Flashcards in Property Lecture 1 Deck (57):
what does devisable mean?
capable of passing by will
what does descendible mean?
property will pass by the statutes of intestacy if its holder dies intestate
what does alienable mean?
property is transferable inter vivos
what language creates the fee simple absolute?
"to A" or "to A and his heirs"
what are the characteristics of the fee simple absolute?
Absolute ownership of potentially infinite duration. It is freely devisable, descendable and alienable
Does a fee simple absolute have an accompanying future interest?
what language creates a fee tail?
"to A and the heirs of his body"
who does a fee tail pass to?
the grantee's lineal blood descendants
are fee tails used any more?
no, they have been virtually abolished. The attempted creation of a fee tail creates instead a fee simple absolute
what is the accompanying future interest to a fee tail?
if it is in the grantor, it is a reversion. If it is in a 3P, it is a remainder
what are defeasible fees?
they are fee simples w/ a catch
what language creates a fee simple determinable?
"for so long as" "to A until"
what must a grantor do to create a fee simple determinable?
use clear durational langugage
what happens if the stated condition in a fee simple determinable is violated?
forfeiture is automatic
is the condition stated in the fee simple determinable devisable, descendable, and alienable?
yes, but the property interest is always subject to the condition
what is the accompanying future interest of a fee simple determinable?
possibility of reverter (frank sinatra didn't prefer orville redenbacher)
what language creates a fee simple subject to condition subsequent?
"To A, but if event occurs, grantor reserves the right to re-enter and retake"
what requirements must a grantor meet in order to ensure a fee simple subject to condition subsequent is created?
1. use clear and durational language
2. state the right to reenter
what is the accompanying future interest in a fee simple subject to condition subsequent?
the right of entry (synonymous w/ the power of termination)
what language is used to create a fee simple subject to executory limitation?
"To A, but if X event occurs, then to B"
what happens if the condition in a fee simple subject to executory limitation is violated?
the estate is automatically forfeited in favor of someone other than the grantor
what is the accompanying future interest for a fee simple subject to executory limitation?
shifting executory interest
what type of words are insufficient to create a defeasible fee?
words of mere desire, hope, or intention
in terms of imposing conditions of land transfers, and creating defeasible fess, an absolute restraint on alienation is...
void (unless the ban is for a reasonable time limited purpose)
what language creates a life estate?
"To A for life"
what is the name of a holder of a life estate?
the life tenant
what interest does the grantor have in a life estate?
what is a life estate our auto view?
a life estate for the life of another (is where a life estate is measured by a life other than the grantee's) ex. "To A for the life of B"
what 2 rules must a life tenant in a life estate follow?
1. the life tenant is entitled to all ordinary uses and profits from the land
2. the life tenant must not commit waste (i..e. harm the future interest holders)
what are the 3 types of waste?
1. voluntary or affirmative waster (overt conduct that causes a drop in value)
2. permissive waste AKA neglect (life tenant must maintain the premises in reasonably good repair)
3. ameliorative waste (the life tenant must not engage in acts that will enhance the property's value unless all future interest holders are known and consent)
what are the 4 instances where a life tenant can commit waste?
1. Prior use, meaning that prior to the grant, the land was used for exploitation
2. Repairs: life tenant can use natural resources for repairs and maintenance
3. granted: the life tenant may exploit if granted that right
4. exploitation: meaning this land is suitable only for exploitation
what is the open mines doctrine?
an exception to ban on waste for a life tenant--If mining was done on the land before the life estate began, the life tenant may continue to mine, but is limited to the mines already open
what is the life estate's accompanying future interest?
if in O, it's a reversion
if in a 3P, it's a remainder
definition of reversion
A reversion is the future interest that arises in a grantor who transfers an estate of lesser quantum that she started with, other than a fee simple determinable or a fee simple subject to condition subsequent
what are the 3 future interests that are held by someone who is not the grantor?
1. vested remainder
2. contingent remainder
3. executory interest
what is a vested remainder?
There are 3 species: (i) the indefeasible vested remainder, (ii) the vested remainder subject to complete defeasance, (iii) the vested remainder subject to open
what are the 2 species of executory interest?
what is a remainder?
A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created (accompanies a life estate or term of years)
what future interest never follows a defeasible fee?
a remainder (social and polite)
when is a remainder vested?
when it is BOTH created in an ascertained person and is not subject to any condition precedent
when is a remainder contingent?
if it is created in an unascertained person or is subject to a condition precedent or both
what is the rule of destructibility of contingent remainders?
At CL, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.
Ex. To A for life, and if B has reached the age of 21, to B. Now, A has died, leaving behind B, who is still only 19.
B's contingent remainder would be destroyed. So O or O's heirs would take in fee simple absolute.
does the destructibility rule exist today?
what happens in the rule in Shelley's case?
historically: the present and future interests merge
today: abolished: creates a life estate, a contingent remainder for the heirs, and a reversion in O
when does the doctrine of worthier title apply?
When O, who is alive, tries to create a future interest in his heirs
Ex. O, who is alive, conveys "to A fore life, then to O's heirs"
If doctrine did not apply, the result would be: A has a Life estate and O's heirs have a contingent remainder b/c O is still alive and a living person has no heirs
W/ Doctrine, the result is: the contingent remainder in O's heirs is void. A has a life estate and O has reversion.
(note: Grantor's intent controls. If grantor clearly intends to create a contingent remainder in heirs, that intent is honored)
what is an indefeasible vested remainder?
The holder of this remainder is certain to acquire an estate in the future w/ no strings attached
Ex. "To A for life, remainder to B." A is alive. B is alive.
a condition precendent, in terms of a remainder, creates what?
a condition subsequent, in terms of a remainder, creates what?
a vested remainder subject to complete defeasance
definition of a vested remainder subject to open
a remainder is vested in a group of takers, at least one of whom is qualified to take.
Note: each class member's share is subject to partial diminution b/c additional members can still join
when does a class of people close?
Common law rule of convenience: the class closes whenever any member can demand possession
what is an executory interest?
It is a future interest created in a transferee (3P) which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or in the grantor or his heirs (springing)
Ex. To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs.
what is an example of a springing executory interest?
O conveys: "To A, if and when he marries." A is unmarried.
what is the basic rule for the RAP?
Certain kinds of future 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
What are the 4 steps in assessing a RAP problem?
1. Determine which future interests have been created by the conveyance
2. ID the conditions precedent to the vesting of the suspect future interest
3. Find a measuring life. Look for a person alive at the date of the conveyance and ask whether that person's life or death is relevant to the condition's occurrence
4. Ask: will we know, with certainty, within 21 years of the death of the measuring life, if the future interest holders can or cannot take?
if yes, the conveyance is good
if no, the future interest is void
what are the 3 future interests that may have a RAP problem?
1. contingent remainders
2. executory interests
3. certain vested remainders subject to open
what are the 2 bright line rules for RAP?
1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP.
2. Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP.