Flashcards in property law possessory and future interests supplement Deck (29)
Created by durational language—for so long as, during, until, or while.
EXAMPLE: “O to A for so long as liquor is not served on the premises.”
Terminates automatically on happening of a named future event. The estate returns to the grantor.
Fee simple determinable
Created by conditional language (provided however, however if, but if, on condition that, or in the event that) to occurrence of a condition that will terminate estate.
Power of termination must be expressly reserved to the grantor.
EXAMPLE: “A to B, provided that in the event the premises are not used for educational purposes, then A has the power to terminate B’s estate.”
EXAMPLE: “A to B, but if B stops using the premises for residential purposes, then A may reenter and retake the estate.”
EXAMPLE: “A to B for life, on condition that B uses the land for recreation, but if he fails to do so, A may re-enter and retake the estate.”
Fee Simple Subject to a condition subsequent
o If the language is ambiguous, courts interpret the grant as an attempt to create a FSSCS (fee simple subject to a conditional subsequent) ; though, this often fails and the grant becomes a fee simple absolute for lack of a specific power of termination; Why do the courts do this?
avoiding a forfeiture of the fee simple estate.
NOTE: why? Courts disfavor forfeitures.
EXAMPLE: “O to A; provided, however, that liquor may not be served on the premises.” Without the power of termination stated in the grant A has ____ _______ ________ and can sue O on the broken covenant for any damages.
fee simple absolute
EXAMPLE: “A to B so long as B farms the property during his lifetime and, if he does not, then to C.”
EXAMPLE: “A to B on condition that B gets married. If B dies without marrying, the property will pass to C.”
are examples of what type of possessory interest?
fee simple subject to an executory interest
o Fee Tail
Common law: An estate that descended to grantee’s children only. (intended to keep in the family, mostly male)
EXAMPLE: “A to B and the heirs of his body.”
Modern law: Fee tails are disfavored and are treated in most jurisdictions as fee simple absolutes.
EXAMPLE: “A to B for the life of C.” As long as C is alive, B owns the property.
If B dies before C, it becomes part of B’s estate and will continue so long as C is still alive.
EXAMPLE: “A to B for the lives of C and D.” Under the majority interpretation, if the conveyance has more than one measuring life, it is interpreted as lasting until the death of the survivor.
are examples of?
“Life estate pur autre vie” = The duration of the estate is measured by the life of someone other than the grantee. "for the life of another"
What are the main two types of Future interests?
Grantor future interests
Grantee Future interests
o Possibility of Reverter = A future interest in the grantor that follows a determinable estate. Give an example
EXAMPLE: “A to B so long as B farms the land” creates a possibility of reverter in the grantor.
Creation: a fee simple determinable automatically creates a possibility of reverter; no special language needed. (silent reversionary interest; by operation of law)
the rule against perpetuities does not affect or apply to Grantor future interests. why?
because the grantor’s power of termination has already vested
Grantee future interest
EXAMPLE: “A to B for life, then to C.” C has a ______.
EXAMPLE: “A to B for life, then to the oldest child of C then living.” would be what type of Grantee future interest and why?
This would be a contingent remainder because we do not know who the oldest child is going to be until B dies. There is a condition precedent to that person taking – they must be alive when B dies.
Vested Remainder is vested at the point that it is:
if the 2 elements of a vested remainder are not satisfied, then it is a __________ ___________.
• Created in an ascertainable person; and
• Is not subject to any condition precedent, other than termination of the preceding estate.
EXAMPLE: “A to B for life, then to C
Does C have a vested remainder? Why or why or why not?
Yes C has a vested remainder because C is an ascertainable person and there is no condition precedent to his or her taking other than the termination of the preceding estate (when B dies).
• Vested Remainder Subject to Total Divestment
o A remainder that is presently vested but may be terminated on the happening of a future event.
EXAMPLE: “A to B for life, remainder to C, so long as liquor is never served on the premises.” C has a vested remainder but could lose it by serving liquor on the premises.
• Vested Remainder Subject to Open
o A remainder that has been made to a class (eg. children) and has at least one member who is ascertainable who has satisfied any conditions precedent to vesting, but may have other members join the class later.
EXAMPLE: “A to B for life, then to the children of C.” As soon as C has a child, that child is an ascertainable person and there is no condition to their taking other than the termination of the preceding estate (B’s death). Child would have a vested remainder, but it is subject to open because as other children of C are born, they will also share in the gift.
If a remainder is not vested it is then classified as __________.
contingent (remainder not fully vested)
EXAMPLE: “A to B for life, then to the children of C.”
if this is a testamentary conveyance when does the class open?
At the death of the testator
EXAMPLE: “A to B for life, remainder to the children of C.” When B dies, C has two children living. Those two children would be entitled to take immediate possession of the property. This would close the class. under the rule of convenience what would happen if another child from C was born?
They would be shut out of the class.
EXAMPLE: “A to B so long as liquor is not served on the premises in B’s lifetime. If liquor is served on the premises in B’s lifetime, the property will pass to C.” C has an ____________ interest
EXAMPLE: “A to B so long as B completes law school by age 30. If B fails to do so, then to C.” Shifts the property from grantee B to grantee C. This is an example of what kind of executory interest?
shifting executory interest
EXAMPLE: “A to B for life. Then 20 years after B’s death, to C.” B has a life estate. When B dies, the property reverts back to the grantor, A. 20 years later, the property transfers to C. A’s reversion would be in fee. what type of executory interest is this?
springing executory interest
T or F executory interests are subject to the Rule Against Perpetuities RAP.
HYPOTHETICAL: Uma F. Olson holds a life estate in a small piece of property containing a single-family home. A U.F.O. crash lands in her backyard one evening, resulting in hordes of visitors to her property, 24 hours a day, 365 days a year. Uma completely remodels the now virtually uninhabitable house into a museum that will bring in millions of dollars annually. Does an action lie against Uma for waste?
Common law: yes can sue
Modern Law:no cannot sue because improved market value and substantial change in circumstances
o The common law Rule Against Perpetuities provides that?
What is the purpose of RAP?
that “no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.”
The law does not want land tied up forever with ridiculous contingencies that could go on in perpetuity.
The rule attempts to place a limit on contingencies on ownership of land.
o The rule deals solely with possibilities. If you can look at a future interest in a conveyance and can come up with an interpretation where someone could be claiming more than 21 years after everyone currently alive connected to the grant is dead, it violates the rule.
The RAP does not apply to present possessory estates.
The RAP only applies to three future interests:
Two other interests subject to the rule:
The RAP only applies to three future interests:
• Executory interest;
• Contingent remainder; and
• Vested remainder subject to open
Two other interests subject to the RAP
Purchase option; and
• Right of first refusal
o Partial Restraint (both are valid, if reasonable)
give an example
Give an example of Right of first refusal
EXAMPLE: “A to B and her heirs, but A reserves the right to buy back the property at any time during A’s life.”
Right of First Refusal
EXAMPLE: “A to B and her heirs, but if B ever attempts to sell during A’s life, B must first offer the property to A at the same price.”
o If a property interest is involved, characterize it as either a “movable” or “immovable” interest.
If an interest is closely connected with land (e.g., a leasehold or the right to rents), it is _________ . If it is not, it is _______.