Present Estates

Question 1

Types of freehold estates

Answer 1

I. The Fee Simple absolute
II. Fee Tail
III. Defeasible fees (3 kinds)
IV. Life estate

Question 2

How to create a fee simple absolute

Answer 2

a. To create: “To A” or “To a and his heirs”

i. today and his heirs is not needed, just “to a”

Question 3

Characteristics of fee simple absolute

Answer 3

i. This is absolute ownership of potentially infinite duration. Freely devisable, descendible, and alienable.
1. can leave in will, pass by intestacy transfer during lifespan.
ii. No accompanying future nterest
1. O conveys “to A.” A is alive. A’s heirs have nothing, only A has absolute ownership.
2. A living person has no heirs. Will alive, only prospective heirs/ heirs apparent. W/r/t property they are powerless

Question 4

Fee tail

Answer 4

a. How t create: “ to A and the heirs of his body”
b. Characteristics: virtually abolished, never tested. The fee tail would pass directly to grantee’s lineal blood descendants no matter what.
i. point of fee tail was to preserve family dynastys.
ii. Today the attempted creation instead creates a fee simple absolute.
c. Accompanying future interest?
i. Historically, yes. In O, the grantor, it was called a reversion. In a third party (someone other than O) it was called remainder

Question 5

Defeasible fees, they have a catch. 3 types

Answer 5

Fee simple determinable, FS subject to condition subsequent, FS subject to executor

Question 6

Fee simple determinable:

Answer 6

Fee simple determinable- possibility of reverter
reversion is automatic

i. How to create: “to A for so long as…” “To A during…” “To A until…”
2. Grantor must use clear durational language.
3. If the stated condition is violated, forfeiture is automatic.

ii. Characteristics
1. This estate like all defeasible fees is devisable, descendible and alienable, but always subject to the condition.
2. You may convey less than what you started with but you convey more.
iii. Accompanying future interest
1. The possibility of reverter in the grantor. Only reverter.

2. Ex: Frank Sinatra conveys Sinatra palace to “Orville Redenbacher, so long as popcorn is never made on the premises.” The interests
   a. Orville has fee simple determinable, so long as no popcorn on premises
   b. Frank has: possibility of reverter
3. Reverter is only future interest to accompany FS determinable.
   a. FSDPOR- frank Sinatra didn’t prefer Orville Redenbacher
   Fee simple determinable- possibility of reverter

Question 7

Fee simple subject to condition subsequent

Answer 7

grantor’s prerogative.
fee simple with a catch

i. How to create: “To A, but if X event occurs, grantor reserves the right to re-enter and retake.”
1. FS with a catch. But reverter isn’t mandatory, it’s up to the grantor’s prerogative, gives grantor right of entry/ power of termination
2. Grantor must use clear durational language and state the right to reenter.
3. Ex: Ross conveys “to Rachel, but if coffee is ever consumed on the premises, grantor reserves the right to re-enter and retake.”

Question 8

Fee simple subject to executory limitation

Answer 8

if condition betrayed, automatic forfeiture to 3P.

i. How to create it: “To A (FS part), but if X event occurs, then to B.”
1. For ex: To Barry Manilow, but if Manilow ever performs music on premises, then to Mandy.
a. Barry has fee simple , subject to Mandy’s shifting executor interest
ii. Characteristics
1. Estate is just like FS determinable only now, if condition broken, the estate is automatically forfeited, in favor of someone other than the OR.

Question 9

3 rules of construction for defeasible fees

Answer 9

words of mere desire are inadequate, conditions and limitations violating public policy are void, absolute restraints on alienatioin are void

Question 10

Words of mere desire, hope or intention are inadequate to create a defeasible fee

Answer 10

1. Courts disfavor restrictions on land use.
2. Thus courts won’t find defeasible fee unless clear durational language is used.
   a. “To A for the purpose of constructing a day care center.” “ To A with hope that he becomes a lawyer,” “To A with the expectation that the premises will be a Blockbuster” are NOT defeasible fees, they are mere words of hope.

