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23 Cards in this Set

  • Front
  • Back
First three are freehold estates
1. Fee Simple
2. Fee Tail
3. Life Estate
1. Fee Simple (3 Types)
1. Fee simple absolute
2. Fee Simple Determinable: (NY: Fee on Limitation)
3. Fee Simple Subject to condition subsequent: (NY: Fee on Condition)
Fee Simple Absolute
o Presumption: the deed is fee simple absolute.
• Words of purchase answer who
• Words of limitation answer the question
what estate. (Her Heirs)

o There are no rights to heirs, until after owners death
Fee Simple Determinable
o There are certain words that have become terms of art. We need to know these as attorneys.
o Is created by language connoting that the transferor is conveying a fee simple only until an event happens. (So long as, while, during, until )

o When its breached, the property rights automatically come to an end.
• They are no longer the owner if it happened at any time.
• Happens immediately.

o Possibility of reverter: when the breach is automatic (Original Grantor)
Fee Simple Subject to condition subsequent: (NY: Fee on Condition)
o When its breached, the title only comes to an end only upon court order. (not automatic)
o Subject to a condition.
o Right to enter, or a right to retake.
o Right of re entry: not automatic (Original Grantor)
2. Fee Tail
Every state has abolished the fee tail
• Becomes fee simple absolute


o Only time you need to know what state your in is if you add
• O to c and his heirs of this body than to x.
1. Category one: any transfer to x, is void and unenforceable.
2. Category two: X will get fee simple estate if C, leaves no surviving issue
• NY Recognizes category 2
• Eptl 6-1.2

• Example C dies, but C never had children. So C has no issue. Under NY Law, property goes to X.
o If C had children, and they are alive at c’s death. Only time X gets interest is on the death of the first taker, without issue living at time of persons death.
o X’s interest is abolished under NY Statute.
o Party with title is C! Not C’s children.
o If C has a will and leaves it all to X, X can acquire the parcel.
§ 6-1.2 Estates tail abolished; future estates limited thereon
Estates tail have been abolished, and every estate which would be a fee tail, according to the law of this state as it existed before the twelfth day of July, seventeen hundred eighty-two, shall be a fee simple; and if no valid future estate is limited thereon, a fee simple absolute. Where a future estate in fee is limited on any estate which would be a fee tail, according to the law of this state as it existed previous to such date, such future estate is valid and vests in possession on the death of the first taker without issue living at the time of his death.
3. Life Estate
• O to D for life
o D has right to posses property
o Right of D is exclusive.
o D has right to fruits and profits.
o D has right to alienate property interests
• But new owners only have a life estate like D.
• Measured by D’s life.
• Alienable: during D’s lifetime
• Devisable: not devisable
• Descendible: not descendible

o Right to destroy?
• Destroying would interfere with O’s property interests.
• D would interfere with O’s reversionary estate.
o D’s interest is not perpetual.


o When D dies there is a reversion back to O.
o If H for life then to A.
• Then Title is held by A, immediately.
White v. Brown
o Ambiguous grant.
o Grant “to live in and not be sold”
o Rule of Law: Courts must search for intention of the testator or grantor.
• We find the intention in the language of the instrument in light of surrounding circumstances.
o Life estate?
• Grant says “to live in”
o Fee Simple
• Grant says “To have”
o Not to be sold
• inconsistent with fee simple.
• Inconsistent with Life estate as well.
IN an ambiguous grant
o In most states rules of construction are common law rules.
o (Majority rule) Every grant or devise of real estate should pass all the estate and interest of the grantor unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of the instrument.
Non-Freehold Estates (3 types)
4. Estate or tenancy for Years
5. Estate or tenancy From Year to Year
6. Estate or tenancy at will:
4. Estate or tenancy for Years
• has a fixed expiration date
• If person remains in possession past expiration date they become a trespasser.
• We look at words of grant to determine if there is a fixed expiration date, implying automatically comes to an end.
o To T commencing____ and expiring _____

