1. Present Estates

Question 1

What is a present estate?

Answer 1

Grantor gives to Grantee interest including the right to ‘present’ ‘possession’
- NOT non-possessory interest (easements/covenants)

Question 2

What types of possession exist?

Answer 2

Freehold possession

• Legal title
• Fee/life estate

Non-freehold possession

• Mere possession
• Lease

Question 3

What is a fee simple absolute?

Answer 3

Grantee has full possessory rights (present + future)

• NO restraints
• ‘To A (and his heirs)’
• ‘For purpose of’
• ‘With hope’
• ‘With expectation’

Question 4

What is the duration of fee simple absolutes?

Answer 4

Indefinite

Question 5

Are fee simple absolutes transferrable by Grantor?

Answer 5

Either (cannot impose more than one restraint - no restraints allowed);

• Conveyance
• Devise (by will)
• Descend (by NO will)

Question 6

What is a defeasible fee?

Answer 6

Grantee’s interest may be terminated upon specified event

Question 7

What is the duration of defeasible fees?

Answer 7

Potentially indefinite

Question 8

What is a determinable fee/fee simple determinable?

Answer 8

1) Terminates upon specified event
- ‘To A for as long as’
- ‘To A during’
- ‘To A while’
- ‘To A until’

2) Possibility of reverter
- Estate automatically reverts back to Grantor
- NOT expressly stated

Question 9

Is a fee simple determinable transferrable?

Answer 9

By Grantor (possibility of reverter)

• Conveyance
• Devise (by will)
• Descend (by NO will)

By Grantee

• Conveyance (subsequent Grantee takes subject to estate’s termination by specific event
• Devise (by will)
• Descend (by NO will)

Question 10

What is a fee simple subject to condition subsequent?

Answer 10

1) May terminate upon specified event
- ‘To A upon condition that’
- ‘To A provided that’
- ‘To A but if’
- ‘To A if it happens that’

2) Grantor must exercise ‘right of entry’ (future interest)
- Estate does NOT automatically revert back to Grantor
- Expressly stated
- ‘Grantor may enter and terminate the state hereby conveyed’

Question 11

What happens if the Grantor does not expressly reserve his right of entry?

Answer 11

Estate becomes covenant/easement

Estate becomes fee simple absolute to Grantee

Question 12

How may Grantor waive his right of entry?

Answer 12

Express agreement (forfeiture)

Conduct
- NOT inaction

Question 13

Is a right of entry transferrable?

Answer 13

NO conveyance

Devise (by will)

Descend (by NO will)

Question 14

What is the difference between a fee simple determinable and a fee simple subject to condition subsequent?

Answer 14

Fee simple determinable

• If condition is breached => Estate automatically reverts back to Grantor
• Possibility of reverter (NOT expressly stated)
• Conveyable
• Waiver NOT allowed

Fee simple subject to condition subsequent

• If condition is breached => Estate NOT automatically revert back to Grantor
• Right of entry (expressly stated)
• NOT conveyable
• Waiver allowed

Question 15

What happens if a conveyance appears both as a fee simple determinable and fee simple subject to condition subsequent?

Answer 15

Courts will likely construe it as fee simple subject to condition subsequent
- Policy disfavours automatic forfeiture of estates

Question 16

What is a fee simple subject to executory interest?

Answer 16

1) May terminate upon specified event
- ‘To A as long as’
- ‘To A but if’

2) Automatically passes to TP (executory interest)

Question 17

What is a life estate?

Answer 17

Grantee’s (Life Tenant) interest may be terminated upon the life of Life Tenant/another party

Question 18

Are life estates transferrable?

Answer 18

Conveyance

Devise (by will)

Descend (by NO will)

Question 19

What are the types of life estates?

Answer 19

Life estate (for life of Grantee)
- 'To A for life'

Life estate pur autre vie (for life of another)
- ‘To A for life of B’

Question 20

What is the duration of life estates?

Answer 20

Indefeasible

• Life estate (for life of Grantee) => Terminates upon Grantee’s death
• Life estate pur autre vie (for life of another) => Terminates upon Another’s death

Defeasible

• Terminates upon specified period
• Terminates upon specified no. years (estate for years)

Question 21

What happens if the life tenant dies?

Answer 21

Life estate

• Estate reverts back to Grantor
• Estate passes to remaindermen

Life estate pur autre vie (Life tenant dies before other party)

1) Grantor names ‘special occupant’
2) Estate is;
- Transferrable to named ‘special occupant’
- Devisable (by will)
- Descendible (by NO will)

Question 22

What is the Life Tenant’s rights to the estate?

Answer 22

Ordinary uses + profits of land

Question 23

What is the Life Tenant’s duties to the estate?

Answer 23

NOT commit waste/injure interests of;

• Remaindermen
• Reversioner (Grantor)

Question 24

What are the Remaindermen/Reversioner’s rights if Life Tenant breaches his duties to the estate?

Answer 24

Sue Life Tenant for damages
- UNLESS Remainderman is NOT ascertained => Impound damages for future distribution to remaindermen once ascertained

Enjoin (prevent) Life Tenant’s actions

Claim reimbursement from Life Tenant
- If Remainderman/Reversioner spent money to perform Life Tenant’s obligations

Question 25

What type of waste must Life Tenant not commit?

Answer 25

Voluntary/Affirmative waste (NOT consume/exploit natural resources) - UNLESS necessary for repair/maintenance of land - UNLESS land is suitable (ONLY for such use) - UNLESS consented (expressly/impliedly) - UNLESS mine is already open for use (ONLY for such use) (Open Mines Doctrine) Permissive waste (make repairs/pay carrying charges) - Pay interest on mortgages (NOT principal - Original sum - Remaindermen must pay)!!! - Pay taxes (ordinary) (to extent of income/profit UNLESS NONE) - Preserve land in reasonable state of repair (NOT improve even if wise to do so) - NOT insure for Remaindermen's benefit - NOT liable for TP damages (tort) (modern view) (liable under common law) Ameliorative waste (NOT change use of land that economically benefits value of land) - UNLESS (1) alter/demolish does NOT diminish future interest market value + (2) (a) Remaindermen do NOT object OR (b) substantial permanent change towards neighbourhood deprives property in current form of 'reasonable productivity or usefulness' - Leasehold tenants remain liable (even if NO value diminished) - UNLESS land value is worthless => Life Tenant can request judicial partition sale => Place proceeds in trust => Life Tenant receives income

Question 26

What happens if the measuring life in a life estate pur autre vie dies before the life tenant?

Answer 26

Estate reverts back to Grantor Estate passes to remainderman (fee simple)

Question 27

What happens if the life estate is transferred?

Answer 27

Transferee takes subject to Grantee's life (NOT Transferee's life) - After Grantee's death => Life estate transfers to Grantor/Remaindermen

Question 28

Can life tenant grant their land as collateral to an existing creditor for an outstanding mortgage? What can remaindermen do?

Answer 28

NO (seen as waste) Remaindermen can sue LT - Damages - Injunction

Question 29

What are creditor's remedies if life tenant defaults on an existing mortgage?

Answer 29

Sue life tenant personally for profits - LT is entitled to profits NOT sue remaindermen personally