Property (Day 1) Flashcards
(28 cards)
The Present Estates (4)
(1) The Fee Simple Absolute
(2) The Fee Tail
(3) The Defeasible Fees (of which there are three species); and
(4) The Life Estate
The bar examiners will expect you to know three things with respect to each of these estates:
(1) What language will create the estate?
(2) Once identified, what are the estates distinguishing characteristics: (a) devisable, (b) descendible, and (c) alienable.
(3) Which future interests, if any, is the estate capable of?
(1) Fee Simple Absolute: Creation
“To A” or “To A and his heirs.”
Today, those common law words “and his heirs” are NOT needed.
(1) Fee Simple Absolute: Distinguishing Characteristics
This is absolute ownership of potentially infinite duration. It is freely devisable, descendible and alienable.
(1) Fee Simple Absolute: Future Interests?
There are none!
Example: O conveys “to A” or “to A and his heirs.” A is alive and well. What do A’s heirs have? NOTHING! Only A has absolute ownership. This leads us to the Bruce Willis rule of property: “a living person has no heirs(hairs).” Thus, while A is alive, he has only prospective heirs. They are powerless.
(2) Fee Tail: Creation
“To A and the heirs of his body.” (Magically precise language)
(2) Fee Tail: Distinguishing Characteristics
Virtually abolished in the U.S. today. Virtually never tested. HISTORICALLY, the fee tail would pass directly to grantee’s lineal blood descendants no matter what. TODAY, the attempted creation of a Fee Tail creates instead a Fee Simply Absolute. (IL Distinction: Attempted Fee Tail creates a Life Estate with a remainder in grantee’s heirs.)
(2) Fee Tail: Future Interest
Historically, YES: In O, the grantor, it was called a REVERSION. In a third party (someone other than O) it was called a REMAINDER.
(2) Fee Tail: Illinois Distinction
Attempted Fee Tail creates a Life Estate with a remainder in grantee’s heirs.
(3) The Defeasible Fees: A, B, & C
(3. a) Fee Simple Determinable
(3. b) Fee Simple Subject to Condition Subsequent
(3. c) Fee Simple Subject to Executory Limitation
(3.a) Fee Simple Determinable: Creation
“To A for so long as…” “To A during…” “To A until…”
Grantor must use clear durational language. If the stated condition is violated, forfeiture is AUTOMATIC.
(3.a) Fee Simple Determinable: Distinguishing Characteristics
This estate, like all of the defeasible fees, is devisable, descendable, and alienable, but always subject to the condition. (Mick Jagger Rule of Property: You may convey less than what you started with, but you can’t convey more. “You can’t always get what you want.”)
(3.a) Fee Simple Determinable: Future Interest
It is the “possibility of reverter” in the grantor. (Frank Sinatra didn’t prefer Orville Redenbacher/Fee Simple Determinable –> Possibility of Reverter)
(3.b) Fee Simple Subject to Condition Subsequent: Creation
“To A, [ (1) : but if X event occurs], [ (2) : grantor reserves the right to re-enter and retake].” Here, grantor must use clear durational language and carve out the right to re-enter and retake.
(3.b) Fee Simple Subject to Condition Subsequent: Distinguishing Characteristics
This estate is NOT automatically ended, but if can be cut short AT THE GRANTOR’S OPTION, if the stated condition occurs. (Compared with FSD where forfeiture is automatic.)
(3.b) Fee Simple Subject to Condition Subsequent: Future Interest
Right of entry, synonymous with power of termination.
(3.c) Fee Simple Subject to Executory Limitation: Creation
“To A, but if X event occurs then to B.” (Note here it’s going to a 3rd party, not to O the grantor)
(3.c) Fee Simple Subject to Executory Limitation: Distinguishing Characteristics
This estate is just like the fee simple determinable only now, if the condition is broken, the estate is automatically in favor of someone other than the grantor.
(3.c) Fee Simple Subject to Executory Limitation: Future Interest
It’s called a shifting executory interest.
(3) Defeasible Fees: Rules of Construction
(A) Words of mere desire, hope or intention are INSUFFICIENT to create a defeasible fee (Courts disfavor restrictions on free land use; thus, courts will not find a defeasible fee unless clear durational language is used.) (B) Absolute restraints on alienation are void.
(4) The Life Estate: Creation
“To A for life.”
(A) This is an estate that must be measured in explicit lifetime terms, and NEVER in term of years. (B) “A” is known as a “life tenant”; grantor has a “reversion”.) (C) “Life Estate Pur Autre Vie” is a life estate measured by a life other than the grantee’s, (i.e., “To A for the life of B”).
(4) The Life Estate: Distinguishing Characteristics
The life tenant’s entitlements are rooted in the important doctrine of waste. (1) The life tenant is entitled to all ordinary uses and profits from the land. (2) The life tenant must not commit waste (must not harm the future interest holders).
(4) The Life Estate: Three Species of Waste
(1) Voluntary or Affirmative Waste: this is overt conduct that causes a decrease in value. (Exception: Purge.)
(2) Permissive waste, or neglect (when the land falls into disrepair).
(3) Ameliorative Waste: the life tenant must not engage in act that will enhance the property’s value, unless all future interest holders are known and consent.
(4) The Life Estate: Future Interest
If held by O, the grantor, it is called a REVERSION. If held by a third party, it is a remainder.
