Property Flashcards
(78 cards)
Fee Simple Absolute
Language: “To A and his heirs” or “To A”
Duration: Absolute ownership, of potentially infinite duration
Transferability: Devisable, descendible, alienable
Future Interest: None
Fee Tail
Language: “To A and the heirs of his body”
Duration: Lasts only as long as there are lineal blood descendants of grantee
Transferability: Passes automatically to grantee’s lineal descendants
Future Interest: Reversion (if held by grantor); Remainder (if held by 3rd party)
In IL: Creates a life estate, with remainder in grantee’s heirs
Defeasible Fees
1) Fee Simple Determinable
2) Fee Simple Subject to Condition Subsequent
3) Fee Simple Subject to an Executory Interest
Courts disfavor restrictions on alienability. So to create a defeasible fee, must use clear durational language.
No absolute restrains on transferability
Fee Simple Determinable
Language: “To A so long as…” or “until…” or “while…”
Duration: Potentially infinite, so long as event doesn’t occur
Transferability: Alienable, devisable, descendible, subject to condition
Future Interest: Possibility of Reverter (held by grantor)
Fee Simple Subject to Condition Subsequent
Language: “To A, but if X event happens, grantor reserves the right to reenter and retake”
Duration: Potentially infinite, so long as the condition is not breached and thereafter until holder of the right of entry timely exercises the power of termination
Transferability: Alienable, devisable, descendible, subject to condition
Future Interest: Right of Entry/Power of Termination (held by grantor)
Fee Simple Subject to Executory Interest
Language: “To A, but if X event occurs, then to B”
Duration: Potentially infinite, so long as stated contingency does not occur
Transferability: Alienable, devisable, descendible, subject to condition
Future Interest: Executory Interest (held by 3rd party)
Life Estate
Language: “To A for life” or “To A for the life of B”
Duration: Measured by life of transferee or by some other life (per autre vie)
Transferability: Alienable, devisable, and descendible if pure autre vie and measuring life is still alive
Future Interest: Reversion (if held by grantor); Remainder (if held by 3rd party)
Waste
Life Tenant is entitled to all ordinary uses and profits from the land
Must not harm the future interest holders
Types of Waste
1) Voluntary or Affirmative Waste
2) Permissive Waste, or Neglect
3) Ameliorative Waste
Voluntary Waste
Overt conduct that causes a drop in value (willful destruction)
Includes consumption of natural resources, unless PURGE
- PU: Prior Use
- R: Repairs
- G: Grant
- E: Exploitation
Permissive Waste
Allowing the land to fall into disrepair
- Must maintain the premises in reasonably good repair
- Must pay ordinary taxes
Ameliorative Waste
Must not engage in acts that enhance property value, unless future interest holders are a) known and b) consenting
Vested Remainder
Vested if: 1) created in an ascertained person and 2) not subject to any condition precedent
1) Indefeasibly Vested Remainder
- The holder is certain to acquire an estate in the future with no strings attached
2) Vested Remainder Subject to Complete Defeasance
- The holder’s right to possession could be cut short because of a condition subsequent
3) Vested Remainder Subject to Open
- A group of takers, where at least one is qualified to take
- Each classmember’s share is subject to partial dimunition because additional members can join
- Rule of Convenience: The class closes whenever any member can demand possession
Contingent Remainder
Contingent if either: a) created in an unascertained person or b) is subject to a condition precedent
Executory Interests
1) Shifting: Cuts short someone other than the Grantor
2) Springing: Cuts short the Grantor
Remainders vs. Executory Interests
1) Remainders accompany a preceding estate of fixed duration (e.g., a life estate or a term of years)
2) Remainders never follow a defeasible fee. Cannot cut short or divest a prior transferee
The Rule of Destructibility of Contingent Remainders
Rule: Contingent remainders destroyed if still contingent at the time the preceding estate ended
Today: Rule is abolished. If still contingent, grantor and heirs take subject to springing executory interest.
The Rule in Shelley’s Case
Rule: If conveyance says “To A for life, then, on A’s death, to A’s heirs” –> present and future interests merge. A gets a fee simple absolute.
Interpretation: Rule of Law. Applies even if contrary to Grantor’s intent.
Today: Rule is abolished. A would get a life estate, A’s unknown heirs have a contingent remainder, O has a reversion.
The Doctrine of Worthier Title
Rule: If O is still alive, tries to create a future interest in his heirs, the future interest is void.
- E.g., O, who is alive, conveys “To A for life, then to O’s heirs” –> Contingent remainder in O’s heirs is void, and O has a reversion.
Interpretation: Rule of Construction. Does not apply if contrary to Grantor’s intent.
Today: Rule is abolished in Illinois (but viable in other states). If abolished, O’s heirs have a contingent remainder.
Rule Against Perpetuities
Certain kinds of interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
Step 1: Determine which future interests have been created by the conveyance. RAP only applies to contingent remainders, executory interests, and certain vested remainders subject to open
Step 2: Identify the conditions precedent to the vest of the suspect future interest
Step 3: Find a measuring life in being at the date of conveyance
Step 4: Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holders can take? If not, the future interest is void.
Bright Line Rules: 1) A gift to an open class that is conditioned on the members surviving beyond age 21 always violates the common law RAP.
2) An executory interest with no limit on the time within which it must vest always violates the RAP.
Fixing a RAP problem: Cross out the future interest. If that doesn’t work grammatically, the entire conditional clause is stricken.
Charity-to-Charity exception
“Wait and See” or “Second Look” Doctrine
The validity of any suspected future interest is determined on the basis of the facts as they exist at the end of the measuring life.
Uniform Statutory Rule Against Perpetuities
Codifies the common law RAP; also provides for an alternative 90-year vesting period
Cy Pres Doctrine
Adopted by the “Wait and See” and USRAP doctrines
Court may reform a conveyance to most closely match Grantor’s intent. Reduction of offensive age contingency is reduced to 21 years.
Joint Tenancy - Generally
Definition: Two or more own with the right of survivorship
Transferability: Alienable, but not divisible or descendible
Creation:
1) Four Unities – same time, same title, same interests, right to possess the whole
2) Grantor clearly expresses right of survivorship
3) Use of a straw (but not in IL)
Tenancy by the Entirety
Definition: Between married partners with a right of survivorship
Creation: Arises presumptively in any grant to married partners, unless stated otherwise
Protections/Restrictions:
1) Creditors of only 1 spouse can’t touch this
2) Neither tenant acting alone can defeat right of survivorship by unilateral transfer to 3rd party