Question 11

Conditions and limitations violating public policy are void

Answer 11

for ex if the purpose of the condition is to penalize marriage or encourage divorce, it will be struck down.
1. “To A unless he gets married”

Question 12

Absolute restraints on alienation are void

Answer 12

1. Absolute restraint on alienation is an absolute ban on the power to sell or transfer not linked to a reasonable time limited purpose. VOID
2. Ex
   a. O conveys “To A so long as she never attempts to sell.” This is an absolute restraint on alienation. It is void! It’s deemed repugnant to public policy.
   i. A has FS absolute.
   ii. O has nothing.
   b. O conveys “To a so long she does not attempt to sell until the year 2018, when clouds on the title will be resolved.” Here the restraint is linked to a reasonable, time limited purpose. So acceptable.
   i. A has FS determinable.
   ii. O has possibility of reverter

Question 13

Life estate creation

Answer 13

a. To create: must be measured in explicit lifetime terms, not in years.
i. O conveys: “To A for life.”
1. A has life estate
2. A is known as the life tenant
3. OR has a reversion, meaning at end of A’s life, the estate reverts to OR or OR’s heirs.

Question 14

Life estate alternative, life estate pur autre vie

Answer 14

1. A life estate measured by a life. Life estate measured by a life measured by a life OTHER than the grantee. “To A for the life of B.”
2. Ex: “To Madonna, for the life of David Letterman”
   a. Madonna has life estate pur autre vie
   b. OR has a reversion. When David dies, estate reverts back to OR or OR’s heirs.
3. Ex: O conveys “to Madonna for life.” Madonna then sells entire interest to David Letterman.
   a. Thus David Letterman has life estate pur autre vie.
   b. OR has reverter. At the end of Madonna’s life, the estate reverts back to OR or OR’s heirs.

Question 15

Characteristics of life estate

Answer 15

i. Can be defeasible or indefeasible
1. indefeasible: to A for life
2. Defeasible: to A for life so long as A doesn’t get a divorce.

two rules:

ii. life tenant’s entitlements are rooted in the important doctrine of waste: can’t do anything that injures the interest of remanderman or reversioner.
1. Life tenant is entitled to all ordinary uses and profits from land

Question 16

What happens if life estate renounces

Answer 16

goes to whoever owns future interest

Question 17

Life tenant duty to not commit waste. 3 kinds of waste

Answer 17

2. Life tenant must not commit waste. 3 kinds of waste
   Voluntary or affirmative waste (cannot overtly destroy unles PURGE exception), permissive waste or neglect (must maintain property, but no more than income/rental value of property), ameliorative waste (must preserve sentimental value of lland).

a. Voluntary or affirmative waste. This is overt destruction. Can be liable to the OR or OR’s heirs.
i. Voluntary waste and natural resources. Life tenant must not consume or exploit natural resources unless one of four exceptions. PURGE
1. PU: Prior use, prior to the grant the land was used for exploitation. Life tenant may continue to exploit, unless otherwise agreed.
a. Prior use and open mines doctrine: if mining was done on the land before the life estate began, the life tenant may continue to mine, but limited to mines already open.
2. R : Repairs: may consume natural resources for repairs and maintenance
3. G: Grant: may exploit if granted that right.
4. E: Exploitation: meaning the land is suitable ONLY to exploit. Natural for life tenant to think he can exploit
a. For ex, blackacre is a coal mine or a quarry.

b. Permissive waste or neglect. When land falls into disrepair.
i. Obligation to repair, pay interest on mortgages, ordinary taxes, special assements for public improvements of short duration.
1. Up to the reversioner or remaindermen to pay principal on mortgage to protect interest.
ii. Duty limited to extent of income from the land, or if no income, its reasonable rental value. NOT responsible for insurance nor damages by 3P tortfeasors.

c. Ameliorative waste:
i. Common law: life tenant must not engage in acts that will enhance the property’s value, unless all future interest holders are known and consent. B/c property law recognizes sentimental value.
ii. TODAY: may alter or demolish buildings if
1. Market value not diminished and either
a. remaindermen don’t object
b. or
c. substantial and permanent change in the neighborhood conditions have deprived the property its productivity.