Mbe Prop 2007

Front 1

Fee Simple Absolute (Language)

Back 1

To A
To A & his heirs (“and his heirs” no longer necessary)

Front 2

Fee simple (duration/transferability)

Back 2

Absolute ownership of potentially infinite duration.
Devisable descendible alienable

Front 3

Fee tail (language)

Back 3

1) To A and the heirs of his body
2) Basically abolished
3) Historically fee tail passes directly to grantee's lineal blood descendants. No matter what.
4) Today, fee tail actually creates fee simple absolute

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Fee tail (duration/transferability/future interests)

Back 4

1) Lasts only as long as there are lineal blood descendents of grantee.
2) Passes automatically to grantee’s lineal descendants
3) Reversion (if held by grantor) Remainder (if held by 3d party)

Front 5

Fee simple determinable (language)

Back 5

Upon a stated event, the land reverts to the grantor. Requires clear durational language.
If stated condition occurs, forfeiture is automatic
1) To A so long as
2) To A until
3) To A while

Front 6

Fee simple determinable (duration/transferability/future interest)

Back 6

1) Infinite as long as event does not occur
2) Alienable devisable descendible subject to condition!
3) Future interest: “possibility of reverter” held by grantor
(a) This is the only possible Future Interest for FS determinable

Front 7

4 categories of present, possessory, freehold estates

Back 7

1) Fee simple absolute
2) Fee tail
3) Defeasible fees 3 types
4) Life estate

Front 8

Devisable (define)

Back 8

Is the estate capable of passing by holders will

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Descendible defined

Back 9

Will estate pass by intestacy

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Heirs defined

Back 10

1) A living person has no heirs
2) While A is alive only prospective heirs. They are powerless

Front 11

Frank Sinatra didn’t prefer Orville Redenbacher
FSDPOR

Back 11

Fee Simple Determinable Possibility of Reverter
They always go together!
Upon a stated event, the land reverts to the grantor. Requires clear durational language.
If stated condition occurs, forfeiture is automatic
1) To A so long as
2) To A until
3) To A while

Front 12

Fee Simple Subject to Condition Subsequent language

Back 12

1) To A but if X occurs grantor reserves the right to reenter & take
2) Requires clear durational lang
3) And carving out the right to reenter & retake.

Front 13

Fee Simple Subject to Condition Subsequent (Future Interest)

Back 13

Right of entry/ Power of termination

Front 14

Fee Simple Subject to Condition Subsequent distinguishing characteristics

Back 14

1) NOT automatic termination, but can be cut short at grantors option if the stated condition occurs
2) My Prerogative!

Front 15

Fee Simple Subject to Condition Subsequent accompanying Future Interest

Back 15

Right of entry synonymous w power of termination

Front 16

Fee Simple Subject to Executory Termination Language

Back 16

To A but if X occurs then to B

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Fee Simple Subject to Executory Termination accompanying future interest

Back 17

Shifting executory interest

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Fee Simple Subject to Executory Termination distinguishing characteristics

Back 18

Similar to fee simple determinable, but if condition is broken estate is automatically forfeited in favor of 3d party, not grantor.

Front 19

Defeasible fees—rules of construction (2)

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1) Words of mere intention or desire never enough to create defeasible fee
(a) Courts disfavor restrictions on free, unencumbered, use of land
(b) Courts avoid finding defeasible fee unless clear durational language is used.
2) Absolute restraints on alienation are void if not linked to a reasonable, time limited, purpose
(a) No absolute bans on power to sell or to transfer allowed!

