occurs and grantor exercises right of re-entry)
• Power of termination may not be transferable intervivos, but modern emerging trend is that all future interests are fully transferable
In grantee
• Executory interest – vests upon some condition that cuts short preceding estate
• May vest automatically or upon exercise of right of entry (depends on whether state is “with” or “subject to” an executory limitation
- Shifting – cuts short grantee’s estate
- Springing – cuts short grantor’s estate