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44 Cards in this Set

  • Front
  • Back
What do
1) Devisable
2) Descendable

1) it can pass by will

2) it can pass by laws of intestacy

3) it can be transfered, inter vivos (during holders lifetime
What is a fee simple absolute?

1) Language

2) Duration

3) Transferability

4) Future Interest
1) "To A" "To A and his heirs"

2) Infinite duration

3) Transferability - devisabl, descendable, alienable

4) No future interest
What is a fee tail?

1) Language

2) Duration

3) Transferability

4) Future Interest
rarely used.

1) "To A and the heirs of his body?

2) duration - lasts as long as blood line lasts

3) transfers automatically to lineal descendants

4) yes, in o the grantor, or remainder in someone else
What does it mean to be a defeasible fee
All are
what are the defeasible fees
1) fee simple determinable
2) fee simple subject to condition subsequent
3) fee simple subject to executory limitation
What is a fee simple determinatble?

1) Language

2) Duration

3) Transferability

4) Future Interest
1) "To A, until X happens"

2) potentially infinite, so long as event does not occur

3) devisable, descendable, alienable

4) yes, possibility of reverter
What is a fee simple subject to condition subsequent? ("fee on condition" in NY)

1) Language

2) Duration

3) Transferability

4) Future Interest
1) "to A, but if X happens, grantor reserves right to re-enter and take title"
*clear durational language
*carve out right to reenter

2) potentially infinite, so long as condition is not breached; thereafter, until holder of right of reentry timely exercises power of termiation

3) devisable, descendable, alienable - but subject to condition

4) yes, Right of Reentry with power of termination
What is a fee simple subject to executory limitation?

1) Language

2) Duration

3) Transferability

4) Future Interest
1) "To A, but if X happens, then to B"
*A has fee simple subject to a shifting executory interst
*B has shifting executory interest

2) Potentially infinite, so long as stated continency does not occur; if it does AUTOMATIC forfeiture

3) alienable, descendable, devisable - subjec to condition

4) yes, future interest - executory interest held by 3rd party (shifting executory interest)
can words of hope, desire, intention create a defeasible fee?
no, must be clear durational language (otherwise court will assume a fee simple absolute b/c court disfavors restrictions on free, unfettered use of land)
Can absolute restraints be put on land - e.g. "To A, so long as she never sells"
No. absolute restraints on alienation are void. An absolute ban on the power to sell or transfer, not linked to any reasonable, time-limited purpose will be conversted to a FSA.

So, "To A so long as she does not sell until 2009 IS a valis FSD with POR
What is a life estate"

1) Language

2) Duration

3) Transferability

4) Future Interest
1) To A for life

2) measured by life of transferee, or some other life "par autre ve"

3) alienable, devisable and descendible IF pur autre vie and measuring life are still alive
*can sell life estate

4) reversion if held by grantor; remainder if held by third party
what are the entitlements of a life tenant?
rooted in doctrine of waste
what is the doctrine of waste
1) life tenant is entitled to all ordinary uses and profits of land

2) life tenant must not commit waste (harm future interest in land)
what are the 3 species of waste
1)voluntary affirmative waste

2) permissive waste or neglect

3) ameliorative waste
what is voluntary affirmative waste
1) overt conduct that causes a decrease in value

2) life tenant must not consumer or exploit natural resources on such property (timber, oil, minerals, etc)
a)Prior Use (prior grant of land was used for exploitation -- limited to prior existing, open mines)
b) Reasonable repairs- LT may make reasonable repairs and maintenance of premises
c)Grant - LT may exploit if expressly granted right to do so
d) exploitation - land is suitable only for exploit
what is permissive neglect/waste
occurs when land is allowed ot fall into disrepair or KT fails to reasonably protect the land

1) obligation to repair - must maintain premises in reasonably good repair

2) ordinary taxes - must pay all ordinary taxes on land, to extent ther eis income/profits from fair rental value
what is ameliorative waste
can't improve land to enhance property value unless all future intrest holders are known and consent (think sentimentl alue)

NY - life tenant may make reasonable improvements unless remainser man objects
what are the six categories of future interests - classified by whether they are retained by the grantor or transferee
1) possibility of reverter
2) right of reentry
3) reversion

1) vested remainders
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
Possibility of reverter?
Accompanies only a Fee simple determinable

Right of Reentry, Power of termination
accompanies only a fee simple subject to condition subsequent
what is a reversion?
reversion is a future interest that arises in a grantor who transfers an estate of lesser quantum that she started with (other than a FSD or a FSSCS
What future interests are capable of creation in transferees
1) vested remainders