Front 20

Life estate Language

Back 20

Estate must be measured in explicit lifetime terms, & never in terms of years
To A for life
A is known as the life tenant
1) No term of years that’s a leasehold

Front 21

Life estate future interest

Back 21

1) Grantor has a reversion

Front 22

Life estate pur autre vie defined

Back 22

1) Life estate measured by life other that the grantee’s
2) To A for the life of B
3) Life tenant conveys interest...new holder has life estate pur autre vie

Front 23

Life Estate Distinguishing Characteristics

Back 23

Life estates are subject to doctrine of waste

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Life estate Doctrine of waste

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1) Life tenant entitled to all ordinary uses and profits from the land
2) Life tenant must not commit waste. Must not harm future interest holders

Front 25

3 types of waste

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1) Voluntary/affirmative waste
(a) Overt conduct that causes decrease in value.
2) Permissive Waste
(a) Neglect. Life T allows land to fall into disrepair. Life T must maintain in reasonably good repair.
(b) Permissive waste & taxes. Life T must pay ordinary taxes if income or profits from land. If no profits LT must pay ordinary taxes to the extent of fair rental value
3) Ameliorative waste
(a) No acts to enhance the prop less all future interest holders are known & consent!

Front 26

Waste w/r/t natural resources

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W/r/t natural resources life tenant can’t consume or exploit
PURGE
1) Prior Use, prior to grant recourses were exploited. Life tenant may continue to exploit
(a) Open mines. Life T can mine, but limited to already opened mines
2) R Reasonable repairs. Life T can consume resources for reasonable repairs & maintenance
3) G Grant life tenant may exploit if expressly granted the right.
4) E Exploitation. If land suitable only for exploitation. I.e. life tenant on quarry

Front 27

Life estate accompanying future interest

Back 27

Future interest held by grantor is reversion
FI held by 3d party: remainder!

Front 28

FI in Grantor (3)

Back 28

1) FI in Grantor
(a) Possibility of reverter
1. FSDPOR. Fee simple determinable POR
(b) Right of entry/power of termination
1. Only for Fee Simple Subject to condition subsequent
(c) Reversion
1. catch all. Any grantor who devises an lesser estate than what she has, other that FS determinable or FS subject to condition subsequent. I.e. life estate or estate for yrs. Leftover is reversion

Front 29

FI In transferee
3 types

Back 29

FI in transferees
1) Vested remainder
(a) indefeasibly vested remainder
(b) vested remainder subject to complete defeasance
(c) vested remainder subject to open
2) Contingent remainder
3) Executory interest
(a) Shifting executory interest
(b) Springing executory interest

Front 30

Characteristics of Remainder Interests

Back 30

1) Remainder is future interest created in grantee
(a) Never in grantor
2) Remainder is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created
3) Remainder typically accompanies life estate or term of yrs. Never follows defeasible estate! The remainder waits patiently!

Front 31

Distinguish vested and contingent remainders

Back 31

1) Remainder is vested if both created in known ascertained person and not subject to a condition precedent
(a) Condition Precedent: “ to B for life, then to C & heirs if C marries D.”
2) Contingent remainder if it is created in an unascertained person OR subject to any condition precedent
(a) To B’s heirs. If B is alive he has no heirs. Contingent remainder

Front 32

Condition precedent defined

Back 32

1) Condition is a condition precedent when it appears before the lang creating the remainder or is woven into the grant to the remainderman
2) “to A for life then, if B graduates from college, to B”
(a) Condition precedent = prerequisite
(b) If B graduates while A is alive, B has an indefeasible vested remainder

Front 33

Limiting rules on contingent remainders (3)

Back 33

1) Rule of destructibility
(a) At common law contingent remainder is destroyed if still contingent at the time the preceding estate ends. "To B for life, then to C if she reaches 21." B dies before C turns 21.
(b) Today destructibility rule abolished. O or O’s heirs hold estate subject to S's springing executory interest
2) Rule in Shelly’s Case
(a) To A for life then, on A’s death, to A’s heirs
(b) A is alive. Historically A's heirs have remainder. Shelly's case gave remainder to A.
(c) Now Shelly’s case abolished. Instead A has life estate, A’s heirs have remainder
3) Doctrine of Worthier Title

Front 34

Indefeasibly vested remainder (3 types of vested remainder others are:
-Vested remainder subject to open
-Vested remainder subject to complete defeasance (total divestment))

Back 34

1) Holder of this remainder is certain to acquire estate in the future w no conditions attached
2) To A for life then to B. B Has_____?
3) If B predeceases A, at common law B’s future interest passes by will or intestacy