• Must comply with statue of fraud’s
o Any interest in real property must be in writing.
o Exception for short term leases.
o In state of NY:
• A leasehold estate for a period of one year or less, need not be in writing.
5. Estate or tenancy From Year to Year
• There is a term and we are implying automatic successive renewal.
• Implies that end of term there is renewal.
o L to T from month to month.
• The period can be anything, ex year to year.
If parties don’t mention term at all, and only a rent.
Courts imply there is intention to create a periodic tenancy.
(in some states/NY) violation of statue of frauds
Courts have interpreted SOF:
• If a tenant holding an estate for years has failed to comply with SOF, the leasehold is not completely void, rather it becomes an estate at will.
• NY and many states don’t stop there: That is only step one.
o 1) becomes estate at will
o 2) The tenant pays rent and landlord accepts that rent
o The parties have transformed the estate at will into a periodic tenancy, for the period for which rent was offered and rent was accepted.

o Either party can terminate with notice:
• 1) must be given at least one period in advance
• 2) The notice must specify the last day of any period, as the expiration date.
• The notice is void, if one of these steps is not met. Its as if you never even gave it.
o Problems on pg 422
o Vacating premises, as well as re leasing the apartment is agreement to end lease.
6. Estate or tenancy at will:
• There is no guaranteed term at all
• There is a right to terminate immediately.
o In many states, if statue of frauds isn’t met, the lease remains tenant at will.
• Terminate estate at will
Tenancy at will in NY***
1) NY legislature protects tenants at will
• A thirty day prior notice requirement in order to terminate an estate at will.
• Only imposed on the landlord.
• Not on the tenant.

2) Courts have construed estates at will as personal contracts.
• If an individual signs a one year lease, but someone dies, the estate has to pay rent because its not personal contracts.
• Not true for an estate at will. This is a personal contract. Whenever either party dies the tenancy comes to an end.
When a tenant hold passed terms of tenancy, what rights to landlord have?
Most states:
• Tenancy from year to year is created by tenants holding over, and continued payment of yearly rent is reserved. A tenant gives the landlord the option of either:
• 1) Treating landlord as trespasser, or;
• 2) Holding the tenant to another term.
o Must be periodic term.
o Can never be in excess of one year.

In NY

• This is not the landlords options anymore
• The tenant has a choice to either pay rent or not to pay rent
• The landlord can accept the rent or reject the rent.
• If he rejects then the landlord is a trespasser.
• If he accepts the rent then the tenancy becomes a month to month tenancy
Fee simple absolute, subject to a covenant.
• When grantor imposes conditions, we can construe the grant as a de feasible estate or
• A non de feasible estate.
• Once the condition is breached, there is no forfeiture ever. There is no loss of title.
• There is injunctive relief or damages.
Policy in U.S Law against loss of title through forfeiture of estates:
Legal Presumption:
• When the nature of the conveyance is ambiguous we construe it in a manner, least likely to lead to forfeiture.
o Least likely is fee simple subject to a covenant
o Whenever there is ambiguity we use least likely to lead to forfeiture
Defenses to loss of title:
1. Statue of limitations
2. Possibility that legislature has gotten rid of fee simple determinable.
1. Statue of limitations
b. Only after judgment is there a loss of title.
c. Some states have statues for this.
d. Every state has a catch all statue of limitations

i. Typically is 6 years.
ii. 6 years after the breach.

iii. In NY it is 10 years, directed at fee simple determinable/condition subsequent
1. NYRP APL 6-12
2. Ny statute starts when the breach occurs
2. Possibility that legislature has gotten rid of fee simple determinable.
NY has modified defeasible estates as well in 1958 through two statues
i. Real property law 345
Any right of re entry of possibility or revertor created before 9/1/1958 in order for it to remained in force, the grantor must record a declaration of intention to keep restriction in force.
- Had 3 years to protect interest.
- Then must have declaration every 10 years after that.


2. RPAPL 1953
1. Any conveyance that would be fee simple determinable becomes a fee simple subject to condition subsequent.
2. Whether the forfeiture of title is valid, is up to the courts discretion. Whatever is in best interest of parties concerned.