2) conteingent remainders

3) executory interests
what is a remainder
a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created
*always accompanies a preceding estate of known, fixed duration (life estate, estate of years)
*never follows a defeasible fee (waits for preceding estate to run its course, doesn't cut short or divest)
what is the difference b/w a vested remainder and a contingent remainder
vested -
1) if it is both created in an ascertained person and
2) is not subject to a condition precedent

1) if it is created in an unscertained person or
2) is subject to a condition precedent
what creates a contingent remainder?
1) remainder created in an as yet unborn or unascertained person
a) To A for life, then to B's first kid - B has no kids left
b) To a for life, then whatever kids of B that survive A - don't know hwo that is yet

2) Remainder that is contingent b/c subject to condition precedent -- condition appears *before* language creating remainder or is woven into grant to remaindermen
*if contingent condition occurs, contingent remainder automatically transfers (indefeasibly vested remainder)
How do contingent remainders interact with
1) At CL, if contingent remainder was still contingent at time preceding estate ended, it was destroyed.

NOW - rule is abolished. If B still contingent, O or O's heirs hold estate subject to B's springing executory interest
How do contingent remainders interact with
"To A for life, then on A's death, to A's heirs"

CL - future and present interests merged, giving FSA

NOW - virtually abolished. A has a life estate, A's heirs have contingent remainders, O has reversion interest since A could die without heirs
How do contingent remainders interact with
Applies when O (alive) tries to create a future interest in his heirs
"To A for life, then to O's heirs"

If doctrine of worthier title didn't apply, A has life estate, O's heirs have contingent remainder

BUT b/c of worthier title -- contingent remainder is void. A has life estate, O has reversion.

NOTE - rule of construction, not law, grantor's intent conrols and can contract around this

NY - abolished doctrine of worthier title with regard to transfers after 9-1-67
What are three types of vested remainders (only remainders that can vest)
1. indefeasibly vested remainder

2. vested remainder subject to complete defeasance

3. vested remainder subject to open
indefeasibly vested remainder
holder is certain to acquire an estate in teh future, with no strings attached or conditions

To A for life, then to B
vested remainder subject to complete defeasance
remainderman exists and his taking is not subject to any condition precedent, but can be cut short by condition subsequent.
vested remainder subject to open
remainder is vested in a group of takers, at least one of whom is qualified to take possession. each class members share is subject to partial diminution b/c asdditional takers, not yet ascertained can still qualify as class members
closed v. open class
closed = maximum membership has been set (people born thereafter are shut out)

open=possible for others to enter
what is an executory interest
future interest created in a transferee (a third party) which is not a remainder and which takes effect only by cutting short some interest in another person (shifting) or int eh grantor or his heirs (sprining)
shifting executory interest
follows a defeasible fee and cuts short someone other than grantor
springing executory interest
cuts short o, the grantor
wha tis ny's rule on executory and contingent remainders
ny has abolished distinction.

calls all "remainders subject to condition precedent"
what is the rule against perpetuities
certain kind of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after death of measuring life

*determined by end of life of someone, + 21 years
how do you assess potential rap problems
1) determine which future interests have been determined by conveyance
*RAP may apply to contingent remainders, executory interests, and certain vested remainders subject to open
*RAP does not apply to any future interest in the grantor, indefeasibly vested remainders, vested remainders subject to complete defeasance

2. identify condition precedent to vesting of suspect future interest

3. find a measuring life (look to person alive at death of conveyance and ask wehther that persons life is relevant to the conditions occurrence)

4. ask whether, with certainty, will we know within 21 years of death of measuring life, if our future interst holders can or cannot take. If so, conveyance is good; if not, future intrest is void.

NOTE - RAP assumes worst and octogonerian rule assumes person is fertile no matter what age
2 bright line rules of RAP
1) a gift to an open class tha tis conditioned on the members surviving to the age greater than 21 violates the RAP (so revertes back to O)

2. many shifting executory intereests violate the RAP. Executory intersts with no time limit on them within which it must vest violate RAP.
*If violates RAP, strike offensive part - A gets FSD, O possibility of reverter/ or A has FSA

BUT charity-to-charity exception (a gift from one charity to another does not violate RAP)
REforms of RAP - what is the wait and see/second look doctrine?
majority reform effort - validity of any suspect future interest is determined on the basis of facts as they NOW EXIST at conclusion of measuring life - eliminates "what if"
REforms of RAP -USRAP
codifies CL RAP, but adds 90 year vesting period
REforms of RAP -Cy Pres Doctrine
if given disposition violates RAP, court may reform it in way most closely matches grantors intent, while still complying with rap
what is ny's approach to these reformations?