Front 35

Vested remainder subject to complete defeasance (total divestment)
(Other 2 types of vested remainder:
-Indefeasibly vested remainder
-Vested remainder subject to open)

Back 35

1) Remainderman exists, not subject to any condition precedent
2) But right to possession could be cut short by CONDITION SUBSEQUENT
3) Comma Rule
(a) When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested reminder, that condition is a condition subsequent, and you have a vested remainder subject to complete defeasance
(b) “to A for life, remainder to B, provided, however that if B dies under age 25, to C.” A alive B is 20
(c) B has vested remainder subject to complete defeasance. C has a shifting executory interest. O has reversion

Front 36

Vested remainder subject to open
(Other 2 types of vested remainder:
-Indefeasibly vested remainder
-Vested remainder subject to complete defeasance (total divestment))

Back 36

1) Remainder is vested in a group at least one of whom is subject to take
2) But each class member's share is subject to partial diminution because others may enter the class.
(a) Class is closed when its maximum membership has been set. Later born are shut out

Front 37

Vested remainder subject to open
HT know when class closes

Back 37

1) Common law R of convenience
2) Class closes when any class member can demand possession.
(a) To A for life then to Bs kids. Class closes at As death or at Bs death because C & D can demand possession—no more kids.

Front 38

Executory interest

Back 38

1) Future interest created in a transferee (3d party) which is not a remainder and which takes effect by cutting short some interest in another (shifting) or in the grantor or his heirs (springing)

Front 39

Shifting executory interest defined
(Dr. Evil)

Back 39

1) Shifting executory Interest always follows a defeasible fee and cuts short someone other than O, the grantor
(a) To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs.”
(b) B has a shifting executory interest. B is Dr Evil!
(c) Why doesn’t B have a remainder? Because remainders never follow defeasible fees!
(d) A has---fee simple subject to B's shifting executory interest.

Front 40

Springing executory Interstate (defined)

Back 40

1) Springing executory interest cuts short grantor's interest
(a) "O conveys to A, if and when he marries.” A has a springing executory interest. O has a fee simple subject to A's springing executory interest.

Front 41

RAP (defined)

Back 41

Certain kinds of future interests are void if there is any possibility that the given interest may vest more than 21 yrs after the death of a measuring life.

Front 42

RAP does not apply to

Back 42

1) Any future interest in O, the grantor
(a) Possibility of reverter
(b) Right of re-entry
2) Indefeasibly vested remainders
3) Vested remainder subject to complete defeasance

Front 43

4 step RAP approach

Back 43

1) Determine which future interests have been created
(a) Contingent remainders
(b) Executory interests
(c) Certain vested remainders subject to open
2) Identify the conditions precedent to vesting of the subject interest
(a) I.e. what has to happen for future interest to vest
3) Find measuring life
(a) Person alive at conveyance. Is their life or death relevant to the conditions occurrence
4) Will we know with certainty w/in 21 years of the death of the measuring life whether the contingent remainder will vest.

Front 44

RAP 2 bright line rules (1st rule)
1) Gift to open class conditioned on the members surviving to an age beyond 21 yrs violates common law RAP

Back 44

2) Gift to open class conditioned on the members surviving to an age beyond 21 yrs violates common law RAP
(a) Bad as to one bad as to all.
(b) To A for life then to such of As children that live to age 30. A has 2 kids B & C. B 30 & C 45. A is alive. Because A is alive, class is still open. Class gift fails.
(c) B & Cs vested remainder subject to open are voided by common law RAP and its bad as to one bad as to all rule. Gift is bad as to a “potential one” because A alive could have another child. A could die, and new kids interest vests after 21 yrs.

