- What are the distinguishing characteristics of a fee simple absolute estate?
- How do you create this estate?
- Any accomanying interests?
- This is absolute ownership of potentially infinite (limitless) duration. It is freely devisable, descendible, and alienable.
- “To A” or “To A and his heirs” (“and his heirs” are not needed)
- No accompanying future interst. While A is alive, he only has prospective heirs. A’s heirs are powerless while A is alive.
- What are the distinguishing characteristics of a fee tail estate?
- How do you create this estate?
- Any accomanying interests?
- Virtually abolished in the U.S. today. Virtually never tested. Historically, the fee tail would pass directly to the grantees lenial blood descendents no matter what. Purpose to keep property all in the family. Today, the attempted creation of a fee tail creates instead the fee simple absolute.
- “To A and the heirs of his body”
- Yes. In O, the grantor, it was called a reversion. In a third party (someone other than O), it was called a remainder.
- What are the distinguishing characteristics of a fee simple determinable estate?
- How do you create this estate?
- Any accomanying interests?
- This estate, like all of the defeasible fees, is devisable, descendible, and alienable, but always subject to the condition. You may convey less than what you started with, but you can’t convey more. Grantor must use clear durational language. If the stated condition is violated, forfeiture is automatic.
- “To A for so long as…” “To A during…” “To A until…”
- Yes. It is the possibility of reverter in the grantor. FSDPOR (Frank Sinatra Didn’t Prefer Orville Redenbacher)
- What are the distinguishing characteristics of a fee simple subject to condition subesequent estate?
- How do you create this estate?
- Any accomanying interests?
- This estate is NOT automatically ended, but it can be cut short at the grantor’s option, if the stated condition occurs. Here, grantor must use clear durational language and carve out the right to reenter.
- “To A, but if X event occurs, grantor reserves the right to re-enter and retake”
- Yes, its called the right of entry, synonymous with the power of termination.
- What are the distinguishing characteristics of a fee simple subject to executory limiation estate?
- How do you create this estate?
- Any accomanying interests?
- This estate is just like the fee simple determinable only now, if the condition is broken, the estate is automatically ended in favor of someone other than grantor (a third party). A third party is named and stands to take. Automatically divests in favor of a third party on the happening of a stated event.
- “To A, but if X event occurs, then to B.”
- A shifting executory interest
What is an absolute restraint on alientation? How are absolute restraints on alienation treated?
An absolute restraint on alienation is an absolute ban on the power to sale or transfer, that is not linked to a reasonable time limted purpose. Absolute restraints on alienation are void.
Example: “To A so long as she never attempts to sell.” A has a fee simple absolute, O has nothing. This is an absolute restraint on alienation and it is void.
Are words of mere desire, hope, or intention sufficeint to create a defeasible fee estate?
No. Courts disfavor restrictions on the free use of land. Thus, courts will not find a defeasible fee unless clear durational language is used.
Example: In each of these instances, A is vested with a fee simple absolute, and NOT a defeasible fee:
- “To A for the purpose of constructing a day care center”
- “To A with the hope that he becomes a lawyer”
- “To A with the expectation that the premises will be used as a Blockbust video store.”
- What are the distinguishing characteristics of a life estate?
- How do you create this estate?
- Any accomanying interests?
- This is an estate that must be measure in explicit lifetime terms, and NEVER in terms of years. The life tenant’s entitlements are rooted in the important doctrine of waste. Two general rules: The life tenant is entitled to all ordinary uses and profits from the land. BUT… the life tenant must not commit waste; she must not do anything to hurt the future interest holders.
- O conveys “To A for life”; A has a life estate and is known as the life tenant. The life estate pur autre vie: A life estate measured by a life other than the grantees.
- Yes. O has a reversion meaning that at the end of A’s lifetime, the estate reverts back to O or O’s heirs. If held by a third party, it is a remainder.
What are the three types of waste?
- Voluntary or affirmative waste.
- Permissive waste or neglect
- Ameilorative waste
What is voluntary waste? What is the general rule regarding voluntary waste? What are the exceptions to the rule?
This is overt conduct that causes a drop in value; willful destruction.
The general rule: The life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals), unless an exception applies, remebered by PURGE.
PU: Prior Use, meaning that prior tot hte grant, the land was used for exploitation.
R: Reasonable repairs. The life tenant may consure natural resources for repairs and maintenance.
G: Grant. The life tenant may exploit if granted the right.
E: Exploitation, meaning the land is good only to exploit (unless parties have otherwise agreed)
What is permissive waste?
Also referred to as neglect. This occurs when the land is allowed to fall in disrepair. The life tenant must simply maintain the premises in reasonably good repair. Permissive waste and the obligation to pay all ordinary taxes.
What is ameliorative waste?
The life tenant must not engage in acts that will enhance the property’s value, unless all the future interest holders are known and consent.
