4 categories of freehold estates
fee simple absolute, fee tail, defeasible fees (3 kinds), life estate
3 things to know re: freehold estates for exam
- What language creates the estate?
- What are the estate’s distinguishing characteristics? (devisable, descendible, alienable
- Which future interests (if any) is the estate capable of?
devisable
able to pass to heirs by will
descendible
able to pass to heirs by intestacy
alienable
able to transfer inter vivos (during holder’s lifetime)
fee simple absolute
- To A (and his heirs)
- absolute ownership of potentially infinite duration. d/d/a
- No future interest
fee tail (rarely tested)
- To A and the heirs of his body
- Historically, would pass directly to grantee’s lineal blood descendants. Today, attempted creation of fee tail creates instead FSA
- Historically, creates reversion for grantor, remainder for 3rd pty
defeasible fees
- 3 fee simples with a catch
- Fee simple subject to threat of forfeiture
- defeasible - forfeiture
defeasible fee - fee simple determinable (FSD)
- To A for so long as…; To A during …; To A unti …
Grantor must use CLEAR DURATIONAL language - d/d/a SUBJECT TO the condition
If stated condition is violated, then forfeiture is automatic for grantor - possibility of reverter (POR) for grantor
FSDPOR
Frank Sinatra Didn’t Prefer Orville Redenbacher
defeasible fee - fee simple subject to condition subsequent (FS SCS)
- To A, but if X event occurs, grantor reserves the right to re-enter and retake
Grantor must use CLEAR DURATIONAL language AND statement of re-entry - d/d/a SUBJECT TO the condition
If stated condition is violated, forfeiture is NOT automatic but it can be cut short at grantor’s option - Right of entry (power of termination) for grantor
defeasible fee - fee simple subject to executory limitation (FS SEL)
- To A, but if X event occurs, then to B
- d/d/a SUBJECT TO the condition
If the stated condition is violated, forfeiture is automatic in favor of 3rd party (not grantor) - Shifting executory interest for 3rd pty
2 important rules of construction re: defeasible fees
- Words of mere desire, hope, or intention are INSUFFICIENT to create a defeasible fee.
- Absolute restraints on alienation are void
Rules of construction re: defeasible fees
Words of mere desire, hope, or intention are INSUFFICIENT to create a defeasible fee
- Courts will not find a defeasible fee UNLESS clear durational language is used.
- Courts disfavor restrictions on free land use
Rules of construction re: defeasible fees
Absolute restraints on alienation are void
An absolute restraint on alienation is an absolute ban on the power to sell or transfer that is NOT linked to a reasonable, time limited purpose.
life estate
- To A for life
life estate is measured by A’s life - d/d/a if measuring life is still alive
- reversion for grantor, remainder for 3rd pty
life estate pur autre vie
- To A for the life of B
life estate is measured by a life other than grantee’s - d/d/a if measuring life is still alive
- reversion for grantor, remainder for 3rd pty
life estate - unique issues and terms
Life estate is an estate that MUST be measured in explicit lifetime terms and never in terms of years.
A is known as the life tenant
life estate - distinguishing characteristics
Life tenant’s entitlements are rooted in the doctrine of waste - 2 general rules
- The life tenant is entitled to all ordinary uses and profits from the land
- The life tenant must not commit waste
life estate
3 species of waste
- voluntary or affirmative waste
- permissive waste (neglect)
- ameliorative waste
life estate
3 species of waste - voluntary or affirmative waste
Life tenant must not consume or exploit natural resources on the property (i.e. timber, oil, minerals) UNLESS 1 of 4 exceptions apply (PURGE)
Prior Use, Repairs, Grant, Exploitation
life estate
3 species of waste - voluntary or affirmative waste
PURGE - Prior Use
Prior Use - prior to the grant, land was used to exploit. Life tenant may continue to exploit unless otherwise agreed.
life estate
3 species of waste - voluntary or affirmative waste
PURGE - Prior Use
Open Mines doctrine
Open mines doctrine: If mining was done on the land before the life estate began, life tenant may continue to mine, but is limited to mines already open.
(Life tenant must not open any new mines.)
life estate
3 species of waste - voluntary or affirmative waste
PURGE - Repairs
Repairs - Life tenant may consume natural resources for repairs and maintenance
life estate
3 species of waste - voluntary or affirmative waste
PURGE - Grant
Grant - Life tenant may exploit if granted that right