Front 45

RAP 2 bright line rules (2d rule)
1) EXAM most shifting executory interests violate RAP

Back 45

1) EXAM most shifting executory interests violate RAP
(a) "To A and his heirs so long as the land is used for farm, if land ceases to be so used, to B & his heirs.”
(b) Future I: shifting executory Interest. What condition triggers? Cease farm use!
(c) Measuring life: Here, A.
(d) FI certain to vest within Measuring life + 21 yrs? No. Thus future interest is void! Result. To A and his heirs so long as the land is used for farm.
1. A has fee simple determinable. Frank Sinatra Doesn’t Prefer Orvil Redenbacker. O has Possibility of Reverter. RAP does not apply to FI in O!
(e) Compare: To A and his heirs but if the land ceases to be used for farm, to B and his heirs. Strike the offending clause? Leaves incomplete clause: To A and his heirs but if the land ceases to be used for farm...
1. so strike the entire condition and A has FS Absolute!

Front 46

RAP bright line rules 2

Back 46

1) EXAM most shifting executory interests violate RAP
2) Gift to open class conditioned on the members surviving to an age beyond 21 yrs violates common law RAP

Front 47

RAP Reform
Wait & See

Back 47

1) Wait & see or second look doctrine
2) Validity of any suspect FI is determined on the basis of the facts as they now exist at the conclusion of the measuring life

Front 48

Uniform Statutory RAP

Back 48

1) Codifies common law RAP and provides for 90 year

Front 49

US RAP & wait and see embrace cy press

Back 49

1) “as near as possible” gives court power to rescue a potential violation as near as possible to the grantors wishes without violating the RAP
2) Any offensive age contingency is reduced to 21 yrs. I.e. “then to kids who reach 30 yrs” reduced to 21 yrs.

Front 50

Joint tenancy define

Back 50

1) 2 or more own w right of survivorship.

Front 51

Tenancy by the entirety defined

Back 51

Protected martial interest between H & W with right of survivorship

Front 52

TIC defined

Back 52

2 or more own w no right of survivorship

Front 53

Joint tenancy distinguishing characteristics (2)

Back 53

1) Right of survivorship
(a) When one tenant dies his share goes auto to surviving joint tenant
2) Joint tenant's interest is alienable but not devisable descendible
(a) Because share on death goes to surviving tenant
3) Each owns equal interest plus right to use & enjoy the whole

Front 54

Creating joint tenancy requires

Back 54

T-TIP 4 unities
Take interests
1) By same time
2) By same title
3) I Identical interests
4) P Possess identical rights to possess the whole.
In addition to 4 unities Grantor must clearly express right of survivorship

Front 55

Joint tenancy—use of a straw

Back 55

Strawman. Convey to strawman. Strawman conveys back to joint tenants w right of survivorship. Thus 4 unities met.

Front 56

Severance of joint tenancy requires

Back 56

SPAM
1) Sale
(a) Okay for secret sale of interest w out others knowledge & consent
(b) One joint tenants sale severs the joint tenancy as to sellers interest because it disrupts the 4 unities. Thus buyer is a TIC
(c) Where 2+ joint tenants, the joint tenancy remains intact as to the other non-transferring joint tenants
2) Partition
3) And Mortgage

Front 57

Equitable conversion

Back 57

1) Equity regards as done that which ought to be done.
2) I.e. joint tenancy 3 tenants
(a) Ringo enters mere K for sale of interest in joint tenancy, closing next year. Under equitable conversion ringo’s Interest is severed when K entered into!

Front 58

Joint tenancy Severance & partition

Back 58

1) By voluntary agreement
(a) Peaceable always allowed
2) Partition in kind
(a) Court action for physical division if in the best interest of all parties. Creates separate properties
3) Forced sale
(a) Court action where, if in the best interests of all, prop will be sold and proceeds divided proportionately.

Front 59

Joint tenancy severance & mortgage

Back 59

Minority jxn follows title theory of mortgages.
One tenant who executes a mortgage or lien on share will sever.
Majority follow lien theory of mortgages whereby mortgage does not sever!

Front 60

Tenancy by the entirety characteristics

Back 60

Cant touch this
Creditors of only one tenant cant reach the prop.
Neither tenant acting alone can defeat right of survivorship by unilateral conveyance of their interest.

Front 61

Tenancy in Common characteristics

Back 61

1) Each co-tenant owns an individual part
2) And each as a right to possess the whole
3) Each interest fully descendable devisable and alienable.
4) No survivorship rights between TIC
5) Presumption favors TIC