Property (Day 1)

Question 1

The Present Estates (4)

Answer 1

(1) The Fee Simple Absolute
(2) The Fee Tail
(3) The Defeasible Fees (of which there are three species); and
(4) The Life Estate

Question 2

The bar examiners will expect you to know three things with respect to each of these estates:

Answer 2

(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?

Question 3

(1) Fee Simple Absolute: Creation

Answer 3

“To A” or “To A and his heirs.”

Today, those common law words “and his heirs” are NOT needed.

Question 4

(1) Fee Simple Absolute: Distinguishing Characteristics

Answer 4

This is absolute ownership of potentially infinite duration. It is freely devisable, descendible and alienable.

Question 5

(1) Fee Simple Absolute: Future Interests?

Answer 5

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.

Question 6

(2) Fee Tail: Creation

Answer 6

“To A and the heirs of his body.” (Magically precise language)

Question 7

(2) Fee Tail: Distinguishing Characteristics

Answer 7

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.)

Question 8

(2) Fee Tail: Future Interest

Answer 8

Historically, YES: In O, the grantor, it was called a REVERSION. In a third party (someone other than O) it was called a REMAINDER.

Question 9

(2) Fee Tail: Illinois Distinction

Answer 9

Attempted Fee Tail creates a Life Estate with a remainder in grantee’s heirs.

Question 10

(3) The Defeasible Fees: A, B, & C

Answer 10

(3. a) Fee Simple Determinable
(3. b) Fee Simple Subject to Condition Subsequent
(3. c) Fee Simple Subject to Executory Limitation

Question 11

(3.a) Fee Simple Determinable: Creation

Answer 11

“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.

Question 12

(3.a) Fee Simple Determinable: Distinguishing Characteristics

Answer 12

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.”)

Question 13

(3.a) Fee Simple Determinable: Future Interest

Answer 13

It is the “possibility of reverter” in the grantor. (Frank Sinatra didn’t prefer Orville Redenbacher/Fee Simple Determinable –> Possibility of Reverter)

Question 14

(3.b) Fee Simple Subject to Condition Subsequent: Creation

Answer 14

“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.

Question 15

(3.b) Fee Simple Subject to Condition Subsequent: Distinguishing Characteristics

Answer 15

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.)

Question 16

(3.b) Fee Simple Subject to Condition Subsequent: Future Interest

Answer 16

Right of entry, synonymous with power of termination.

Question 17

(3.c) Fee Simple Subject to Executory Limitation: Creation

Answer 17

“To A, but if X event occurs then to B.” (Note here it’s going to a 3rd party, not to O the grantor)

Question 18

(3.c) Fee Simple Subject to Executory Limitation: Distinguishing Characteristics

Answer 18

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.

Question 19

(3.c) Fee Simple Subject to Executory Limitation: Future Interest

Answer 19

It’s called a shifting executory interest.

Question 20

(3) Defeasible Fees: Rules of Construction

Answer 20

(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.

Question 21

(4) The Life Estate: Creation

Answer 21

“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”).

Question 22

(4) The Life Estate: Distinguishing Characteristics

Answer 22

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).

Question 23

(4) The Life Estate: Three Species of Waste

Answer 23

(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.

Question 24

(4) The Life Estate: Future Interest

Answer 24

If held by O, the grantor, it is called a REVERSION. If held by a third party, it is a remainder.

Question 25

(4) The Life Estate: Three Species of Waste; Voluntary or Affirmative Waste–Exception

Answer 25

(1) Prior Use: that’s what it was used for previously.
(2) Repairs: to make necessary repairs and maintenance.
(3) Granted: Grantor granted the right.
(4) Exploit: that’s all the land is good for.

Question 26

Future Interests (6); Capable of Creation in the Grantor (3)

Answer 26

(1) The POSSIBILITY OF REVERTER: It accompanies ONLY the fee simple determinable.
(2) The RIGHT OR ENTRY (Power of Termination: It accompanies ONLY fee simple subject to condition subsequent).
(3) The REVERSION: A reversion is the future interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable or a fee simple subject to condition subsequent.

Question 27

Future Interests (6); Future Interests in Transferees

Answer 27

If our future interest is held by someone other than the grantor, it has to be either:

(1) A vested remainder [of which there are three species: (a) the indefeasibly vested remainder, (b) the vested remainder subject to complete defeasance (also known as the vested remainder subject to total divestment), and (c) the vested remainder subject to open].
(2) A contingent remainder, OR
(3) An executory interest [of which there are two species: (a) the shifting executory interest, and (b) the springing executory interest].

Question 28

Three Tasks in Assessing Future Interests in Transferees

Answer 28

(1) We must distinguish vested remainders (of which there are three kinds), from contingent remainders; (2) We must distinguish the three kinds of vested remainders from each other; and (3) we must distinguish all remainders from executory interests.