Real Property Flashcards
Present Possessory Estates - Definition
Interest that gives the holder the RIGHT TO PRESENT POSSESSION
Present Possessory Estates - Types (6)
1) Fee Simple Absolute
2) Fee Simple Determinable (Defeasible Fee)
3) Fee Simple Subject to Condition Subsequent (Defeasible Fee)
4) Fee Simple Subject to an Executory Interest (Defeasible Fee)
5) Fee Tail
6) Life Estate
Fee Simple Absolute
Can be sold, divided, devised, or inherited
Has an indefinite or potentially INFINITE duration
Largest estate recognized by law
Presumed in absence of contrary intent
Fee Simple Absolute - Language
“To A and his heirs”
“To A”
Fee Simple Absolute - Correlative Future Interest in Grantor
None
Fee Simple Absolute - Correlative Future Interest in Third Party
None
Fee Simple Determinable (and Possibility of Reverter)
Terminates upon the happening of a STATED EVENT and AUTOMATICALLY REVERTS to the grantor
Type of Defeasible Fee (fee simple estates that can be terminated upon the happening of a stated event)
Fee Simple Determinable - Language
“To A and his heirs for so long as. . .”
until. . .”
while. . .”
during. . .”
NOT "for the purpose of" "to be used for" = statements of MOTIVE ≠ create determinable fee Need words limiting DURATION
Fee Simple Determinable - Correlative Future Interest in Third Party
Executory Interest
Fee Simple Determinable - Correlative Future Interest in Grantor
Possibility of REVERTER
Possibility of Reverter in Fee Simple Determinable
Grantor conveys a fee simple determinable, AUTOMATICALLY retains possibility of reverter (revisionary future interest)
Possibility of Reverter = transferable, descendible, and devisable
Type of Defeasible Fee (fee simple estates that can be terminated upon the happening of a stated event)
Fee Simple Subject to Condition Subsequent (and Right of Entry)
Grantor RESERVES RIGHT TO TERMINATE the estate upon the happening of a STATED EVENT
NOT AUTOMATIC, grantor must take some action
Fee Simple Subject to Condition Subsequent - Language
“To A and his heirs, but if. . .”
but if. . .”
upon condition that. . .”
provided that. . .”
Fee Simple Subject to Condition Subsequent - Correlative Future Interest in Grantor
Right of Entry
Fee Simple Subject to Condition Subsequent - Correlative Future Interest in Third Party
Executory Interest
Right of Entry in Fee Simple Determinable Subject to Condition Subsequent
RIGHT TO TERMINATE by the grantor = right of entry
Must be EXPRESSLY reserved
DOES NOT arise automatically (unlike reverter)
NOT TRANSFERABLE inter vivos
Most states say are DEVISABLE
All states say are DESCENDIBLE
What is a Conveyance That Contains BOTH Durational Language AND Power of Termination?
Likely construed as FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT
Forfeiture is OPTIONAL at grantor’s election, rather than automatic
Policy disfavors forfeiture
Fee Simple Subject to an Executory Interest
Terminates upon the happening of a stated event (because it is determinable or subject to a condition subsequent) AND THEN PASSES TO A THIRD PARTY, rather than reverting to the grantor or giving the grantor a right to terminate
Third party has an EXECUTORY INTEREST
Type of Defeasible Fee (fee simple estates that can be terminated upon the happening of a stated event)
Fee Simple Subject to an Executory Interest - Language
“To A and his heirs for so long as. . ., and if not. . ., to B”
“To A and his heirs, but if. . .to B”
EXAMPLES
“To A and his heirs for so long as liquor is not sold on the premises; in that event, to B” - B has an executory interest
“Blackacre to XYZ Church but if it is used for anything other than church purposes, then to B” - B has an executory interest
Fee Simple Subject to an Executory Interest - Correlative Future Interest in Grantor
Right of Entry
Fee Simple Subject to an Executory Interest - Correlative Future Interest in Third Party
Executory Interest
Fee Tail
Inheritability is limited to LINEAL HEIRS
Most jurisdictions have abolished fee tail, and an ATTEMPT to create one results in a FEE SIMPLE
Conditions and Limitations Violating Public Policy
Conditions or limitations that violate public policy are generally STRUCK DOWN and grantee takes FREE of restraint
If purpose of condition is to PENALIZE MARRIAGE or ENCOURAGE DIVORCE, it will likely be STRUCK DOWN
If purpose is to GIVE SUPPORT until marriage or in the event of divorce, likely to be UPHELD
Fee Tail - Language
“To A and the heirs of his body”
