Estates in land - Present possessory estates

Question 1

What are the characteristics of a fee simple absolute?

Answer 1

1. Language: “to A and his heirs”, “to A”
2. Duration: absolute ownership of potentially infinite duration
3. Transferability: devisable, descendible, alienable
4. Future interest: none

Question 2

What are defeasible fees?

Answer 2

Fee simple estates (i.e. of uncertain or potentially infinite duration) that can be terminated upon the happening of a stated event.

Question 3

What are the characteristics of a defeasible fee, fee simple determinable?

Answer 3

1. Language: “to A until/while/so long as”
2. Duration: potentially infinite, so long as event does not occur
3. Transferability: alienable, devisable, descendible, subject to condition
4. Future interest: possibility of reverter (held by grantor)

NY: fee on limitation

Question 4

What is the possibility of a reverter?

Answer 4

Whenever I am conveying a fee simple determinable, i am automatically retaining the possibility of a reverter, which is a reversionary future interest. This interest is transferable, descendible and devisable.

Question 5

What is the fee simple subject to condition subsequent?

Answer 5

This is a fee simple subject to a condition subsequent is an estate where the right to terminate is reserved upon the happening of a stated event.

Question 6

What are the characteristics to defeasible fee, fee simple subject to condition subsequent?

Answer 6

1. Language: “to A, but if X happens, grantor reserves right to reenter and retake”
2. Duration: potentially infinite, so long as condition not breached and, thereafter, until holder of right of entry timely exercises power of termination
3. Transferability: alienable, devisable, descendible, subject to condition
4. Future interest: right of entry/power of termination (held by grantor) (NY: right of reacquisition)

NY: fee on condition

Question 7

What is the difference between a right to terminate (right of entry) and a reverter?

Answer 7

The right to terminate is expressly reserved whereas a reverter arises automatically.

Question 8

What is a defeasible fee, fee simple subject to an executory limitation?

Answer 8

1. Language: “to A, but if X happens, to B”
2. Duration: potentially infinite, so long as stated contingency does not occur
3. Transferability: alienable, devisable, descendible, subject to condition
4. Future interest: shifting executory interest (held by third party)

Question 9

What is a fee tail?

Answer 9

Where inheritability is limited to lineal heirs. It is created by the words ‘to A and the heirs of his body’. Most jurisdictions have abolished the fee tail, and an attempt to create one results in a fee simple.

Question 10

What is a life estate?

Answer 10

A life estate is one measured by the life or lives of one or more persons. Can be created by law or conveyance.

Question 11

What are the characteristics of a life estate?

Answer 11

1. Language: “to A for life”, “to A for life of B”
2. Duration: someone’s life (pur autre vie if not A’s life)
3. Transferability: alienable, devisable, and descendible if pur autre vie AND measuring life still alive
4. Future interest: reversion (if held by grantor); remainder (if held by third party)

Question 12

So life estates are normally indefeasible, can you have defeasible life estateS?

Answer 12

Yes you can. A life estate can be determinable in the same ways that fee estates can be defeasible

Question 13

Regarding the rights of a life tenant, what is the doctrine of waste?

Answer 13

A life tenant is entitled to any ordinary uses and profits of the land but cannot do anything that injures the interests of a remainder man or reversioner.

Question 14

What are life tenant entitlements?

Answer 14

1. Entitled to ordinary uses and profits from land

2. Must not commit waste

Question 15

What are the three types of waste?

Answer 15

1. Voluntary/affirmative
2. Permissive waste/neglect
3. Ameliorative waste

Question 16

What is voluntary waste?

Answer 16

Exploitation of natural resources by a life tenant only limited to situations where:

1) Necessary for repair/maintenance;
2) The land is only suitable for such use; and
3) It is expressly or impliedly permitted by grantor.

IF mining was done on land prior, life tenant can continue mining but only on those mines already open.

Question 17

What is permissive waste/neglect?

Answer 17

Life tenant is obligated to:

1) Preserve land and structures in a reasonable state of repair;
2) Pay interest on mortgages
3) pay ordinary taxes on land;
4) pay special assessments;

Permissive waste occurs when this is not done, however it is limited to extent of income or profits generated from land OR reasonable rental value if no income

Life tenant not obligated to insure premises for benefit of remainder men and not responsible for damages of third party tortfeasor

Question 18

What is ameliorative waste?

Answer 18

Life tenant may alter or even demolish existing buildings if:

1) The market value of the future interests is not diminished; and either
2) the remainder men do not object; or
3) A substantial and permanent change in the neighbourhood conditions has deprived the property in its current form of reasonable productivity or usefulness.

Question 19

Can tenants be held liable for ameliorative waste if neighbourhood changed and market value of the property has increased?

Answer 19

Yes.

Question 20

What if life tenant who receives estate by will or intestacy renounces interest?

Answer 20

Future interest following the life estate is generally accelerated so that it becomes immediately possessory.