The Fees

Question 1

What is the fee simple determinable?

Answer 1

1. “To A and his heirs”
2. Absolute ownership of potentially infinite duration, and it is freely devisable, descendable, and alienable
3. Heir Apparent, 3rd parties have no rights until A passes

Question 2

What are the 4 Fees:

Answer 2

1. The Fee Simple Absolute
2. The Fee Tail
3. The Defeasible Fees
4. The Life Estate

Question 3

What are the 3 Defeasible Fees:

Answer 3

1. The fee simple determinable
2. The fee simple subject to condition subsequent
3. The Fee Simple Subject to Executory Limitation (3rd Party)
   * ***Extra notes for the Defeasible Fees
   - How to Create:
4. Courts do not recognize language of intent, on clear language
   a. EG mere desire, hope, or intention are not enough
   i. If this language is used it is a fee simple absolute
   b. Must use clear durational language to have legal force
   ii. Absolute restraints on Alienation are void
5. EG - O conveys: “To A so long as she never attempts to sell.”
   a. Not a fee simple determinable - This is an absolute restraint on alienation - it is void, the condition drops out
6. However if the restraint on alienation is linked to a reasonable time than the provision will be upheld

Question 4

What are the 3 elements of the fee estates

Answer 4

I. What language creates the estate
II. What are some of the estates attributes - Divisable (can pass by will) - Descendable (can pass by the statute if the will holder dies intestate) - Inalienable (transferable intervivos, during the holders lifetime)
III. Which future interest if any is this particular interest capable of

Question 5

What is a fee tail?

Answer 5

1. “To A and the heirs of his body” (Language must be precise)
2. Historically the fee tail would pass to the grantees lineal blood descendants, no matter what (historically the fee tail was keenly concerned with preserving family dynasties), ii. Today attempts to create a Fee Tail, generally instead create a Fee Simple Absolute
   3.

Question 6

Defeasible Fee 1 - What is the fee simple determinable?

Answer 6

1. To A so long as…. during… until”
   i. The Grantor must use clear durational language
   ii. If the stated condition is violated forfeiture is automatic
2. 1. Freely devisable, descendible, and alienable, however always subject to the condition (can never convey more than what you started with)
      i. This is a condition that is within the power of the grantee (ie, grantee completes college, gets married, etc.)
3. Future Interest: Possibility of Reverter in the Grantor (if the condition is violated) FSDPOR

Question 7

Defeasible Fee 2 - What is the Fee Simple Subject to Condition Subsequent

Answer 7

1. To create: “To A but if X event occurs grantor reserves the right to re-enter and retake”
   i. This is different from Fee Simple Determinable in that a condition may occur outside the power of the grantee and grantor may re-enter and retake if that condition occurs
   ii. Grantor must use clear durational language and carve out the right to reenter and retake
2. May be cut short by the grantors option, not automatically ended (note the grantor may reenter and retake, does not have to if condition is breached)
3. Future Interests: Grantor has the power of termination if the condition is violated, and; The Grantor may reenter and retake

Question 8

Defeasible Fee 3 - The Fee Simple Subject to Executory Limitation (3rd Party)

Answer 8

1. How to create - “To A but if X event occurs than to B”
   i. If condition not met goes to 3rd party, 3rd party has a “shifting executory interest”
2. If the condition is violated, automatic forfeiture, shifted in favor of someone other than the Grantor (3rd party)
3. Future Interests - A shifting executory interest

Question 9

What is the Life Estate?

Answer 9

1. Creation “To A for Life”
   i. Must be measured in explicit life terms
   ii. Can never be measured in terms of years
   iii. A is known as the life tenant
2. Alienable, devisable, descendible, (if pur autrie vie) (if the measuring life is still alive) - Waste
3. Future Interests - If held by owner = reversion, if held by a third party reversion